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The highly anticipated report from President Joe Biden's administration on whether Israel is violating international humanitarian law is “untruthful”, human rights groups said on Monday, adding that Congress is moving in the wrong direction as the Rafah invasion unfolds.
The State Department concluded in a recent report to Congress that Israel’s use of US-provided weapons in Gaza probably violated international humanitarian law.
But it said it would not stop support to its ally because wartime conditions made “it difficult to assess or reach conclusive findings”.
That assessment is “painting an untruthful picture” of the situation, Matt Duss, executive vice president at the Centre for International Policy, told The National.
In a joint Oxfam and Human Rights Watch submission to the report process, obtained by The National, the groups outlined to the White House, State Department and Department of Defence instances in which they argue Israel had conducted "grave violations of the Fourth Geneva convention and customary humanitarian law" in Gaza, telling the administration they believed a suspension of arms transfers was "necessary".
The report represents a “very key moment for congressional oversight”, experts say, at a moment when Mr Biden's Israel track record is dividing his Democratic Party and bringing anger from opposition Republicans.
Is the Israel report 'untruthful'?
Mr Duss joined a coalition of leading human rights advocates in a Monday media briefing to express “shock” over the administration's report.
Representatives from Human Rights Watch and Oxfam took part and questioned the report's conclusion that it was difficult to make specific conclusions about illegal strikes.
They said both organisations had “submitted evidence that showed particular strikes that violated international humanitarian law”.
“We know it's difficult because we did that work, and we presented the evidence to the US government,” said Sarah Yager, Washington director at HRFW.
"We also know that in other contexts, the US does not find it difficult at all to assess violations of international law."
Ms Yager said that, less than a month after Russia's 2022 invasion of Ukraine, Secretary of State Antony Blinken “was out in public calling [President] Vladimir Putin a war criminal because of very similar bombing of apartment buildings, hospitals, schools, that we have seen in Gaza”.
The death toll in Gaza passed 35,000 on Monday, according to local authorities, in a war that has inspired a genocide case at the International Court of Justice over the high number of civilians killed.
The administration defended the report on Monday, noting that it “did not outline or create any new parameters or mechanisms”.
“Given the nature of what is happening on the ground, and given the nature of Hamas's track record of co-locating itself with civilians, using civilians as human shields, we're unable to make a conclusive determination as it relates to violations of international humanitarian law,” State Department spokesman Vedant Patel said.
Congress galvanised on pro-Israel policies
Annie Shiel, US advocacy director at the Centre for Civilians in Conflict, said: “President Biden has everything he needs to suspend US arms transfers to Israel immediately … and if he won't, Congress must.”
But a pro-Israel Congress is unlikely to press Israel further, and recent developments have galvanised many US politicians to increase support for Israel.
John Chappell, an advocacy and legal fellow at the Centre for Civilians in Conflict, warned that “unfortunately, we're seeing some in Congress take steps in precisely the wrong direction”.
Opposition Republicans say the report went too far in its criticism of Israel and Mr Biden is playing politics to save himself from losing the progressive pro-ceasefire vote in the election.
And that has inspired a flood of new legislation that would undermine efforts to enforce US human rights provisions, such as the Foreign Assistance Act or the Leahy Laws, with respect to Israel.
Representative Beth Van Duyne last week introduced the Immediate Support for Israel Act, which would require transfers of some weapons to occur within 30 days of procurement.
House majority leader Steve Scalise is also quickly moving the Israel Security Assistance Support Act, which would bar the administration from withholding military aid to Israel passed by Congress and require its “prompt delivery”.
Before the release of the report, which ultimately said that US support to Israel would continue, Mr Biden told CNN that he would stop sending weapons to Israel if it invades Rafah.
The administration had also paused the shipment of ammunition including 500-pound and 2,000-pound bombs amid Israel's escalation of military operations in Rafah.
That was even as the administration denied that Israel had begun its long-threatened invasion of the congested Palestinian city.
Mr Biden's comments and the ammunitions pause caused division even among his strongest allies in Congress.
Senate foreign relations committee chairman Ben Cardin made a rare break from the President on Israel-Gaza policy, saying in a Friday statement that he “differs” with the decision to pause aid.
And Representative Brad Schneider, a Democrat from Illinois, said on Thursday that he is “deeply concerned” about the decision, “as well as the President's comments about withholding security assistance to Israel”.
There is a small but growing coalition of Democrats who have pushed for a ceasefire in Gaza and have similar concerns about the State Department report.
Pro-ceasefire Senator Chris Van Hollen said the administration's conclusion “largely fails to meet the mark of what NSM-20 requires”.
“This report essentially ducks the critical question at hand,” Mr Van Hollen said, referring to the Human Rights Watch, Oxfam and Amnesty International reports submitted to the administration.
“What’s more, these independent reports underscore a concerning trend: the administration cites the important work of these organisations when it suits their purposes but ignores them when it does not.”
But Democratic leadership is largely standing by Mr Biden when it comes to the report, further diminishing the odds that Congress will use its regulatory authority to press Israel on human rights concerns.
Mr Cardin, who has regulatory authority over the State Department as committee chairman, said he agreed with the report's assessment that “Israel has not violated international humanitarian law and that military assistance to support Israel’s security remains in the US interest and should continue”.
But Ms Yager said on Monday that the moment represents a “breakdown of US credibility throughout the world”.
“I see a breakdown of congressional oversight," she said.
"I see a breakdown in the understanding and use of US laws that govern armed transfers.
"And I really, unfortunately and very disturbingly, I see a breakdown in the rules of war."
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