A person stands inside a building destroyed by an Israeli airstrike in Rafah, in the southern Gaza Strip, May 3, 2024 (OSV News photo/Hatem Khaled, Reuters).

Catch-22 author Joseph Heller would have recognized the language and logic of the State Department’s recent report to Congress on the possibility that Israel has used American weapons to violate international humanitarian law (IHL). Released on May 10, the report belatedly fulfilled a requirement of President Biden’s order (NSM-20) seeking to assure, or at least appear to assure, the just use of American weapons abroad. While the report acknowledges that American weapons have indeed been used by the Israel Defense Forces (IDF) to violate international law—a fact amply corroborated by journalists, humanitarian organizations, and the UN—it still manages, through language tortured into absurdity, to let both Israel and the United States off the hook.

The White House released NSM-20 in February following legislative efforts from Senate Democrats like Bernie Sanders and Chris Van Hollen to make U.S. aid to Israel’s military conditional on its compliance with international law. But from the beginning there was good reason to be skeptical of the directive, which merely adds a layer of required “assurances” and reporting atop existing U.S. law, including the Leahy Laws, which already prohibit military aid to countries that violate international humanitarian law or impede the delivery of U.S. aid.

Evidence that Israel has done both of these things is overwhelming. Oxfam and Human Rights Watch (HRW) submitted a memorandum to the Biden administration in March detailing how the IDF’s use of American weapons in Gaza had violated international law. The violations include attacks on ambulances and hospitals, which have protected status; reckless attacks killing civilians, including those in flight; strikes against essential humanitarian infrastructure and aid workers; and the use of two-thousand-pound “dumb” bombs on densely populated areas. The report also documented numerous arbitrary restrictions on aid and concluded that “the Israeli government is using starvation of civilians as a weapon of war in Gaza.”

The NSM-20 report skirts specifics, employs vague euphemisms like “serious questions” and “incidents of concern,” and claims uncertainty where there isn’t any.

An independent task force convened to advise the administration on NSM-20 reporting concluded in April that analyses of Israeli intelligence “indicate that these patterns of unlawful attacks reflect reliance on an unyielding and unconditioned supply of U.S. weapons.” As a result of these war crimes, the International Criminal Court prosecutor is seeking arrest warrants for Israeli prime minister Benjamin Netanyahu and minister of defense Yoav Gallant.

The NSM-20 report skirts specifics, employs vague euphemisms like “serious questions” and “incidents of concern,” and claims uncertainty where there isn’t any—or where the uncertainty is the result of willful obfuscation by Israeli officials. But it does admit that reports like Oxfam and HRW’s are credible. “It is reasonable to assess,” the authors write, “that defense articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL obligations.”

But this garbled admission is followed by an absurd qualification: “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.” In other words, Israeli forces can maim, starve, and kill innocent children and other civilians as long as they continue, like the report itself, to pay lip service to the “appropriate” bureaucratic processes. 

In Catch-22, the chaplain, driven to despair by the illogic of war, finally turns against virtue and common sense himself. Nearly delirious with the rush of lying and “protective rationalization,” he checks into the hospital with a fake illness. “It was miraculous,” Heller writes. “It was almost no trick at all, he saw, to turn vice into virtue...brutality into patriotism, and sadism into justice. Anybody could do it; it required no brains at all. It merely required no character.”

Alexander Stern is Commonweal’s features editor.

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Published in the June 2024 issue: View Contents
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