Report to Congress under Section 2 of the National Security Memorandum on Safeguards and
Accountability with Respect to Transferred Defense Articles and Defense Services (NSM-20)
Articles and Defense Services (NSM-20) Background and Introduction
On February 8, 2024, the President issued NSM-20 on Safeguards and Accountability with Respect to Transferred Defense Articles and Defense Services, which outlines standards to which partner governments or authorities must commit before receiving certain U.S.-funded defense articles from the United States. NSM-20 requires the Secretary of State to obtain credible and reliable written assurances from certain foreign governments that they will:
- use certain U.S. government (USG)-funded defense articles in accordance with international humanitarian law (IHL) and, as applicable, other international law, and
- consistent with applicable international law, facilitate and not arbitrarily deny, restrict, or otherwise impede, directly or indirectly, the transport of U.S. humanitarian assistance and USG-supported international efforts to provide humanitarian assistance in any area of armed conflict where the partner uses such defense articles.
NSM-20 requires assurances to be provided, in writing, by a senior official or officials in the partner government with authority to make commitments on behalf of their government related to the required assurances. The State Department determined that Minister-level officials from the relevant ministry or above would be appropriate in most circumstances.
Assurance Status and Considerations
NSM-20 requires that the Secretary of State obtain credible and reliable assurances within 45 days from any country engaged in an active armed conflict in which covered defense articles are used. Based on this requirement, the State Department instructed Posts to seek credible and reliable assurances within 45 days from the following partner governments: Colombia, Iraq, Israel, Kenya, Nigeria, Somalia, and Ukraine after determining that those countries are currently engaged in active armed conflict.
Embassies Bogota, Baghdad, Jerusalem, Nairobi, Abuja, Mogadishu, and Kyiv obtained the required assurances signed by the designated representatives of their respective countries, which were in turn reviewed by the State Department in order to determine credibility and reliability by March 24, 2024. Assessment of the credibility and reliability of these assurances is based on consideration of the following factors, among others:
- The position, responsibilities, and authority of the official providing assurances on behalf of the foreign government in relation to the subject matter of the assurances;
- Whether the individual providing the assurances is understood to be credible in doing so; and
- The likelihood that the partner government will comply with both assurances based on past practice.
The USG assesses on an ongoing basis the credibility or reliability of assurances received to date. While in some countries there have been circumstances over the reporting period that raise serious concerns, the USG currently assesses the assurances provided by each recipient country to be credible and reliable so as to allow the provision of defense articles covered under NSM-20 to continue.
Concurrently, the State Department, together with the Department of Defense, has reviewed all partners potentially receiving defense articles covered under NSM-20 that are not considered to be in an active armed conflict in which covered defense articles are used, and identified those recipients that must provide written assurances within 180 days of the issuance of the NSM, which is August 6, 2024. The State Department will be reviewing assurances on a rolling basis, and notifying Congress of the receipt of such assurances, as required by NSM-20.
- Recipients by region include:
- AF: Benin, Djibouti, Ghana, Mauritania, Senegal
- EAP: Fiji, Indonesia, Malaysia, Marshall Islands, Micronesia, Mongolia, Palau, the Philippines, Taiwan, Thailand, Timor-Leste, Tonga, Vietnam
- EUR: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia, Georgia, Greece, Hungary, Kosovo, Latvia, Lithuania, Moldova, Montenegro, North Macedonia, Poland, Romania, Slovakia, Slovenia
- NEA: Bahrain, Egypt, Jordan, Lebanon, Morocco, Oman, Tunisia
- SCA: Bangladesh, Kazakhstan, Maldives, Sri Lanka, Tajikistan, Turkmenistan, Uzbekistan
- WHA: Antigua and Barbuda, Argentina, Bahamas, Belize, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Jamaica, Mexico, Panama, Paraguay, Peru
In addition to covered defense articles, NSM-20 may also apply to the provision to foreign governments by the Departments of State or Defense of any defense services the Secretary of State or the Secretary of Defense determines to be appropriate to advance the stated policy aims. To date, no services have been determined to be covered. As the USG continues to move forward with implementation of NSM-20, we will extend application to covered services where appropriate.
NSM-20 Reporting Requirement
NSM-20 also requires that, not later than 90 days after the date of the memorandum and once every fiscal year thereafter, the Secretaries of State and Defense submit a written report to the specified Congressional committees of jurisdiction for State and Defense; and, upon request, other congressional national security committees as appropriate. Generally, with limited exceptions, this first report includes available information and reporting collected for the period between January 1, 2023, and late April 2024, for partners that have or are receiving covered defense articles from the USG and were assessed to be engaged in an active armed conflict in which covered defense articles and, as appropriate, defense services, are used.
Consistent with NSM-20, the following sections provide country-specific assessments for the seven countries covered by this initial report. In making these assessments, the USG gathered information through engagement with partner governments, reviewed internal assessments and analysis, including the State Department’s annual Human Rights Report and relevant products from the intelligence community, and gathered information from publicly available sources including reports from civil society and the media. While the USG is not necessarily in a position independently to verify all information received from sources that are viewed as credible based on their history of reporting and their level of access to relevant facts, and the State and Defense Departments have not both been able to validate every item, such information is included in this report where relevant to reported incidents. Within the State and Defense Departments, relevant bureaus with regional, subject matter, technical, and legal expertise provided their input and contributed to the drafting of this report.
