On Friday, May 10, the Biden administration released its overdue first report required by National Security Memorandum 20 (NSM-20) assessing the conduct of Israel and other foreign governments that receive weapons from the United States. Journalists and lawmakers have especially anticipated the administration’s findings on Israel, but the report also includes assessments of conduct by the governments of Colombia, Iraq, Kenya, Nigeria, Somalia, and Ukraine. 

The United States provides more weapons than any other country in the world to Israel. Germany is Israel’s second largest supplier. Since the October 7 Hamas attack, the United States has reportedly transferred bombs, artillery shells, precision guidance kits (which are attached to bombs for targeting purposes), tank ammunition, guided missiles, firearms, drones, various types of ammunition, and other weapons to the Israeli government. Journalists and human rights investigators have documented the use of U.S. bombs, artillery shells, tank shells, precision guidance kits, and aircraft in attacks that have killed civilians, apparently violated international humanitarian law, and may amount to war crimes. 

The NSM-20 report finds “it is reasonable to assess” that Israeli security forces have used U.S. weapons to violate international humanitarian law or best practices for reducing harm to civilians. However, as noted by former State Department officials, the report conspicuously avoids making specific legal determinations and concludes that Israel’s assurances regarding humanitarian aid and international law compliance are “credible and reliable,” meaning that the United States can continue to supply its partner with weapons covered under NSM-20.

The most important response to the report will come from Congress, and specifically Senator Chris Van Hollen (D-MD), who authored the proposed amendment that served as the precursor to NSM-20. In reaction to the report, Van Hollen said it “fails to do the hard work of making an assessment and ducks the ultimate questions that the report was designed to determine.” 

Notably, the day before the report’s release, Axios’ Barak Ravid reported, that the State Department’s Bureau of Democracy, Human Rights and Labor and USAID “recommended” that Secretary of State Antony Blinken “conclude that Israel has violated the terms of the national security memorandum, but other parts of the department pressed Blinken to certify that it didn’t.” 

In a full statement reflecting on the report, Van Hollen remarked, “Today’s report also indicates a continuation of a disturbing pattern where the expertise and analyses of those working most closely on these issues at the State Department and at USAID have been swept aside to facilitate a predetermined policy outcome based on political convenience.” On the other hand, Senate Foreign Relations Committee Chair Ben Cardin (D-MD) expressed agreement with the report’s “assessment that Israel has not violated International Humanitarian Law and that military assistance to support Israel’s security remains in the U.S. interest and should continue.”

 Below are highlights from the report, followed by deeper context, analysis, and implications. 

  • The report did not conclude that the United States is required to suspend arms transfers as a matter of law or policy. 
  • The NSM-20 report concludes that “given Israel’s significant reliance on U.S.-made defense articles, it is reasonable to assess that defense articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL [international humanitarian law] obligations or with established best practices for mitigating civilian harm.” (Emphasis added.) 
  • The U.S. government did not find any violations of Section 620I of the Foreign Assistance Act, which bars military aid to any government that “prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.” However, the United States “will continue to monitor and respond.” 
  • Beyond Section 620I, the report notes that the Israeli government has taken actions that “delayed or had a negative effect on the delivery of aid to Gaza” and that “the overall level reaching Palestinian civilians – while improved – remains insufficient.” However, it further finds that in some instances, Israel may have restricted the delivery of humanitarian aid, but did not do so arbitrarily. 
  • The Israeli government “has not shared complete information to verify whether U.S. defense articles covered under NSM-20 were specifically used in actions that have been alleged as violations of [international human rights or humanitarian law] in Gaza, or in the West Bank and East Jerusalem during the period of the report.” Israel did share “some information on specific incidents,” which implicate international humanitarian law, “some details of its targeting choices, and some battle damage assessments.” 
  • The Intelligence Community “assesses that Israel could do more to avoid civilian harm.” Customary international humanitarian law stipulates: “All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.”

What NSM-20 Requires 

In terms of global weapons exports, the United States sends more weapons abroad than any other country in the world and more than the next six countries combined. Last year, the United States exported more than $80 billion in arms. While U.S. weapons transfers can contribute to a range of legitimate foreign policy priorities, they can also contribute to human rights abuses, harm to civilians, corruption, armed violence, crime, and other risks. NSM-20 is the latest policy that seeks to address the most serious downside risks and review how U.S. weapons are used.

NSM-20 is a presidential policy requiring that all countries receiving weapons from the United States that are funded with U.S. taxpayer dollars provide credible and reliable written assurances to the U.S. government. Those assurances commit the recipient to facilitate the delivery of humanitarian aid and use such weapons in a manner that complies with international law. Countries that do not provide those assurances are not eligible to receive U.S.-funded weapons, but the policy provides a narrow waiver, which allows that in “rare and extraordinary circumstances,” a country that does not provide assurances may remain eligible. 

