Can Biden’s New Arms Transfer Policy Be More Than an Empty Promise?

March 2024
By John Ramming Chappell

On February 8, four months into the U.S.-backed Israeli campaign in Gaza that had already killed more than 25,000 people, the Biden administration released a policy concerning U.S. arms sales, civilian harm, and international law.

National Security Memorandum 20 (NSM-20) will not provide much-needed relief for Palestinians in Gaza, nor will it stop the flow of U.S. weapons to the Israeli government in the short term.¹ The policy requires assurances from recipients of U.S. arms on international law compliance and aims to push for the implementation of laws and policies already on the books, but it risks becoming yet another piece of paper ornamented with empty promises. The memorandum references the Biden administration’s conventional arms transfer policy, another document that makes strong commitments in text but has fallen short in practice. Whether such initiatives will help protect civilians and promote human rights in U.S. arms transfer decisions outside of the context of the war in Gaza depends on Congress.

What the Policy Does

NSM-20 grew out of an amendment to the supplemental funding package for Ukraine and Israel, introduced by Senator Chris Van Hollen (D-Md.) in December that gained momentum as 18 Democratic senators joined as co-sponsors.² Negotiating with the Biden administration, Van Hollen worked to turn his amendment into a national security memorandum, which is an executive branch policy issued by the president. Although any president could revoke the policy or ignore it, national security memorandums carry the authority of a directive from the president. Van Hollen has stated that he hopes to codify NSM-20 in law.

NSM-20 is premised on a superficial form of conditionality. In order to be eligible to receive taxpayer-funded weapons systems from the United States, countries must provide certain “credible and reliable written assurances.”³

The assurances fall into two principal categories. First, the partner government must commit expressly to use weapons funded with U.S. appropriated funds in accordance with international law. No such commitments exist in the standard terms of U.S. arms sales agreements, under which purchasers simply acknowledge international law obligations.⁴ Although the executive branch is required to report substantial violations of those agreements to Congress, this reporting is a rare occurrence.

Second, the partner government must commit that, in conflict zones where the country uses U.S.-funded weapons systems, it “will facilitate and not arbitrarily deny, restrict, or otherwise impede, directly or indirectly, the transport or delivery of United States humanitarian assistance and United States Government-supported international efforts to provide humanitarian assistance.” The language draws from Section 620I, a little-known provision of the Foreign Assistance Act of 1961. The requirement of assurances is a positive step, but monitoring and accountability will be key to implementation. For countries engaged in armed conflict, assurances are due 45 days after the memorandum’s release. All other countries have 180 days.

In a rare measure for a policy document, the memorandum commits the president to report to Congress on the required assurances and whether a foreign government has abided by them. Within 90 days of the memorandum’s release and annually thereafter, the executive branch will provide a report that includes reported violations of international law, use of weapons in compliance with civilian harm mitigation best practices, and adherence to the assurances regarding facilitation of humanitarian access. Other reporting is required when the “credibility or reliability of assurances” is called into question.

A Policy of Lip Service

NSM-20 references and follows the long-awaited release in February 2023 of President Joe Biden’s conventional arms transfer policy,⁵ which drew praise for its emphasis on human rights and atrocity prevention.⁶ In particular, the conventional arms transfer policy established that the United States will not export a weapon when it is “more likely than not” that it will be used to commit, facilitate, or aggravate the risk of a serious violation of international human rights or humanitarian law. The standard is stricter than the policies of the Obama and Trump administrations and provides the only firm commitment in the policy to refrain from arms transfers under certain circumstances.

Regardless, the war in Gaza has ushered in serious doubts about whether the commitments outlined in Biden’s conventional arms transfer policy actually matter. Human rights organizations have documented numerous instances of possible war crimes in Gaza. Josh Paul, who formerly directed congressional affairs at the Department of State bureau responsible for arms sales, has repeatedly asserted that the Biden administration is not adhering to the standard.⁷ Legislators and nongovernmental organizations also have called attention to the “more likely than not” standard.⁸

In a risk assessment for a proposed sale of bombs, precision guidance kits, and bomb fuses to Israel, the State Department concluded that the sale raised no human rights concerns.⁹ Yet, Amnesty International has documented that the Israeli government has used bombs and precision guidance kits in attacks that killed dozens of civilians and likely violated international law.

