US Domestic Policies and Laws Regarding Weapons Transfers to Israel
ANGLO AMERICA, 29 Jul 2024
Daniel Horgan – TRANSCEND Media Service
26 Jul 2024 – No irony should be lost that the same week the International Court of Justice declared Israel’s long standing occupation of The West Bank illegal under International Law that Israeli Prime Minister Benjamin Netanyahu broke the record (formerly held by Winston Churchill) for the number of times a head of state addressed the United States’ Congress. Netanyahu was afforded this privilege despite the International Criminal Court (separate from the ICJ) having issued a request for an arrest warrant on War Crimes. He also was invited despite the fact that he faces widespread condemnation at home in Israel for his handling of the war that is largely seen as a way to avoid his removal from office that was on track pre October 7th.
This week’s ICJ ruling, along with it’s ongoing case where the ICJ has ruled that there is a plausible risk of genocide in Gaza, puts a clear mark of complicity on the hands of the United States for Israeli perpetrated apartheid and genocide against the Palestinian people. Regarding this complicity, and more specifically the supplication of US weapons to Israel, there is relevance of US non-adherence to three executive branch policies, violation of three US laws, and the unabiding of at least one agreed upon and ratified international declaration (The Political Declaration on Explosive Weapons in Populated Areas). This writing will focus on re-ording and summarizing these speculative transgressions as laid out by The Stimson Center. The Stimson Center promotes international security and shared prosperity through applied research and independent analysis, global engagement, and policy innovation.
Executive Branch Policies:
The Biden administration issued a Conventional Arms Transfer (CAT) policy in February 2023 to guide the United States’ arms export decisions. It was hailed as a strengthened work added on to by previous presidents to ensure US arms transfers are not used by states inappropriately. Although varied and complex in its language, one section of the policy commits to a clear red line: the United States will not transfer weapons when it is “more likely than not” that those weapons will be used to commit, facilitate the commission of, or aggravate the risk of specified violations. Those violations include “grave breaches of the Geneva Conventions of 1949, including attacks intentionally directed against civilian objects or civilians protected as such,” and “other serious violations of international humanitarian or human rights law.” Both ICJ cases denote serious transgressions by the State of Israel in this area.
- Civilian Harm Incident Response Guidance (CHIRG)
In August 2023 The State Department developed the Civilian Harm Incident Response Guidance (CHIRG). The Washington Post reported that the Guidance, issued in August, outlined a framework “under which officials will investigate reports of civilian harm by partner governments suspected of using U.S. weapons and recommend actions that could include suspension of arms sales.” However, the details of CHIRG implementation remain obscure – in fact, the former State Department official referenced above, Josh Paul, wrote that a planned publication on the CHIRG was canceled because “the department was so adamant to avoid any debate” on civilian harm risks in Gaza from U.S. weapons transfers to Israel.
- Civilian Harm Mitigation and Response Action Plan (CHMR-AP)
In January 2022, Defense Secretary Austin released the Civilian Harm Mitigation and Response Action Plan (CHMR-AP), which marked an unprecedented commitment to overhaul the Department of Defense’s approach to civilian harm from U.S. and partner military operations. Objective 9 of the CHMR-AP focuses on addressing the risks of civilian harm in security cooperation relationships, such as the U.S.-Israel relationship. The Stimson Center points out that some senior level statements may ignore DoD’s commitment to this policy.
US Laws:
- Foreign Assistance Act
Section 502B of the Foreign Assistance Act includes both a prohibition on security assistance to countries where the government engages in a “consistent pattern of gross violations of internationally recognized human rights” and a process for Congress to require a State Department report on human rights conditions and possibly restrict security assistance to the country in question.
- Leahy Laws
One statutory provision applies to the U.S. Department of State (State) and the other applies to the U.S. Department of Defense (DoD).
State Leahy Law See Foreign Assistance Act of 1961, Sect. 620M No assistance shall be furnished … to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.
DoD Leahy Law See Title 10 U.S. Code, Sect. 362 The Secretary of Defense shall, in consultation with the Secretary of State, ensure that prior to a decision to provide any training, equipment, or other assistance to a unit of a foreign security force full consideration is given to any credible information available to the Department of State relating to human rights violations by such unit.
