Building the Case for US Complicity

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On November 13th, the Center for Constitutional Rights (CCR)—a left-wing legal advocacy organization—filed a federal lawsuit alleging that United States President Joe Biden, Secretary of State Antony Blinken, and Defense Secretary Lloyd Austin had violated US and international law by abetting Israel’s “genocide of the Palestinian people” in Gaza. The suit, filed on behalf of two Palestinian human rights organizations and eight plaintiffs either located in Gaza or with family there, said that the US has enabled the genocide by “providing unconditional military and diplomatic support” to Israel, “disavowing any constraint or ‘red lines’ on Israel’s military campaign,” and refusing “to monitor how US weapons are used there.” “Blinken, Austin, and Biden have failed in their duty to prevent genocide,” Katie Gallagher, a senior staff attorney for CCR, told Jewish Currents. “Instead, they have taken affirmative steps to aid and abet [it].”

In recent years, charges of international law violations in the region have mainly focused on Israel, with human rights advocates sending numerous evidentiary submissions documenting alleged Israeli war crimes to the International Criminal Court (ICC). This process has continued in the past weeks, with three Palestinian human rights organizations filing a November 9th lawsuit at the ICC urging the court to include apartheid and genocide to the list of war crimes it is already investigating in Israel/Palestine, and to issue arrest warrants for top Israeli officials suspected of committing war crimes in Gaza. But since Israel’s 60-day assault on Gaza began on October 7th, human rights advocates have also increased their scrutiny of the US’s role in the mass killings of Palestinian civilians. “Without the unqualified support of the US, including billions of dollars in military aid, heavy weaponry and technical assistance, Israel could not commit genocide, war crimes, and crimes against humanity against the Palestinian people,” said Marjorie Cohn, professor emerita of international law at Thomas Jefferson School of Law and the former president of the National Lawyers Guild. A December 5th report published by Amnesty International highlighted an instance of such support, showing that “US-made munitions” were used in Israel’s strikes on two separate homes in October, killing 43 civilians, including 19 children, in what Amnesty called potential war crimes. “US-made weapons facilitated the mass killings of extended families,” said Agnès Callamard, Amnesty International’s Secretary General.

The CCR lawsuit marks the first legal attempt to hold the US directly responsible for complicity in crimes committed during Israel’s recent bombardment. Sarah Leah Whitson, executive director of the human rights group Democracy for the Arab World Now (DAWN), conceded that such efforts face long odds. “Human rights activists know that international law is aspirational. Powerful parties are virtually never held accountable,” she said. Nevertheless, she said that endeavors such as CCR’s matter because they help “the broader American public understand that what the United States is doing when it continues to provide Israel with military assistance and protection is, under any sensible reading of international law, a crime in itself.”

The airstrikes highlighted in the Amnesty report were likely not the only ones in which US-made bombs killed Palestinian civilians. Since 1950, the US has supplied over 80% of Israel’s imported weapons, which Israel has put to use during its many wars on Palestinians. The pace of these transfers has surged in the past eight weeks. A Pentagon spokesperson told reporters that the US has delivered weapons to Israel on a “near-daily” basis since Israel’s war on Gaza began following Hamas’s October 7th attacks. The arms transfers include, among other items, equipment to turn unguided bombs into “precision-guided munitions”; “bunker-buster” bombs, which can penetrate targets deep in the earth; artillery rounds; and missiles for attack helicopters. As per Defense Secretary Austin, the US military has placed “no conditions” on these weapons deliveries; conditions are also not expected to be placed on the additional $14.3 billion in military aid to Israel that the Biden administration has asked Congress for—a request that the Senate is expected to begin voting on this week.