NSM-20 risks suffering the same fate as the conventional arms transfer policy and other commitments that look good on paper but result in no discernible changes when it matters most. When it comes to Israel, Biden administration officials have stated that the policy will have no immediate effect on security assistance, which sets an unfortunate precedent for its application elsewhere.¹⁰

Empty Words in Law

It is not just arms transfer policy that frequently has amounted to empty words. Generally applicable U.S. law restricting arms transfers and security assistance too often has shared the same fate.¹¹

Since the 1970s, Congress has enacted human rights laws governing weapons transfers and security assistance. Those laws bind the executive branch, but for decades, the executive branch has evaded, ignored, and undermined those laws. Courts have declined to wade into disputes on the grounds that they pose “political questions” inappropriate for judicial intervention.

Implementation of legal restrictions on arms sales appears to be the exception rather than the rule. Section 502B of the Foreign Assistance Act, the first provision of U.S. arms sales law to address human rights, prohibits security assistance to any country where the government engages in a consistent pattern of gross violations of human rights. Yet, successive administrations declined to implement the prohibition.

That failure resulted in Senator Patrick Leahy (D-Vt.) leading the fight to pass the Leahy law in 1997, a ban on assistance to any unit of foreign security forces for which the U.S. government has credible information that the unit has committed a gross violation of human rights. Leahy spent decades on the Senate Appropriations Committee closing loopholes, pushing for implementation, and conducting oversight, making the Leahy law the only human rights-related security assistance restriction in U.S. law with a robust vetting process to ensure implementation. Even so, no Israeli unit has ever been restricted from receiving U.S. assistance under the Leahy law despite credible allegations of gross violations of human rights and pressure from Leahy.¹²

In October 2023, the U.S. Government Accountability Office published a report concluding that the U.S. government has not implemented a provision of the Arms Export Control Act banning arms sales to countries “engaged in a consistent pattern of acts of intimidation or harassment directed against individuals in the United States.” The report found that the law “has never been invoked since its enactment in 1981 and, with limited required reporting, it is unclear the extent to which it has been considered.”¹³

Section 620I of the Foreign Assistance Act

Section 620I has suffered from similar neglect. That provision, which NSM-20 references, prohibits security assistance to any country whose government “prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.”¹⁴ The law originated as the Humanitarian Aid Corridor Act, a 1994 bill that responded to Turkey’s blockade on Armenia and blocked U.S. humanitarian assistance to the country. Congress enacted a precursor to Section 620I in 1995 as part of an annual appropriations act and then made the prohibition permanent in 1996. The following year, President Bill Clinton used the waiver authority in Section 620I to continue providing assistance to Turkey despite its restriction on the delivery of U.S. humanitarian aid.¹⁵

Since then, Section 620I only occasionally has reemerged in legislative discourse. In 2008, Congress required that the president report to Congress in case of a waiver of the provision.¹⁶ Senator Todd Young (R-Ind.) pressed the Trump administration’s nominee for State Department legal adviser on the implementation of Section 620I in the context of the war in Yemen during her October 2017 confirmation hearing.¹⁷ The United States provided weapons to Saudi Arabia even as it committed war crimes in Yemen and imposed a blockade that restricted the delivery of humanitarian aid and deepened Yemen’s humanitarian crisis. In 2019, Senator Jeff Merkley (D-Ore.) introduced a resolution requesting a report on Saudi Arabia’s human rights practices, and the resolution referenced Section 620I’s prohibition.¹⁸

In recent months, though, Section 620I has garnered unprecedented attention on Capitol Hill. Before long, deaths in Gaza from preventable diseases and famine may outnumber the death toll from bombings. Human rights organizations and media outlets have documented apparent Israeli restrictions on humanitarian assistance. The Israeli government recently blocked the delivery of U.S.-funded food aid to Gaza.19 Section 620I featured prominently in Van Hollen’s supplemental amendment, congressional floor speeches, and letters from civil society organizations.

