Brian Cox on “Bernie Sanders Foreign Assistance Act Resolution, Doctrinal LOAC Compliance, and the Unconstitutional Legislative Veto”
Today Lawfire® contributor Brian Cox skillfully unpacks for us the legal aspects of a resolution filed by Senator Bernie Sanders that could, Brien advises, “influence U.S. security assistance to Israel.”
He addresses to “two primary issues: requirements for assessing compliance with the law of armed conflict (LOAC) using a doctrinal approach, and the unconstitutionality of the legislative veto.” Brian brings his usual scholarly expertise to this important–and timely–issue, so you’ll want to read this one.
Bernie Sanders Foreign Assistance Act Resolution, Doctrinal LOAC Compliance, and the Unconstitutional Legislative Veto
by Brian L. Cox
On the last full day of work before adjourning for holiday recess, Senator Bernie Sanders (I-VT) announced on the floor of the Senate his intent to call a vote on a resolution he filed just before the break. The resolution, filed pursuant to the Foreign Assistance Act of 1961, could influence U.S. security assistance to Israel.
If a vote is eventually called on this resolution after recess, several essential issues not currently addressed in the legislative proposal will likely need to be clarified during the debate. In this post, I identify and analyze two primary issues: requirements for assessing compliance with the law of armed conflict (LOAC) using a doctrinal approach, and the unconstitutionality of the legislative veto.
In a companion article published on Articles of War involving the draft resolution, I analyze the interplay between LOAC and human rights law in relation to the long-standing U.S. government policy of applying the lex specialis rule when determining which body of law applies in a given context.
That aspect of the analysis is a central issue because the draft resolution and the domestic legislation pursuant to which it was filed both refer to and rely on human rights law, while the concerns raised in the Sanders resolution involve the conduct of armed hostilities by Israel in Gaza. Pursuant to the lex specialis rule, LOAC – rather than human rights law – applies to this conduct. This subject is analyzed in further detail in the companion post on Articles of War.
The doctrinal process for evaluating LOAC compliance is also important to the analysis since the Sanders resolution refers to the prospect of “indiscriminate” and “disproportionate” conduct by Israel in the context of the ongoing conflict in Gaza.
This issue, then, forms the primary subject matter of the present article. The significant, though less pressing, matter of the unconstitutionality of the legislative veto is considered in the final substantive section before the conclusion.
Before analyzing these central unresolved issues, it is useful to describe the essential components of the pending resolution in conjunction with the legislation that would permit it.
Essential Aspects of the Resolution and Authorizing Legislation
As described in the opening line, the purpose of the resolution is to request “information on Israel’s human rights practices pursuant to section 502B(c) of the Foreign Assistance Act of 1961.” The cited provision of the Foreign Assistance Act allows a resolution of either chamber, the House or the Senate, to request a report from the Secretary of State on the “observance of and respect for human rights and fundamental freedom” with respect to any country.
Because existing legislation allows for either chamber to request such a report unilaterally, the resolution could potentially be adopted by a simple majority. If the Senate passes the resolution, the procedure described immediately above means presentation to the House and the president through the usual legislative process would not be required.
Upon adoption, the Secretary of State would be required to submit the required report within 30 days. If this deadline is not met, the Foreign Assistance Act provides that “no security assistance shall be delivered” to the country in question – in this case, Israel – unless pursuant to a subsequent legislative authorization.
The terminology utilized in the legislation pursuant to which the resolution has been introduced is confined to the topic of “human rights and fundamental freedom” in the relevant country. As such, compliance with the law of armed conflict by Israel during the conduct of hostilities in Gaza is beyond the scope of the authorizing legislation.
Amnesty International Report and Evaluating LOAC Compliance
Even though human rights law does not apply to the conduct of hostilities pursuant to the long-standing interpretation of the U.S. government, all parties to a conflict – including Israel – must comply with relevant LOAC provisions. On this note, the Sanders resolution refers specifically to a report published by Amnesty International indicating that civilians were killed in attacks by Israel using Joint Direct Attack Munitions (JDAMs) sourced from the United States.
The Amnesty International report to which the Sanders resolution refers presents compelling evidence indicating that two separate attacks resulting in civilian harm were carried out using bombs with “US-manufactured JDAM kits.” As the U.S. Navy briefly explains, JDAM kits convert “existing unguided bombs into precision-guided ‘smart’ munitions.”
