Can Biden’s new arms policy lead to real accountability for Israel?

Israeli Prime Minister Benjamin Netanyahu late last week ordered his war cabinet to draft plans for a ground invasion of Rafah, one of the most densely populated places on the planet.

Four months into an unprecedented and brutal assault on the Gaza Strip following the October 7 massacre carried out by Hamas, Israeli operations have already killed 28,000 Palestinians and brought untold suffering and a humanitarian crisis. About 1.2 million Palestinians have been forced to take refuge in Rafah, where they are bracing for what might come next, Defense News reports.

Israel’s planned operation risks becoming the latest in a series of actions that have caused immense harm to civilians. Yet again, the impending attack raises grave concerns about US support for Israel, particularly the arms transfers the Biden administration continues to provide. President Joe Biden’s response — the direct result of pressure from Senate Democrats — is National Security Memorandum-20. NSM-20 is a new policy directive that could create opportunities for the administration and Congress to ensure US-funded arms are not used in violation of international humanitarian and human rights law.

Although NSM-20 does not single out Israel, it is clearly in response to its war in Gaza. The memorandum was issued as part of a collaboration between the White House and Sen. Chris Van Hollen, D-Md. The senator has consistently raised concerns about Israel’s conduct over the past four months and sought to include an amendment to Biden’s requested emergency supplemental, which would provide Israel $14 billion in unconditioned security assistance and has now passed the Senate.

Biden’s new memorandum, which draws from Van Hollen’s amendment, revolves around a requirement that all countries receiving US security assistance provide “credible and reliable written assurances” regarding their compliance with international law. Countries engaged in armed conflict must do so within 45 days.

The memorandum further requires recipients to certify they will comply with Section 620I of the Foreign Assistance Act, a binding provision of law banning security assistance to any country where the foreign government “prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.”

US law already conditions security assistance on compliance with international and human rights law, and recipients of US arms risk a cut-off of transfers if they violate such laws. There is no evidence to suggest 620I has ever been enforced in its 28-year history. No Israeli unit has ever been barred from receiving US assistance under the Leahy laws, which prohibit assistance to any unit where there is credible information the unit has committed a gross violation of human rights.

Administrations have created mechanisms, such as the Conventional Arms Transfer policies, that make promising commitments on paper but too often result in little actual change in policy — especially for close US allies and partners.

Under NSM-20, all recipients of US taxpayer-funded assistance are now required to commit to using US aid in compliance with international humanitarian and human rights law. In that way, this new memorandum could — and hopefully will — help operationalize important existing law and policy and lead to new points of leverage over Israeli operations.

But absent real political will, it risks being just another policy workaround that allows the Biden administration to claim, as it did to Defense News, despite publicly available evidence: “We have not seen any violations of the standards so have no plans to restrict assistance at this time.” Human rights organizations and media outlets have published ample evidence of Israel’s possible violations of international law, including with weapons from the United States.

Importantly, the memorandum creates a robust congressional reporting regime. The executive branch rarely volunteers to require reporting to Congress. The memorandum’s 90-day timeline for reporting to Congress on partners’ compliance with international law and facilitation of humanitarian aid delivery could draw congressional attention to civilian harm and humanitarian needs and create opportunities for legislators to conduct oversight or restrict assistance as appropriate.

But civilians in Gaza face an impending famine, and Israeli bombardment has decimated their medical system, housing, sanitation, and other civilian infrastructure. The memorandum’s timeline will not provide the immediate change of course necessary today.

Ultimately, the impact of NSM-20 will depend entirely on its implementation, and especially whether Congress pressures the Biden administration to hold the Israeli government accountable for the devastation caused by its operations in Gaza. An administration denial that Israel has violated any of the standards referenced in NSM-20 does not bode well for the seriousness with which the administration will implement its new memorandum and puts the onus on Congress to ensure those standards are upheld.