Law should be enough to force action. Policies to pressure the executive branch into compliance with statutes should not be necessary. In practice, however, congressional vigilance historically has been required to nudge the executive branch into compliance.

A Catalyst for Congress

The potential of NSM-20 lies in its reporting requirements. Reporting to Congress and the public creates opportunities for legislators, advocates, and constituents to pressure the executive branch to implement the law in good faith. Must-pass legislation such as the National Defense Authorization Act and appropriations acts provides opportunities for legislators to force the executive branch to implement the law in conjunction with periodic reports. Such a process, over the course of many years, made the Leahy law into the cornerstone security assistance law that it is today.

The fact that civilians in Yemen and Gaza, where U.S.-provided bombs have exacerbated humanitarian crises, have suffered from restrictions on U.S. humanitarian aid imposed by U.S. allies and partners speaks to the urgency of implementing Section 620I. Whether NSM-20 will change outcomes depends on whether Congress uses the opportunity that reports present to pressure the administration to comply with the law.

 

ENDNOTES

1. See Sarah Harrison, “Biden’s New Policy on Security Assistance, NSM-20, Will Not Save Gaza,” Lawfare, February 14, 2024, https://www.lawfaremedia.org/article/biden-s-new-policy-on-security-assistance-nsm-20-will-not-save-gaza; Brian Finucane, “Not Reassuring: NSM-20 and the Limits of Law-of-War Assurances in the Transfer of U.S. Arms,” Just Security, February 13, 2024, https://www.justsecurity.org/92214/not-reassuring-nsm-20-and-the-limits-of-law-of-war-assurances-in-the-transfer-of-u-s-arms/; Seth Binder and John Ramming Chappell, “Can Biden’s New Arms Policy Lead to Real Accountability for Israel?” Defense News, February 16, 2024, https://www.defensenews.com/opinion/2024/02/16/can-bidens-new-arms-policy-lead-to-real-accountability-for-israel/.

2. “Van Hollen, Durbin, Kaine, Schatz and Colleagues Announce Amendment Requiring That Use of U.S. Supplemental Aid Comply With U.S., International Law,” Senator Chris Van Hollen, December 7, 2023, https://www.vanhollen.senate.gov/news/press-releases/van-hollen-durbin-kaine-schatz-and-colleagues-announce-amendment-requiring-that-use-of-us-supplemental-aid-comply-with-us-international-law.

3. The White House, “National Security Memorandum on Safeguards and Accountability With Respect to Transferred Defense Articles and Defense Services,” February 8, 2024, https://www.whitehouse.gov/briefing-room/presidential-actions/2024/02/08/national-security-memorandum-on-safeguards-and-accountability-with-respect-to-transferred-defense-articles-and-defense-services/.

4. “‘With Great Power’: Modifying U.S. Arms Sales to Reduce Civilian Harm,” Center for Civilians in Conflict and the Stimson Center, n.d., p. 28, https://civiliansinconflict.org/publications/research/with-great-power/.

5. The White House, “Memorandum on United States Conventional Arms Transfer Policy,” February 23, 2023, https://www.whitehouse.gov/briefing-room/presidential-actions/2023/02/23/memorandum-on-united-states-conventional-arms-transfer-policy/.

6. John Chappell and Ari Tolany, “Unpacking Biden’s Conventional Arms Transfer Policy,” Lawfare, March 1, 2023, https://www.lawfaremedia.org/article/unpacking-bidens-conventional-arms-transfer-policy.

7. See, e.g., Mathias Hammer, “Josh Paul on Why He Resigned From the State Department Over Arms to Israel,” Time, October 19, 2023, https://time.com/6325957/josh-paul-state-department-israel-arms/; Laura Flanders, “Why I Resigned From the State Department: An Interview With Josh Paul,” The Nation, October 30, 2023, https://www.thenation.com/article/society/josh-paul-resignation-interview/.

