Biden’s NSM-20 Report Must Hold Israel Accountable for Violating Assurances
IMEU Policy Project Memo #7
There is overwhelming evidence that Israel is violating international humanitarian law (IHL) in its attacks against Palestinians in the Gaza Strip and restricting the delivery of humanitarian aid while 1.1 million people face imminent starvation because of its illegal blockade.
These concerns about Israel’s actions have greatly intensified this week as Israel launched an invasion of Rafah, to which 1.5 million Palestinians were previously forcibly displaced, crossing President Biden’s own “red line” on Israel’s actions.
The Biden administration has delayed issuing a report which was originally due today to Congress on whether Israel is violating its National Security Memorandum 20 (NSM-20) assurances that it would not use US weapons in violation of IHL or to block US humanitarian aid.
Congress should demand that the Biden administration release this report as soon as possible and that the report holds Israel accountable for its blatant violations of its NSM-20 assurances.
Topline
The Biden administration must not whitewash Israel’s blatant violations of NSM-20. To do so would be yet another example of its failure to hold Israel accountable for its violations of US law and policies on weapons transfers.
The Biden administration would fatally undermine the credibility of NSM-20 and make a mockery of its supposed commitment to center human rights in US policy should it find Israel to be in compliance with its assurances.
The Biden administration’s delaying of the report provides a green light to Israel to continue its attack on Palestinians in Rafah, fatally undermining the president’s supposed “red line.”
The Biden administration must find Israel to be in violation of its NSM-20 assurances, and end all weapons transfers to it.
Anything less than a finding that Israel has violated its NSM-20 assurances would be a hoodwinking of Congress. It should be remembered that the Biden administration only issued NSM-20 in order to head off an effort by Congress to impose conditions on weapons transfers to Israel.
Should the Biden administration fail yet again to hold Israel accountable, Congress must take back the initiative from the morally compromised position of the president by passing legislation to halt weapons transfers to Israel as a result of its violations of NSM-20.
Details
In December 2023, Sen. Chris Van Hollen introduced an amendment to the supplemental to ensure US weapons can only be used in conformity with international law and US law. The amendment also prohibited weapons transfers until countries provided assurances that they would cooperate with US-supported international humanitarian efforts. By January 2024, 18 Senators had sponsored the amendment–more than one-third of the Senate Democratic Caucus.
Although it was framed in terms that were applicable to all countries receiving weapons through the supplemental, Israel’s attacks against Palestinians in Gaza were the proximate reason for the amendment, making it the most important congressional initiative to date to restrict and condition the usage and transfer of weapons to Israel.
In February 2024, President Biden issued NSM-20, which was based on the Van Hollen amendment. It required the Secretary of State to obtain within 45 days “credible and reliable written assurances” from countries receiving US weapons that they will only use them in conformity with IHL and Section 620I of the Foreign Assistance Act, and will “not arbitrarily deny, restrict, or otherwise impede, directly or indirectly, the transport or delivery of United States humanitarian assistance”.
NSM-20 also required the administration to report to Congress within 90 days with “an assessment and analysis of whether each foreign government recipient has abided by the assurances received”.
While some hailed NSM-20 as a tool to advance accountability for US weapons transfers, others noted that the memorandum succeeded in taking the wind out of the sails of a credible congressional initiative to codify these restrictions and conditions into US law. Instead, they noted, the memorandum does not have the force of law and its provisions can easily be ignored by the president without legal ramification.
Israel provided its NSM-20 written assurances to the Biden administration on March 14. On March 25, the State Department confirmed receipt of these assurances and stated that “We have not found them [Israel] to be in violation of international humanitarian law, either when it comes to the conduct of the war or when it comes to the provision of humanitarian assistance.”
This statement–that Israel is complying with its NSM-20 assurances–appropriately was met with widespread skepticism and even derision among human rights organizations, Members of Congress, and even several bureaus of the State Department itself.