Interestingly, The Biden Administration Recently made public during the War of Gaza its intent to use Leahy Law to condemn the acts of an Israeli Army unit in the West Bank prior to the major war on Gaza, post October 7th. It pulled back on this over pressure from Israel. The possible challenge with using Leahy State is that specific armed force units need to be investigated or sufficient evidence needs to be present. Under Leahy DOD evidence of gross human rights violations of a security partner need to be present. The US currently denies the overall conduct of its partner Israel in that of one that is committing gross human rights violations that violate international law, despite the overwhelming evidence. Josh Paul, The State Department official who resigned over the policy on Gaza called the State Department Leahy process a ‘broken system’. What can be argued is that the US acts within these laws but only through inaction or ignoring the realities of the human rights record of The State of Israel.
- Arms Export Control Act (AECA)
The spirit of this Act has been violated in and of itself in its own writing that affords the State of Israel special status in both a shortened time for Congress to block a transfer (15 days), and high dollar amount threshold for transfers ($100 million). Despite the obvious transfer of weapons the 1st six weeks of war in Gaza produced no official public notification to Congress according to The Stimson Center. Numerous transfers happened below the $100 million mark and sometimes repeatedly in close succession as to avoid scrutiny of the AECA. This in itself could be considered a violation of the AECA, not only in spirit but in fact. There is a more detailed history of congressional requests on the AECA and the scrutiny of waivers for congressional approval laid out by Stimson.
International Agreement:
- Population Declaration on Explosive Weapons in Populated Areas
When explosive weapons are used in populated areas, on average, 90 percent of victims are civilians, according to the United Nations. In November 2022, the United States joined 82 other states in endorsing the Political Declaration on Strengthening the Protection of Civilians from the Humanitarian Consequences Arising from the Use of Explosive Weapons in Populated Areas (EWIPA). Israel has not endorsed the Declaration. Although the Declaration is not legally binding, it does represent a high-level commitment from the United States to implement policies designed to avoid and address civilian harm from the use of explosive weapons in populated areas. The Declaration also commits signatories to actively promote the Declaration, pursue its adoption and implementation by additional states, and seek adherence to its commitments by all parties to armed conflict.
Much of the harm to civilians in Gaza thus far appears to derive from the Israeli military’s use of explosive weapons in densely populated urban areas. Despite the United States’ commitments around EWIPA, the United States has continued transferring explosive weapons to Israel without any conditions around their use, according to repeated official statements including from Vice President Harris, Secretary of Defense Lloyd Austin, Pentagon Spokesperson John Kirby, and Deputy Pentagon Press Secretary Sabrina Singh. The International Network on Explosive Weapons raised concerns around the Israeli military’s use of explosive weapons in Gaza in an open letter to the Declaration’s endorsing states. A recent report from Oxfam specifically recommends halting the transfer of 155mm artillery shells, concluding that “Israel’s use of this munition in past conflicts demonstrates that its use [in Gaza] would be virtually assured to be indiscriminate, unlawful, and devastating to civilians.”
This writing was undertaken to summarize the list of resources for those who may find themselves questioning US policy or for those who may be in discussion or negotiation with fellow US or global citizens who may blindly support Israel’s war. It can also serve as a tool to pressure US (or global law makers) not to ignore such instruments. In the end, knowledge and truth are in and of themselves powerful, and clarity is important. When the International Criminal Court requests an arrest warrant for the leader (Netanyahu) of the closest ally of the US (Israel), it is significant. When the International Court of Justice rules against a colonial settler state such as Israel we must take note of such an important transaction. When this leader in Netanyahu, comes pedaling a genocide in front of the US Congress, we must all be armed with the truth of US policy, laws, and other agreements that could deter in lending support.
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Daniel Horgan is an occasional contributor to TRANSCEND Media Service. He is a student of renowned Peace Professionals, the late Johan Galtung and Dietrich Fisher, at the European Center for Peace Studies. He studied there with students from Israel and Gaza and has worked in conflict zones as an Unarmed Civilian Peacekeeper. He created this factual video at the outbreak of the first major war in 2007 between Israel and Hamas: Israel/Palestine 2007– YouTube
Tags: Arms Industry, Arms Trade, Israel, Netanyahu, Palestine, US Congress, USA, War crimes
This article originally appeared on Transcend Media Service (TMS) on 29 Jul 2024.
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