8. “Tlaib Requests Biden Administration and GAO Assessments of Israel’s Human Rights Compliance Under Leahy Laws and Conventional Arms Transfer Policy,” Representative Rashida Tlaib, January 24, 2024, https://tlaib.house.gov/posts/tlaib-requests-biden-administration-and-gao-assessments-of-israels-human-rights-compliance-under-leahy-laws-and-conventional-arms-transfer-policy; “Warren, McGovern Lead Bicameral Coalition Pressing Biden Administration for Bypassing Congress to Approve Arms Transfers to Israel,” Senator Elizabeth Warren, January 29, 2024, https://www.warren.senate.gov/newsroom/press-releases/warren-mcgovern-lead-bicameral-coalition-pressing-biden-administration-for-bypassing-congress-to-approve-arms-transfers-to-israel; Letter from Center for Civilians in Conflict and other civil society organizations to Secretary Lloyd Austin, December 20, 2023, https://civiliansinconflict.org/wp-content/uploads/2023/12/NGO-Letter-to-Secretary-Austin-on-Civilian-Harm-in-Gaza.pdf.

9. Jared Malsin and Nancy A. Youssef, “U.S. Plans to Send Weapons to Israel Amid Biden Push for Cease-Fire Deal,” The Wall Street Journal, February 17, 2024.

10. Bryant Harris, “Biden Doesn’t Plan to Stop Israel Aid After Human Rights Order,” Defense News, February 9, 2024, https://www.defensenews.com/congress/2024/02/09/biden-doesnt-plan-to-stop-israel-aid-after-human-rights-order/.

11. John Ramming Chappell et al., “Law and Policy Guide to U.S. Arms Transfers to Israel,” Just Security, November 8, 2023, https://www.justsecurity.org/90010/a-law-and-policy-guide-to-us-arms-transfers-to-israel/.

12. Stephanie Kirchgaessner, “‘Different Rules’: Special Policies Keep U.S. Supplying Weapons to Israel Despite Alleged Abuses,” The Guardian, January 18, 2024, https://www.theguardian.com/world/2024/jan/18/us-supply-weapons-israel-alleged-abuses-human-rights.

13. U.S. Government Accountability Office, “Human Rights: Agency Actions Needed to Address Harassment of Dissidents and Other Tactics of Transnational Repression in the U.S.,” GAO-24-106183, October 2023, https://www.gao.gov/assets/gao-24-106183.pdf.

14. 22 U.S.C. § 2378-1.

15. “Waiver of Statutory Restrictions to Permit Assistance to Turkey,” 62 Fed. Reg. 30737, June 4, 1997.

16. Comm. on Appropriations, Department of State, Foreign Operations, and Related Programs Appropriations Bill, 2008, S. Rep. No. 110-128 (2007).

17. Nomination Hearings of the 115th Congress—First Session, Hearings Before the Comm. on Foreign Relations, 115th Cong. (2018).

18. S. Res. 169, 116th Cong. (2019).

19. Julia Frankel, “Israel Is Holding Up Food for 1.1 Million Palestinians in Gaza, the Main UN Aid Agency There Says,” Associated Press, February 9, 2024; Barak Ravid, “Despite U.S. Requests, Israel Reduces Aid Allowed Into Gaza After Ceasefire Collapses,” Axios, December 1, 2023, https://www.axios.com/2023/12/01/gaza-aid-hamas-israel-limit-ceasefire-collapse; Jacob Magid, “Israel Agrees to Finally Release American Flour Shipment for Gaza, Says U.S. Official,” The Times of Israel, February 23, 2024, https://www.timesofisrael.com/israel-agrees-to-finally-release-american-flour-shipment-for-gaza-says-us-official/; Amnesty International, “Israel Defying ICJ Ruling to Prevent Genocide by Failing to Allow Adequate Humanitarian Aid to Reach Gaza,” February 26, 2024, https://www.amnestyusa.org/press-releases/israel-defying-icj-ruling-to-prevent-genocide-by-failing-to-allow-adequate-humanitarian-aid-to-reach-gaza/; Human Rights Watch, “Israel Not Complying With World Court Order in Genocide Case,” February 26, 2024, https://www.hrw.org/news/2024/02/26/israel-not-complying-world-court-order-genocide-case.