Human Rights Watch and Oxfam International stated that Israel’s NSM-20 assurances are “not credible” and called on the Biden administration to follow US law and its own policies to end all weapons transfers to Israel immediately.
Similarly, Amnesty International called to suspend weapons transfers to Israel in its submission of a briefing paper to the Biden administration on Israel’s NSM-20 assurances. The briefing “details practices by Israeli forces inconsistent with best practices for mitigating civilian harm and provides clear examples of the misuse of defense articles, the commission of torture, and the use of unlawful lethal force.”
Lastly, the Independent Task Force on the Application of National Security Memorandum-20 to Israel submitted a report to the Biden administration in which it “identifies multiple restrictions on humanitarian assistance, including strikes by the IDF, that trigger Section 620I of the Foreign Assistance Act”.
Members of Congress also have continued to express concern about the hollow nature of the Biden administration’s application of NSM-20 to Israel. For example, on April 16, Rep. Veronica Escobar led a letter signed by 24 Members of Congress who stated that the Biden administration’s decision to accept the credibility of Israel’s assurances “violates
the very spirit of the NSM-20 process.”
And, on May 3, Rep. Jason Crow led a letter signed by 88 Members of Congress who wrote that “there is sufficient evidence that Israel’s restrictions on the delivery of US-backed humanitarian aid violate Section 620I of the Foreign Assistance Act, and therefore call into question the assurances Israel provided pursuant to National Security Memorandum 20.”
Senators, led by Sen. Chris Van Hollen, also have repeatedly sent the Biden administration letters of concern about the implementation process of the NSM-20, including by:
Calling for a briefing on “how the Administration will collect and analyze credible reports or allegations to make the assessments and determinations required by President Biden’s new directive.” (March 8)
Urging “the Biden Administration to adhere to the plain meaning and intent of NSM-20 and use this tool to secure the necessary delivery of aid into and throughout Gaza thereby bringing the Netanyahu Government into compliance with its terms.” (March 22)
Sen. Van Hollen also stated: “If…the Administration has made an assessment that the Netanyahu government has been and is currently in compliance with the substantive requirements of NSM-20, their decision is totally detached from the reality on the ground, especially with respect to the required standards for the delivery of humanitarian aid into and within Gaza.”
All of these concerns raised by Members of Congress and human rights and humanitarian organizations about the Biden administration’s approach toward holding Israel accountable for its manifest violations of NSM-20 were echoed by different bureaus within the State Department as well.
According to an exclusive by Reuters, “A joint submission from four bureaus – Democracy Human Rights & Labor; Population, Refugees and Migration; Global Criminal Justice and International Organization Affairs – raised ‘serious concern over non-compliance’ with international humanitarian law during Israel’s prosecution of the Gaza war.”
“The assessment from the four bureaus said Israel’s assurances were ‘neither credible nor reliable.’ It cited eight examples of Israeli military actions that the officials said raise ‘serious questions’ about potential violations of international humanitarian law.”
The Biden administration’s NSM-20 report must affirm all of these State Department, Congressional, and human rights organizations’ conclusions that Israel is in blatant violation of its NSM-20 assurances. Should it fail to do so, the Biden administration would demonstrate that, in the words of Sen. Van Hollen, it is “totally detached from the reality on the ground”.
As Israel crosses the Biden administration’s red line by invading Rafah, the delay in issuing this report is another disturbing indication of the lengths to which the Biden administration is going to violate US laws and its own policies on weapons transfers.
Should the Biden administration fail to find Israel in violation of its NSM-20 assurances, it would once again make a mockery of its supposed commitment to center human rights in US foreign policy by failing to hold Israel accountable.
Congress must take back the initiative from a president who issued NSM-20 in order to undercut important congressional initiatives to codify into law restrictions and conditions on Israel’s usage of US weapons. Congress must pass legislation immediately prohibiting the transfer of any additional weapons to Israel for its repeated and blatant violations of US law and policy.
Photo credit: White House/Flickr.