According to Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (‘Genocide Convention’) the Contracting Parties, including the United States of America (the US) and Israel, must prevent and punish acts of genocide. Under Article III, punishable acts of “Genocide” include “Conspiracy to commit genocide”; “Direct and public incitement to commit genocide”; “Attempt to commit genocide”; and “Complicity in genocide”. However, there is little indication of what these terms mean; what constitutes the obligation to prevent a genocide? And what would complicity in one look like?
In January 2024, the International Court of Justice (‘ICJ’ or ‘Court’) found there was a ‘plausible’ risk of genocide being committed in Gaza against the Palestinian people by Israel (p. 17-18). Shortly after, in February 2024, the Dutch Appeals Court halted the transfer of F-35 munition parts to Israel on account of the serious risk of IHL violations. Similarly, Nicaragua instituted proceedings against Germany before the ICJ for complicity in Israel’s genocide and its violations of the laws of war for continuing to give military support to Israel. The ICJ, however, concluded that “…the circumstances are not such as to require the exercise of its powers under the Statute to indicate provisional measures.” However, this Order was given likely because of a rather robust German defence, hinging on the fact that Germany has provided few war weapons to Israel since October 7, 2023 and those that were provided were for training and not combat purposes (Verbatim Record, paras 27-34). Germany, in giving this defence, may have imposed significant restrictions on its ability to transfer any such war weapons to Israel. Furthermore, it leaves open the question of whether countries that have sent such weapons to a state which (as of January 2024) may plausibly be committing genocide in Gaza, may fall afoul of an obligation to prevent a genocide.
Accordingly, this Article will determine whether the US violated its primary obligations under the Genocide Convention and whether it can be held internationally responsible under the law of state responsibility.
Obligation to Prevent Genocide
In Bosnia and Herzegovina v. Serbia and Montenegro, the ICJ held that Article I of the Genocide Convention contained two elements. Firstly, it affirmed that “…genocide is a crime under international law” (para 161). Secondly, the Contracting Parties have undertaken to “prevent and punish the crime of genocide” (para 162). The Court affirmed the ordinary meaning of “undertake” to give “a formal promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation” (paras. 161 and 162). Hence, the Court confirmed the applicability of the law on state responsibility, in addition to ‘individual criminal responsibility’, for genocide and other acts punishable under Article III of the Convention ( paras. 166 and 167).
Moreover, in South Africa vs. Israel (Provisional Measures Order), the ICJ reaffirmed the principle of erga omnes partes under the Genocide Convention, i.e., that obligations under the Convention “…are owed by any State party to all the other State parties” (para.33). Thus, all State parties have three obligations under the Genocide Convention: “prevent genocide, punish genocide, and not commit any of the acts listed in Article III” (Tamimi).
Furthermore, in the Bosnia case, the ICJ observed that the obligation to prevent genocide does not merely arise only “when perpetration of genocide commences”. Rather, “a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed…” ( para. 431). Consequently, a State Party is obligated to “employ all means reasonably available to them, so as to prevent genocide so far as possible” (para.430), this would arguably include the suspension of diplomatic and political ties as well the suspension of arms transfers. The ICJ goes on to say that:
“Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events.” (para 430)
This indicates that the obligation to ‘prevent’ a genocide is not distributed equally among all states in the international community, and instead the burden of the obligation is placed more heavily on states which are closer geographically to where the events are taking place and share close links with the state committing a genocide.
Complicity in International Law
The notion of ‘complicity’ under Article III of the Convention entails the ‘aiding and abetting’ of the punishable acts. (Bosnia para. 432; Schabas, p. 349). According to the International Criminal Tribunal for the Former Yugoslavia (ICTY), in Prosecutor vs. Tadic, “aiding and abetting includes all acts of assistance by words or acts that lend encouragement or support, as long as the requisite intent is present” (Trial Judgment, para. 689). Moreover, as per the International Criminal Tribunal for Rwanda (ICTR), ‘aiding’ and ‘abetting’ are distinct legal concepts. ‘Aiding’ implies “assisting or helping another to commit a crime”, whereas ‘abetting’ involves “encouragement, advising or instigating the commission of a crime.” (Prosecutor v Semanza, Trial Judgment para. 384), which may involve “physical acts, verbal statements, or in some cases, mere presence of an “approving spectator” (para. 385). In Prosecutor v Kayishema, the ICTR held that the two terms are “disjunctive”, i.e., that proving one or the other would be sufficient to find complicity (para. 197; Schabas, p. 349).