While certain events and information in individual country reports below may fall outside of the scope of the NSM-20 reporting requirements – either by happening beyond the period in question or not involving the use of covered defense articles – they are included to provide important context that could be relevant to redibility and reliability assessments for partner government assurances.
NSM-20 Challenges
This first report under NSM-20 highlights the robust and significant security relationships with seven partners who are in active conflict. Nevertheless, this section discusses the various challenges that the USG faced when developing this report. In the context of active conflict, it is challenging to collect accurate and reliable information. USG personnel are often constrained from accessing a conflict zone. This means much of the information for reports like this one are collected from the partner nation, USG contractors, or other third parties, including from other international partners. Collecting this information firsthand is exceedingly difficult. We appreciate deeply the work of journalists, NGOs, humanitarian workers, and other entities and organizations, especially those operating on the ground, who have provided information relevant to this report and that we have considered in preparing it. While reports received from civil society or published in the media often do not, on their own, contain sufficient information to reach firm conclusions about compliance or lack thereof with particular standards, the Departments of State and of Defense also have sought, as part of our analysis, to consider all available and relevant information, including tools and information that are not available to outside organizations, such as operational planning data, intelligence data, and sensitive diplomatic data.
Reliably assessing a partner’s conduct can depend on information that is only available to the partner. External actors generally do not have the ability to question relevant, oftentimes junior military personnel at the unit level or access classified military information. External actors also generally do not have the ability to question the military commanders or decisionmakers in the process for particular military operations. A similar point can be made with regard to reports of civilian harm. Reliably assessing what specific practices were applied in a particular incident can require information that was available only to the force that conducted the operation.
In assessing partner government assurances regarding humanitarian assistance, it is important to note that NSM-20 specifies that partner governments mustprovide an assurance that, consistent with international law, they will not arbitrarily deny, restrict, or otherwise impede U.S. humanitarian assistance efforts. Instances where aid may, in certain circumstances and consistent with international law, be denied, restricted or otherwise impeded, but not necessarily in an arbitrary manner, could include appropriate requirements for dual-use products that can be diverted to military purposes, requirements for humanitarian movements in active combat zones, or other legitimate measures.
Our assessments remain ongoing. We will continually monitor new and relevant information received from parts of the USG, NGOs, and other entities and organizations. We will review existing assessments if they are called into question by new, relevant, credible information that becomes available.
Finally, the short timeline to collect and review data from more than a year created challenges for drafters, particularly given competing demands on a limited number of personnel. No additional resources were available to offices required to implement NSM-20. We will work with Congress to address these resource constraints.
U.S. Conventional Arms Transfer (CAT) Policy
The President’s February 2023 CAT policy takes a holistic approach to arms transfer decisions that considers a number of U.S. national security interests, including human rights, security sector governance, and strategic competition. There is a prohibition under the CAT Policy on any arms transfer where the USG assesses “it is more likely than not” that the arms to be transferred would be used in, facilitate, or aggravate the risk of commission of certain serious violations of human rights law or IHL. This policy applies to decisions on whether to authorize the transfer of United States arms to a foreign user, including certain items on the Commerce Control List, the transfer of defense articles, related technical data, and defense services, regardless of the authority or USG department or agency under which the transfer would occur or be authorized.
Civilian Harm Mitigation and Response (CHMR)
The Secretary of Defense has stated that protecting civilians is not only a moral imperative but a strategic priority to achieve mission success. In August 2022, the Secretary of Defense approved the Civilian Harm Mitigation and Response Action Plan (CHMR-AP), which sets forth a series of actions that DoD is taking to improve its approach to CHMR. DoD Instruction (DoDI) 3000.17 dated December 21, 2023, “Civilian Harm Mitigation and Response,” sets in place standards to incorporate CHMR into U.S. military operations. Ultimately, CHMR efforts reflect U.S. and professional military values, in particular the importance of protecting and respecting human life and treating civilians with dignity and respect.
DoD is actively developing procedures for integrating CHMR considerations into DoD security cooperation programs and activities, including, among other things, responding to reports of civilian harm by ally or partner forces receiving security cooperation assistance under authorities in chapter 16 of Title 10, U.S. Code. Implementation of CHMR-AP and the DoDI across DoD is ongoing. DoD continues efforts to hire dozens of CHMR subject matter experts, and the referenced development of procedures coordination before final approval.
State Department Civilian Harm Incident Response Guidance (CHIRG)
The protection of civilians in the context of military operations by foreign governments has long been viewed by the State Department as a priority fundamental to advancing both U.S. interests and values. It is also critical to strengthening our relationships with allies and partners. The State Department initiated development of the CHIRG in response to Government Accountability Office recommendations regarding the U.S. response to reports of civilian harm in Yemen. The State Department recognized the potential use of U.S. munitions in incidents involving civilian harm should be addressed through a globally focused process. The CHIRG, launched in September 2023, establishes a bottom up, institutional process to assess and respond to new incidents of civilian harm in which U.S.-provided defense articles may have been used, take steps to help prevent them from recurring, and to drive partners to ensure military operations are conducted in accordance with international law.
