Israel has been the largest cumulative recipient of American foreign aid since its founding as a state. While the US does provide economic assistance, this assistance comes almost entirely in the form of military aid under the Foreign Military Financing program, which Israel can use to purchase American military equipment. As we pass the six-month mark of the ongoing war between Israel and Palestine, some in the United States, and the international community at large, have called for an arms embargo on Israel given its perceived violation of human rights law. And now President Biden has responded saying that he will suspend offensive arms sales to Israel if the Rafah offensive goes ahead. Israel’s Prime Minister Benjamin Netanyahu claimed Israel was strong enough to fight alone as the United States warned that it could cut military aid to the country. “If we have to stand alone, we will stand alone,” he said. IDF spokesman Daniel Hagari added that the IDF had the “necessary weapons” for its planned operations, “including in Rafah.”
On February 23, 2023, the Biden administration revealed that it would not provide military equipment to countries deemed likely to commit serious human rights violations, a similar notion to the Leahy Law. Approximately one year later, the Biden administration issued a new memorandum providing the requirement of the Secretary of State to:
“…obtain certain credible and reliable written assurances from foreign governments receiving defense articles and, as appropriate, defense services, and … to provide periodic congressional reports to enable meaningful oversight… and [ensure] that all transfers of defense articles and defense services by the Departments of State and Defense under any security operation or security assistance authorities are conducted in a manner consistent with all applicable international and domestic law and policy, including international humanitarian law and international human rights law, the applicable “Leahy Law” (22 U.S.C. 2378d, 10 U.S.C. 362), and NSM-18…”
The memorandum also provides that in addition to receiving written assurances from a representative of the recipient country, a recipient country using defence articles should facilitate, not arbitrarily deny or impede, the transport or delivery of US or US government-supported international efforts to provide humanitarian assistance.
This week, Speaker of the House Mike Johnson brought forward separate bills for funding for Israel, Taiwan, and Ukraine, following months of delay regarding the original $95 billion aid package to the three respective states. The bill passed and will send $15 billion in military aid to Israel and $9 billion to “worldwide humanitarian aid”, which will include funding for Gaza. The package includes no conditions on military aid and bars funding going to the United Nations Relief and Works Agency for Palestine Refugees in the Near East. Following recent attacks and potential escalation between Israel and Iran, Congress was pushed to pass the bill quickly.
What likelihood of conditionality?
Should the aid bill for Israel, given the conditions provided in the memorandum issued on February 8th, 2024, have been passed?
Potential violations of international law by Israel have been highlighted in recent international court cases. On January 26, 2024, the International Court of Justice ordered Israel to provide “immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip”. According to the order, as part of South Africa’s application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip, Israel was to report back regarding its compliance with these measures within one month. However, data that the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) has provided, shows that the daily number of trucks entering Gaza with food and other aid dropped by over a third in the weeks following the ICJ ruling. According to these reports, 147 trucks entered Gaza between January 1st and January 26th, 2024, while only 93 trucks entered between January 27th and February 21st, 2024. Based on this data, it appears that Israel is not abiding by the ICJ’s legally binding order and it appears to be hindering US-supported international efforts to provide humanitarian assistance. If Israel is not abiding by this order, should the US be providing aid to Israel?
It is highly unlikely that the United States would ever stop providing Israel with military and economic assistance. While it may not stop providing aid, the two memorandums by the Biden administration have opened the doors for notions of conditionality to be considered. Conditionality surrounding the aid to Israel has been advocated by Senators like Bernie Sanders. During the vote in December 2023 on the original combined aid package, Senator Sanders provided criticisms in both floor remarks and a letter to Democrats. In this letter, he stated that,
“…What the Netanyahu government is doing is immoral, it is in violation of international law, and the United States should not be complicit in those actions. We are all clear that Hamas, a corrupt terrorist organization, began this war with their barbaric attack against Israel on October 7. Given that reality, Israel has an absolute right to defend itself. It does not, however, have the right to wage all-out war against innocent men, women, and children who had nothing to do with the Hamas attack. Therefore, I believe that it is appropriate to support defensive systems that will protect Israeli civilians against incoming missile and rocket attacks, but I believe that it would be absolutely irresponsible to provide an additional $10.1 billion in unconditional military aid…”
Senator Sanders’s ideas of conditionality match similar ideas in the two memorandums previously mentioned. Should conditionality be considered in the upcoming aid package to Israel? In the past few weeks, threats of conditionality have proven beneficial in encouraging Israel to act in a way that benefits American interests related to increasing humanitarian aid and the protection of civilians in Gaza and the West Bank.
