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Biden administration gauges Israeli compliance with laws of war

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A group of 17 Democratic senators is calling on the Biden administration to reject Israel’s claims that it is not violating international law by restricting humanitarian aid amid a growing debate in Washington over whether the United States should suspend arms transfers to the government of Prime Minister Benjamin Netanyahu.

The State Department last week received Israel’s written assurances that its use of U.S.-supplied weapons in the Gaza war has not violated international or U.S. laws in its conduct of the war and protection of civilians, including the provision of sufficient aid.

The assurances were sent in response to a national security memorandum issued by President Biden in early February. That notice reiterated existing standards that countries receiving U.S. weapons must adhere to and set out a timeline for responses with “credible and reliable” assurances those standards are being met. The memo also gives the secretaries of State and Defense 45 days within which to assess those assurances and recommend to the president if remedial action — including possible suspension of arms supplies — should be taken.

But the new reporting and assessment requirements have led to widespread confusion within and outside the administration. Some international aid organizations, and some lawmakers, have interpreted them to mean that Sunday’s deadline for receiving the assurances is also the deadline for a presidential decision on withholding arms from Israel and six other countries deemed to be currently involved in armed conflict.

The State Department is working to assess by Sunday whether Israel’s assurances are “credible and reliable,” said a senior U.S. official, speaking on the condition of anonymity about the delicate matter. At Friday’s White House briefing, National Security Council spokesman John Kirby said that Secretary of State Antony Blinken has already “determined that the information [Israel] provided was credible and reliable.”

Both of those assertions, several other U.S. officials said, are inaccurate. While Sunday is the assurance deadline — and any concerns could be reported to and acted upon by the president at any time — the administration does not expect to make a complete assessment of credibility until the State Department is due, under the terms of the memo, to report its findings to Congress on May 8, the officials said.

Early next week, the State Department plans to announce only that the applicable countries have met the deadline to submit their responses, signed by credible senior officials of those countries. In Israel’s case, that came in a letter from Defense Minister Yoav Gallant.

Asked about his remarks, Kirby said in an email that he “misspoke earlier today when speaking to the State Department process regarding assurances from Israel about the security assistance we provide. Secretary Blinken has not made a determination yet about those assurances. I regret the error.”

But attempts at clarification of the timeline have not stopped critics and those concerned about the administration’s Israel policy from moving to push Biden to take action.

The administration has maintained an increasingly difficult balance between its commitment to Israel’s right to self-defense and elimination of Hamas, and its dismay over the military offensive in Gaza, where local authorities put the death toll from Israeli air and ground attacks at more than 32,000.

The president and his senior aides became especially angered after a humanitarian aid convoy delivery in northern Gaza on Feb. 29 turned deadly as Israel Defense Forces opened fire on starving civilians who stampeded the delivery trucks. U.S. officials, who have been increasingly public in their demands of Israel, saw the incident as the epitome of the Netanyahu government’s failure to facilitate more aid into Gaza.

Biden aides have been especially distressed by the warnings of an imminent famine there and reports of children dying of malnutrition and starvation, according to a person familiar with the discussions, who spoke on the condition of anonymity to disclose private conversations.

The administration has sought to pressure Israel to work toward a weeks-long cease-fire, enabling a massive surge in aid, without going so far as to halt weapons deliveries for it to continue its war against Hamas. “The humanitarian situation is literally intolerable — it’s a blight on the consciousness of humanity. This kind of thing can’t happen in the modern day and age,” one White House adviser said. “It’s the humanitarian situation that has tipped us over the line into open confrontation with the Israelis.”

Earlier this week, Human Rights Watch and Oxfam called on the Biden administration to quickly rule that any Israeli assurances are “not credible” and to impose the “immediate suspension” of arms transfers. They issued a joint report documenting what they said were clear “violations of international humanitarian law, deprivation of services critical to the survival of the civilian population and arbitrary denial and restrictions of humanitarian aid.”

“If Blinken certifies that Israel is not impeding the delivery of humanitarian aid,” said Jeremy Konyndyk, president of Refugees International and a former USAID official under the Obama administration, it will demonstrate that “the whole process” of assessing its compliance with international law “has no credibility to begin with.”

“What we are seeing now is not just that a famine is occurring on the watch of this administration and these leaders, but they have the means to stop it and they are failing to do so,” Konyndyk said. Like others, he referred to Blinken’s determination as “an important pivot point, because it really tells us a lot about whether they intend to stop this famine.”

In a statement provided Friday to The Washington Post, the Democratic senators — including Chris Van Hollen (Md.), Dick Durbin (Ill.) and Elizabeth Warren (Mass.) — urged the State Department to reject any assurances from Israel given its “excessively burdensome restrictions … on the flow of aid from land crossings into Gaza and within Gaza.”

“We believe it would be inconsistent with the letter and spirit” of the memorandum, which Biden adopted in large part in response to pressure from Van Hollen and others, “to find that assurances made by the Netanyahu government meet the ‘credible and reliable’ standard at this time.”

If Blinken does validate the Israeli claims, Van Hollen said in an interview Friday, “it would be a bad precedent globally to suggest the kind of barriers that have been in place to humanitarian assistance in Gaza are an acceptable threshold.”

“This is a tool to try to prevent humanitarian catastrophes, to try to prevent people from literally dying of starvation. … I don’t see how anybody could possibly determine the situation within Gaza right now suggests there is an acceptable humanitarian delivery system and it’s pretty clear that the restrictions that have been imposed by the Netanyahu government are the main contributor to the humanitarian crisis there,” Van Hollen added.

But that sense of outrage hasn’t crossed the aisle for many in Congress. Even as the Democratic senators were releasing their statement, Sen. Tim Scott (R-S.C.) introduced a “sense of the Senate” resolution, co-sponsored by 23 other Republicans, saying that “Israel has the inherent right to defend itself and take necessary steps to eradicate the terrorist threat posed by Hamas.”

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