Leahy Laws
The Leahy laws refer to statutory provisions that restrict certain assistance to units of foreign security forces if the Secretary of State or Defense has credible information that the unit committed a gross violations of human rights (GVHR). In this context, GVHRs include torture, extrajudicial killing, enforced disappearance, and rape under the color of law. Allegations of GVHRs by foreign security forces are examined on a fact-specific basis. Where U.S. assistance to a foreign security force is provided in a manner in which the recipient unit or units cannot be identified prior to the transfer of assistance, the law requires the State Department to complete an agreement with the recipient government that it will not provide such assistance to any unit the Department identifies as ineligible under the Leahy law. In addition, the State Department has a process to proactively review allegations of GVHRs.
Human Rights and Rule of Law Training
All equipment transfers under DoD authorities such as 10 U.S.C. 333 (Train and Equip) require human rights and rule of law training for partner nations. The training is specific to the lethality of weapons or systems the partner is receiving, and in general, the more lethal the system or capability, the longer and more in- depth the training required.
The Defense Institute of International Legal Studies (DIILS) is the lead DoD security cooperation resource for rule of law capacity-building with international defense sector officials. DIILS conducts resident courses and mobile programs in support of security cooperation programs under authorities in Title 10, U.S. Code, such as Institutional Capacity Building.
During the period of January 1, 2023 to March 24, 2024, forces from Colombia, Iraq, Kenya, Nigeria, Somalia, and Ukraine received a range of DIILS training.
Through professional and technical courses and specialized instruction, the International Military Education and Training (IMET) program provides students from allied and partner nations valuable training and education on U.S. military practices and standards, including exposure to democratic values and respect for internationally recognized standards of human rights.
End Use Monitoring (EUM)
The objective of the EUM program is to provide a factual basis for the USG to conclude reasonably that a foreign partner is meeting its end use requirements. DoD implements EUM for Foreign Military Sales while the State Department implements EUM for Direct Commercial Sales. DoD’s EUM program, Golden Sentry, has the objective to ensure compliance with technology control requirements in order to minimize security risks to the United States, partner nations, and allies. The State Department’s EUM program, Blue Lantern, promotes understanding of U.S. defense trade controls by foreign partners, builds mutual confidence with partner governments and industry in the defense trade relationship and supply chains; and mitigates the risk of unauthorized diversion and use of U.S. defense articles. EUM includes follow-on actions to prevent misuse or unauthorized transfer of defense articles or services from title transfer until disposal. The type of defense article or service generally determines the level of monitoring required. USG EUM can include scheduled inspections, physical inventories, and reviews of accountability records.
State Department Human Rights Report
The Country Reports on Human Rights Practices, commonly known as the Human Rights Report (HRR), is an annual report mandated by Congress beginning in 1977. Public servants in U.S. missions abroad and in Washington examine, track, and document the state of human rights in nearly 200 countries and territories around the world. In compiling the annual reports, the State Department draws from a variety of credible, fact-based sources, including reporting from government agencies, NGOs, and media. The HRR helps connect U.S. diplomatic and foreign assistance efforts to the fundamental American value of protecting and promoting respect for universal human rights, while helping to inform the work of civil society, human rights defenders, scholars, multilateral institutions, and others. DoD has not independently reviewed or assessed the information drawn from the 2023 HRR included in this report.
COUNTRY REPORTS
Israel
On October 7, 2023, Hamas, Palestinian Islamic Jihad, and other Palestinian terrorists launched an unprovoked, large-scale attack on Israel from the Gaza Strip, killing an estimated 1,200 individuals, injuring more than 5,400, intentionally targeting civilians without any military justification, and abducting 253 hostages, including American citizens. There are also credible reports that individuals associated with these organizations raped or committed other acts of sexual violence against women and girls killed and abducted on October 7. Hamas had previously launched attacks against Israel from Gaza, including in 2008, 2012, 2014, and 2021. Further, Hamas does not follow any portion of and consistently violates IHL.
Israel has conducted a sustained military operation in Gaza in response to the October 7 attacks and hostage-taking, with the stated objectives of destroying Hamas’s military capabilities and dismantling its infrastructure. The conflict has resulted in the deaths of an estimated 34,700 Palestinians and injured more than 78,200 in this reporting period, a significant percentage of whom are reported to be women and children. The Hamas-controlled Gaza Ministry of Health is the primary source for these numbers, which international organizations generally deem credible, but do not differentiate between Hamas fighters and civilians. The Government of Israel has asserted that approximately half of the 34,700 killed in Gaza have been Hamas fighters, though we do not have the ability to verify this estimate. The conflict has displaced the vast majority of Palestinians in Gaza and resulted in a severe humanitarian crisis.