NSM-20 does not extend to weapons purchased with another government’s national funds or to air defense systems, weapons “intended to be used for strictly defensive purposes,” or “non-lethal” weapons. The precise scope of this carve-out remains unclear but surely covers support for the Israeli Iron Dome missile defense system.

For countries that the United States considers to be currently engaged in armed conflict (Colombia, Iraq, Israel, Kenya, Nigeria, Somalia, and Ukraine), those assurances were due 45 days after the release of the policy. All other countries receiving U.S.-funded weapons must provide such assurances within 180 days of the policy’s release (Aug. 6TK, 2024). Israeli defense minister Yoav Gallant submitted written assurances to the Biden administration on March 14. Blinken reportedly accepted them as credible and reliable on March 25.

NSM-20 also requires reporting to congressional committees assessing U.S. weapons recipients’ violations of international law, failures to implement best practices for civilian harm mitigation, and restrictions on humanitarian aid. Friday’s report – filed two days past the May 8 deadline – is the first annual report provided, covering the period between January 2023 and the report’s submission.

In addition to the annual reports, NSM-20 establishes a rolling process for the Biden administration to assess the credibility and reliability of assurances provided by foreign governments whenever the Secretary of State or the Secretary of Defense assesses that the assurances have been “called into question and should be revisited.” 

No New Suspension of Arms Transfers

As a bottom line, Friday’s report does not conclude that the United States is required to suspend arms transfers. When Secretary Blinken initially accepted Israel’s assurances regarding international law and humanitarian aid as credible and reliable on March 25, he faced significant opposition on that finding from within the U.S. government, from legislators, and from leading human rights and humanitarian organizations. Blinken also faced criticism from other directions, including a joint letter from Representative Michael McCaul (R-TX), chairman of the House Foreign Affairs Committee and Senator Jim Risch (R-ID), ranking member of the Senate Foreign Relations Committee calling for the repeal of NSM-20. They argued that NSM-20 is duplicative of already existing U.S. law and “leave[s] open the possibility of overly broad or inconsistent interpretations.”

With that backdrop, the report concluded that Israel’s assurances are “credible and reliable so as to allow the provision of defense articles covered under NSM-20 to continue.” 

This finding follows the Biden administration’s imposition of a condition on aid to Israel and its first announced pause of a weapons delivery to Israel. These decisions come as Biden faces considerable pressure on his Gaza policy and aid to Israel, particularly after Israeli forces entered Rafah, the 25-square-mile governorate in Gaza where more than a million displaced Palestinians are sheltering.

On May 8, the Biden administration reportedly paused the delivery of a shipment of 3500 500- and 2000-pound bombs to Israel. Secretary of Defense Lloyd Austin cited concerns with the Israeli military’s Gaza offensive. Although this marks the first time that Biden has publicly announced the suspension of an arms transfer to Israel, Representative Gregory Meeks (D-NY), Chair of the House Foreign Affairs Committee, previously placed an informal hold on a sale of F-15 war planes that the Biden administration has proposed.

In an interview on CNN on May 8, Biden confirmed the recent suspension of a shipment of weapons and committed that, if the Israeli military enters population centers in Rafah, he will not supply “the weapons that have been used historically to deal with Rafah, to deal with the cities.” Much remains unclear about this condition, including what categories of weapons would be covered beyond 2000-pound bombs and artillery shells, both of which Biden mentioned. Aid groups report that Israeli forces are already present in Rafah, but Biden administration officials claim that the president’s red line has not been crossed.

Although the NSM-20 report does not expand upon Biden’s recent decisions to restrict and condition certain arms transfers to Israel, several pre-existing laws and policy frameworks impose conditions on arms transfers and security assistance. Those laws and policies – including the Leahy Laws, Sections 502B and 620I of the Foreign Assistance Act, and the Conventional Arms Transfer policy –  may independently require the suspension of certain arms transfers or security assistance. 

U.S. Arms Likely Used to Violate International Law, But No Legal Determinations

The report notes “numerous credible UN, NGO, and media reports of Israeli airstrikes impacting civilians and civilian objects… that have raised questions about Israel’s compliance with its legal obligations under IHL and with best practices for mitigating civilian harm.” The State Department specifically points to several incidents, including multiple strikes on Jabaliya refugee camp and an Amnesty International-documented strike on the home of the al-Mu’eileq family in Deir al-Balah, which killed 43 civilians according to the group.

The NSM-20 report concludes that:

given Israel’s significant reliance on U.S.-made defense articles, it is reasonable to assess that defense articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL obligations or with established best practices for mitigating civilian harm. 

