The Biden administration is rushing to finish a high-stakes report due to Congress this week on whether Israel has violated international humanitarian law during its war in Gaza — a determination that could lead to significant repercussions and further inflame divisions at home and abroad.
The report has been the subject of intense debate for months across the administration and has already led to deep divisions inside the State Department, where some offices have expressed doubt over Israel’s assurances that it has used US weapons without violating international law during its 7-month war in Gaza.
The report, which will also weigh in on whether Israel has impeded the delivery of US humanitarian assistance, comes at a pivotal moment in the war. Israel appears on the precipice of an incursion into the southern city of Rafah, something President Joe Biden has warned Israeli Prime Minister Benjamin Netanyahu against. Meanwhile Hamas and Israel remain unable to reach a ceasefire and hostage release agreement as numerous American universities cancel graduation ceremonies after pro-Palestinian protests erupted on campuses over the past few weeks.
Under pressure from Democrats in Congress, Biden agreed in February to issue a new national security memorandum that would examine Israel’s conduct and use of US weapons in its war against Hamas. That memorandum requires all countries using US weapons to attest that they are doing so consistent with international human rights law, with an expedited timeline for those in an active conflict.
Secretary of State Antony Blinken has until Wednesday to report to Congress whether the administration finds those assurances to be “credible and reliable.” However, the administration has relayed to Capitol Hill that the report is expected to be slightly delayed, congressional sources told CNN.
“We are trying very hard to meet that deadline,” State Department spokesperson Matthew Miller said on Tuesday, noting that it’s the first time the department has written a report of this nature. “It’s possible it slips just a little bit.”
The State Department has remained largely quiet on the production of the report, only saying that “a broad spectrum of the department will contribute to this report.” Insight has been limited from Capitol Hill, where congressional sources said the expectation is that the report will cover the time period from January 2023 to present.
Congressional sources told CNN it was their understanding that the report was drafted by the State Department’s Bureau of Political-Military Affairs with input from other parts of the agency, and with the involvement of the Defense Department and National Security Council.
Though the report does not mandate a change in US policy, it could be used to trigger one.
Israeli officials, deeply wary that its findings could increase pressure on Biden to condition US military aid to Israel, have been in close touch with the administration as the report has developed, congressional sources said. If the report were to find that Israel is not in compliance with international law, it would likely trigger a firestorm within the Netanyahu government.
The Israeli prime minister and other top members of his government recently railed against potential restrictions in military aid to an Israeli military unit found to have committed gross violations of human rights prior to the war in Gaza.
Although Biden administration officials have become increasingly outspoken about the humanitarian catastrophe resulting from the war, they have yet to take any punitive measures or restrict military assistance to Israel. Last month, Biden warned Netanyahu that Israel had to do more to address the humanitarian situation or there would be a change in US policy.
Late last month Amnesty International assessed that US-supplied weapons to Israel have been used “in serious violations of international humanitarian and human rights law, and in a manner that is inconsistent with US law and policy.”
An independent task force led by a former State Department official who quit over US support for Israel and a human rights attorney who is also a Palestinian American activist also concluded that Israeli forces operated in a way that showed a “systemic disregard for fundamental principles of international law” while using US weapons.
The report cites seven specific examples of such violations, including an Israel Defense Forces (IDF) attack on Jabalya refugee camp on October 9 which left 39 people dead and for which the United Nations Office of the High Commissioner for Human Rights found no specific military objective.
Democrats amp up pressure on Biden
Democrats in both the House and the Senate have urged the Biden administration not to take Israel’s assurances at face value.
Last month, more than two dozen House Democrats wrote a blistering letter to administration officials saying that “a failure to question, at a minimum, the Netanyahu government’s assurances” is antithetical to the national security memorandum’s purpose.
“It’s not enough to take at face value an explanation that you receive. We need to see evidence,” said Democratic Sen. Chris Van Hollen, who helped craft the memo Biden signed in February.
Though he voted for the recent aid package that included $15 billion in military aid for Israel, Van Hollen said he believes that the Biden administration needs to pause any transfers of offensive weapons to Israel until Biden’s demands of Israel have been met.
One Republican congressional aide predicted “there’ll be some fratricide within the Democratic Party on this.”
Top Republican lawmakers on the foreign affairs committees in the House and Senate have decried the national security memorandum as “a redundant requirement that adds unnecessary bureaucracy and contributes to frustration from the partners and allies that count on U.S. security assistance.”
As of Monday, the report was still being worked on, according to Miller, the State Department spokesperson.
“It is something that we take incredibly seriously and there’s a lot of work going on at the Department to make sure we fulfill that obligation and we fulfill it thoroughly,” Miller said.
