Biden must enforce US law regarding Israel’s military aid

With American lawmakers showing growing concern about the protection of civilians in the Gaza conflict, the Biden administration is facing increasing congressional and public scrutiny of its continued, seemingly unconditional supply of the arms Israel is using in the territory — as well as the president’s request for more than $10 billion in new taxpayer-funded military aid to Israel. 

The president could and should take action to enforce existing U.S. legislation, affirming both the value of innocent lives and his duty to faithfully execute the laws of the United States.

The first of these U.S. legal obligations centers on the Netanyahu government’s actions and policies that limit the delivery of humanitarian aid to Gaza. Multiple relief organizations, multilateral institutions and foreign governments are sounding an alarm that Gaza’s civilian population stands at the brink of mass starvation and disease. 

The United Nations warns that 1 in 4 Palestinians in Gaza is already starving, with hundreds of thousands of the children who make up about half of the territory’s population especially susceptible to the “lethal combination” of malnutrition and sickness.

Despite this imminent catastrophe, humanitarian aid critical to reversing it remains bottlenecked in Egypt and southern Israel due in substantial part to Israel’s overly burdensome restrictions and inspection requirements, as affirmed by international, as well as Israeli, relief and human rights organizations. While appropriate measures to prevent Hamas from smuggling in arms and related materials are warranted, the implementation of Israel’s near-total siege of the Gaza Strip in practice has meant that only a small fraction of needed and available aid is entering the territory. 

Similarly, Sen. Chris Van Hollen (D-Md.) concluded following a fact-finding trip to the Gaza border that the procedures for processing aid entering Gaza are “unnecessarily cumbersome” and “the result of political decisions by the Netanyahu coalition.” Amid Israel’s ongoing bombardment of the territory, Van Hollen also noted that a second major barrier to the delivery of aid was the inability of “those who are providing humanitarian assistance to have the confidence that they can deliver it without being killed.”

Van Hollen rightly called for “consequences” in response to the Netanyahu government’s policies — and an existing provision of U.S. law requires just that.

The Foreign Assistance Act, which governs U.S. foreign aid, prohibits U.S. security assistance  “when it is made known to the [p]resident that the government of such country prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.” 

Given that some of the humanitarian aid restricted and functionally blocked by Israel is American in origin, this law prohibits the Biden administration from delivering further military aid and arms to Israel unless the president expressly decides and notifies relevant congressional committees that continuing to provide such assistance is in the national security interest of the United States. 

The continued provision of offensive arms to Israel also violates another clause of the Foreign Assistance Act, known as Section 502B, which prohibits furnishing security assistance to “any country the government of which engages in a consistent pattern of gross violation of internationally recognized human rights.” This provision defines a “gross violation” in a relatively expansive manner, extending prohibited conduct to include “flagrant denial of the right to life, liberty, or the security of person.”

Israel has the right and duty to defend its people from threats like those posed by Hamas, which still holds innocent hostages in violation of international law. Yet the manner in which the Netanyahu government has prosecuted the war in Gaza has clearly crossed Section 502B’s threshold. 

In addition to the crisis of starvation and disease, Israel’s conduct of the war has resulted in more than 20,000 Palestinian deaths, with the Israeli government itself estimating that two-thirds of those killed were civilian non-combatants. Interviews of current and former Israeli officials conducted by the Israeli press detail how the Israeli military knowingly targets civilian infrastructure, including those housing families, even when there is little or no known military activity at the site. 

Even President Biden himself has twice called Israeli bombardment of Gaza “indiscriminate.”

Congressional concern over Israeli violations of human rights in its conduct of the war in Gaza has led to the first-ever vote under Section 502B in the nearly 50 years since it was enacted.

Sen. Bernie Sanders (I-Vt.) initiated a special congressional oversight process set out in the law by introducing a privileged resolution that, if passed, would have required the State Department to report on Israel’s relevant human rights practices. 

While the vote to advance the resolution failed on Tuesday, it nonetheless signaled unprecedented congressional activity with respect to enforcing U.S. arms law vis-a-vis Israel.

Further vehicles requiring the Biden administration to ensure Israeli adherence to U.S. and international law when using American weapons and aid, such as an amendment to the upcoming emergency appropriations package proposed by Van Hollen, can be expected in the absence of executive branch action.

With hundreds of thousands of innocent lives in the balance, along with U.S. credibility and moral authority, Biden should direct his administration to fulfill its constitutional duty to execute the law.

President Biden should not wait to be compelled by Congress to act. He should direct his administration to fairly and impartially enforce these provisions of law, applying the same standard to Israel that we do to our other security partners.

Dylan Williams is vice president for government affairs at the Center for International Policy. Follow him on Twitter/X @dylanotes.