AP (“US says Israel’s use of US arms likely violated international law, but evidence is incomplete“):
The Biden administration said Friday that Israel’s use of U.S.-provided weapons in Gaza likely violated international humanitarian law but that wartime conditions prevented U.S. officials from determining that for certain in specific airstrikes.
The finding of “reasonable” evidence to conclude that the U.S. ally had breached international law protecting civilians in the way it conducted its war against Hamas was the strongest statement that the Biden administration has yet made on the matter. It was released in a summary of a report being delivered to Congress on Friday.
But the caveat that the administration wasn’t able to link specific U.S. weapons to individual attacks by Israeli forces in Gaza could give the administration leeway in any future decision on whether to restrict provisions of offensive weapons to Israel.
The first-of-its-kind assessment, which was compelled by President Joe Biden’s fellow Democrats in Congress, comes after seven months of airstrikes, ground fighting and aid restrictions that have claimed the lives of nearly 35,000 Palestinians, mostly women and children.
While U.S. officials were unable to gather all the information they needed on specific strikes, the report said that given Israel’s “significant reliance” on U.S.-made weapons, it was “reasonable to assess” that they had been used by Israel’s security forces in instances “inconsistent” with its obligations under international humanitarian law “or with best practices for mitigating civilian harm.”
Israel’s military has the experience, technology and know-how to minimize harm to civilians, but “the results on the ground, including high levels of civilian casualties, raise substantial questions as to whether the IDF is using them effectively in all cases,” the report said.
International human rights groups and a review by an unofficial panel of former State and military officials, academic experts and others had pointed to more than a dozen Israeli airstrikes for which they said there were credible evidence of violations of the laws of war and humanitarian law. Targets included aid convoys, medical workers, hospitals, journalists, schools and refugee centers and other sites that have broad protection under international law.
They argued that the civilian death toll in many strikes in Gaza — such as an Oct. 31 strike on an apartment building reported to have killed 106 civilians — was disproportionate to the value of any military target.
Israel says it is following all U.S. and international law, that it investigates allegations of abuse by its security forces and that its campaign in Gaza is proportional to the existential threat it says is posed by Hamas.
WaPo (“Biden’s isolation grows as Gaza report both criticizes and clears Israel“):
The State Department’s report on the war in Gaza — which suggested Israel had likely violated international law yet remained eligible to receive U.S. military aid — has left President Biden increasingly isolated on an issue that has consumed his presidency and complicated his reelection bid.
Like much of Biden’s, at times, halting approach toward the war, the report released to Congress on Friday drew criticism from across the political spectrum. Progressives described the report as lacking moral clarity about a humanitarian catastrophe, while pro-Israel groups called it the latest example of the president undermining a key ally in the middle of a war.
The bipartisan praise Biden received for his early response to the Oct. 7 attack against Israel has all but disappeared, replaced instead by acrimony. In an election year already marked by protests and counterprotests, Biden faces the risk that voters who disapprove of his handling of the war in Gaza for disparate reasons could disrupt his path to a second term.
“There are two large groups of voters in the United States today when it comes to the domestic protests: people who want the president to stop the rage and people who want the president to solve the issues that have created the rage,” said Russell Riley, a presidential historian at the University of Virginia’s Miller Center. “The president’s fundamental problem is that he has little real power to do either.”
NYT (“The U.S. criticizes Israel for failure to protect civilians in the Gaza conflict“) adds:
[T]he report — which seemed at odds with itself in places — said the United States had no hard proof of Israeli violations. It noted the difficulty of collecting reliable information from Gaza, Hamas’s tactic of operating in civilian areas and the fact that “Israel has not shared complete information to verify” whether U.S. weapons have been used in specific incidents alleged to have involved human rights law violations.
[…]
The report said its findings were hampered in part by the challenges of collecting reliable information from the war zone and the way Hamas operates in densely populated areas. It also stressed that Israel has begun pursuing possible accountability for suspected violations of the law, a key component in the U.S. assessment about whether to provide military aid to allies accused of human rights violations.
Israel has opened criminal investigations into the conduct of its military in Gaza, the report said, and the Israel Defense Forces “are examining hundreds of incidents” that may involve wartime misconduct.
The report also did not find that Israel had intentionally obstructed humanitarian aid into Gaza.
While it concluded that both “action and inaction by Israel” had slowed the flow of aid into Gaza, which is desperately short of necessities like food and medicine, it said that “we do not currently assess that the Israeli government is prohibiting or otherwise restricting the transport or delivery of U.S. humanitarian assistance” into the territory.
[…]
Brian Finucane, a former State Department lawyer now with International Crisis Group, said the report “bends over backwards” to avoid concluding that Israel violated any laws, a finding that would place major new pressure on Mr. Biden to restrict arms to the country.
