On December 9, 2023, U.S. Secretary of State Antony Blinken invoked a rarely used “emergency authority,” approving the immediate sale of nearly 14,000 120-millimeter (mm) tank munition cartridges to Israel and bypassing a standard required 15-day period of congressional review. The administration announced the sale at a moment when the secretary has also expressed heightened disappointment over Israel’s failure to protect civilians in a military campaign that has claimed the lives of more than 18,000 people—and at a moment when U.S.-made weapons have been implicated in civilian casualties. This rapid delivery of weapons undermines effective oversight of arms transfers. Moreover, amid grave concerns around civilian harm, these transfers contravene the Biden administration’s own policies on civilian protection and human rights.
Prior uses of emergency authority
The Biden administration previously used emergency authority to sell tank ammunition to Ukraine in 2022; however, this transfer was conducted absent any evidence of civilian harm on the part of the Ukrainian forces. The 120 mm rounds provided Ukraine with critical precision-strike capabilities in close-combat scenarios, enhancing the defensive and offensive capabilities of Ukrainian forces. These artillery rounds disrupted enemy supply lines, targeted key strategic positions, and helped Ukraine regain control over contested areas. At the time of the transfer, there was broad support from both Congress and the American people to provide Ukraine with the tools it needed to defend itself against Russia’s war of aggression.
The Trump administration also invoked the emergency authority in 2019 to bypass Congress in authorizing weapons sales to Saudi Arabia, the United Arab Emirates, and Jordan, arguing that the threat from Iran constituted an appropriate emergency. But unlike the broad support for Ukraine’s self-defense, the 2019 sale was heavily contested—specifically over concerns around civilian harm in the Yemen conflict and the precedent for undermining congressional oversight.
Relevant policies to prevent U.S. complicity in civilian harm
These congressional concerns about the Trump administration’s weapons sale in part prompted the Biden administration to develop several key policies to prevent U.S. complicity in violations of human rights and international law:
- In 2022, the U.S. Department of Defense released the Civilian Harm Mitigation and Response Action Plan (CHMR-AP), marking the United States’ first concerted effort to improve internal and partner response to civilian harm, declaring that “the protection of civilians is a strategic priority as well as a moral imperative.” While much of the policy focuses on protection of civilians in U.S. military operations, one objective seeks to integrate prevention measures in security partnerships through “tailored conditionality,” evaluating partners’ commitment and capacity at the outset.
- In August 2023, the U.S. State Department created the Civilian Harm Incident Response Guidance to establish a framework for investigating reports of civilian harm by partner governments using U.S. weapons. This guidance also outlines potential actions the United States may take in response to civilian harm incidents, including the suspension of arms sales.
- Most relevant, the White House established the Conventional Arms Transfer (CAT) policy in February 2023, identifying arms transfers as an important tool of national security and foreign policy that could bolster international peace and security, but which required adherence to laws and norms on human rights and civilian protection. The policy stipulates that prior to approving a potential arms transfers action, the United States should consider the risk that “the recipient may use the arms transfer to contribute to a violation of human rights or international humanitarian law, based on an assessment of the available information and relevant circumstances.”
Civilian harm in Israeli operations
Israel’s military offensive in Gaza has put these policies to the test. In just two months, the conflict has claimed the lives of more women and children than the two years of war in Ukraine, with more than 18,000 civilians killed to date. Moreover, recent reports suggest that some of these civilian casualties were caused by American-made weapons. The Washington Post reported that the Israel Defense Forces (IDF) used U.S.-supplied white phosphorus in strikes in southern Lebanon that killed nine civilians; and Amnesty International has reported that the IDF used U.S.-guided missile equipment in airstrikes that killed 43 civilians in Deir al-Balah, south of the evacuation line that Israel had declared would mark a “safe zone.”
In fact, the very same ammunition that will be delivered as part of the emergency notification has been implicated in an October 13 Israeli strike that killed a Reuters journalist and injured six other reporters, who were covering the conflict from Lebanon. Both Amnesty International and Human Rights Watch have alleged that the Israeli military had all the necessary information to identify the group as civilians and members of the media.
Congress and the administration equally have a role to play in ensuring that U.S.-manufactured weapons are not used unlawfully in incidents that cause civilian harm. The administration should adhere to its own robust policies, reviewing arms transfers prior to approval and investigating any reported incidents implicating civilian casualties or rights abuse involving U.S. weapons.
Though the invocation of emergency authority prevents Congress from reviewing or blocking this specific sale through a joint resolution of disapproval, it underscores why lawmakers must preserve congressional oversight over weapons transfers. The recent draft Senate supplemental assistance package would waive the requirement that Congress be notified of arms transfers to Israel in instances of national security, but a group of 13 senators have proposed an amendment that includes a critical requirement that the president report on how weapons transfers comply with U.S. and international law and protection of civilians. If passed, this amendment would explicitly require reporting on whether U.S. assistance to Israel complies with CAT and CHMR-AP policies.
Officials may still seek accountability by invoking measures that could limit arms transfers after rights abuses have occurred, but congressional action is needed to codify measures in existing policies and establish more enduring safeguards prior to delivery that can prevent such abuses before they happen.
The United States has committed to supporting Israel in its defense; but given the unacceptably high civilian death toll in Gaza, the robust policy framework that the Biden administration has created around civilian protection warrants more scrutiny—not less—for arms transfers to Israel. While it may be too late for Congress to review the sale of the 120 mm artillery rounds, it must preserve oversight to ensure that even the United States’ closest partners do not use American weapons in civilian harm. To start, policymakers in Congress should pass the amendment to the supplemental assistance package so that it includes language on compliance with civilian harm mitigation policies.