The dire humanitarian situation in Gaza and Israel’s role in restricting humanitarian assistance into the territory have prompted a number of U.S. lawmakers (e.g. here, here, and here) including former Speaker of the House Nancy Pelosi to invoke a previously obscure provision of U.S. law: Section 620I of the U.S. Foreign Assistance Act which bars military assistance to states impeding U.S. humanitarian aid. The Biden administration has yet to adequately explain publicly (or to members of Congress in private, it seems) how it squares this law with widespread reports of Israel obstructing delivery of assistance to Gaza. There are, however, indications that the administration may be prepared to rely on a strained reading of section 620I to avoid invoking the provision, perhaps an interpretation that would allow for restrictions on aid short of a total blockade. The executive branch should resist the temptation to interpret the law unduly narrowly, in a manner that seems most convenient in the short term, and instead hew to a more faithful reading of the provision.
Subsection 620I(a) provides that:
No assistance shall be furnished under this Act or the Arms Export Control Act to any country when it is made known to the President that the government of such country prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.
Under subsection (b) of the provision, the President may waive this restriction if s/he determines doing so would be in the national interest.
Israel’s restrictions on humanitarian assistance for Gaza, as summarized in a CIVIC-Oxfam fact-sheet, begin with Israeli Defense Minister Gallant’s announcement on Oct. 9, 2023 of a “complete siege” on Gaza. For a time, all crossings between Israel and Gaza were closed. Even after the siege ended, according to Oxfam obstructions of humanitarian aid reduced food reaching people in Gaza to merely two-percent of the pre-conflict amount. Israeli Finance Minister Bezalel Smotrich announced in February he was blocking an aid shipment containing food on the basis that the recipient was the UN Relief and Works Agency for Palestinian refugees (UNRWA). Humanitarian organizations have also cited Israel’s arbitrary inspection regime as impeding aid. In addition, Israel has attacked humanitarian aid efforts, such as an UNRWA convoy in February and an UNRWA food distribution center in March. Indeed U.S. Vice President Kamala Harris alluded to such impediments to humanitarian assistance when she has said the “Israeli government must do more to significantly increase the flow of aid. No excuses. They must open up new border crossings, they must not impose any unnecessary restrictions on the delivery of aid. They must ensure humanitarian personnel sites and convoys are not targeted.”
Section 620I’s Enactment and Practice in Past Administrations
The legislation that would eventually result in section 620I was enacted in response to Turkey’s closure of its land border with Armenia in the 1990s which partially (though not completely) obstructed the movement of U.S. humanitarian aid. (John Ramming Chappel provides a brief summary of this history here.)
Congress enacted the law out of a combination of humanitarian and fiscal concerns. In introducing a forerunner of section 620I in 1994, the “Humanitarian Aid Corridor Act”, the legislation’s champion Senator Bob Dole (R-KS) observed that “United States aid to Armenia is far more expensive and far less effective because of Turkey’s blockade.” The sponsor of the companion legislation in the House, Rep. Richard Lehman (D-CA) noted it was a response to Turkey “restricting Red Cross and humanitarian aid, some of which was approved by this body, from being delivered to the starving people of Armenia.”
Dole reintroduced the legislation in 1995, explaining that the “intended effect of this legislation is to ensure the efficient and timely delivery of U.S. humanitarian assistance to people in need. It will help deter interference with humanitarian relief, as well as provide for the appropriate response in the event of interference or obstructionism.” Rep. Christopher Smith (R-NJ), the sponsor of the House version emphasized that the “legislation has one purpose only: to expedite the delivery of U.S. humanitarian aid to people who need it, in the most economical and direct manner possible.”
Later that year, Senator Dole introduced the legislation as an amendment to an appropriations act. He again emphasized the rationale of fiscal responsibility—that recipients of U.S. assistance should not be imposing higher costs on the U.S. taxpayer by impeding other U.S. aid.
[I]t does not make sense to offer U.S. taxpayer dollars unconditionally to countries that hinder our humanitarian relief efforts. And in light of budgetary constraints, it is imperative that U.S. relief efforts be timely and efficient. The Federal budget deficit and spending constraints require maximum efficiency in the usage of U.S. foreign assistance. And no doubt about it, countries that prevent the delivery of such assistance or intentionally increase the cost of the delivery of such assistance do not deserve unrestricted American assistance.
