Late last year, 50 humanitarian organizations asked Secretary of State Antony Blinken to make an atrocity determination related to a conflict that was drawing global attention.
The groups requesting the designation had been lobbying the Biden administration for months. In their November letter, they zeroed in on atrocities committed by the Rapid Support Forces, one of the warring factions in a battle for control of Sudan. Six days later, Blinken responded with a determination that the RSF and the Sudanese Armed Forces were guilty. “Based on the State Department’s careful analysis of the law and available facts, I have determined that members of the SAF and the RSF have committed war crimes in Sudan,” he said in a December 6 statement.
In the case of the RSF, Blinken went further: “I have also determined that members of the RSF and allied militias have committed crimes against humanity and ethnic cleansing.”
For the human rights activists who had pushed for the designation, it was a sweet victory. Such a determination can have important foreign policy implications, creating a legal designation for international crimes usually accompanied by limits on weapons and security assistance, economic sanctions, and other penalties. Yet something seemed off. Just over 1,100 miles from Sudan’s capital, Khartoum, well-documented war crimes were being carried out with impunity. But the State Department has been unwilling to make a similar determination in regard to Israel’s war on Gaza.
“U.S. officials regularly — and often rightly — condemn the actions of other warring parties in other places like Ukraine, Ethiopia, and Sudan,” Sarah Yager, the Washington director at Human Rights Watch, told The Intercept. “But on Gaza, U.S. officials are avoiding passing judgment on Israel’s conduct.”
“Complicit” in Israeli Atrocities
On a near-daily basis, a State Department spokesperson takes questions from the media and is routinely pressed about the latest atrocity alleged to have been committed by Israeli forces, whether it’s gunfire aimed at civilians in a church; the bombing of hospitals, mosques, schools, universities, or residential buildings; or the cutting off of food, fuel, and medicine. Generally, the questions refer to either video evidence or on-record statements from Israeli government ministers.
The State Department consistently declines to cast judgment, often saying that the views or actions of some elements of the security forces or some ministers don’t represent the official Israeli position. “The United States rejects recent statements from Israeli Ministers Bezalel Smotrich and Itamar Ben Gvir advocating for the resettlement of Palestinians outside of Gaza,” State Department spokesperson Matthew Miller said earlier this month. “This rhetoric is inflammatory and irresponsible. We have been told repeatedly and consistently by the government of Israel, including by the prime minister, that such statements do not reflect the policy of the Israeli government.”
By refusing to make an atrocity determination relative to Israeli forces, the U.S. is leaving one of its critical levers off the field. The United States has long used atrocity determinations to draw attention to conflicts and mobilize the international community. It has done so with increasing frequency in recent years, employing them for Bosnia and Herzegovina (1993), Rwanda (1994), Iraq (1995, 2014), Darfur (2004), Burma (2021), China (2021), Ethiopia (2023), and Sudan (2023). Experts say the State Department is shirking its obligation to assess whether Israel is complying with the laws of war and has failed to act on backchannel requests from some of the same advocates who lobbied for the Sudan determination to do something similar regarding Israel’s war in Gaza.
“It is imperative that the United States assess Israel’s international law compliance because many of the weapons that the Israeli military has used to kill civilians, flatten homes, and destroy medical facilities are made in the United States and paid for by U.S. taxpayers,” said John Ramming Chappell, an advocacy and legal fellow at the Center for Civilians in Conflict. “By providing military aid, the United States risks making itself complicit in possible atrocity crimes.”
Billions Worth of U.S. Weapons
U.S. munitions have been central to Israel’s destruction of Gaza. In the first month and a half of the war alone, Israel dropped more than 22,000 U.S.-supplied bombs on Gaza, according to intelligence figures provided to Congress and disclosed by the Washington Post. Between October and late December 2023, the U.S. delivered more than 10,000 tons of armaments and equipment to Israel, according to the Israel’s Channel 12 television network. That report also noted that Israel’s Defense Ministry had ordered $2.8 billion in additional arms and equipment from the United States.
The United States already had, as of October 2023, nearly 600 pending Foreign Military Sales to Israel, including F-35 Joint Strike Fighter aircraft and precision-guided munitions, with an overall value of $23.8 billion. Under the Direct Commercial Sales process — by which Israel purchases directly from U.S. arms manufacturers — the U.S. authorized the permanent export of over $5.7 billion in weapons and equipment between 2018 and 2022. The U.S. has provided Israel with another $6.6 billion worth of equipment under the Excess Defense Articles program since 1992. All told, the U.S. has given Israel $158 billion in bilateral assistance and missile defense funding, more than any other country since World War II, according to a March 2023 report by the Congressional Research Service.
“Administration spokespeople have repeatedly said that the United States is not assessing whether Israel is complying with international law in its operations in Gaza. These statements are inconsistent with the administration’s own conventional arms transfer policy, in which President Biden committed to ‘engage in appropriate monitoring’ to ensure that U.S. weapons are used in accordance with international human rights and humanitarian law obligations,” said Chappell. “The same policy requires government agencies to determine whether a proposed arms transfer is ‘more likely than not’ to aggravate the risk of violations based on a recipient’s past conduct. The Biden administration cannot implement this requirement in good faith without assessing the legality of the Israeli military’s conduct in Gaza.”
The State Department did not respond to The Intercept’s questions about their atrocity determination for Sudan and their failure to issue a similar designation for Israel.
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