The United States Supports Israel's Use of Force in Gaza

On October 7, 2023, Hamas conducted a surprise attack on Israel from Gaza, killing over 1,200 people and taking over 240 hostages.¹ Following an air bombardment, Israel invaded Gaza on October 27.² Hours after the October 7 attack, President Biden stated, “[i]n this moment of tragedy, I want to say to [the people of Israel] and to the world and to terrorists everywhere that the United States stands with Israel. We will not ever fail to have their back.”³ Since then, the president and other U.S. officials have reiterated the need for a two-state solution, expressed support for Israel's right to defend itself, and asserted the United States’ commitment to Israel's security.⁴ The United States has transferred arms to Israel, deployed additional U.S. forces in the region,⁵ vetoed proposed resolutions in the Security Council that it claimed were not balanced, and made statements criticizing a case brought against Israel by South Africa at the International Court of Justice. At the same time, U.S. officials have repeatedly said, in Secretary of State Antony J. Blinken's words, that “[i]t's imperative that Israel act in accordance with international humanitarian law and the laws of war, even when confronting a terrorist group that respects neither.”⁶ The United States has expressed concern regarding civilian casualties in Gaza,⁷ attempted to provide humanitarian relief to Gazans, declared that new Israeli settlements in Palestinian territories are “inconsistent with international law” (reversing a Trump administration policy),⁸ and announced sanctions against Israeli settlers in the West Bank for violence there. In early March 2024, Vice President Kamala Harris called for “an immediate ceasefire” due to “the immense scale of suffering in Gaza.”⁹

Following the October 7 attack, the United States’ initial efforts focused on Israel's security. Beyond reinforcing the U.S. military presence in the eastern Mediterranean as a protective measure,¹⁰ the United States has provided Israel with “tens of thousands of weapons including bombs and precision guided munitions” in “more than 100 individual arms transfers.”¹¹ The administration has only notified Congress of two of these transfers, and both times the president invoked the Arms Export Control Act's emergency waiver provision that allows the arms sale to take place immediately (and not after the expiration of the statutory period that permits congressional review).¹² On December 8, 2023, Secretary Blinken approved the transfer of tank cartridges and other equipment from U.S. Army inventory estimated to cost $106.5 million.¹³ Subsequently, on December 29, 2023, Secretary Blinken invoked the same authority to bypass congressional review of an arms transfers of artillery ammunition totaling to $147.5 million, also from U.S. Army stock.¹⁴ The value of the other arms transfers to Israel fell below the statutory threshold that would require congressional notification or the transfers were previously approved and Congress notified.¹⁵

President Biden has also requested over $14 billion of additional military assistance for Israel.¹⁶ That request has stalled in Congress both because it is paired with assistance to Ukraine and because of the extensive civilian harms and casualties due to Israel's military operation in Gaza.¹⁷ As of March 2024, more than 30,000 Palestinians have been killed, and there are “dire shortages of food, water and medicine creating a humanitarian crisis.”¹⁸ Calls for limiting or conditioning military aid were raised early on in the war by some members of Congress.¹⁹ A November 2023 letter from twenty-six senators, representing a majority of the Democratic caucus, asked the president “to inform [them] about what specific mechanisms [he is] putting in place to ensure that Israeli military operations conducted inside Gaza are carried out in accordance with international humanitarian law and to ensure that any U.S.-provided equipment is used in a manner consistent with U.S. law.”²⁰ Those calls have gotten stronger as the war has continued. In February, for example, Senator Van Hollen and three other senators asked the president for documentation demonstrating the administration's compliance with U.S. law and policy regarding arms transfers. They asked for the reports that support the determination that transfers to Israel satisfy the Conventional Arms Transfer Policy,²¹ which requires the United States to “assess[] that it is more likely than not that the arms to be transferred will [not] be used by the recipient country to commit . . . serious violations of international humanitarian or human rights law.”²² The senators also asked for a detailed explanation of the administration's conclusion that Israel “has not restricted, directly or indirectly, the transport of delivery of U.S. humanitarian assistance with respect to the requirements under the Humanitarian Corridor Act, Section 620I(c) of the Foreign Assistance Act.”²³ Citing the newly issued National Security Memorandum on Safeguards and Accountability With Respect to Transferred Defense Articles and Defense Services (NSM-20),²⁴ the senators also encouraged the president to obtain from Israel as early as possible a “promise . . . [that it will] use . . . [U.S. security] assistance in accordance with international humanitarian law and, as applicable, international law.”²⁵