Israel has had to confront an extraordinary military challenge: Hamas has embedded itself deliberately within and underneath the civilian population to use civilians as human shields. Hamas intentionally uses schools, hospitals, residential buildings, and international organization facilities for military purposes. It has constructed a vast tunnel network beneath this civilian infrastructure not to protect civilians, but to hide its leaders and fighters and from which it stages and launches attacks. Hamas has not expressed regret for the intentional targeting of Israeli civilians, and its charter and statements by its leadership continue to call for the destruction of Israel. Hamas continues to hold more than 100 hostages, continues to fire rockets into Israel indiscriminately, and has pledged to conduct attacks on the scale of October 7th again. Military experts describe Gaza as being as difficult a battlespace as any military has faced in modern warfare.
The United States has supported Israel’s right to defend itself in the wake of October 7, both from the continuing threat it faces from Hamas and in the broader region, and the United States is committed by law and policy to Israel maintaining its Qualitative Military Edge. The covered defense articles we have provided during this period have helped Israel maintain deterrence against Iran, Hezbollah, and other Iranian-backed proxies in the region, advancing our objective of preventing the conflict from spreading. We have also made clear the imperatives as Israel defends itself of adhering to IHL, protecting humanitarian workers, facilitating the flow of humanitarian assistance, and minimizing civilian casualties.
Throughout this period, the USG has engaged at all levels with the Government of Israel to understand Israel’s view of the applicable legal frameworks relevant to the ongoing Israel-Hamas conflict, as well as to further our understanding of the procedures and mechanisms upon which Israel relies to integrate IHL compliance into their approach to combat operations, civilian protection, and humanitarian assistance. In the course of those discussions, Government of Israel officials confirmed their commitment to ongoing dialogue on IHL issues, including as related to the NSM-20 assurances and any incidents of concern.
Israel has institutions and processes charged with upholding the implementation of IHL. Israeli military lawyers can and do give binding legal advice during military operations, and the Israeli Supreme Court may provide judicial review of past targeting and/or operational decisions made during armed conflict. Prior to the conflict in Gaza, the IDF sent an average of approximately 500 personnel to the United States annually for relevant DoD-sponsored training. In many of these courses, IDF personnel are trained to U.S. standards on civilian harm mitigation.
In the course of U.S. engagements during this period, the Government of Israel has identified a number of processes for ensuring compliance with IHL that are embedded at all levels of their military decision-making. The Government of Israel has provided written analysis of its legal positions related to its military operations and described in detail its procedures for integrating legal review into targeting decisions and other aspects of military operations. It has also identified several domestic accountability mechanisms aimed at investigating and remediating violations of its rules of engagement and IHL. The current Military Advocate General has stated publicly that she is investigating incidents in which Israel Defense Forces (IDF) soldiers are alleged to have acted in contravention to IDF protocols and IHL. Israel also appointed a retired Major General and former head of the IDF J3 to lead investigations into incidents in Gaza involving the IDF under the IDF’s independent, fact-finding assessment mechanism (FFAM). To date, Israel has confirmed that it has opened a number of criminal investigations, which are ongoing, including into allegations related to deaths and treatment of detainees and allegations of violations of IHL. The FFAM also continues to examine hundreds of incidents to consider possible misconduct in the context of ongoing military operations. Recognizing such investigations and legal processes take time, to date the USG is unaware of any Israeli prosecutions for violations of IHL or civilian harm since October 7.
Israel has, upon request, shared some information on specific incidents implicating IHL, some details of its targeting choices, and some battle damage assessments. Although we have gained insight into Israel’s procedures and rules, we do not have complete information on how these processes are implemented. Israel has not shared complete information to verify whether U.S. defense articles covered under NSM-20 were specifically used in actions that have been alleged as violations of IHL or IHRL in Gaza, or in the West Bank and East Jerusalem during the period of the report. Limited information has been shared to date in response to USG inquiries regarding incidents under review to determine whether U.S. munitions were used in incidents involving civilian harm. However, certain Israeli-operated systems are entirely U.S.-origin (e.g., crewed attack aircraft) and are likely to have been involved in incidents that raise concerns about Israel’s IHL compliance.
Assessment of credible reports or allegations that certain defense articles and, as appropriate, defense services, have been used in a manner not consistent with international law, including international humanitarian law; such assessment shall include any determinations, if they can reasonably be made, as to whether use has occurred in a manner not consistent with international law, and if so, whether the recipient country has pursued appropriate accountability; and a description of the procedures used to make the assessments:
As reflected in the 2016 Memorandum of Understanding with Israel and pursuant to annual U.S. appropriations acts, the United States provides significant security assistance, including defense articles and services, to Israel on an annual basis. This support will be augmented by supplemental appropriations since October 7. In any conflict involving foreign partners, it is often difficult to make swift, definitive assessments or determinations on whether specific U.S. defense articles or services have been used in a manner not consistent with international law. The nature of the conflict in Gaza and the compressed review period in this initial report amplify those challenges.
