Statement on Biden Administration's NSM-20 Finding on Israel

For Immediate Release: May 10, 2024

Media Contacts: Daryl G. Kimball, executive director, (202) 473-8270 ext 107

(Washington, D.C.)—Today, the Biden administration announced the results of its internal review of Israel's use of U.S.-provided weapons in its war in Gaza under the terms of National Security Memorandum-20.

The report says U.S. weapons might have been used in violation of humanitarian law and that Israel has acted in ways that have blocked U.S. humanitarian assistance, but does not make a specific enough finding to trigger punitive action against Israel.

“Overall, the report side-steps the question of whether Israel has used U.S. weapons in its war on Hamas in Gaza in a manner that is consistent with U.S. law and international humanitarian law,” said Daryl G. Kimball, executive director of the Arms Control Association.

"As a result, the report represents an abdication of leadership by the President and his administration at a moment of crisis in Gaza for hundreds of thousands of civilians caught up in the war,” Kimball said.

U.S. law, regulations, and its Conventional Arms Transfer policy require withholding military assistance when our weapons transfers are used contrary to international humanitarian law:

  • The Biden administration’s Conventional Arms Transfer (CAT) policy, issued in 2023, stipulates that 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 serious violations of international human rights or humanitarian law, among other specified violations.
  • Section 502B of the Foreign Assistance Act bans the United States from providing security assistance to any government that engages in a consistent pattern of gross violations of human rights.
  • The “Leahy law” (22 U.S. Code § 2378d) requires an automatic cutoff of U.S. security assistance to foreign military units credibly implicated in gross violations of human rights.
  • Section 620I of the Foreign Assistance Act “… prohibits the United States from providing security assistance or arms sales to any country when the President is made aware that the government ‘prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.”

"There is now a large body of evidence, some of which is documented in the administration's own NSM-20 report, that makes it abundantly clear that U.S. weapons transfers to Israel have been misused by Israeli military forces to strike civilian targets and kill innocent civilians in Gaza over the past several months," Kimball noted.

"The Israeli government also has and is continuing to block U.S. and international humanitarian relief to Palestinian civilians trapped in Gaza,” Kimball pointed out.

"U.S. law, regulations, and the administration’s own conventional arms transfer policies require withholding U.S. military assistance when there is a risk of violation of international law, or when the recipient country restricts—directly or indirectly—the transport or delivery of United States humanitarian assistance,” he said.

“Israeli military operations in Gaza have clearly crossed these red lines,” Kimball said.

In addition, the use of explosive weapons in populated areas is widely considered to be a violation of international law. In 2022, the United States joined with more than 80 other nations to endorse a joint statement on Explosive Weapons in Populated Areas (EWIPA). Among other things the declaration "strongly condemn[s] any attacks directed against civilians, other protected persons and civilian objects, including civilian evacuation convoys, as well as indiscriminate shelling and the indiscriminate use of explosive weapons,” which are incompatible with international humanitarian law.

"As Israel continues to prepare for a large-scale military attack on Rafah—where more than one million civilians have sought refuge and have no realistic path to escape—there is no practical way for Israeli forces to discriminate between civilian and military targets," Kimball noted.

"It is imperative that President Biden fully exercise America's leverage to protect civilians before even more are killed or die from starvation and disease,” he urged.