In addition to providing Israel with arms, the United States has also provided Israel with diplomatic cover. At the Security Council, the United States has vetoed three proposed resolutions pertaining to the October 7 attacks and the war in Gaza.²⁶ The United States stated that it objected to the resolutions because they made “no mention of Israel's right of self-defence,” refused to “condemn[] Hamas's horrific terrorist attack on Israel,” “call[ed] for an unconditional ceasefire,” and would “negatively impact . . . [‘sensitive and ongoing’] negotiations.”²⁷ The United States has also been critical of the case brought by South Africa at the International Court of Justice accusing Israel of violating the Genocide Convention. National Security Council Coordinator for Strategic Communications John Kirby described South Africa's “submission [as] meritless, counterproductive, and completely without any basis in fact whatsoever.”²⁸ Following the issuance of the Court's provisional measures order, U.S. Permanent Representative to the United Nations Linda Thomas-Greenfield said that the order was “consistent with the United States’ view that Israel has the right to take action in accordance with international humanitarian law to ensure the terrorist attacks of October 7 cannot be repeated.”²⁹ She argued that the Court “echoed the United States’ repeated calls for Israel to take all possible steps to minimize harm to civilians and humanitarian workers, to increase the flow of humanitarian assistance, and to address dehumanizing rhetoric.”³⁰

As the war has continued, President Biden has increasingly put pressure on Israel to adhere to international humanitarian law, permit humanitarian assistance, and negotiate a ceasefire.³¹ Taking aim at Israeli extremists whose activities “constitute[] a serious threat to the peace, security, and stability of the West Bank and Gaza, Israel, and the broader Middle East region” and “undermine . . . the viability of a two-state solution,” the president issued an executive order in February 2024³² that allows for sanctions “against those directing or participating in certain actions, including acts or threats of violence against civilians, intimidating civilians to cause them to leave their homes, destroying or seizing property, or engaging in terrorist activity in the West Bank.”³³ Four Israeli nationals were immediately designated for sanctions, and three more were added in March.³⁴ Secretary Blinken issued a visa restriction policy in December “targeting individuals believed to have been involved in undermining peace, security, or stability in the West Bank, including through committing acts of violence or taking other actions that unduly restrict civilians’ access to essential services and basic necessities.”³⁵

Dissatisfaction with Israeli Prime Minister Benjamin Netanyahu's reluctance to negotiate a hostage deal and his refusal to allow sufficient humanitarian aid to reach Palestinian civilians led to the president's executive order. As U.S. frustration has grown (the president tweeted at the beginning of March: “There are no excuses. The aid flowing into Gaza is nowhere near enough—and nowhere fast enough.”),³⁶ the United States has considered additional actions to encourage changes in Israeli policy, including reversing the Trump administration decisions that allowed imports of goods to the United States from Israeli settlements to be labeled “Made in Israel” and that deemed new Israeli settlements not per se inconsistent with international law. Sanctions on two high-level Israeli government ministers, Finance Minister Bezalel Smotrich and National Security Minister Itamar Ben-Gvir, have also been considered.³⁷ Thus far, only one of these measures has been adopted: reverting to the characterization of settlements as inconsistent with international law.³⁸ In his State of the Union Address in March 2024, President Biden warned “the leadership of Israel” that “humanitarian assistance cannot be a secondary consideration or a bargaining chip. Protecting and saving innocent lives has to be a priority.”³⁹ The president did not publicly threaten to condition or withhold military aid, but shortly after the address he warned that an attack on southern Gaza city of Rafah, where one million Palestinians have sought refuge, would be a “red line.”⁴⁰ Subsequently, Israel reportedly provided written assurances pursuant to NSM-20 that it is using U.S. defense articles in accordance with international humanitarian law and not restricting the transport or delivery of U.S. humanitarian assistance.⁴¹ Those assurances are under review; arms transfers to Israel continue.⁴² On March 25, the Security Council adopted a resolution that “[d]emand[ed] an immediate ceasefire for the month of Ramadan . . . [and] the immediate and unconditional release of all hostages.”⁴³ The United States abstained from the vote on the resolution, which Ambassador Thomas-Greenfield said was “nonbinding.”⁴⁴