The Biden administration sent a letter to Israeli leaders on Monday threatening withholding of weapons if Israel does not do more to facilitate humanitarian aid to Gaza.
The main legal justification the letter brings is a National Security Memorandum created by President Biden, written just for Israel, instructing the Defense Department to force any country that receives US arms to prove that it is facilitating US humanitarian aid:
[I]n furtherance of supporting section 620I of the Foreign Assistance Act of 1961 (22 U.S.C. 2378-1) and applicable international law, obtain credible and reliable written assurances from a representative of the recipient country as the Secretary of State deems appropriate that, in any area of armed conflict where the recipient country uses such defense articles, consistent with applicable international law, the recipient country will facilitate and not arbitrarily deny, restrict, or otherwise impede, directly or indirectly, the transport or delivery of United States humanitarian assistance and United States Government-supported international efforts to provide humanitarian assistance.
The key word here is "arbitrarily." And that word can be abused by anyone who wants to.
Last month, Israeli media - and practically no one else - reported on exactly how Hamas uses humanitarian aid as a lifeline:
Hamas has profited by at least a half billion dollars from humanitarian aid entering the Gaza Strip, Channel 12 reported on Tuesday.“It’s actually become the main oxygen pipeline for the terrorist organization,” reported Channel 12‘s Almog Boker.Hamas steals the humanitarian aid and sells it to the population. It then uses the money to finance recruitment, Boker said, noting that 3,000 terrorists have been added to Hamas’s payroll in northern Gaza.
Hamas operatives have been recorded saying their warehouses of aid are full. Where is the outrage from the donors seeing the aid being used to fund a terrorist group?
Hamas does not just profit monetarily from controlling the aid once it arrives in Gaza. It also uses it to control the people, to give the impression that it is still in charge, and it is an implicit threat against any civilian who does not do what Hamas demands.
Israel has a legitimate military goal to destroy Hamas. Hamas is cynically using humanitarian aid to stay alive. The two are at cross-purposes.
There is nothing arbitrary about Israel's restrictions on humanitarian aid and its distribution; in every conflict and under international law the war's goals are primary and everything else - including civilian lives - are extremely important but secondary when they conflict. A minor military target does not justify major civilian harm, but a major target does.
The evidence that Israel is not arbitrarily blocking aid is clear from the effective distribution of polio vaccines in September, which everyone considered a success. There was no way for Hamas to profit off those vaccines, so there were few issues in the IDF facilitating distribution.
Aid dropped off at the end of September but, again, it was not arbitrary. Israel placed in a new rule in direct response to Hamas' abuse of humanitarian aid demanding that relief organizations responsible for truck convoys from Jordan to Gaza must complete a form providing passport details and accept liability for any false information on a shipment. The UN refuses to do this, fearful that Hamas will retaliate.
All this context is missing from the letter. And this is part of a larger pattern where the world blames Israel and only Israel for Gaza civilian woes and then ignores everyone else's role.
Israel didn't close the Rafah crossing where the bulk of the aid was entering before May. Egypt did, for purely political reasons, to not deal with Israel directly at the crossing and look like they were allies. There has been no pressure on Egypt to reverse that decision.
Similarly, Egypt has refused to allow Gazans to flee and seek refuge there. And the world is silent.
The US and the world are putting Israel in a humanitarian aid straitjacket and then telling it, sure, you can defend yourself but you must also do it while we give the UN, Egypt and Hamas a pass for making you the party solely responsible for Gaza lives. When you fall short we will add more straps.
I looked at the US Army reports on Operation Iraqi Freedom. While there is lots of documentation on facilitating humanitarian aid after military operations in an area were finished and the US controlled the area, there is practically nothing I can find about humanitarian aid during active combat. The reason is because it is nearly impossible.
In Gaza, Israel is not trying to conquer the sector. It is not holding or occupying large swaths of land. It doesn't have the manpower (and just imagine the world reaction to Israel occupying Gaza territory!) But without full control of the geographic area, humanitarian aid distribution becomes much more difficult - and this is before the enemy turns that same aid into a weapon for itself, something Saddam Hussein didn't even consider.
Beyond that, even after Israel defeats Hamas in an area, the civilians in humanitarian zones are where Hamas units move to in order to use them as new human shields for their military use.
This letter does not take into account any of this context. It, as well as the February Biden memo that it is based on, creates rules for Israel that literally reward Hamas for stealing and abusing aid and using Gazans as shields.
To be sure, Israel should be doing a far better job communicating its challenges. But COGAT issues daily reports on what it does and what its humanitarian aid partners are not doing, and the world media ignores them or treats them as unreliable.
Israel is being asked to do the impossible, and is then blamed for falling short. Ironically, Israel is closer to performing the impossible than any other nation at war has ever done.
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