US military aid to Israel violates domestic, international law

Nahida H Gordon, The Electronic Intifada, 7 April 2010

The Middle East Study Committee of the Presbyterian Church (USA) has published “Breaking Down the Walls”, a report to be submitted to the church’s 219th General Assembly this July.

Some of the report’s 39 recommendations have drawn harsh criticism. The Simon Wiesenthal Center declared in a 22 February action alert that “adoption of this poisonous document by the Presbyterian Church will be nothing short of a declaration of war on Israel and her supporters” (“Presbyterian Church USA Ready to Declare War Against Israel: Take Action Now”).

Such attacks make exaggerated claims and misrepresent the recommendations. The Committee’s intent is not to make war but rather peace.

One factually misleading claim is the Simon Wiesenthal Center’s assertion that “the report calls for the US to withhold financial and military aid to Israel.” In fact, the report “calls on the US government to exercise strategically its international influence, including the possible withholding of military aid as a means of bringing Israel to compliance with international law and peacemaking efforts” (p.53).

As one can easily see, the Committee’s recommendation is nuanced and calls on withholding military aid as a last resort.

Within this context it is appropriate to consider whether the US government, based on international and domestic law, should cut military aid and cease the transfer of weapons to Israel.

According to the International Law Commission (ILC), the official UN body that codifies customary international law, “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State” (Article 16 of the International Law Commission, “Articles on Responsibility of States for Internationally Wrongful Acts,” (2001) which were commended by the General Assembly, A/RES/56/83).

In other words, if you knowingly help someone commit a crime, you are also liable for that crime. The ILC states that international law also “prohibits conduct that involves patterns of blatant abuse and complicity in such a pattern of blatant abuse.”

According to Amnesty International, since 2001, the US has been by far the major supplier of conventional arms to Israel. Also since 2001, Israel launched military invasions of Lebanon and Gaza, causing extensive loss of civilian human life and destruction of property, including homes (“Fueling conflict: foreign arms supplies to Israel/Gaza,” Amnesty International, February 2009, p.21).

Section 502B of the US Foreign Assistance Act stipulates that “no security assistance may be provided to any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights” and section 4 of the Arms Export Control Act authorizes the supply of US military equipment and training only for lawful purposes of internal security, “legitimate self-defense,” or participation in United Nations peacekeeping operations or other operations consistent with the UN Charter.

Since the US government gives no military assistance to any of the Palestinian resistance groups, the question with regard to US military aid and transfer of weapons applies only to Israel.

And with regard to Israel, the UN-commissioned Goldstone report found that the Israeli forces in Gaza committed grave breaches of the Fourth Geneva Convention which included willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, extensive destruction of property and use of human shields. Other findings were that the Israeli forces committed a series of acts that deprive Palestinians of their means of subsistence, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country, that limit their rights to access a court of law and an effective remedy and that these findings could lead a competent court to find that the crime against humanity were committed.

A particularly abhorrent use by Israel of weapons provided to it by the US government is the use of white phosphorous which when it comes into contact with skin burns deeply through muscle and bone, continuing to burn until deprived of oxygen. It can contaminate other parts of the victim’s body or even those treating the injuries, as documented by Amnesty International. Moreover its use in civilian areas is prohibited under international law.

Based on international and domestic US laws, and the Goldstone report’s finding that Israel committed grave breaches of the Fourth Geneva Convention, the US government, in providing military aid and the transfer of arms to Israel, has violated its responsibility not to participate in the internationally wrongful acts of another state.

With these observations in mind, I personally believe that the recommendation of the Presbyterian Church (USA) Middle East Study Committee to withhold military aid to Israel as a last resort — in attempting to enforce international law vis-a-vis the occupation of Palestinian territories and the human rights violations against the Palestinians — is a mild statement, indeed. Particularly so in light of Amnesty International’s “calling on the UN, notably the Security Council, to impose an immediate, comprehensive arms embargo on all parties to the conflict, and on all states to take action individually to impose national embargoes on any arms or weapons transfers to the parties to the conflict until there is no longer a substantial risk that such arms or weapons could be used to commit serious violations of international law.”

As the Middle East Study Committee states, “We deeply value our relationships with Jews and Muslims in the United States, Israel and the predominantly Muslim countries of the Middle East. Yet the bonds of friendship must neither prevent us from speaking nor limit our empathy for the suffering of others. Inaction and silence on our part enable actions we oppose and consequences we grieve.”

N H Gordon is a professor of statistics and member of the Presbyterian Church (USA) Middle East Study Committee. Professor Gordon, a life-long Presbyterian and currently a church Elder, is a Palestinian-American who experienced, first hand, the 1948 Palestinian Nakba as a child.

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