While evidence that munitions using U.S. JDAM kits were used in these attacks is comprehensive and convincing, the methodology utilized in the Amnesty report to conclude that the attacks should “be investigated as war crimes” is not nearly as compelling.
First, the report reveals that the investigators “did not find any indication that there were any military objectives at the sites of the two strikes or that people in the buildings were legitimate military targets, raising concerns that these strikes were direct attacks on civilians.”
Second, the report indicates that even if the attacks “were intended to target military objectives, the use of explosive weapons with wide-area effects in such densely populated areas could make these indiscriminate attacks.”
Methodology for Evaluating Compliance with LOAC Distinction Rule
This first finding addresses the LOAC distinction rule. As the Ministry of Foreign Affairs describes, Israel is required to direct “attacks only at military objectives.” Based on the nature of the operating environment in Gaza, “it cannot be concluded from the mere fact that seeming ‘civilians’ or ‘civilian objects’ have been targeted, that an attack was unlawful.”
These observations are consistent with the U.S. Defense Department articulation of the LOAC distinction rule, which requires personnel to make only military objectives the “object of attack.” The Manual further clarifies that decisions during the conduct of hostilities “must be made in good faith and based on their assessment of the information available to them at the time” and evaluated afterward without “the benefit of hindsight.”
By “raising concerns” that the strikes evaluated by Amnesty International “were direct attacks on civilians” because the investigations “did not find any indication that there were any military objectives at the sites” after the attacks, the NGO report adopts flawed methodology for evaluating compliance with the LOAC distinction rule.
Even assuming, for the sake of argument, that there were in fact no military objectives (in essence, Hamas fighters or their equipment) present at the sites, this factual determination does little to shed light on the intent and knowledge of the relevant personnel at the time of the strike.
Determining that JDAMs sourced from the United States were used in the strikes is certainly an important finding, but the apparent absence of military objectives at the sites after the attacks is an insufficient basis upon which to credibly suggest that the attacks should be investigated as possible war crimes.
Methodology for Evaluating Compliance with LOAC Discrimination Rule
Although the United States has not ratified Additional Protocol I (API) to the 1949 Geneva Conventions, the U.S. doctrinal interpretation of the discrimination rule aligns closely with the relevant text of AP I. Because this treaty formulation is more succinct than typical doctrinal guidance, I will draw directly from the text of AP I (primarily Art. 51(4)) even though it does not directly apply to the United States or to Israel.
The first primary component of the discrimination rule essentially operationalizes the distinction rule described immediately above. Deciding on an attack against a person or object without confirming that the person or object qualifies as a military objective constitutes a violation of the distinction rule.
Pursuant to the first component of the AP I discrimination rule, an attack that is “not directed at a specific military objective” is characterized as indiscriminate. By identifying a military objective and directing the attack against that specific military objective, the attack complies with both the distinction rule and the first aspect of the discrimination rule.
To streamline the assessment, this initial component of the discrimination rule can be folded into analysis of compliance with the distinction rule immediately above.
This leaves two components of the discrimination rule to address.
The second (in order of listing) prohibits employment of a means or method of warfare that “cannot be directed at a specific military objective” (emphasis added). The third proscribes utilizing a means or method of warfare “the effects of which cannot be limited as required by” other relevant provisions of AP I (emphasis added).
If it seems that the second and third components of the discrimination rule constitute a rather high threshold for determining noncompliance, this is an accurate assessment. As the Manual succinctly notes on the subject, “Few weapons have been understood to be inherently indiscriminate weapons.”
The primary deficiency in the methodology utilized by the Amnesty International report is that it impermissibly characterizes the use of explosive weapons in populated areas as “indiscriminate” – without referring to or considering the doctrinal requirements of the LOAC discrimination rule.
EWIPA and the LOAC Discrimination Rule
After adopting flawed methodology to evaluate compliance with the LOAC distinction rule, recall that the Amnesty report asserts that even if the attacks “were intended to target military objectives, the use of explosive weapons with wide-area effects in such densely populated areas could make these indiscriminate attacks.”
This aspect of the report refers to a term that has emerged fairly recently known as EWIPA, or “explosive weapons in populated areas.” One of the earliest formal references to EWIPA I have been able to identify is from an address by Jakob Kellenberger in August 2009, who was the president of the International Committee of the Red Cross at the time.
During his remarks, Kellenberger notes, “The nature of armed conflict, and of the causes and consequences of such conflict, is continuing to evolve. IHL must evolve too.”