Even before CCR filed its lawsuit, such unconditional arms transfers had generated opposition due to concerns about war crimes. “Israel is misusing US arms both in Gaza and the West Bank,” said Josh Paul, a former State Department official in the bureau that oversees arms sales who resigned in opposition to the Biden administration’s policy of sending weapons to Israel as it bombards Gaza. “The US should not be transferring those arms because they violate not only moral principles, but also international law.” Such calls have been echoed by human rights groups: On November 6th, Human Rights Watch called on the US and other allies of Israel to “suspend the transfer of arms” being used to “commit grave abuses” in Gaza, adding: “Providing weapons that knowingly and significantly would contribute to unlawful attacks can make those providing them complicit in war crimes.”

Numerous international laws prohibit third parties from “aiding and abetting” war crimes. For instance, under “customary international law”—which refers to established practices carried out by states and which was used by tribunals set up to prosecute war crimes in Yugoslavia and Rwanda in the 1990s—government officials are prohibited from sending weapons to other armies if they know that those arms would be used to commit war crimes. (US military prosecutors cited this principle in their Guantanamo Bay military commission case against Khalid Sheikh Mohammed, the alleged mastermind of the September 11th attacks.) Article 25 of the Rome Statute—the treaty that established the ICC in 2002—also prohibits “facilitating” the commission of a war crime, while the international treaty against genocide prohibits “complicity” in the commission of a genocide. “International law is fairly clear: Providing weapons and other material support to a party engaged in war crimes creates liability for the party providing the weapons,” said Whitson.

Despite repeated warnings from human rights groups about being in violation of these laws, however, the US has not changed course in its decision to send weapons to Israel, leading Palestine advocates to take legal action in the form of the CCR lawsuit. “If we can help save the lives of Palestinian civilians through a court order, then by all means we must try,” said Barry Trachtenberg, a history professor at Wake Forest University who submitted a declaration in support of CCR’s lawsuit. Trachtenberg added that the case is important because it will force the US “to defend its position legally against a mountain of evidence that genocide is occurring.” The Department of Justice—which is representing Blinken, Biden, and Austin—is expected to respond to the CCR suit on December 8th, and no ruling is likely to be made until at least January 26th.

While CCR attorney Gallagher told Jewish Currents that “the law is on our side in terms of the United States’ [actions] being unlawful,” there is a chance the case might fail because of the federal judiciary’s reluctance to get involved in matters of foreign policy. In 2005, for example, CCR sued Caterpillar—a US company supplying bulldozers that the Israeli army used to destroy Palestinian homes—for aiding and abetting war crimes, but the case was rejected by a federal judge who ruled that it was beyond the court’s jurisdiction. “We cannot intrude into our government’s decision to grant military assistance to Israel,” a judge wrote in 2007 on behalf of a panel of judges for the Ninth Circuit Court of Appeals. “Because that foreign policy decision [to sell bulldozers to the Israeli army] is committed under the Constitution to the legislative and executive branches, we hold that plaintiffs’ claims are nonjusticiable.”

If the current CCR case is also dismissed, there are other options for human rights advocates who wish to hold US officials accountable for assisting Israel’s bombardment of Gaza. One such venue is the ICC, which has been investigating potential war crimes committed by Israel and Palestinian armed groups since March 2021. In October, ICC chief prosecutor Karim Khan said the Hamas attack and Israel’s response fell under his ongoing investigation; he recently concluded a visit to Israel and the occupied West Bank to further his investigation. Palestine advocates may try to bring US complicity within the scope of this investigation by arguing, as some legal experts have, that US leaders’ knowledge of Israel’s war crimes is sufficient grounds for violation of the “aiding and abetting” standard under the Rome Statute. But at least one set of ICC judges has interpreted the Rome Statute’s standard for “aiding and abetting” much more narrowly. In a 2016 war crimes case against a rebel group from the Democratic Republic of the Congo, ICC judges interpreted the court’s “aiding and abetting” provision to mean that a third party “must have lent his or her assistance with the aim of facilitating the offense.” In other words, an ICC decision to prosecute US officials for “aiding and abetting” may only occur if the court determines that US officials provide Israel with weapons with the expressed aim of committing war crimes, making it difficult for a case against such leaders to succeed.

