Is Washington Responsible for What Israel Does With American Weapons?

The United States is the biggest backer of the Israeli military, providing it with billions of dollars in military assistance every year. Because of this support and U.S. intelligence sharing, Israel’s brutal campaign in the Gaza Strip launched in response to Hamas’s unconscionable attack on Israeli civilians on October 7 raises serious legal and policy issues for the United States. U.S. domestic laws and standards restrict military and intelligence support that would be used to violate the law of war. Further, U.S. officials risk complicity if Israel uses U.S. support to commit war crimes. The Biden administration and the State Department in particular should therefore be taking concrete steps to monitor how Israel is using U.S. weapons and to prevent their misuse.

But promoting compliance with the law of war is not enough. Even if the military campaign was conducted in strict compliance with the law, it would bring only more suffering and destruction to Gaza and risk regional escalation that could further directly involve the U.S. military. The only way to address those risks is through de-escalation and, ultimately, finding a way out of the conflict.

BOMBS OVER GAZA

The conflict in Gaza is governed by the law of war, a body of international law also known as international humanitarian law. These rules, agreed to by states, balance considerations of military necessity with humanity and set limits on what parties to an armed conflict can and cannot do. They apply to both Israel and Hamas. The law of war requires that attacks be directed solely against military objectives (including enemy combatants), prohibits the targeting of civilians and civilian objects, and outlaws attacks not directed at specific military objectives. Hospitals, ambulances, schools, and places of worship are also ordinarily protected from attack, although their use for military purposes can potentially end that protection. These rules all reflect what lawyers call the principle of “distinction,” which is supposed to guide parties to the conflict in distinguishing civilians and civilian infrastructure from enemy fighters and military objectives. Under the principle of “proportionality,” the law prohibits attacks that could be expected to cause civilian harm that would be excessive in relation to the concrete and direct military advantage the attack is expected to produce. For example, this principle would permit an attack on an enemy headquarters even if it is expected to cause civilian deaths so long as that harm is not “excessive.” In addition, both the attacking and defending parties have obligations to take precautions to further mitigate harm to civilians. For example, the use of involuntary human shields to impede military operations is prohibited, but such use does not relieve the attacking party of their own legal obligations.

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