“I’m not aware of any kind of formal assessment being done by the United States government to analyze the compliance with international law by our partner Israel,” Kirby told reporters on Jan. 4, as the Biden administration rallied to defend Israel against an International Court of Justice case arguing that Israel was violating international protections against genocide. “We have not seen anything that would convince us that we need to take a different approach in terms of trying to help Israel defend itself.”
Kirby’s comment echoed a string of similar claims from Biden administration officials. Their public narrative helps bolster U.S. claims that Israel is respecting global standards for fighting in pursuing Hamas in Gaza, and helps undercut the ICJ genocide case and other efforts to examine Israel’s conduct.
But internally, U.S. officials have been assessing possible international law violations by Israel for months, and they are continuing to do so, HuffPost has learned from four sources familiar with private discussions about the assessments.
At the State Department, officials are probing Israeli actions in Gaza which they believe may have broken international law, a State official familiar with discussions in recent weeks told HuffPost. State’s attorneys have tracked such examples for months, the official said.
The investigations are occurring through several avenues.
State is investigating whether Israel, a major recipient of American aid, has committed human rights abuses that violate U.S. law, the official said. Such violations could simultaneously have broken international law.
The State Department is also evaluating Israeli conduct through the Civilian Harm Incident Response Guidance process — a new policy introduced by President Joe Biden last fall — according to that official and another State Department official. That process is intended to monitor whether foreign governments use weapons provided by the U.S. to hurt civilians, and it could unearth evidence of international law violations, the officials said.
And during a closed-door briefing organized on Friday by the National Security Council at the White House, an NSC official said the U.S. has been conducting assessments of whether Israel is complying with international law, a source present at the briefing told HuffPost.
Spokespeople for the NSC and the State Department did not respond to requests for comment.
After this article’s initial publication, a U.S. official contacted HuffPost to say Defense Department lawyers have also been working since at least November on assessments of Israeli actions in Gaza, and of whether apparent violations of international law implicate the U.S. The official had direct knowledge of internal discussions. Pentagon spokespeople did not immediately respond to a request for comment.
The revelation highlights a disconnect between the Biden administration’s stated commitment to the president’s policy of full-scale military and diplomatic support for the Gaza campaign, and the awareness among foreign policy officials that the policy could be illegal and even implicate U.S. officials in war crimes.
It also directly undercuts public statements from Kirby — who over the weekend was promoted to a new role overseeing U.S. national security communications across government agencies, and who has ardently rejected criticism of the Gaza policy, calling the ICJ suit against Israel “meritless, counterproductive and completely without any basis in fact whatsoever.”
Most judges at the court, the chief legal organ of the United Nations, have already disagreed. On Jan. 26, the court ruled it is plausible that Israel has broken international law by violating the Genocide Convention; it declined an Israeli request to dismiss the suit, brought by South Africa. (Both countries are parties to the convention.) The court ordered Israel to take steps to change its approach and report back within a month. South Africa on Tuesday petitioned the court for more urgent action, citing Israel’s recent threats of an assault on Rafah, the last major town in Gaza it does not control, where more than 1.4 million Palestinians are sheltering and conditions are already extremely desperate.
Since the court issued its preliminary ruling, Israel’s military has begun investigating alleged international law violations by its soldiers, the Israeli newspaper Haaretz revealed. Yet U.S. officials have refrained from publicly sharing their view of possible excesses.
U.S. government spokespeople like National Security Council aide John Kirby have repeatedly claimed the U.S. is not conducting assessments of alleged Israeli misconduct in Gaza.
Biden administration assessments of alleged Israeli misdeeds could help create a more serious conversation about accountability for U.S. and Israeli choices during the Gaza war, some experts believe, as well as a change in course.
“For months, U.S. officials have repeatedly said the U.S. is not assessing whether Israel is complying with international law in its operations in Gaza,” said Annie Shiel, the U.S. advocacy director at the Center for Civilians in Conflict nonprofit. “Such assessments are critical for good faith implementation of U.S. laws and policies, including the Biden administration’s own Conventional Arms Transfer policy, which prohibits the transfer of arms when the United States assesses it is more likely than not that the arms will be used to commit or facilitate serious violations of international law.”
She argued that Biden’s team should now provide even more clarity about its understanding of the American role in causing “catastrophic civilian harm in Gaza” and U.S. responsibility to prevent further damage.
“Congress and the public need to know what that process entails, what they are finding, and most importantly, what the consequences will be for violations,” said Shiel, a former State Department official.
It’s not yet clear if officials at the State Department will ultimately issue any formal findings — known as “determinations” — that Israel has broken international law in ways that constitute war crimes. The department said it was able to reach such a conclusion about Russian soldiers involved in the full-scale invasion of Ukraine one month into Moscow’s assault.
The Biden administration has recently hinted at frustration with Israeli Prime Minister Benjamin Netanyahu amid pressure from activists and some Democratic lawmakers for Israeli restraint. They are also calling for a halt in fighting and the release of Israelis captured by Palestinian militants, as well as major humanitarian assistance for Gazans, who aid groups say are sinking into famine. Netanyahu has blasted the idea of a truce and promised expanded fighting into Gaza’s last so-called “safe zone.”
But Biden is still refusing to suggest that U.S. support for the Israeli operation could be reduced, creating a sense of impunity for Netanyahu, some experts argue.
On Thursday, the president unveiled a new memo stating that U.S. military assistance for all countries, including Israel, must abide by American and international law, and outlining steps that U.S. officials should take to ensure this is the case.
Analysts and former officials expressed skepticism that the policy will be seriously applied to Israel, which Biden has long treated more warmly than most American politicians. In December, Biden administration officials told The Washington Post they could not evaluate Israel’s military actions in real time, but that they did not have information suggesting the country had violated the president’s historically high human rights standards for arms exports. Biden twice that month bypassed Congress to rush weapons to Israel.
Biden’s team and Democratic senators celebrated last week’s memo as a big move toward preventing violations of international laws designed to mitigate the impact of conflict. Still, observers told HuffPost that even if it were rigorously applied, it would take months for it to make a difference for the current war — a prospect many believe is only possible with a more dramatic shift toward peace from Biden.
“Over four months and 28,000 Palestinians killed, the risks of unconditionally arming Israel are entirely unambiguous,” Shiel said. “The U.S. urgently needs to honestly acknowledge that risk, end U.S. complicity in devastating harm as required by U.S. law and policy, and leverage security assistance to de-escalate and protect civilians.”