Statement on Biden Administration's NSM-20 Finding on Israel

Description

The Biden administration internal review of Israel's use of U.S.-provided weapons in Gaza side-steps the question of whether the weapons were used in a manner consistent with U.S. and international humanitarian law.

Body

For Immediate Release: May 10, 2024

Media Contacts: Daryl G. Kimball, executive director, (202) 473-8270 ext 107

(Washington, D.C.)—Today, the Biden administration announced the results of its internal review of Israel's use of U.S.-provided weapons in its war in Gaza under the terms of National Security Memorandum-20.

The report says U.S. weapons might have been used in violation of humanitarian law and that Israel has acted in ways that have blocked U.S. humanitarian assistance, but does not make a specific enough finding to trigger punitive action against Israel.

“Overall, the report side-steps the question of whether Israel has used U.S. weapons in its war on Hamas in Gaza in a manner that is consistent with U.S. law and international humanitarian law,” said Daryl G. Kimball, executive director of the Arms Control Association.

"As a result, the report represents an abdication of leadership by the President and his administration at a moment of crisis in Gaza for hundreds of thousands of civilians caught up in the war,” Kimball said.

U.S. law, regulations, and its Conventional Arms Transfer policy require withholding military assistance when our weapons transfers are used contrary to international humanitarian law:

  • The Biden administration’s Conventional Arms Transfer (CAT) policy, issued in 2023, stipulates that the United States will not transfer weapons when it is “more likely than not” that those weapons will be used to commit, facilitate the commission of, or aggravate the risk of serious violations of international human rights or humanitarian law, among other specified violations.
     
  • Section 502B of the Foreign Assistance Act bans the United States from providing security assistance to any government that engages in a consistent pattern of gross violations of human rights.
     
  • The “Leahy law” (22 U.S. Code § 2378d) requires an automatic cutoff of U.S. security assistance to foreign military units credibly implicated in gross violations of human rights.
     
  • Section 620I of the Foreign Assistance Act “… prohibits the United States from providing security assistance or arms sales to any country when the President is made aware that the government ‘prohibits or otherwise restricts, directly or indirectly, the transport or delivery of United States humanitarian assistance.”

"There is now a large body of evidence, some of which is documented in the administration's own NSM-20 report, that makes it abundantly clear that U.S. weapons transfers to Israel have been misused by Israeli military forces to strike civilian targets and kill innocent civilians in Gaza over the past several months," Kimball noted.

"The Israeli government also has and is continuing to block U.S. and international humanitarian relief to Palestinian civilians trapped in Gaza,” Kimball pointed out.

"U.S. law, regulations, and the administration’s own conventional arms transfer policies require withholding U.S. military assistance when there is a risk of violation of international law, or when the recipient country restricts—directly or indirectly—the transport or delivery of United States humanitarian assistance,” he said.

“Israeli military operations in Gaza have clearly crossed these red lines,” Kimball said.

In addition, the use of explosive weapons in populated areas is widely considered to be a violation of international law. In 2022, the United States joined with more than 80 other nations to endorse a joint statement on Explosive Weapons in Populated Areas (EWIPA). Among other things the declaration "strongly condemn[s] any attacks directed against civilians, other protected persons and civilian objects, including civilian evacuation convoys, as well as indiscriminate shelling and the indiscriminate use of explosive weapons,” which are incompatible with international humanitarian law.

"As Israel continues to prepare for a large-scale military attack on Rafah—where more than one million civilians have sought refuge and have no realistic path to escape—there is no practical way for Israeli forces to discriminate between civilian and military targets," Kimball noted.

"It is imperative that President Biden fully exercise America's leverage to protect civilians before even more are killed or die from starvation and disease,” he urged.

Sections
PressRoom
Author
Daryl Kimball

The success of the global nuclear nonproliferation and disarmament system has always relied on effective cooperation and dialogue between the two largest nuclear-weapon states. 

May 2024            
By Daryl G. Kimball

The success of the global nuclear nonproliferation and disarmament system has always relied on effective cooperation and dialogue between the two largest nuclear-weapon states.

