Legal Requirement to Maintain Israel’s Qualitative Edge

According to the Congressional Research Service, successive administrations have argued since the late 1970s that U.S. arms sales are an important mechanism for addressing the security concerns of Israel and other regional countries. During this period, some Members of Congress have argued that sales of sophisticated weaponry to Arab countries may erode Israel’s qualitative military edge (QME) over its neighbors since Israel must rely on better equipment and training to compensate for a manpower deficit in a conflict against one or more regional states.

However, successive Administrations have maintained that Arab countries are too dependent on U.S. training, spare parts, and support to be in a position to use sophisticated U.S.-made arms against the United States, Israel, or any other U.S. ally in a sustained campaign. Arab critics routinely charge that Israeli officials exaggerate the threat they pose. The threat of a nuclear-armed or regionally bolstered Iran, though it has partially aligned Israeli and Sunni Arab interests in deterring a shared rival, may be exacerbating Israeli fears of a deteriorated QME, as Saudi Arabia and other Gulf states dramatically increase defense procurements from U.S. and other foreign suppliers.

“In 2008, Congress enacted legislation requiring that any proposed U.S. arms sale to any country in the Middle East other than Israel must include a notification to Congress with a determination that the sale or export of such would not adversely affect Israel’s qualitative military edge over military threats to Israel.”

The legislation defines QME as “the ability to counter and defeat any credible conventional military threat from any individual state or possible coalition of states or from nonstate actors, while sustaining minimal damages and casualties, through the use of superior military means, possessed in sufficient quantity, including weapons, command, control, communication, intelligence, surveillance, and reconnaissance capabilities that in their technical characteristics are superior in capability to those of such other individual or possible coalition of states or nonstate actors.” The details of official U.S. assessments of QME are generally classified.

The U.S.-Israel Strategic Partnership Act (P.L. 113-296) enacted in December 2014 requires more frequent QME assessments and executive-legislative consultations. It also requires that QME determinations include evaluations of how potential arms sales would change the regional balance, while identifying measures Israel may need to take in response to the potential sales, and assurances or possible assurances from the United States to Israel as a result of the potential sales.

U.S. Code  Title 22. FOREIGN RELATIONS AND INTERCOURSE
Chapter 39. ARMS EXPORT CONTROL
Subchapter III. MILITARY EXPORT CONTROLS
Section 2776. Reports and certifications to Congress on military exports

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(h)Certification requirement relating to Israel’s qualitative military edge

(1)In general

Any certification relating to a proposed sale or export of defense articles or defense services under this section to any country in the Middle East other than Israel shall include a determination that the sale or export of the defense articles or defense services will not adversely affect Israel’s qualitative military edge over military threats to Israel.

(2)Requirements with respect to determination for major defense equipment

A determination under paragraph (1) relating to the sale or export of major defense equipment shall include-

(A) a detailed explanation of Israel’s capacity to address the improved capabilities provided by such sale or export;

(B) a detailed evaluation of-

(i) how such sale or export alters the strategic and tactical balance in the region, including relative capabilities; and

(ii) Israel’s capacity to respond to the improved regional capabilities provided by such sale or export;

(C) an identification of any specific new capacity, capabilities, or training that Israel may require to address the regional or country-specific capabilities provided by such sale or export; and

(D) a description of any additional United States security assurances to Israel made, or requested to be made, in connection with, or as a result of, such sale or export.

(3) Qualitative military edge defined

In this subsection, the term “qualitative military edge” means the ability to counter and defeat any credible conventional military threat from any individual state or possible coalition of states or from non-state actors, while sustaining minimal damages and casualties, through the use of superior military means, possessed in sufficient quantity, including weapons, command, control, communication, intelligence, surveillance, and reconnaissance capabilities that in their technical characteristics are superior in capability to those of such other individual or possible coalition of states or non-state actors.


(i)Prior notification of shipment of arms

At least 30 days prior to a shipment of defense articles subject to the requirements of subsection (b) at the joint request of the Chairman and Ranking Member of the Committee on Foreign Relations of the Senate or the Committee on Foreign Affairs of the House of Representatives, the President shall provide notification of such pending shipment, in unclassified form, with a classified annex as necessary, to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of
Representatives.