Netanyahu Visit Highlights US Officials’ Liability Risk, Says HRW

Israeli Prime Minister Benjamin Netanyahu’s appearance before a joint session of Congress on July 24, 2024, highlights the continued and significant US supply of weapons to Israel’s military despite credible allegations of ongoing war crimes by Israeli forces in Gaza, Human Rights Watch said today. 

“US officials are well aware of the mounting evidence that Israeli forces have committed war crimes in Gaza, including most likely with US weapons,” said Tirana Hassan, executive director at Human Rights Watch. “US lawmakers should be seriously concerned about the liability risks of continuing to provide arms and intelligence based on Israel’s flimsy assurances that it’s abiding by the laws of war.” 

In 2023, the Biden administrationintroduced a revised conventional arms export policythat adjusted its approach, reducing “the level of certainty required to deny an arms transfer” from “actual knowledge to a more likely than not determination that the arms will be used to commit, facilitate the commission of, or aggravate the risk ofinternational lawviolations.” Domestic laws also requirearisk assessment before providing security assistance and establish red lines for when assistance is not allowed.

Yet the Biden administrationreportedto Congress in May that Israeli forces were complying with US domestic policies and laws on arms transfers. In March, Human Rights Watch and OxfamwarnedthattheIsraeligovernment’s assurances to theBiden administrationthat it is meetingUSlegal requirements were not credible. The two organizations jointlysubmitted a dossier to the State Department showing Israeli forces’ violations of international humanitarian law, including blocking humanitarian assistance and carrying out unlawful strikes that killed civilians.

Israeli forces have unlawfully attacked residential buildings, medical facilities, and aid workers, restricted medical evacuations, and used starvation as a weapon of war in the Gaza Strip, where nearly 500,000 people are experiencing a “catastrophic” lack of food in famine-like conditions. A staggering more than 38,600 Palestinians have been killed, according to the Gaza Health Ministry.

Israeli authorities have detained and mistreated thousands of Palestinians, with persistent reports of torture.In the occupied West Bank, where Israeli forceshave killedover 500 Palestinians since October 7, settlers and soldiers havedisplaced entire Palestinian communities, destroying every home, with the apparent backing of higher Israeli authorities and effectively confiscating Palestinians’ lands.

Human Rights Watch,Amnesty Internationaland dozens of media reports, including byCNN,NPR, theNew York Times, andAFP, have identified US weapons being used in unlawful Israeli attacks that killed scores of civilians and aid workers.

In May, President Biden announced that the US would pauseat least one shipmentof weapons containing 2,000-pound bombs, 500-pound bombs, and artillery projectiles to Israel. In July, the administration clarified that it was only holding back the 2,000-pound bombs and that it would bereleasing the 500-pound bombsto Israel. It said that its “concern” was about “the end-use of the 2,000-lb bombs, particularly forIsrael’sRafahcampaign, which they have announced they are concluding.”

In recent years, legal scholars and US lawmakers warned that US support – including through weapons sales – to Saudi Arabia’s military campaign in Yemen could expose US officials to legal liability for war crimes.

In 2016, according to media reports, State Department officials reviewing weapons sales to Saudi Arabiaexpressed concernsthat jurisprudence from international tribunals could offer precedent for their own liability. In an unsentdraft letterto the secretary of state, a State Department lawyer concluded that US officials could potentially be charged with war crimes for the Saudi-led coalition’s conduct in Yemen.

In 2020, when discussing the risk presented by continued arms sales to Saudi Arabia,Oona Hathaway, a Yale Law School professor and a Defense Department lawyer in the Obama administration, told the New York Times, “If I were in the State Department, I would be freaking out about my potential for liability. I think anyone who’s involved in this program should get themselves a lawyer. It’s very dangerous territory the US is in, continuing to provide support given the number of civilians who have been killed.”

In 2022, US Senators Elizabeth Warren, Bernie Sanders, and Mike Lee sent letters to the Defense and State Departments,callingfor “thorough investigations into possible US complicity to civilian harm in Yemen.”

A state assisting another state or a nonstate armed group may be complicit in war crimes and other wrongdoing if their assistance knowingly and significantly contributes to the wrongful act. Individuals can be found complicit for “aiding and abetting” in war crimes under international law.

The United States and other weapons suppliers shouldsuspend military assistance and arms salesto Israel, Human Rights Watch said. The Biden administration should use its leverage with Israel to save lives, including by military aid and the imposition of targeted sanctions, to press Israeli authorities to enable the provision of humanitarian aid and basic services, and cease committing grave abuses in Gaza.