U.S. and Russian flags fly on the Mont-Blanc bridge on the eve of a U.S.-Russia summit, on June 15, 2021 in Geneva. (Photo by Sebastien Bozon/AFP via Getty Images)

But as their relations deteriorated over the past decade, Russia and the United States have dithered and delayed on new disarmament talks and even failed to resolve disputes on successful arms control agreements that helped ease tensions and reduce nuclear risks in the past.

Russia’s illegal and brutal full-scale invasion of Ukraine and Russian President Vladimir Putin’s nuclear threat rhetoric have increased the danger of nuclear conflict. The war has become the Kremlin’s cynical excuse to short-circuit meaningful channels of diplomacy that could reduce nuclear risk. 

In early 2023, Russia suspended implementation of the last remaining Russian-U.S. nuclear arms control agreement, the New Strategic Arms Reduction Treaty (New START), while publicly committing to adhere to the treaty’s central limits. But New START will expire in February 2026.

That is why U.S. National Security Advisor Jake Sullivan proposed in June 2023 that the two sides start talks “without precondition” to establish a new nuclear arms control framework. 

“It is in neither [Russian or U.S.] interests to embark on an open-ended competition in strategic nuclear forces,” and the United States is “prepared to stick to the central limits as long as Russia does,” he said. New START caps each side at no more than 1,550 treaty-accountable deployed nuclear warheads.

But in December, Russia rejected the U.S. proposal, saying it sees “no basis for such work” due to tensions over the war in Ukraine. 

Meanwhile, China is expanding and diversifying its relatively smaller arsenal, now estimated at 500 nuclear warheads, about 300 of which are on long-range systems. After agreeing to discuss nuclear risk reduction with U.S. officials in November, Chinese leaders have declined so far to meet again.

The White House has requested $69 billion for sustaining and upgrading the massive U.S. nuclear arsenal in fiscal year 2025, a 22 percent increase from the previous year. Nevertheless, some politicians and members of the nuclear priesthood are pushing to increase the cost and size of the nuclear arsenal even more by deploying 50 extra land-based missiles and uploading additional warheads on existing missiles.

If Russia and the United States exceed New START limits, China undoubtedly would be tempted to accelerate its own nuclear buildup. Such an action-reaction cycle would be madness. 

Once nuclear-armed adversaries achieve a mutually assured destruction capability, as China, Russia, and the United States have done, expanding their nuclear forces or acquiring new capabilities will not lead to more security but rather to an increasingly costly, unstable, and dangerous balance of terror. As U.S. Defense Secretary Lloyd Austin put it in December 2022, “Nuclear deterrence isn’t just a numbers game. In fact, that sort of thinking can spur a dangerous arms race.”

Halting the cycle of spiraling nuclear tensions is in every nation’s interest. Furthermore, under Article VI of the nuclear Nonproliferation Treaty (NPT), Russia and the United States, along with China, France, and the United Kingdom, have a legal obligation to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament.” Refusing to engage at the negotiating table, combined with building an even greater nuclear destructive capacity, is a violation of this core NPT tenet.

Ahead of New START’s expiration, all NPT states-parties, nuclear armed or not, allied or nonaligned, must increase the diplomatic pressure on Russia and United States, as well as China, to freeze the size of their nuclear arsenals and engage in meaningful, sustained arms reduction talks. Their message should be sent through all relevant channels, including bilateral meetings, the upcoming preparatory meeting for the next NPT review conference, the UN General Assembly, and daily at the UN Security Council.

A comprehensive, formal Russian-U.S. nuclear arms control deal would be difficult to achieve even in a more stable geostrategic environment. In these more troubled times, the pragmatic interim approach should be for Moscow and Washington to pursue a simple executive agreement or just unilaterally declare that they will continue to respect New START’s central deployed warhead limit until a more comprehensive nuclear arms control framework agreement can be concluded. 

As part of such a deal, the two sides also should seek to resume on a reciprocal basis data exchanges and inspections similar to those under New START. If they cannot do that, each side could confidently use their national technical means of intelligence to monitor compliance and ensure there is no militarily significant violation by the other party of the deployed warhead ceiling. Such an arrangement would lessen dangerous nuclear competition and create space for more intensive and wide-ranging arms control negotiations.

More nuclear weapons make us all less secure. Embarking on a safer path through disarmament diplomacy is imperative.

Subscribe to