Opinion: How the candidates should answer weapons-to-Israel questions

A modernist building, with a sign reading "National Constitution Center," behind a barricade.

By Sarah Yager

Sept. 9, 2024 11:15 AM PT

In Kamala Harris’ first major interview as a presidential candidate, she was asked whether she would stop weapons from going to Israel because of the extreme harm they’ve caused Palestinian civilians. Harris didn’t answer the question directly but pivoted to the need for a hostage and peace deal between Hamas and Israel. Donald Trump’s advisor Robert O’Brien responded to a similar question by rejecting the idea of an arms embargo on Israel, stating concerns about technology supply chains that include Israeli companies.

Both answers are wrong. The correct answer is this: The United States will abide by its own laws and policies on any weapons sent to any ally.

Surely Harris and Trump will be asked about Israel and weapons again at the debate on Tuesday, especially given the reports of Hamas’ horrific killing of six hostages last month. So here is a quick primer on why the answer is simpler than they seem to believe.

Over decades, Congress has created laws that govern who gets U.S. weapons and under what conditions. The American public should expect that any president it elects will follow those laws.

Several of those laws, and the policies that derive from them, curtail American weapons going to countries that have violated or are violating the rules governing war. The federal Foreign Assistance Act prohibits security assistance to any government that restricts the delivery of U.S. humanitarian aid. The better-known Leahy laws, championed by now-retired Vermont Democratic Sen. Patrick Leahy, prohibits weapons from going to military units that have committed gross violations of human rights.

In the case of U.S. weapons to Israel, then, the only real question is whether that country’s conduct in Gaza has violated these provisions. If Israel is conducting its military campaign in Gaza in line with U.S. law and policies, it may continue to receive U.S. weapons; if not, those weapons’ deliveries should be suspended. It really is that simple.

Yet our presidential candidates are tripping over themselves to find an answer that tries to solve too many problems at once. The question here is not about support for Israel as a nation. Nor is it about ensuring that Israel can defend itself. If Harris and Trump want to support Israel in its self-defense, they absolutely can — in accordance with U.S. laws.

It is also not about the horrors that occurred on Oct. 7. The ongoing ordeal of the surviving hostages and the harms to civilians on that day by Hamas’ Qassam Brigades and other Palestinian armed groups were crimes against humanity. But U.S. law reflects the need for any government seeking U.S. military support to abide by international law in its response to violations by others, however grave.

The Biden administration has been doing contortions to provide military support to Israel without reference to U.S. or international law. It paused a shipment of 2,000-pound bombs in May, citing concerns about civilian harm, and even admitted in a report to Congress that month that U.S. weapons had likely been used in ways inconsistent with the law. But the White House said it didn’t have enough evidence to prove that specific violations had occurred, which would have triggered a suspension of further weapons shipments.

The evidence the Biden administration says it doesn’t have is everywhere. Careful investigations by the United Nations and organizations like mine have been documenting and reporting alleged violations since hostilities started in October, including Israeli forces’ unlawful airstrikes, the use of starvation as a method of warfare and torture of Palestinian detainees. The International Court of Justice has called on Israel three times to open Gaza’s crossings for aid shipments.

A presidential candidate publicly committing to upholding U.S. laws on arms transfers could put pressure on Israel to meet its legal obligations in Gaza. The Obama administration withheld an entire category of weapons from Saudi Arabia because of the harm it was causing in Yemen, and the Biden administration did it again for three years, until the Saudis were persuaded to end that war. The Biden administration also withheld aid from Egypt because of human rights abuses, resulting in some reforms. (Biden’s next aid package to Egypt must be decided by the end of this month, with the administration indicating its willingness to waive some human rights conditions though the situation in Egypt remaining dire.)

Despite clear evidence that weapons are leverage, the Biden administration has not been willing to use them decisively to press Israel to stop indiscriminate attacks and gain wider aid access for Palestinians threatened by a lack of food, water and access to medicine, including polio vaccines.

Raising concerns publicly, as the administration has done, but still providing U.S. weapons support unconditionally has meant that the Israeli government has had no incentive to change its conduct in Gaza. The Biden administration has missed an important opportunity to do the right thing by upholding U.S. law and policy. This is a problem not only for the conflict in Gaza, but for future armed conflicts. Flouting the law sets a precedent for future administrations to arm any ally, no matter its conduct.

The Biden administration has made its position clear. But it’s not too late for the presidential candidates to respond correctly to questions about their support for Israel. Bring the hostages home? Yes. Secure peace for Israelis and Palestinians? Yes. Weapons without conditions? No.

Sarah Yager is the Washington director at Human Rights Watch.