Similarly, the report found that “certain Israeli-operated systems are entirely U.S.-origin (e.g., crewed attack aircraft) and are likely to have been involved in incidents that raise concerns about Israel’s IHL compliance.” 

Part of the U.S. government’s analysis regarding international humanitarian law focuses on Israel’s “institutions and processes” rather than legality of specific actions. It also states   that the United States does “not have complete information on how these processes are implemented.” As discussed below, this fits into a broader issue raised in the report: the Israeli government has apparently not fully cooperated with U.S. efforts to assess how Israeli forces use U.S. weapons. 

Although the NSM-20 report readily concluded that “Hamas does not follow any portion of and consistently violates IHL” – a conclusion that exceeds the scope of the reporting requirement – it generally avoids drawing specific legal conclusions about any such violations by the Israeli military despite “significant concerns.” 

Regarding accountability for possible violations, the report cites ongoing Israeli investigations of incidents but notes: “Recognizing such investigations and legal processes take time, to date” the U.S. government “is unaware of any Israeli prosecutions for violations of IHL or civilian harm since October.”

The Israeli Military Is Not Doing Enough to Protect Civilians

As a threshold matter it is important to note that international humanitarian law requires States to take “all feasible precautions” to minimize civilian injury and deaths. Additional Protocol I to the Geneva Conventions and customary international law could not be more clear. Failure to comply with this obligation is a violation of international law. In U.S. policy, Defense Secretary Austin has called the protection of civilians in conflict a “significant strategic and moral imperative.”

According to the NSM-20 report, the State Department reviewed reports of civilian harm that “raised serious questions” about Israel’s implementation of civilian harm mitigation best practices. The report discusses the Israeli military’s use of no-strike lists (which are lists of locations and entities that should not be targeted), “tactical pauses,” and humanitarian deconfliction measures. In each case, the report cites humanitarian organizations’ concerns that these practices have been insufficient and inconsistent. 

The report does not specifically engage with best practices like understanding the civilian environment, cognitive bias, red-teaming, civilian harm tracking and assessments, and amends for civilian harm, which have featured prominently in U.S. reviews of civilian harm policies and practices. Nor does it engage with the Israeli military’s use of explosive weapons in densely populated areas of Gaza. The United States has endorsed the 2022 Political Declaration on the Use of Explosive Weapons in Populated Areas, which commits, among other provisions, that its own armed forces will: 

adopt and implement a range of policies and practices to help avoid civilian harm, including by restricting or refraining as appropriate from the use of explosive weapons in populated areas, when their use may be expected to cause harm to civilians or civilian objects.

“The IC [Intelligence Community] assesses that Israel could do more to avoid civilian harm,” the report states. No effort is made in the report to reconcile such assessments with the international humanitarian law obligation to take all feasible precautions to minimize civilian harm. 

The report also concludes: “While Israel has the knowledge, experience, and tools to implement best practices for mitigating civilian harm in its military operations, 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 briefly discusses the implementation of the Civilian Harm Incident Response Guidance, a set of guidelines announced in September to create a process for tracking the use of U.S. weapons in civilian harm incidents. The report notes: “85 alleged incidents of civilian harm involving Israeli military operations in Gaza have been submitted to the CHIRG for evaluation, and approximately 40 percent of those cases have been closed.” Although the State Department is engaging with the Israeli military to create a “dedicated channel” focused on reviewing civilian harm incidents and making civilian harm mitigation recommendations, the report implies that no such channel currently exists.

Concerns About Humanitarian Aid Restrictions – But U.S. Law Not Triggered

NSM-20 requires reporting on covered countries’ compliance with the requirements of Section 620I of the Foreign Assistance Act, which prohibits U.S. military aid to any government that “prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.” The Van Hollen amendment, and subsequently NSM-20, have significantly raised the profile of Section 620I. Since the release of the Van Hollen amendment, dozens of members of Congress and non-governmental organizations have claimed that continued military aid to Israel violates Section 620I. (See Brian Finucane’s analysis in Just Security.)

In addition to Section 620I, NSM-20’s reporting requirement requires assurances that a covered country will “facilitate and not arbitrarily deny, restrict, or otherwise impede, directly or indirectly, the transport or delivery of United States humanitarian assistance and United States Government-supported international efforts to provide humanitarian assistance.” 

The State Department acknowledges in its report that several Israeli government actions have impeded the delivery of humanitarian aid. According to public reporting, humanitarian organizations have documented restrictions on items that the Israeli government considers “dual-use,” with military and civilian applications, including anesthetics, maternity kits, and water filters. The presence of a “dual-use” item on a truck entering Gaza can result in Israeli authorities’ denying the entry of the entire truckload of aid. For its part, the NSM-20 report acknowledges that the Israeli government “has, on occasion, stretched dual-use issues to a concerning degree.” The report also notes “denials or delays of specific movements of humanitarian actors.” Similarly, the U.N. Office of the Coordinator for Humanitarian Affairs has regularly documented instances in which Israeli authorities have not approved humanitarian aid delivery missions in various parts of Gaza. 