There are also particular political obstacles in pursuing accountability for the US at the ICC. The US is not party to the Rome Statute due to concerns that the court would have too much “unchecked” power and might pursue “politically-motivated prosecutions of US soldiers,” in the words of a former Bush administration official. Additionally, the US has also sought to exempt Israel from the court’s purview, with successive administrations repeatedly criticizing the ICC investigation into Israel. The Trump administration went so far as to impose asset freezes on ICC officials in part because they were exploring whether to open an investigation into Israeli war crimes. The Biden administration—which reversed Trump’s sanctions on the ICC—has continued to oppose the ICC investigation into Israel, even reportedly pressuring Palestinian Authority President Mahmoud Abbas to withdraw Palestinian support for the ICC probe, which Abbas has refused to do. At the same time, the US has welcomed, and aided, the ICC’s investigation into Russian President Vladimir Putin over war crimes in Ukraine. In August, Biden ordered US agencies to share evidence of Russian war crimes with the ICC, a shift from the US’s previous policy that the court should not have jurisdiction over countries that are not party to the Rome Statute, such as the US or Russia. “If the ICC were to involve itself in the Gaza conflict, the goodwill and thaw in relations between the ICC and the US and the Biden administration would be over,” said Brian Finucane, senior adviser for the International Crisis Group’s US program and a former State Department legal adviser.

Beyond the ICC, another way human rights advocates could hold US officials accountable is through what is known as a “universal jurisdiction” case, a principle in international law affirming that certain crimes are so grave any state has the duty to hold perpetrators accountable, regardless of borders. “I anticipate that we will be seeing universal jurisdiction cases against Israeli officials, or potentially even US officials for their complicity,” said Gallagher. The principle has been repeatedly tested in European courts in attempts to bring cases against Israeli officials for war crimes committed in Gaza. But these cases have also faced formidable obstacles. In 2011, for instance, following a British lawyer’s attempts to apply for an arrest warrant against former Israeli Foreign Minister Tzipi Livni for war crimes in Gaza, the United Kingdom amended its universal jurisdiction law to prevent private citizens from initiating criminal proceedings against foreign officials for war crimes, an important recourse for human rights advocates initiating actions that their governments will not take. “Efforts at international justice and accountability are diminished and withheld from everyone in the world merely in order to protect Israel from being held accountable to those standards,” said DAWN’s Whitson. On the other hand, Finucane said that, “as a result of Russia’s invasion of Ukraine and the horrific war in Syria, there is a growing appetite, particularly in Europe, to prosecute individuals on the basis of universal jurisdiction. Ten or twenty years down the line, could Israeli or US officials potentially find themselves facing charges as they go on vacation to Germany or France or Italy? Chances are not zero.”

Despite the presence of these different avenues, some international law experts say that justice is likely to remain elusive for the victims of Western states and their allies. So far, all of the officials who have ever been put on trial by the ICC are African. “If you look at the International Criminal Court, and if you look at the actual people that were ever punished, it’s never the strong,” said Neve Gordon, a professor of human rights law at Queen Mary University of London. “The West can punish African leaders or African warlords; the victors can punish the losers.”

However, human rights advocates say the attempts to prosecute US officials for aiding and abetting war crimes should continue despite the unlikelihood of their success. Gordon said such efforts are useful ways to make “a political statement about the ethics of violence” and to influence public opinion. CCR’s Gallagher, meanwhile, sees the lawsuit against US officials for complicity in genocide as a potential way to shift US policy. “It’s not an option to say, ‘this is a moment we sit it out because it’s a tough legal case,’” she said. “It’s a necessity for trying to bring some kind of change in policy, some kind of protection for civilians—to make governments, including the United States, think twice before they send another set of weapons to Israel to be used to bomb and kill Palestinian children.”