In addition to the actus reus of ‘complicity’, the ICJ affirmed in Bosnia that “there cannot be a finding of complicity against a State unless at the least its organs were aware that genocide was about to be committed or was under way” (emphasis added) (para. 432). According to the ICTR in Prosecutor v Ntakirutimana, the aider and abettor need not share the specific mens rea for genocide of the principal perpetrator, but must have ‘knowledge’ of the principal perpetrator’s specific mens rea (Trial Judgment, para. 364; Schabas, p. 351). It was held by the ICTR Appeals Chamber in Ntakirutimana:
“…Elizaphan Ntakirutimana knew of the genocidal intent of the attackers whom he aided and abetted in the perpetration of genocide in Bisesero and, therefore, that he possessed the requisite mens rea for that crime.”
However, William Schabas suggests that the better approach would be to focus on the existence of a ‘state plan or policy’ as evidence for the commission of genocide. In this regard, the issue would become whether the individuals involved, i.e. principal perpetrator or accomplice, “has knowledge of plan or policy and commits punishable acts…that substantially assist in its implementation.” (Schabas, p. 352)
Upon the commencement of hostilities on 7 October 2023, President Biden affirmed the US’ unwavering and unequivocal support for Israel. As per an Amnesty International report, there is convincing evidence that war crimes were committed by Israeli forces since the inception of hostilities. However, despite reports of unlawful attacks, the US announced the provision of “US Navy’s aircraft carrier and its heavily armed strike group”, additional equipment and resources, including munitions, and much more. (CCR, p. 19) While it is arguable that there was no ICJ provisional orders ruling then, as it was decided in January 2024, and therefore the US could not have been ‘aware’ that a potential genocide was underway, the statements by Israeli officials should have put the US on notice even then.
Despite statements made by Israeli government officials indicating genocidal intent, the US persisted with unequivocal support for Israel. For instance, Israeli Defence Minister, Yoav Gallant, threatened to inflict conditions of life calculated to bring about “physical destruction” of the Palestinian people. Similarly, Major General Ghassan Alian, head of the Coordinator of Government Activities in the Territories (COGAT) called Palestinians in Gaza “human animals” and threatened complete “destruction”. Others advocated for the creation of “a severe humanitarian crisis in Gaza” where “no human can exist” as the necessary means to achieve Israeli goals. Most significantly, on 16 October 2023, Prime Minister Benjamin Netanyahu claimed that “[t]his is a struggle between the children of light and the children of darkness, between humanity and the law of the jungle”, reflecting his perception of the war to be against the ‘people’ of Palestine
Moreover, the US Secretary of State Anthony Blinken reaffirmed the US’s “unconditional” backing of Israel and declared that the US’s ‘material support’ to Israel includes “supplying ammunition, interceptors to replenish Israel’s Iron Dome, alongside other defence material.” The US Secretary of Defence confirmed efforts to provide “munitions and iron drone interceptors,” for Israel to defend itself (CCR, 2023, p.28).
Reportedly, since October 7, the Biden administration has made more than one hundred military aid transfers to Israel. Israel’s military has received “expedited deliveries of weapons from a strategic stockpile that the United States has maintained in Israel since the 1980s.” The flow of aid includes “tank and artillery ammunition, bombs, rockets, and small arms.” Until April 2024, the Biden administration was, reportedly, considering “new military sales to Israel that are valued at more than $18 billion and would include fifty F-15 fighter aircraft.” Additionally, Joe Biden has signed into law a $94 billion “foreign funding bill” that includes military aid to Israel, Ukraine, and Taiwan. Particularly, this package will provide Israel with $17 billion in additional aid despite growing calls for limiting US assistance to Israel on account of atrocities in Gaza.
It is pertinent to reiterate that Israel’s actions and omissions indicate a plausible case for genocide in Gaza. Considering this, the US provides Israel with political and diplomatic support, and transfer of arms with knowledge of Israel’s actus reus. This particularly includes that of the starving of civilians which could be calculated to bring about their physical destruction through the blockade of provisions necessary for their survival of Palestinians in Gaza. In this regard, transfer of arms would amount to ‘aiding’, i.e. assisting another to commit a crime, as indicated by the Biden administration’s persistent policy of arms supply (p. 19) to Israel despite being aware of plausible facts of genocide in Gaza. Moreover, diplomatic support would amount to abetting, i.e. encouragement, as indicated by repeated statements on behalf of US officials of unequivocal support to Israel’s war efforts in Gaza.
Considering this, the US may have violated its obligation under Article I to ‘prevent and punish’ genocide as well as being an accomplice to genocide under Article III through armed and diplomatic assistance and being an ‘approving spectator’. While these crimes would hold individuals who have perpetrated them responsible, they could also engage state responsibility through attribution. As the top levels of American leadership have committed these actions, they may, as state organs of the US, trigger state responsibility for them as well (ILC Articles, Article 4).