In addition to restrictions on the delivery of humanitarian aid, the report discusses Israel’s attacks on humanitarian aid workers and facilities. The report lists several strikes on humanitarians, including the killing of seven World Central Kitchen aid workers, a strike on an International Rescue Committee and Medical Aid for Palestinians housing compound, and the reported killing of 118 civilians awaiting the delivery of food aid. 

However, the State Department does not find that the continued provision of military aid to Israel violates Section 620I. Nor does the report elaborate on the State Department’s interpretation of Section 620I, which it has not disclosed publicly. The report finds that several Israeli military practices impede the delivery of humanitarian aid “but not necessarily in an arbitrary manner,” as is required in NSM-20’s language independent of Section 620I. Nevertheless, the State Department concludes that the “overall level reaching Palestinian civilians – while improved – remains insufficient.” The report commits that the United States “will continue to monitor and respond.” 

Israeli Military Has Not Fully Cooperated With U.S. Authorities to Examine Weapons Use

Determining whether a violation of international humanitarian law has occurred is typically a fact-intensive process, and NSM-20’s scope (i.e., it only covers U.S. weapons paid for using U.S. taxpayer dollars) make that process all the more difficult. The report acknowledges “it is often difficult to make swift, definitive assessments or determinations on whether specific U.S. defense articles or services have been used in a manner not consistent with international law.” However, the NSM-20 report repeatedly notes difficulties securing the Israeli government’s cooperation in assessments of how it uses U.S. weapons. 

The Israeli government “has not shared complete information to verify whether U.S. defense articles covered under NSM-20 were specifically used in actions that have been alleged as violations of [international human rights or humanitarian law] in Gaza, or in the West Bank and East Jerusalem during the period of the report.” Nor has the Israeli government provided “full visibility into Israel’s application of [international humanitarian law] principles and procedures.” Israel did share “some information on specific incidents implicating IHL [international humanitarian law], “some details of its targeting choices, and some battle damage assessments.” That’s it: some.

Since the United States has provided nearly $20 billion in military aid to Israel in the past year and carried out more than 100 arms transfers since October, the U.S. government’s lack of visibility into the Israeli government’s compliance with its legal obligations gives significant cause for concern.

The Ball is in Congress’ Court 

The continued provision of weapons to the Israeli government amid extensive harm to civilians and a famine has become a matter of national and international concern. Members of Congress have sought to understand how Israel is using U.S. weapons, prompting the Biden administration to issue its own assessment and assurances that Israel, and other partners, are complying with international law.

Legislators will undoubtedly compare Biden administration’s report to other accounts of Israel’s compliance with the assurances related to international humanitarian law and humanitarian access, including reports from Refugees International, Oxfam, Human Rights Watch, Amnesty International, several humanitarian organizations, and an independent panel of legal experts and former State Department officials. Many of those reports draw fairly definitive conclusions that the Israeli military has violated international humanitarian law in specific instances. It is also expected that the International Criminal Court may soon issue arrest warrants for senior Israeli officials and Hamas leaders on the body of evidence of war crimes in the conflict.

NSM-20 itself and Friday’s report originated in congressional pressure. The key question now is: what will Congress do next? Proponents of continued unconditional arms transfers to Israel have rebuked Biden for pausing the delivery of some bombs and outlining a condition on certain weapons transfers. But critics from opposing perspectives may now seek to convert their dissatisfaction with the NSM-20 report into legislative action to restrict arms transfers to Israel. How these conflicts play out – both within Congress and between legislators and the president – at this critical juncture could shape the future of  the war in Gaza, U.S. arms transfers policy, and the U.S.-Israel relationship.

Editor’s note: Readers may also be interested in Larry Lewis, Israeli Civilian Harm Mitigation in Gaza: Gold Standard or Fool’s Gold?, Just Security (March 12, 2024)

IMAGE: An Israeli artillery unit moves along the border with the Gaza Strip on January 19, 2024 in southern Israel. Israel increased air raids at the time in the south of the Gaza Strip, where medicines were expected for hostages held by Hamas and humanitarian aid for the Palestinian population. Despite Israel’s recent troop drawdown in Gaza at the time and the discussion of postwar plans by an Israeli cabinet minister, the country continued its intensive bombardment of the Gaza Strip, particularly in the territory’s south, as it sought to destroy Hamas, the Palestinian militant group behind the Oct. 7 attacks.  (Photo by Amir Levy/Getty Images)