US flags Israel's IHL breach in Gaza with American bombs, no curbs in sight

The Biden administration has said that Israel's use of US-provided weapons in besieged Gaza likely violated international humanitarian law [IHL], but wartime conditions prevented US officials from determining that for certain in specific air strikes.

The administration's finding of "reasonable" evidence to conclude that its ally had breached international law in its war in Gaza, released in a summary of a report being delivered to Congress on Friday, represents the strongest such statement from Biden officials.

But its caveat that it was unable immediately to link specific US weapons to individual strikes by Israeli forces in Gaza could give the administration leeway in any future decision on whether to restrict US provisions of offensive weapons to Israel.

"The nature of the conflict in Gaza makes it difficult to assess or reach conclusive findings on individual incidents," the report said.

"Nevertheless, given Israel's significant reliance on US-made defence articles, it is reasonable to assess that defense articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL obligations or with established best practices for mitigating civilian harm," it said.

The administration's findings, a first-of-its-kind assessment that was compelled by President Joe Biden's fellow Democrats in Congress, come after seven months of Israel's carnage in the blockaded enclave.

The Democratic administration took one of the first steps toward conditioning military aid to Israel in recent days when it paused a shipment of 3,500 bombs out of concern over Israel's threatened invasion of Rafah, a southern city crowded with more than a million Palestinians, a senior administration official said.

The presidential directive, agreed to in February, obligated the Defence and State departments to conduct "an assessment of any credible reports or allegations that such defence articles and, as appropriate, defence services, have been used in a manner not consistent with international law, including international humanitarian law."

The agreement also obligated them to tell Congress whether they deemed that Israel has acted "arbitrarily to deny, restrict, or otherwise impede, directly or indirectly," delivery of any US-supported humanitarian aid into Gaza for starving civilians there.

Double standards

Lawmakers and others who advocated for the review said Biden and previous American leaders have followed a double standard when enforcing US laws governing how foreign militaries use US support, an accusation the Biden administration denies.

They had urged the administration to make a straightforward legal determination of whether there was credible evidence that specific Israeli air strikes on schools, crowded neighbourhoods, medical workers, aid convoys and other targets, and restrictions on aid shipments into Gaza violated the laws of war and human rights.

Their opponents argued that a US finding against Israel would weaken it at a time it is battling Hamas and other resistance groups. Any sharply critical findings on Israel are sure to add to pressure on Biden to curb the flow of weapons and money to Israel's military and further heighten tensions with Netanyahu's hard-right government over its conduct of the war.

Any finding against Israel also could endanger Biden's support in this year's presidential elections from some voters who keenly support Israel.

At the time the White House agreed to the review, it was working to head off moves from Democratic lawmakers and independent Senator Bernie Sanders of Vermont to start restricting shipments of weapons to Israel.

Human rights groups have long accused Israeli security forces of committing abuses against Palestinians and have accused Israeli leaders of failing to hold those responsible to account.

Israel says it is following all US and international law, that it investigates allegations of abuse by its security forces and that its carnage in Gaza is proportional to the existential threat it says is posed by Hamas.

Biden, in December, said "indiscriminate bombing" was costing Israel international backing.

After Israeli military targeted and killed seven aid workers from the World Central Kitchen in April, the Biden administration, for the first time, signalled it might cut military support to Israel if it didn't change its handling of the war and humanitarian aid.

Presidents Ronald Reagan and George H.W. Bush, in the 1980s and early 1990s, were the last presidents to openly hold back weapons or military financing to try to push Israel to change its actions in the region or toward Palestine.

A report to the Biden administration by an unofficial, self-formed panel including military experts, academics and former State Department officials detailed Israeli strikes on aid convoys, journalists, hospitals, schools and refugee centres and other sites.

They argued that the civilian death toll in those strikes — such as an October 31 strike on an apartment building reported to have killed 106 civilians — was disproportionate to the blow against any military target.