However, there have been sufficient reported incidents to raise serious concerns. As described more fully below, the State Department has received reporting from multiple credible UN and non-governmental sources on alleged human rights violations by Israeli forces during the reporting period. The State Department’s 2023 Country Reports on Human Rights Practices document credible reports of alleged human rights abuses by Israeli security forces, including arbitrary or unlawful killings, enforced disappearance, torture, and serious abuses in conflict. Credible UN, NGO, and media sources have reported that since October 7, Israeli security forces have arrested large numbers of Palestinians suspected of being Hamas militants and transported them from Gaza to Israel, where some were allegedly abused during their detentions. NGOs have disputed claims that all of these detainees are Hamas militants. There are also allegations of Israeli security forces using excessive force against Palestinians in the West Bank and East Jerusalem in the course of counterterrorism operations. The UN reported that 2023 was the deadliest year on record in the West Bank prior to October 7, and there was a significant intensification of killings and other incidents of violence in the West Bank in the following months. Palestinians killed in operations by Israeli security forces included both militants and civilians while Israeli civilians were also killed by Palestinian terrorists during this period. Extremist settlers have been responsible for acts of violence and intimidation against Palestinians in the West Bank, including incidents where Israeli security forces may have played an abetting role or failed to effectively intervene.
Israeli officials have stated that Israel complies with IHL and continues to strengthen efforts to minimize civilian harm. Given the nature of the conflict in Gaza, with Hamas seeking to hide behind civilian populations and infrastructure and expose them to Israeli military action, as well as the lack of USG personnel on the ground in Gaza, it is difficult to assess or reach conclusive findings on individual incidents. Nevertheless, given Israel’s significant reliance on U.S.-made defense articles, it is reasonable to assess that defense articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL obligations or with established best practices for mitigating civilian harm. Israel’s own concern about such incidents is reflected in the fact it has a number of internal investigations underway. At the same time, it is also important to emphasize that a country’s overall commitment to IHL is not necessarily disproven by individual IHL violations, so long as that country is taking appropriate steps to investigate and where appropriate determine accountability for IHL violations. As this report notes, Israel does have a number of ongoing, active criminal investigations pending and there are hundreds of cases under administrative review.
The U.S. Intelligence Community (IC) notes that security forces in Israel, which is involved in an active war against Hamas, have inflicted harm on civilians in military or security operations, potentially using U.S.-provided equipment. The IC has no direct indication of Israel intentionally targeting civilians. The IC assesses that Israel could do more to avoid civilian harm, however.
One specific area of concern is the impact of Israel’s military operations on humanitarian actors. Despite regular engagement from humanitarian actors and repeated USG interventions with Israeli officials on deconfliction/coordination procedures, the IDF has struck humanitarian workers and facilities. While Israel repeatedly committed to improve deconfliction and implemented some additional measures, those changes did not fully prevent subsequent strikes involving humanitarian workers and facilities during the reporting period. The USG will continue to press the Government of Israel on the need to do more to create a permissive and safe environment for delivery and distribution of aid.
The UN reports that more than 250 humanitarian workers have been killed in the course of their work or in other circumstances. Multiple military operations have taken place in protected or de-conflicted sites or in areas designated for evacuees. Some of these incidents during the reporting period that have received widespread attention in media or are cited by humanitarian organizations as illustrative of the operating environment in Gaza are noted below. As noted above, we are not able to reach definitive conclusions on whether defense articles covered by NSM-20 were used in these or other individual strikes.
- 4/9/2024: Small arms fire reportedly struck a UN International Children’s Emergency Fund vehicle and World Food Program fuel truck in a convoy south of the Salahedin checkpoint. UN staff reported IDF patrols were the source of fire. Israeli authorities denied responsibility. The [UN] submitted a formal complaint to the Coordinator of Government Activities in the Territories (COGAT).
- 4/1/2024: Seven World Central Kitchen (WCK) workers, including an American citizen, were killed by three successive IDF strikes on their aid convoy despite WCK having coordinated with the IDF; Israel accepted responsibility and conducted an immediate investigation, called the incident a “grave mistake,” said the IDF misidentified the vehicles, dismissed four officers responsible, formally reprimanded relevant commanders, and said prosecutions are being considered.
- 2/29/2024: At least 118 people reportedly were killed and approximately 760 people were injured along the coastal road southwest of Gaza City when crowds gathered around trucks carrying humanitarian aid. An IDF command review of the incident reported that IDF troops fired at individuals who approached their forces at the IDF checkpoint adjacent to the end of the lengthy convoy. The IDF initially fired warning shots, but subsequently fired at individuals’ lower extremities when the group continued to approach. While the GOI acknowledged IDF shooting-related fatalities might have ensued, it asserted that most civilian deaths occurred due to stampeding and trucks driving over people. Accounts from NGO and media reporting dispute this assertion. The IDF General Staff’s FFAM continues to investigate the incident.
- 2/20/2024: IDF tank fire reportedly killed two people and injured six others – five of whom were women or children – in a Medecins Sans Frontieres (MSF) guesthouse in Khan Younis Governorate’s Al Mawasi area, according to MSF. MSF reports Israeli forces had been clearly informed of the precise location of the guesthouse, and the site clearly displayed humanitarian identification.
