In February of last year, President Biden changed the U.S. standard for cutting off weapons deliveries to foreign militaries that harm civilians during wartime.
Under the new arms transfer policy, Mr. Biden said countries that were “more likely than not” to violate international law or human rights with American weapons should not receive them. Previously, U.S. officials were required to show “actual knowledge” of such violations, a higher bar to clear.
A few months later, in August, Secretary of State Antony J. Blinken issued a directive instructing State Department officials overseas to investigate incidents of civilian harm by foreign militaries using American weapons and recommend responses that could include halting arms deliveries.
Hamas attacked Israel two months later, triggering the war in Gaza and plunging Mr. Biden and Mr. Blinken into an intense global debate about how Israel is using U.S. arms. To Mr. Biden’s critics, his steadfast refusal to limit arms deliveries to Israel runs counter to those initiatives and badly undermines his goal of positioning the United States as a protector of civilians in wartime.
His policies face new tests this week. Israel is threatening to invade Rafah, a city in southern Gaza, against Mr. Biden’s firm opposition. And the Biden administration plans to deliver a report to Congress this week assessing whether it believes Israel’s assurances that it has used American weapons in accordance with U.S. and international law.
If the report finds that Israel has violated the law, Mr. Biden could restrict arms deliveries. Eighty-eight House Democrats wrote to Mr. Biden last week questioning the credibility of Israel’s assurances and urging him “to take all conceivable steps to prevent further humanitarian catastrophe in Gaza.”
When the Biden administration issued the initiatives last year — the White House’s Conventional Arms Transfer Policy and the State Department’s Civilian Harm Incident Response Guidance — officials described them as part of a new emphasis on human rights in American foreign policy, an upgrade from their lower priority during the Trump administration.
“Part of it was to highly differentiate America’s role in the world under Biden from Trump,” said Sarah Margon, the director of foreign policy at the Open Society Foundations.
At the time, people familiar with the deliberations said, the Biden administration was focused on other countries, including Saudi Arabia, whose U.S.-armed military campaign in Yemen had killed thousands of civilians and contributed to a humanitarian nightmare.
In one of his first major acts as president, in February 2021, Mr. Biden even halted the delivery of offensive arms to the Saudis, who are fighting Iran-backed Houthi militants in Yemen. “This war has to end,” he said. Mr. Biden has since restored the deliveries.
Within months, the Hamas-led assault would incite a war that has drawn intense new scrutiny to Israel’s reliance on $3.8 billion in annual U.S. military aid, which includes bombs and ammunition that have been used in Gaza.
But critics say Mr. Biden is making a political decision to flout U.S. law and his own administration’s directives in the case of Israel.
“In practice, it may be a policy call from the White House — but that’s not the way it should work,” said Brian Finucane, a senior adviser at the International Crisis Group who spent a decade in the State Department’s Office of the Legal Adviser until 2021. “U.S. law should be applied. If the outcome is something you don’t like, tough luck.”
That law originated in the 1970s as concern was rising about human rights abuses by some of America’s Cold War allies and as some members of Congress were angry with the Nixon and Ford administrations for giving them little notice before arming several Middle Eastern countries.
Leading the charge was the liberal Democratic senator Hubert H. Humphrey of Minnesota, who complained in 1976 that the American people had “become justifiably concerned with a highly secretive national policy which seems to disregard our long-term security interests in a stable, more democratic world.”
Humphrey pushed through legislation declaring that the United States could not send military assistance to any foreign government that “engages in a consistent pattern of gross violations of internationally recognized human rights.” Congress defined those violations to include “torture, cruel, inhuman or degrading treatment or punishment,” arbitrary detention and “other flagrant denial of the right to life, liberty or the security of person.”
Experts have interpreted that last clause to include things like indiscriminate bombing or disproportionate civilian casualties. A 2017 American Bar Association report focused on U.S. arms sales to Saudi Arabia found that “serious violations of international humanitarian law resulting in the loss of civilian life” would qualify.
International humanitarian law is generally grounded in the Geneva Conventions and other international agreements that call for protecting civilians in war, and outlaw attacks on medical facilities and personnel.
The 1970s-era U.S. law also granted a president the power to waive penalties against arms recipients on the grounds of urgent national security interest.
The U.S. government generally lacks clearly defined procedures for evaluating whether militaries that receive American arms might be breaking laws, experts said. Nor is it able to closely monitor how those weapons are used, experts said.
Ms. Margon, who served as a senior aide on the Senate Foreign Relations Committee, could not recall an instance in which the United States had halted foreign military aid over human rights violations.
The report due from the administration this week is the product of increased pressure from Democrats in Congress. In February, Senator Chris Van Hollen, Democrat of Maryland, drew up legislation invoking a 1995 law that bars U.S. aid to any country that blocks the delivery of U.S. humanitarian aid. Many aid groups and legal experts accuse Israel of intentionally impeding humanitarian supplies into Gaza, including aid provided by the United States; Israel has blamed Hamas and logistical issues for the shortages.
As Mr. Van Hollen’s amendment began to gather support among Democrats, the White House moved to co-opt the effort. Mr. Van Hollen’s measure “was unlikely to succeed — but it would still cause embarrassment for the administration,” said John Ramming Chappell, a fellow at the Center for Civilians in Conflict.
Working with Mr. Van Hollen, the White House drafted a national security memo similar to his Senate measure. It included a requirement that all recipients of U.S. military aid provide written “assurances” that they had complied with applicable domestic and international law when using American weapons. Israel, the clear reason for the measure, was not singled out by name.
Israel submitted its assurances to the State Department in late March. Mr. Blinken is now overseeing the delivery of the report to Congress assessing “any credible reports or allegations” that U.S. arms have been used to violate the law, and whether the country in question “has pursued appropriate accountability.”
The report must also say whether the country has “fully cooperated” with U.S. efforts to provide humanitarian aid to a conflict area where it has used American weapons.
“This is going to be a test of the credibility of the administration, and whether it’s willing to reach some inconvenient truths,” Mr. Van Hollen said in an interview. “This report is supposed to be driven by hard facts and the law.”
“The question is, what does the Biden administration do to verify any claims? It’s not enough to say, ‘Oh, you know, we’ve asked the Israeli government and they say it’s justified,” he added.
Experts who track the issue are skeptical that the report will incriminate Israel, at least without finding ways to continue arms deliveries.
The Biden administration rejects such talk. “The same standard should be applied to every conflict everywhere in the world, including this one,” Matthew Miller, a State Department spokesman, told reporters last week. But the Gaza conflict, he added, is “a little bit more difficult” than most because Hamas fighters hide in densely populated civilian areas.
If the report finds that Israel’s assurances are not credible, it must describe steps “to assess and remediate the situation.” According to Mr. Biden’s original memo, that can include anything from “refreshing the assurances” to cutting off arms transfers.
Mr. Miller has said the department is separately investigating an unspecified number of episodes under the internal policy established by Mr. Blinken in August.
But that system is devised only to encourage policy discussion “to reduce the risk of such incidents occurring in the future,” Mr. Miller said in February. It outlines no specific penalties.