On this topic, Kellenberger later refers to discussions that had been prompted at the time “in part by the growing number of military operations conducted in densely populated urban areas, often using heavy or highly explosive weapons, which have devastating humanitarian consequences for civilian populations.”
Following an intensive and sustained public advocacy campaign, a political declaration on EWIPA was adopted in 2022 that has now been formally adopted by 83 countries, including the United States.
Israel has not adopted the declaration. Tellingly, Ukraine has expressed support for the spirit and principles of the declaration but has refrained from adopting it while fighting to protect its sovereignty against Russian aggression.
Even as the United States expressed the commitment to endorsing the EWIPA political declaration, the announcement emphasized the “non-legally binding” nature of the document. A political declaration, by definition, is not a treaty. Therefore, it does not qualify as a source of binding international law – whether conventional or customary.
The conclusion from the Amnesty report that the attacks being investigated could be indiscriminate simply on the basis that “explosive weapons with wide-area effects” were used “in such densely populated areas” is without merit.
Launching an attack that is not directed at an identified military objective violates the LOAC distinction rule and the first component of the discrimination rule. Using a means or method that cannot be directed at a military objective, or doing so when the effects cannot be limited as required by other LOAC rules (such as proportionality), would violate the second and third components.
The use of explosive weapons in a densely populated area is not alone a conclusive factor.
Presidential Messaging and the Discrimination Rule
Before moving on from analyzing the LOAC discrimination rule, it is useful to address recent messaging from President Joe Biden suggesting that Israel has been engaged in “indiscriminate bombing” in Gaza.
The first such reference from President Biden came during the question and answer session of a press briefing. While addressing a question regarding military operations and hospitals, the president observed that conducting a ground operation at al-Shifa hospital “is a different story than I believe was occurring before, an indiscriminate bombing.”
When asked about this remark the next day, spokesperson Matt Miller revealed that the State Department had not assessed that Israel was engaged in indiscriminate bombing. Rather, Miller expresses he thinks what President Biden “was referring to was contrasting ground operations with airstrikes, which, even when targeted, can produce significant civilian casualties.”
A similar reference occurred more recently during a campaign reception in mid-December where President Biden indicated that Israel is “starting to lose [global political] support by the indiscriminate bombing that takes place” in Gaza.
Yet again, public messaging was mobilized to engage in damage control after President Biden suggested Israel is engaged in indiscriminate bombing. During a press conference the next day, National Security Council spokesperson John Kirby was asked repeatedly about the president’s “indiscriminate bombing” remark.
On each occasion, Kirby sought to walk back and refine the message.
For one characteristic response, Kirby clarifies that President Biden was expressing the administration’s strategic goal of making “sure we’re seeing the results that Israel has claimed is their intent, which is to reduce civilian casualties.” Pressed to clarify the administration’s position regarding the “indiscriminate” characterization, Kirby again emphasizes “the need for reducing civilian harm and being as precise and careful and deliberate as possible.”
Reducing civilian harm and being as careful as possible are both commendable goals, but neither constitutes a formal analysis of the LOAC discrimination rule.
As such, it appears that President Biden was using the term “indiscriminate” in a colloquial, rather than doctrinal sense. Administration messaging after both “indiscriminate bombing” remarks seems to support this assessment – though the prudence of the current commander-in-chief of the United States armed forces utilizing doctrinal legal terminology in an apparently colloquial manner during public remarks was predictably not addressed in subsequent official messaging.
Methodology for Evaluating Compliance with LOAC Proportionality Rule
One final substantive consideration should be addressed on the topic of analyzing LOAC compliance. The draft Sanders resolution would prompt the State Department for a report addressing “the denial of the right to life in the context of the armed conflict” resulting from “indiscriminate or disproportionate operations.”
In the preamble, the resolution also refers to reports that “an American-provided bomb with a large payload” was used by Israel “in one of the deadliest strikes of the entire war, an attack that leveled an apartment block in Gaza’s Jabalia refugee camp.”
Reference to “the right to life” during the conduct of hostilities is addressed in the companion article posted on Articles of War analyzing the draft resolution in light of the lex specialis rule, and the suggestion of “indiscriminate” operations is considered immediately above.
This leaves the prospect of “disproportionate” operations to address, and doing so in the context of strikes on the Jabalia refugee camp is useful since this attack was widely characterized in public discourse as potentially “disproportionate.”
The UN Office of the High Commissioner for Human Rights, for example, expressed “serious concerns that these are disproportionate attacks that could amount to war crimes” given “the high number of civilian casualties & the scale of destruction following Israeli airstrikes on Jabalia refugee camp” (emphasis added).