- 1/18/2024: An Israeli airstrike reportedly hit a residential site used by humanitarian staff from the International Rescue Committee (IRC) and Medical Aid for Palestinians UK (MAP), injuring two staff members and damaging the building beyond repair. IRC and MAP indicated that the site had been deconflicted with the IDF, and that Israel provided varied responses to IRC and MAP inquiries about the strike. As a result, IRC and MAP surgeons suspended medical work at Nasser Hospital.
Additionally, there are numerous credible UN, NGO, and media reports of Israeli airstrikes impacting civilians and civilian objects unrelated to humanitarian operations that have raised questions about Israel’s compliance with its legal obligations under IHL and with best practices for mitigating civilian harm. These include reported incidents involving strikes on civilian infrastructure and other sites protected from being made the object of attack absent use for a military purpose; certain strikes in densely populated areas; strikes taken under circumstances that call into question whether expected civilian harm may have been excessive relative to the reported military objective; or failure to provide effective warning or take appropriate precautions to protect civilians. Strikes on protected sites do not necessarily constitute violations of IHL, as such sites can be legitimate targets if used for military purposes. However, all military operations must always comply with IHL rules, including distinction, proportionality, and precautions. Because Hamas uses civilian infrastructure for military purposes and civilians as human shields, it is often difficult to determine facts on the ground in an active war zone of this nature and the presence of legitimate military targets across Gaza. As noted above, the reported death tolls in Gaza generally do not differentiate between Hamas and civilian deaths, further complicating efforts to precisely assess the civilian impact. Several examples of these strikes during the reporting period include:
- 3/8/2024: An Israeli airstrike reportedly killed dozens sheltering in Deir al- Balah, including an Anera humanitarian worker. Anera reported it had shared the coordinates of the site with COGAT. Anera has raised concerns about the lack of effective deconfliction in Gaza and called for an independent investigation
- 12/24/2023: Israeli airstrikes on a home in the Maghazi refugee camp, reportedly killing 90 with an unknown number additionally injured. Israel indicated that it was investigating the incident.
- 10/31/2023 and 11/1/2023: Israeli airstrikes on the Jabailia refugee camp, reportedly killing dozens of civilians, including several dozen children, injuring hundreds more, and significantly damaging civilian infrastructure. The IDF reported these airstrikes successfully targeted a senior Hamas commander and underground Hamas facilities. Israel said the munitions used in the strike led to the collapse of tunnels and the buildings and infrastructure above them as well as significant reported civilian harm in a densely populated area.
- 10/22/2023: An Israeli airstrike on a civilian home in Deir al-Balah, reportedly killing 18 civilians including 12 children. Amnesty International identified U.S.-origin munition fragments at the site but this has not been confirmed.
- 10/9/2023: Israeli airstrikes on a marketplace in Jabaliya refugee camp, reportedly killing dozens, including many Hamas fighters according to the IDF. Israel reported these strikes sought to destroy a significant Hamas tunnel complex.
Assessment and analysis of (1) any credible reports indicating that the use of such defense articles has been found to be inconsistent with established best practices for mitigating civilian harm, and (2) the extent to which efforts to induce effective implementation of such civilian harm mitigation best practices have been incorporated into the relevant United States security assistance program; and a description of the procedures used to make the assessments:
The USG reviewed numerous reports of civilian harm resulting from IDF operations during the reporting period, which raised serious questions with respect to whether Israel was upholding established best practices for mitigating civilian harm.
Israel has provided hundreds of tactical pauses to allow civilians to leave combat zones. These range from an evacuation order at the beginning of the war for civilians in northern Gaza to move to the south two weeks before ground operations began; to establishing daily four-hour humanitarian pauses, with three hours notice, and evacuation corridors to allow for north-south movements; to hundreds of smaller-scale pauses in specific neighborhoods to allow civilians to procure supplies and/or seek medical care. The IDF used numerous methods to inform citizens of these pauses, including dropping leaflets, making automated phone calls, and sending SMS text messages. Israel has a sophisticated system for identifying where civilians are located in order to try to minimize civilian harm. However, UN and humanitarian organizations have reported Israeli civilian harm mitigation efforts as inconsistent, ineffective, and inadequate, failing to provide protection to vulnerable civilians who cannot or chose not to relocate, including persons with disabilities, persons receiving medical treatment, children, and the infirm. Humanitarian organizations reported further that phone/SMS messages were ineffective during IDF-generated telecommunications blackouts, and civilians received insufficient notice, inaccurate or vague information on where people should go, and on safe evacuation routes. Many of the IDF-designated areas to which civilians were directed to seek safety lacked adequate shelter, water, sanitation, food, medical care, security or other support. The reported rate of civilian harm in the conflict also raises serious questions about the efficacy of Israeli precautionary measures, notwithstanding Hamas’ deliberate embedding within and use of civilian and humanitarian infrastructure as shelter.
