Sending ammunition to Israeli military, US shows a legal loophole

The United States has transferred tank ammunition and grenades to the Israeli military in order to refill stocks being depleted in Operation Protective Edge, according to recent reports.

You might ask: How can the US government do this, especially when Israel has reportedly killed upward of 900 civilians in Gaza? Aren’t there prohibitions against America supplying governments accused of what the United Nations has called potential war crimes?

The answer is yes, the US has laws and policies against supplying weapons and ammunition to governments credibly accused of war crimes.

It also has a way of letting the president of the United States sell those weapons anyway — as long as he declares an “emergency situation” and that such transfers are in the national security interests of the country. It’s a legal loophole that essentially permits the executive branch to sell to American arms to whomever it wants, whenever it wants to.

The State Department’s “Section 655 Reports” list the sales of arms and licenses for arms exports to foreign countries over the past decade.

Fourteen countries signed arms export licenses (agreements generally valid for four years) worth more than a billion dollars fiscal year 2013.

Colombia was lowest on the billion-dollar arms list with $1 billion in licenses purchased from America, while Japan topped all other nations with $29 billion in licensed agreements — more than triple the amount sold to the Singapore, which came in second at just over $8 billion. Israel’s $3 billion puts it in sixth place.

However, if you look at the value of arms actually shipped to those countries, Israel comes in third with $440M worth of arms imported that year.

In addition to military arms sales, the US also grants military aid to Israel and has done so ever since the 1973 war. From 1974 to 2014, those grants total more than $70.5 billion.

Normally, American weapons sales go like this:

The foreign ministry in Country X approaches the US Embassy there and submits a request to purchase weaponry. The American ambassador forwards that request to the US Secretary of State in Washington, DC, along with his or her recommendation to approve or deny the request.

The secretary of state then makes the decision whether or not to approve the sale or transfer of arms.

If approved, the decision is made whether to source those weapons straight from the manufacturer or from existing supplies.

When a foreign government purchases directly from a US manufacturer, the sale is handled via direct commercial sales wherein the State Department issues an export license and the foreign government has to pay for shipping the weapons to Country X.

But if the transfer is sourced from existing stockpiles, the transfer comes through foreign military sales, administered by a Department of Defense entity called the Defense Security Cooperation Agency.

DSCA’s (pronounced DISK-ah) job is to locate the items in existing stores and supply depots, and then arranges transfer of those items via US military transportation. That means that the US Air Force planes or US Navy ships will deliver the weapons to that country courtesy of the American taxpayer.

Oftentimes, FMS sales will also involve free training from US military personnel on how to use those weapons. But if a country buys via DCS, they have to pay for such training themselves — usually from civilian contractors working for the manufacturer.

The main federal laws that govern these sales are the Foreign Assistance Act, the Arms Export Control Act and the International Traffic in Arms Regulations, as well as Executive Order 13637. The AECA states that the Department of State “is responsible for the export and temporary import of defense articles and services,” and this is implemented by ITAR.

Even though there are strict rules and laws setting out who may receive American arms, and how those arms may and may not be used, those restrictions haven’t stopped the Israeli Defense Forces from using them in a prohibited manner before.

Anything other than a legitimate military target

During Operation Cast Lead in 2008-2009, Israel used white phosphorous projectiles against targets in Gaza, yet incurred no sanction from the US government for doing so. Arms sales from America to Israel continued unabated.

According to DSCA’s Security Assistance Management Manual, white phosphorous rounds given or sold to foreign governments are only to be used for “purposes such as signaling or smoke screening.”

White phosphorous (colloquially known as “Willie Pete”) is an incendiary compound that auto-ignites in the presence of oxygen and produces dense white smoke as it burns. Multiple videos from Gaza showed WP rounds bursting in air, raining down burning white phosphorous onto the ground. These rounds were clearly fuzed with a “variable time” or “proximity” fuze that functions at an altitude set by the artillery crew firing those rounds.

DSCA’s manual states that white phosphorous rounds are transferred “with notes restricting the conditions under which they may by employed.” And that US defense officials “should be aware of host nation inventories of these weapons and the restrictions on them, and alert to reports of how the host nation is employing them in operations.”

Furthermore, those officials should report “any information that suggests these items are not being used in accordance with the terms under which they were sold.”

According to the manual, the way these weapons are used is of paramount concern. It states that it is “particularly important” that defense officials “are alert to, and report on, any indication that United States-origin defense articles are being used against anything other than a legitimate military target.”

Both Human Rights Watch and Reuters documented M825 white phosphorous projectiles fired into civilian areas of Gaza in 2006 bearing lot numbers indicating they were manufactured in the United States. But was any such report made in 2006? DSCA officials did not respond to emails and phone calls asking for comment.

In January 2009, US government officials promised “corrective action” if Israel was found to have used white phosphorous against its “end use” agreements, but left the question of whether or not American phosphorous was used up to the Israeli government.

For its part, the US military acknowledged use of white phosphorous “as an incendiary weapon against enemy combatants” during the War in Iraq but denied targeting civilians.

John Ismay is an Overseas Press Club Foundation reporting fellow and graduate of the Columbia University Graduate School of Journalism. He is a former US Navy Explosive Ordnance Disposal (EOD) Officer and veteran of Operation Iraqi Freedom.