This characterization is a paradigmatic example of an effects-based analysis in that it focuses on the “high number of civilian casualties” and destruction reported after the attack rather than on the knowledge and intent of personnel responsible for the strikes at the time of the attack.
As Professor Geoff Corn has noted regarding an effects-based analysis in the context of evaluating compliance with the LOAC proportionality rule, condemning “an attack as a war crime based only on the civilian harm inflicted by the attack [is] legally invalid.”
I have previously addressed compliance with the proportionality rule specifically, and conformity with relevant LOAC rules more broadly, from a doctrinal perspective in relation to the attack on the Jabalia refugee camp. As I suggested then, “observers and commentators not directly involved in an attack or tasked with assessing compliance afterward simply do not have access to the information necessary to draw authoritative conclusions” regarding conformity with relevant LOAC rules.
That assessment and Professor Corn’s observations related to effects-based LOAC analysis suggest that reference in the draft Sanders resolution to potentially “disproportionate” operations is deficient from a doctrinal perspective since it fails to address the knowledge and intent of personnel responsible for these operations.
Foreign Assistance Act and the Unconstitutionality of the Legislative Veto
Recent media reporting has emphasized the prospect of blocking U.S. security assistance to Israel if Secretary of State Anthony Blinken fails to submit the report that would be required within 30 days of the Senate adopting the resolution. However, this is not a realistic prospect with the resolution alone.
The text of the Foreign Assistance Act does explicitly provide for this possibility. Nonetheless, a legislative resolution seeking to nullify an action taken by the executive branch – here, providing security assistance to Israel – without first progressing through the established legislative process is the very definition of a legislative veto.
This mechanism was ruled unconstitutional by the 1983 Supreme Court INS v. Chadha decision, which remains good law still today.
It seems reasonable to suggest that a veteran legislator such as Bernie Sanders is aware that this aspect of the existing legislation pursuant to which the resolution was filed is unconstitutional. If so, the principal intent in pursuing the resolution is presumably to bring discussion regarding U.S. security assistance to Israel to a formal floor debate.
Conclusion
Ongoing debates regarding the extent of civilian harm and the role of the United States supporting military operations by Israel in Gaza will undoubtedly continue to dominate the landscape of public and political discourse for the duration of the conflict and beyond. Especially among reports that “more Democrats” are shifting in favor “of a ceasefire and imposing conditions on military aid” to Israel, the debate will become increasingly important for the electoral prospects of the Biden administration.
Although this is a momentous discussion, maintaining an accurate understanding of what law applies and how it functions is a vitally important aspect of the ongoing debate. The draft resolution filed by Senator Bernie Sanders before the holiday break is but one component of this ongoing debate.
Pursuant to the lex specialis interpretation of the U.S. government, the law of armed conflict – rather than human rights law – applies to the conduct of hostilities in Gaza. Assessing doctrinal compliance with relevant LOAC rules requires information regarding the intent and knowledge of personnel at the time of an attack rather than anecdotal and speculative conclusions developed afterward.
These factors should feature prominently among lawmakers while deciding whether to support the current draft if Senator Sanders does eventually bring the resolution to a vote and, more broadly, in the intensifying debate regarding U.S. security assistance to Israel.
About the author:
Brian L. Cox is a doctoral candidate lecturer and J.S.D. candidate at Cornell Law School and a a visiting scholar at the University of Ottawa Faculty of Law (Common Law Section). Brian retired in 2018 from the U.S. Army after 22 years of military service. He served as an airborne infantry soldier, combat camera operator, airborne infantry officer, and for seven years as a military legal advisor. His combat deployments include Iraq from 2003-2004 as a combat camera operator and Afghanistan from 2013-2014 as the chief of international and operational law for Regional Command-East in Afghanistan.
Brian also served as a military prosecutor, federal prosecutor, brigade judge advocate, and military magistrate while he was a military legal advisor. His military awards, decorations, and qualifications include the Ranger Tab, Senior Parachutist Badge, Pathfinder Badge, Air Assault Badge, Bronze Star Medal, Meritorious Service Medal, Basic and Advanced Collateral Damage Estimation Certification, Joint Firepower Certification, and Special Victim Unit Investigator Certification. Brian holds an LL.M. from Queen’s Law and a B.A. (International Relations) and J.D. from the University of North Carolina.
The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University (see also here).
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