Senator Mitch McConnell (R-KY) explained his support for the measure in similar terms:
Countries which choose to blockade the delivery of U.S. humanitarian assistance exponentially increase the cost of that assistance. Currently, we find ourselves facing a situation where we are forced to stretch every dollar in the foreign assistance account. Allowing a nation to needlessly increase the cost of our assistance, thereby further limiting the amount of aid we are able to provide, is just simply unacceptable. We have a responsibility to the American taxpayer to ensure that their hard-earned money is sufficiently utilized.
What is clear from these statements is that Congress was focused not only on addressing complete blockades of U.S. humanitarian assistance, but also restrictive measures short of complete prohibitions that nonetheless increased the cost to the U.S. taxpayer.
The Clinton administration also seems to have understood the measure to apply to impediments to aid short of total embargos. In 1995, the administration opposed a comparably worded provision in the Foreign Relations Authorization Act (“United States assistance may not be made available for any country whose government prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.”) In explaining that the administration was “disturbed” by this provision, Secretary of Defense Perry noted that the “prohibition on assistance to countries which in any way restrict the flow of U.S. humanitarian aid would unduly damage our important security relations with Turkey.” (emphasis added).
Indeed, in the only instance in which the White House applied section 620I, then President Clinton seemingly found that NATO-ally Turkey’s closure of its border with Armenia (and hence partial obstruction of U.S. assistance) triggered the law even though Turkey had opened an air corridor to Armenia and had allowed assistance such as food and oil to flow by ship through Turkish straits to Armenia via ports in Georgia. President Clinton acknowledged even if the land border would be “reopened, we are likely to continue to ship most assistance to Armenia through Georgia to take advantage of its more developed rail network.” Nonetheless, Clinton invoked the law and used the national security waiver in subsection (b) to avoid restricting military assistance to Turkey.
Following the Turkey episode, section 620I laid dormant until Senator Todd Young (R-IN) cited it during the 2017 confirmation of President Donald Trump’s nominee to be the State Department’s Legal Adviser. Young raised it in connection with Saudi Arabia’s restrictions on goods entering Yemen. According to Foreign Policy, the State Department nominee initially responded that section 620I would only be triggered if Saudi Arabia blocked all U.S. assistance. This obtuse response which reportedly reflected the interpretation of the State Department rather than the nominee (who was a private citizen at the time) seems to have been unsatisfactory to the senator as he placed a hold on her nomination. Following further discussion of the matter with the senator, the nominee eventually retreated from this implausible interpretation and committed to study the matter further if confirmed.
Although Senator Young was concerned enough about Saudi Arabia’s (and indirectly the United States’) culpability for the grim humanitarian situation in Yemen to hold the nominee’s confirmation, 620I was not a particularly good tool to target Saudi Arabia’s conduct. For the purposes of section 620I as well as other provisions of U.S. foreign relations law, the U.S. executive branch interprets “assistance” to mean U.S. taxpayer-funded assistance and not arms or other support that a foreign state pays for with its own national funds. Because Saudi Arabia paid for U.S. weapons and other defense articles and services with its own money, such support would not implicate the restrictions under section 620I.
Applying the Law to Israel
Israel, however, is a different story. Israel is the largest recipient of U.S. taxpayer-funded, military assistance in the world, receiving more than $3 billion dollars of foreign military financing a year and potentially more via supplemental foreign assistance legislation pending in Congress. Israel uses this foreign military financing (in addition to its own national funds) to purchase a range of U.S. weapons—including weapons used in the Gaza war. The United States has approved over 100 arms sales to Israel since Hamas’s attack on the country on October 7th, including two under emergency authorities that bypassed normal congressional review.
The restrictions under 620I could therefore have teeth with respect to Israel. Although the President could waive the restrictions (as he almost certainly would if that were the only route to continued provision of military assistance), a formal U.S. acknowledgment that Israel was restricting U.S. humanitarian assistance into Gaza at a time when children in Gaza are starving would be unattractive to the White House for a number of legal and political reasons. Amongst others concerns, administration lawyers would likely be concerned about how such a U.S. government admission would play before the International Court of Justice in a case brought by South Africa alleging Israel violated the Genocide Convention in relation to Gaza. After laying out the dire humanitarian situation in Gaza at some length, the Court ordered Israel to take provisional measures in January, including to “take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza.”