US Responsibility under the Law of State Responsibility
Article 1 of the International Law Commission’s (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001 (ARSIWA) states that “Every internationally wrongful act of a State entails the international responsibility of that State.” In this regard, there is sufficient evidence that may indicate a violation of Articles I and III of the Genocide Convention by US government officials. Such conduct may be attributed to the US for being “conduct consisting of action or omission” of US ‘state organs’ (Articles 2 & 4, ARSIWA). Moreover, such conduct constitutes a breach of the US’s obligations under the Article II (b) of the Genocide Convention.
Moreover, as per Article 16 of ARSIWA, a state is responsible for aiding or assisting another state in the commission of an internationally wrongful act by the latter if it does so with “knowledge of the circumstances of the internationally wrongful act” (Article 16(a)), and the “act would be internationally wrongful if committed” by the aiding or assisting state itself (Article 16(b)). In its commentary to the ARSIWA, the ILC stated that ‘knowledge of circumstances’ entails that the aiding or assisting state must be ‘aware’ of the “circumstances making the conduct of the State internationally wrongful…” p.66, para 4). However, the ILC added a condition to the two explicitly mentioned in Article 16 in terms that “the aid or assistance must be given with a view to facilitating the commission of that act, and must actually do so.”
However, the ICJ in Bosnia did not see any reason to distinguish between ‘complicity in genocide’ under Article III of the Genocide Convention and ‘aiding or assisting’ another State in the commission of an internationally wrongful act under Article 16 of the ARSIWA. In other words, to ascertain whether the Respondent is responsible for ‘complicity in genocide’ under Article III, the Court will have to examine:
“whether organs of the respondent State or person acting on its instructions or under its direction or effective control, furnished “aid or assistance” in the commission of the genocide…in a sense not significantly different from that of those concepts in the general law of international responsibility.” (Bosnia v Serbia, para. 420)
In this regard, the US may be internationally responsible under Article 16 of ARSIWA for ‘aiding or assisting’ Israel in the commission of the crime of genocide in violation of the Genocide Convention. This is because the US aided or assisted Israel with knowledge of the ‘circumstances’ of genocide in Gaza, which would be an international crime if committed by the US itself as well (Article 16 (a) and (b), ARSIWA).
Provisional Measures Order in Nicaragua vs. Germany Case
In the ICJ’s Provisional Measures Order in the Case of Nicaragua vs. Germany, the Court noted Germany’s legal framework for regulation and licensing of “manufacturing, marketing and export of weapons and other military equipment”, and that there has been a significant decrease in “the value of material for which licenses were granted” (para 17). More significantly, the Court noted Germany’s statement that “98 per cent of the licenses granted since 7 October 2023 concerned “other military equipment” and not “war weapons” (para 18). However, upon Germany’s request for dismissal of the Case, the Court affirmed it would not due to “…there being no manifest lack of jurisdiction” (para 21). More importantly, the Court recalled its Provisional Measures Order in the South Africa vs. Israel and recognised that the military operation conducted by Israel post 7 October 2023 had resulted in “a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure.” (para.22). The Court also went on the recall the State Parties’ obligations pursuant to Articles I and III of the Genocide Convention as follows:
“…the obligation to prevent the commission of the crime of genocide, pursuant to Article I, requires States parties that are aware, or that should normally have been aware, of the serious risk that acts of genocide would have been committed, to employ all means reasonably available to them to prevent genocide so far as possible (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 221-222, paras. 430-431). Further, States Parties are bound by the Genocide Convention not to commit any other acts enumerated in Article III (ibid., p. 114, para. 168)” (Nicaragua v Germany Provisional Measures Order, para 23).
Although the ICJ did not indicate provisional measures as requested by Nicaragua nor halt the transfer of arms by Germany, it did impose significant restrictions on the transfer of ‘war weapons’ that “are at risk of being used in violations of the Genocide Convention or international humanitarian law” (Talmon, 2024). In this regard, any transfer of arms that “could be used in active combat in the Gaza Strip – is contrary to Germany’s international obligations and may give rise to another request for the indication of provisional measures by Nicaragua.” (Ibid)
However, unlike Germany, the US has spent billions of dollars on the transfer of weapons, and not merely ‘other military equipment’, up to April 2024. Considering its obligations under Articles I and III of the Genocide Convention, and with knowledge of the specific intent to commit genocide, the US ought to have halted the transfer of weapons and not merely ‘regulate’ or ‘licensed’ the same. In this regard, the Provisional Measures Order in Nicaragua vs. Germany may not necessarily be the same in terms of the US’s aid and assistance to Israel.
Conclusion
In light of the above, Israel might be committing the international crime of genocide, by killing civilians in Gaza; deliberately inflicting serious bodily and mental harm; and imposing conditions of life to bring about the destruction of Palestinians in Gaza. However, the US has continuously supported Israel’s war efforts via diplomatic and military assistance, with knowledge of a plausible genocide being committed in the territory since at least January 2024. This may render the US internationally responsible for not merely failing to prevent genocide but also being an accomplice to the crime of genocide in Gaza.