The Desperate Humanitarian situation
It is now necessary that humanitarian aid is rapidly increased. New reports from the World Food Programme have shown that 1.1 million people in Gaza have completely exhausted food supplies and coping capacities, struggling with starvation or catastrophic hunger.
UNRWA has been a leader in providing assistance to the civilians in Gaza. However, following Israel’s unsubstantiated allegations against 12 UNRWA staff members allegedly linked to the October 7th Hamas attack against Israel, multiple countries paused their funding, causing a funding crisis for the organisation. Israel’s accusations were never verified. On April 8th, 2024, the UNRWA USA Committee (UNRWA USA) announced its resumption of financial support and fundraising for the mission of UNRWA. UNRWA USA had paused fundraising efforts and assistance in January 2024 as a precautionary measure. The decision to resume funding was encouraged by other states also resuming funding, receiving the findings of the UN’s internal investigation, and feeling a sense of moral obligation given the threats of famine. In resuming funding, an immediate disbursement of five million dollars was provided. Funding UNRWA is imperative, but more must be done by the United States and the international community. The current legislation now passed in the United States again bans UNWRA funding.
There are three crossing locations along the border of the Gaza Strip: the Erez crossing in northern Gaza, the Kerem Shalom crossing in southern Gaza, and the Rafah crossing on the border with Egypt. Those crossings have been either closed or had limited availability, hindering desperately needed humanitarian aid during the conflict. As the threat of famine grows, countries and organisations have looked for alternative options to delivering aid to Gaza, including air and sea-based deliveries.
Last month, President Biden announced plans to carry out military airdrops of supplies and food into Gaza in response to the growing humanitarian devastation. Other countries have also enacted similar programs, including Jordan and France. As these airdrops by several countries have commenced, they have contributed to the death and injury of several civilians and critics doubt their effectiveness in providing cost-effective humanitarian relief. The common consensus is that this form of aid delivery should be treated as a last resort option, only taken in times of desperation. The United States should also treat this as a last resort option, looking for more effective ways to deliver and encourage the delivery of aid.
To combat the challenges of air and land-based aid delivery, President Biden stated during his latest State of the Union Address that the US will build a temporary pier along the coast of Gaza to allow for sea-based aid delivery. Using the Department of Defense’s Joint Logistics Over-the-Shore capability (JLOTS), a floating pier and an 1,800 foot causeway will be built and attached to the shore. The causeway will allow aid to be transported from the pier to land and then distributed to Gaza. Once it is fully operational, the DOD expects as many as two million humanitarian aid meals to be delivered into Gaza per day. Full operational capability is expected by the end of April or early May 2024 and the DOD is working with the U.S. Agency for International Development (USAID) and other agencies to finalise details regarding the receiving and distribution of that aid. Similar to those of air-based deliveries, critics of this port have instead called for the opening of border crossings to allow for more land-based deliveries.
Following the airstrikes that killed the seven aid workers of World Central Kitchen, President Joe Biden and Prime Minister Benjamin Netanyahu spoke on the phone, during which President Biden told Prime Minister Netanyahu that US policy on the war in Gaza will be determined depending on if Israel takes “a series of specific, concrete and measurable steps” to address the deaths of aid workers and civilians in the area. In the previous few weeks, President Biden has grown increasingly critical of Israel and Prime Minister Netanyahu’s approach to the ongoing war and the lack of protection of civilians. Following the phone call, Israel agreed to open the Erez crossing to allow aid into northern Gaza, to use the Ashdod port as a transit point to import some of that aid, and to significantly increase deliveries transited through Israel from Jordan.
This exchange demonstrates that the threat of conditionality in military aid can be effective in increasing humanitarian aid. If the United States continues to push for conditionality in its foreign aid package to Israel in exchange for increased humanitarian aid assistance in Gaza and the West Bank, perhaps this is the best way the United States can leverage its influence to ensure the protection of innocent civilians. While only time will tell if humanitarian aid will now increase given the opening of the Erez crossing and the Ashdod port, it is needed as a starting point. It is imperative that humanitarian aid assistance should dramatically increase to protect the lives of innocent civilians in Gaza.