Mr. Finucane, a critic of Israel’s military operations, said that the report was “more forthcoming” than he had expected, but that he still found it “watered down” and heavily “lawyered.”
The findings further angered a vocal minority of Democrats in Congress who have grown increasingly critical of Israel’s conduct in Gaza. They argue that Israel has indiscriminately killed civilians with American arms and intentionally hindered U.S.-supplied humanitarian aid.
[…]
The State Department report showed clear sympathy for Israel’s military challenge, repeating past statements by the Biden administration that Israel has a “right to defend itself” in the wake of the Oct. 7 Hamas attacks. It also noted that military experts call Gaza “as difficult a battlespace as any military has faced in modern warfare.”
“Because Hamas uses civilian infrastructure for military purposes and civilians as human shields, it is often difficult to determine facts on the ground in an active war zone of this nature and the presence of legitimate military targets across Gaza,” it said.
Even so, it singled out numerous specific incidents where Israel’s military had killed civilians or aid workers, the latter of which it called a “specific area of concern.”
WaPo has posted the entire 46-page report in PDF form. It contains a lengthy discussion of US laws and assesses several countries receiving US military assistance engaged in active conflict: Colombia, Iraq, Israel, Kenya, Nigeria, Somalia, and Ukraine. The Israel country report is contained on pages 18-32.
The above reports adequately cover the section but I’d like to highlight some other language.
The Government of Israel has asserted that approximately half of the 34,700 killed in Gaza have been Hamas fighters, though we do not have the ability to verify this estimate.
These are both true statements. But, even as one who supports Israel’s war aims and is sympathetic to the challenges of protecting noncombatants in an environment Hamas deliberately created, I find it wildly implausible that anywhere close to half of the deaths are Hamas fighters. Indeed, I’d be shocked if it was as much as a quarter.
Israel has had to confront an extraordinary military challenge: Hamas has embedded itself deliberately within and underneath the civilian population to use civilians as human shields. Hamas intentionally uses schools, hospitals, residential buildings, and international organization facilities for military purposes. It has constructed a vast tunnel network beneath this civilian infrastructure not to protect civilians, but to hide its leaders and fighters and from which it stages and launches attacks. Hamas has not expressed regret for the intentional targeting of Israeli civilians, and its charter and statements by its leadership continue to call for the destruction of Israel. Hamas continues to hold more than 100 hostages, continues to fire rockets into Israel indiscriminately, and has pledged to conduct attacks on the scale of October 7th again. Military experts describe Gaza as being as difficult a battlespace as any military has faced in modern warfare.
This is absolutely crucial context. While Israel absolutely has a duty to minimize noncombatant casualties—and has, for example, constantly ordered evacuations of areas being targeted—it’s essentially impossible to do under the circumstances. Hamas isn’t immune from being attacked because it is hiding amongst the civilian population.
There is, on pp. 19-20, a rather detailed description of the institutions, training, processes, etc. Israel takes with regard to International Humanitarian Law. They are extensive, as befitting a modern country with a professional military. Not noted is that Hamas has none of these and, indeed, is routinely engaged in perfidy, hiding among the civilian population in civilian clothing, conducting operations from hospitals and other protected spaces, and otherwise using the laws of war against their enemy.
That said, this is concerning:
One specific area of concern is the impact of Israel’s military operations on humanitarian actors. Despite regular engagement from humanitarian actors and repeated USG interventions with Israeli officials on deconfliction/coordination procedures, the IDF has struck humanitarian workers and facilities. While Israel repeatedly committed to improve deconfliction and implemented some additional measures, those changes did not fully prevent subsequent strikes involving humanitarian workers and facilities during the reporting period. The USG will continue to press the Government of Israel on the need to do more to create a permissive and safe environment for delivery and distribution of aid. The UN reports that more than 250 humanitarian workers have been killed in the course of their work or in other circumstances. Multiple military operations have taken place in protected or de-conflicted sites or in areas designated for evacuees. Some of these incidents during the reporting period that have received widespread attention in media or are cited by humanitarian organizations as illustrative of the operating environment in Gaza are noted below.
Several incidents, which I won’t excerpt here because formatting from PDFs is slow, are detailed on pp. 23-25. None of them are conclusive but, in at least two incidents (the World Food Kitchen incident on 1 April and Medecins Sans Frontieres incident on 20 February) there was prior coordination between aid workers and the IDF.
All in all, an unsettling report but not a shocking one. We’ve known since the beginning of the attacks that Israel is relying on overwhelming force in an urban environment. That a lot of civilians, including aid workers, are getting killed is all but inevitable.
The larger question of whether these deaths are proportional to the military value of the targets is ultimately a judgment call that will be made well after the fact in international legal tribunals. “Proportionality” is not a mathematical formula but rather a post hoc assessment.