The IDF coordinated with foreign governments and NGOs to create no-strike lists of facilities operated by foreign governments, NGOs, and international organizations. However, since the beginning of the conflict in Gaza, the UN has reported 169 of its facilities in Gaza have been destroyed or damaged. These make up just a fraction of the sites characterized by the USG as Category I protected sites that are given heightened protection under targeting procedures, including diplomatic, medical, education, religious/cultural, and other facilities. Numerous incidents have been reported in which civilians have been hit at these sites. Many of these incidents reportedly have been the result of Hamas launching attacks on Israeli troops from these protected facilities or safe zones, or firing rockets into Israel from them, followed by the IDF returning fire to eliminate the threat. IDF leadership has also cited other occasions where they chose not to engage given the presence of civilians. During this period, 85 alleged incidents of civilian harm involving Israeli military operations in Gaza have been submitted to the CHIRG for evaluation, and approximately 40 percent of those cases have been closed.
Following the WCK incident on April 1, 2024, Israel took initial steps to set up a new Humanitarian Coordination and De-confliction Cell to better ensure the safety of humanitarian providers. Humanitarian organizations have consistently underscored that real-time communication between IDF units and humanitarian workers on the ground, particularly at checkpoints, is imperative to realizing concrete improvement in deconfliction and coordination. Humanitarian organizations repeatedly requested approval from COGAT to bring in equipment necessary to enable this communication, with COGAT raising concerns about potential diversion to Hamas for military purposes. COGAT recently approved this equipment, with deployment in initial stages. We continue to engage with the Government of Israel to encourage it to take necessary steps to improve its deconfliction mechanisms.
The IDF coordinates closely with USCENTCOM, Security Cooperation Office, and Defense Attaché teams in Israel on IHL in addition to frequent engagements on issues related to the conflict at the Secretary or Under Secretary levels. On numerous occasions and at various levels, IDF and Israel Ministry of Defense personnel have shared with U.S. counterparts descriptions of Israel’s efforts to implement IHL in their operations in Gaza. IDF officials have shared details about their targeting processes, including an extensive sensitive site list, legal advisors embedded in the target approval process, and investigation protocol for incidents of unanticipated collateral damage. The IDF has also shared images and videos demonstrating real-time capabilities to depict civilian population movement and has shared evidence of certain strikes that were aborted when civilians were observed in the target area. DoD does not observe real-time targeting, however.
The IDF has also created a map dividing Gaza into more than 300 sectors, which has been shared with civilians and humanitarian organizations in Gaza. The IDF develops assessments of the level of civilian presence in each sector of the map, using cell phone data among other sources, while also working to update these assessments as the situation evolves. However, humanitarian organizations have raised serious concerns regarding the efficacy of this system, and the USG continues to engage Israel to improve these methods.
The IDF has undertaken steps to implement IHL obligations for the protection of civilians in the current conflict, including the requirements related to distinction, proportionality, and precautions in offensive operations. As reflected above, however, the USG lacks full visibility into Israel’s application of these principles and procedures. In addition, the Government of Israel has asserted it takes steps to mitigate the risk of civilian harm when conducting military operations, such as providing advance warnings, employing specific procedures for determining targets and carrying out attacks, including choice of weapons and munitions, and implementing restrictive measures to protect sites such as hospitals, schools, places of worship and UN facilities. Israel has also asserted that its processes provide opportunities for the IDF to validate the presence or absences of civilians, including through the collection of intelligence that would support real-time assessment of civilian harm, and have led to aborted airstrikes when unexpected civilians have appeared. While Israel has the knowledge, experience, and tools to implement best practices for mitigating civilian harm in its military operations, the results on the ground, including high levels of civilian casualties, raise substantial questions as to whether the IDF is using them effectively in all cases. This includes the WCK strike, in which Israel has acknowledged that IDF operators did not follow applicable rules of engagement, and which led the Israelis to take steps to discipline IDF personnel.
The State Department will continue to engage with the Government of Israel to establish a dedicated channel focused on supporting more timely and fully-informed work by the CHIRG to review incidents of concern and to make recommendations to reduce the risk of civilian harm.
Description of any known occurrences of such defense articles not being received by the recipient foreign government that is the intended recipient, or being misused for purposes inconsistent with the intended purposes, and a description of any remedies undertaken:
The USG is not aware of defense articles covered under NSM-20 not being received by the intended foreign government recipient and/or being misused for purposes inconsistent with the intended purposes.
Assessment and analysis of whether each foreign government recipient is in compliance with section 620I of the Foreign Assistance Act of 1961, and whether such recipient has fully cooperated with United States Government efforts and United States Government-supported international efforts to provide humanitarian assistance in an area of armed conflict where the recipient country is using such defense articles and, as appropriate, defense services:
Since October 7, the United States has led international efforts to address the humanitarian crisis in Gaza, including providing significant contributions for food, water, medical, and other essential supplies and coordinating delivery mechanisms with Israel, Egypt, Jordan, UN agencies and humanitarian partners. If not for sustained engagement by the United States with the Israeli government at the highest levels, the humanitarian crisis that has persisted for the past several months would have been even more dire.