Interpreting and Misinterpreting 620I
To date, despite being pressed by members of Congress and the press, the Biden administration has shed little light on how it interprets the law and reviews compliance. It has not fully explained whether Israel’s restrictions on aid entering Gaza implicate section 620I and if not, why not. The spokesman for the State Department has indicated the administration has not yet come to a conclusion regarding the application of this provision and also suggested that law might not be triggered by “security screening” or the prohibition of “dual use items” and cited the fact that Israel was not completely blocking U.S. humanitarian assistance entering Gaza.
Such strained legal interpretations are hard to square with the text of section 620I, the legislative history of the provision, and the Clinton administration’s interpretation with respect to Turkey. 620I has three key elements: (1) a state prohibits or otherwise restricts; (2) U.S. humanitarian assistance; which would trigger (3) suspension of U.S. military assistance.
The text, legislative history, and the Clinton administration’s interpretations indicate that “otherwise restricts” was meant expansively, to include in the words of Secretary Perry, impediments which “in any way restrict” the flow of U.S. humanitarian assistance. Moreover, as laid out in the fiscal responsibility rationale by Senators Dole and McConnell, Congress was particularly concerned about restrictions that increased the cost to the U.S. taxpayer of providing humanitarian aid. Thus, the text, legislative history, and contemporaneous executive branch interpretation do not allow for loopholes in which security screening or exclusion of dual-use goods does not amount to a restriction. Instead, it imposes a categorical requirement that funds to the restricting state be cut off for any kind of restriction of U.S. humanitarian assistance (of note, the standard in 620I may exceed obligations under the law of war in some situations).
In terms of the second element, the legislative history of the measure suggests a broad reading of “U.S. humanitarian assistance.” The fiscal responsibility rationale in particular emphasized minimizing costs to the U.S. taxpayer. Thus, it is reasonable to interpret this term to encompass not only U.S.-origin assistance, but also assistance funded in whole or in part by the U.S. taxpayer, particularly as much of U.S. foreign assistance is provided through multilateral bodies for which the United States is a significant donor.
Finally, as mentioned above, the U.S. executive branch has long interpreted “military assistance” in this context to refer to support funded by the U.S. taxpayer rather than that purchased by a state using their own national funds. Such an interpretation is consistent with the fiscal responsibility rationale advance by the namesake of the Dole amendment.
Law Likely Triggered
Taken together, this interpretation of section 620I applied to Israel’s conduct in Gaza provides a strong basis to conclude this provision has been triggered.
With respect to restrictions on assistance, numerous Israeli actions appear to implicate section 620I, particularly given that the law applies to any direct or indirect restriction on the delivery or transport of U.S. aid. For example, in addition to outright blocking aid as Finance Minister Smotrich did with respect to flour to be distributed by UNRWA, Israel has also restricted the entry of humanitarian assistance into Gaza through seemingly arbitrary and time consuming screening of aid shipments entering the territory. Thus, to the extent it impedes the transport or delivery of U.S. humanitarian assistance, such “security screening” must be understood as a form of restriction.
With respect to whether the restricted aid was “U.S. humanitarian assistance,” it seems likely that some or much of the affected assistance was at least partially funded by the United States given that the United States is a funder of such bodies as the World Food Program (providing it $11 million for Gaza and the West Bank for 2024) and UNRWA (contributing $371 million in 2023).
Moreover, it is certain that U.S. delivery of humanitarian assistance via airdrops and the yet to be constructed pier will in combination cost the U.S. taxpayer considerably more money than the transport of such aid by truck in Gaza. Although the U.S. government has not publicly disclosed the total price tag of the military airdrops or pier operation, Jeremy Konyndyk, the former USAID lead for disaster relief, has assessed air delivery to be roughly eight to ten times more expensive than transport by road. Other estimates (here and here) of the cost differential are even higher. As for providing assistance through a maritime corridor using the anticipated U.S. military-built pier, the expense will include not only construction of the infrastructure and DoD involvement in its operation, but also ongoing U.S. force protection, which U.S. officers have indicated may involve U.S. military assets. Needless to say, the fact that the Biden administration has had to resort to such expensive measures to deliver humanitarian assistance squarely implicates the fiscal responsibility rationale underlying section 620I.
Given the dreadful humanitarian circumstances in Gaza, the United States needs to take urgent steps to ameliorate conditions there, including by using its leverage with Israel. The Biden administration also needs to faithfully apply U.S. law, including section 620I. Rather than advancing farfetched interpretations of this law, the United States should be using the leverage that this provision creates to shape more responsible Israeli policies toward aid delivery.