On Tuesday, the Senate voted 70-29 to approve a foreign aid package that includes billions to support Israel's ongoing military campaign in Gaza. The package contains "$10.6 billion for the Defense Department to continue providing munitions and other weapons to Israel." There is also "another $3.5 billion in foreign military financing for Israel to buy more military equipment with cash grants."

Israel invaded Gaza in response to Hamas' attack on October 7 — a brutal assault that left 1,139 dead, including dozens of children and hundreds of Israeli civilians. Another 250 people, mostly Israelis, were taken hostage. (Approximately 100 remain in captivity.) Since the initial attack, "[a]rmed groups in Gaza have continued to indiscriminately fire rockets toward population centers in Israel, disrupting school for children, displacing and threatening the lives and well being of civilians."

The package is advancing amid evidence indicating that Israel is taking insufficient steps in their military operation to protect Palestinian civilians. 

According to the latest figures by the health ministry in Gaza, Israeli military operations have killed 28,576 Palestinians since the start of hostilities. The health ministry is controlled by Hamas and does not distinguish between civilian casualties and members of Hamas killed during combat. But in prior wars, the health ministry's data "have held up to U.N. scrutiny, independent investigations and even Israel’s tallies." Israel says it has killed thousands of Hamas fighters. By any account, many thousands of Palestinian civilians, including many children, have been killed. The number of Palestinians killed exceeds 1% of the total population in Gaza. 

A group of 16 human rights organizations, including Oxfam, Amnesty International, and the Center for Civilians in Conflict (CIVIC), note that "Israel continues to use explosive weapons and munitions in densely populated areas with massive humanitarian consequences for the people of Gaza." Along with the fatalities, these attacks have "destroyed a substantial portion of Gaza’s homes, schools, hospitals, water infrastructure, shelters, and refugee camps."

But human rights organizations are not the only ones sounding the alarm. It's also President Joe Biden and his administration. On January 24, a spokesperson for Biden's National Security Council acknowledged that the "conflict has already resulted in the devastating deaths and injuries of tens of thousands of Palestinian civilians" and that many children have been "killed, injured, and orphaned." The spokesperson emphasized that, notwithstanding the brutality of Hamas, Israel "retains a responsibility to protect civilians." In a press conference on February 8, Biden bluntly stated that Israel's "conduct of the response in Gaza — in the Gaza Strip has been over the top." Biden said, "[t]here are a lot of innocent people who are starving, a lot of innocent people who are in trouble and dying, and it’s got to stop." On February 11, Biden told Israeli Prime Minister Benjamin Netanyahu that "a military operation in Rafah should not proceed without a credible and executable plan for ensuring the safety of and support for the more than one million people sheltering there." 

Federal statutes, collectively known as the Leahy Law, prohibit "the U.S. Government from using funds for assistance to units of foreign security forces where there is credible information implicating that unit in the commission of gross violations of human rights." Under the Leahy Law, the State Department is responsible for vetting security forces slated to receive assistance. But enforcement of the Leahy Law, since it was enacted in the late 1990s, has been spotty, at best. For example, the Egyptian military receives billions in U.S. funding despite a "disturbing" human rights record. The Egyptian government has "tortured suspects, implemented mass trials against children, and executed detainees." 

Last week, 19 Democratic Senators proposed amending the aid package, which also includes assistance to Ukraine and Taiwan, "to require that the weapons received by any country under the proposed national security supplemental are used in accordance with U.S. law, international humanitarian law and the law of armed conflict." This is essentially a more robust version of the Leahy Law. The proposal would also "buttress current law that prohibits U.S. security assistance to any country that prevents or restricts U.S. humanitarian assistance to those in need." 

But ultimately, the amendment was not included in the legislation. 

A presidential memorandum

In lieu of the legislative language proposed by Democrats, Biden issued a presidential memorandum on February 8, known as NSM-20. The new memorandum does not establish any new standards for military aid. Rather, according to the White House, its purpose is “spelling out publicly the existing standards.” Under NSM-20, recipients of U.S. military aid will be required to submit “credible and reliable written assurances” that they are using military assistance “in accordance with international humanitarian law.” Further, the U.S. will require assurances that recipient nations are not obstructing, directly or indirectly, access to humanitarian assistance in armed conflict. The United States will suspend military aid to countries that fail to provide these assurances within 45 days from the date the memorandum was issued. 

These guardrails, the White House argues, will allow the U.S. to “maintain an appropriate understanding of foreign partners’ adherence to international law.” The hope is that these new reporting requirements will “prevent arms transfers that risk facilitating or otherwise contributing to violations of human rights or international humanitarian law” and uphold “respect for human rights, international humanitarian law, democratic governance, and the rule of law.”

But experts question whether NSM-20 will have any impact, especially since the Leahy Law, the Foreign Assistance Act, and a prior presidential memorandum issued in February 2023 include similar policies. The U.S. already “routinely makes use of law of war assurances in connection with support to foreign partners,” the defense blog Just Security writes. 

The issue is not that existing U.S. policy is insufficient but that it is not being enforced. “The impact of National Security Memorandum 20 on will depend entirely on its implementation, and especially whether Congress pressures the Biden administration to hold the Israeli government accountable for the devastation caused by its operations in Gaza,” John Ramming Chappell, an advocacy and legal fellow at CIVIC, told Popular Information. 

Chappell says the standards highlighted in the new directive are ones “that the Biden administration appears to have violated with its [prior] arms transfers to Israel.” The Foreign Assistance Act, for instance, bars giving aid to countries that restrict “the transport or delivery of United States humanitarian assistance.” Over the last few months, several prominent news outlets and human rights organizations — including the New York Times, the Associated Press, and Human Rights Watch — have documented how Israel has repeatedly blocked the delivery of aid. 

In October 2023, Josh Paul, a former State Department official who oversaw arms transfers, criticized the Biden administration’s decision to transfer weapons to Israel and argued that it violated the February 2023 memorandum. President Biden’s National Security Adviser Jake Sullivan, however, rejected this notion: “All of our arms transfers, including arms transfers to Israel, are rooted in the basic proposition that they will be used consistent with law of armed conflict.”

But to Paul and others, the United States’ unwillingness to enforce laws when it comes to Israel is part of a troubling pattern. In January, Paul told Defense News that “the typically preemptive [Leahy] vetting process is reversed for Israel, where allegations are reviewed only after the U.S. provides the assistance.” Meanwhile, Sarah Harrison, who was once the lead attorney for Leahy Law, told the outlet that “multiple administrations have not applied the Leahy [L]aw[] evenly to Israel.”

In recent days, the Biden administration has said publicly that it does not plan on using the memorandum to condition aid to Israel. A National Security Council spokesperson told Defense News, “[W]e have not seen any violations of the standards so have no plans to restrict assistance at this time.” Meanwhile, White House Press Secretary Karine Jean-Pierre said that Israel “reiterated their willingness to provide these types of assurances.” This week, Politico — citing three anonymous sources — reported that “[t]he Biden administration is not planning to punish Israel if it launches a military campaign in Rafah without ensuring civilian safety.”

Israel, however, still may not receive the $14 billion in funding. The foreign aid package faces significantly more opposition — and an uncertain future — in the House.