During the period since October 7, and particularly in the initial months, Israel did not fully cooperate with USG efforts and USG-supported international efforts to maximize humanitarian assistance flow to and distribution within Gaza. There were numerous instances during the period of Israeli actions that delayed or had a negative effect on the delivery of aid to Gaza. Specific examples include:
- Some senior Israeli government officials have been actively involved in encouraging protests against and attacks on aid convoys that delayed their entry into Gaza. Israeli civilian protestors periodically blocked entry points into Gaza during a multi-week period in January and February, resulting in reduced aid flows.
- As noted above, there have been strikes on coordinated humanitarian movements and deconflicted humanitarian sites that created an exceptionally difficult environment for distributing and delivering aid.
- There have been denials or delays of specific movements of humanitarian actors.
- Extensive bureaucratic delays with regard to implementation of political commitments made by Israeli leaders have further slowed the delivery of assistance to civilians in Gaza.
- Inconsistent rejections of humanitarian relief supplies and a lack of standardized processes significantly reduced aid workers’ ability to transport humanitarian items into Gaza. In particular, Israel has failed to provide a clear, definitive list of items allowed into or prohibited from entering Gaza because of dual-use concerns. It also has, on occasion, stretched dual-use issues to a concerning degree.
- Humanitarian organizations continue to report a lack of clarity around how cargo is validated at checkpoints along supply routes and there is no standardized practice dictated by COGAT to prevent approved commodities from being rejected at various inspection points.
- Delays in visa issuance for humanitarian staff by Israel’s Ministry of Welfare and Social Affairs have exacerbated the shortage of relief personnel and made the delivery of aid into Gaza more difficult. In late April, as a result of transfer of the authority over visa issuance to the Ministry of Foreign Affairs and U.S. intervention, all but a small number of pending visa requests were approved for periods of at least six months.
As noted above, assessments under NSM-20 must also factor in whether requirements applied to efforts to provide humanitarian assistance are arbitrary. Getting aid to Palestinians in Gaza is a complex undertaking in an active war zone. The destruction of civilian infrastructure, the embedding of Hamas in the civilian population, and ongoing military operations by the IDF have complicated aid delivery and exacerbated the humanitarian crisis, as have Israeli concerns about Hamas appropriating dual-use items for military purposes. Hamas has at times sought to direct the distribution of humanitarian assistance not to maximize the benefits to civilians in Gaza but rather to try to maintain its effective control of governance functions.
The USG worked with Government of Israel, international partners, and humanitarian organizations to resolve these and other challenges. Senior members of the Israeli government have also worked to overcome the objections of individual government ministers opposed to Israel having a role in addressing the humanitarian needs of the civilian population in Gaza. After the Hamas attacks on October 7, humanitarian aid began to enter Gaza as of October 21. At USG urging, Israel established the initial humanitarian crossing mechanism at ssRafah, opened Kerem Shalom and Gate 96, allowed flour to move via Ashdod port, enabled fuel deliveries, and cooperated with international efforts to open air and maritime aid corridors. To prevent protestors from disrupting aid movements into Gaza, the Minister of Defense instructed the IDF to declare the crossing points closed military zones and acted more effectively to remove and arrest the protesters, which facilitated an increase in aid to previous levels. However, aid levels remain below what is necessary to meet the nutritional, medical, and sanitary needs of the population. UN agencies and NGOs have assessed that aid deliveries remain below levels necessary to fully mitigate the potential risk of famine, while Israel has consistently disputed famine warnings.
More recently, Israel has substantially increased humanitarian access and aid flow into Gaza, reaching significantly higher levels that require continued upward trajectory to meet immense needs. On April 4, President Biden secured commitment from Prime Minister Netanyahu on a series of concrete steps that – if fully implemented and sustained – would substantially improve the delivery and distribution of assistance and materially improve humanitarian conditions for civilians in Gaza.
In recent weeks, Israel acted on many of these steps, including significantly increasing the number of trucks entering Gaza, opening the Erez crossing, facilitating humanitarian shipments through Ashdod port, expanding the use of the Jordan corridor, and repairing and opening routes to northern Gaza. The volume of aid entering Gaza measurably increased – April showed the highest volume of humanitarian and commercial supplies since the conflict began. The Israeli government reopened and/or repaired the three major water pipelines into Gaza, but there remains damage to the distribution network within Gaza that limits water flow and the overall supply of water remains inadequate to meet the basic human needs of 2.1 million Palestinians. Israel increased the supply of fuel to humanitarian actors, including to newly established bakeries in northern Gaza. Israel must sustain these actions and implement a number of commitments not yet acted upon in order to stabilize humanitarian conditions in Gaza.
While the USG has had deep concerns during the period since October 7 about action and inaction by Israel that contributed significantly to a lack of sustained and predictable delivery of needed assistance at scale, and the overall level reaching Palestinian civilians – while improved – remains insufficient, we do not currently assess that the Israeli government is prohibiting or otherwise restricting the transport or delivery of U.S. humanitarian assistance within the meaning of section 620I of the Foreign Assistance Act. This is an ongoing assessment and we will continue to monitor and respond to any challenges to the delivery of aid to Palestinian civilians in Gaza moving forward.
Source: VOA, (May 10, 2024)