The International Criminal Court (ICC) should investigate former US officials President Joe Biden, Secretary of State Antony Blinken and Secretary of Defence Lloyd Austin for their accessorial roles in aiding and abetting, as well as intentionally contributing to, Israeli war crimes and crimes against humanity in Gaza, US civil society organisation Democracy for the Arab World Now (DAWN) has said.
As per the Middle East Monitor, the NGO submitted a 172-page communication to the ICC Prosecutor Karim Khan on 19 January, 2025. Prepared with the support of ICC-registered lawyers and other war crimes experts, the submission details a pattern of deliberate and purposeful decisions by these officials to provide military, political, and public support to facilitate Israeli crimes in Gaza; this support included at least $17.9 billion of weapons transfers, intelligence sharing, targeting assistance, diplomatic protection and official endorsement of Israeli crimes, despite knowledge of how such support had and would substantially enable what is called genocide.
“There are solid grounds to investigate Joe Biden, Antony Blinken and Lloyd Austin for complicity in Israel’s crimes,” said Reed Brody, DAWN board member and veteran war crimes lawyer. “The bombs dropped on Palestinian hospitals, schools and homes are American bombs, the campaign of murder and persecution has been carried out with American support. US officials have been aware of exactly what Israel is doing, and yet their support never stopped.”
DAWN’s communication lays out the legal and factual basis for investigating Biden, Blinken, and Austin for violating Articles 25(3)(c) and (d) of the Rome Statute, both aiding and abetting and intentionally contributing to crimes committed by Israeli officials in Gaza. These crimes include those identified in the arrest warrants against Israeli Prime Minister Benjamin Netanyahu and his former Defence Minister Yoav Gallant, including the war crimes of starvation and intentionally directing attacks against the civilian population, and crimes against humanity, including murder, inhumane acts, and persecution, under the Rome Statute. It also includes their role in the war crime of intentionally directing attacks against civilian objects under Article 8(2)(b)(ii) and the crime of genocide under Article 6.
“Not only did Biden, Blinken and Austin ignore and justify the overwhelming evidence of Israel’s grotesque and deliberate crimes, overruling their own staff recommendations to halt weapons transfers to Israel, they doubled down by providing Israel with unconditional military and political support to ensure it could carry out its atrocities,” said Sarah Leah Whitson, Executive Director of DAWN. “They provided Israel with not only essential military support but equally essential political support by vetoing multiple ceasefire resolutions at the UN Security Council to ensure Israel could continue its crimes.”
On 6 February, 2025, US President Donald Trump issued an executive order for sanctions against ICC officials to punish them for their investigation of Israeli officials, and on 13 February, the Treasury Department sanctioned ICC Prosecutor Karim Khan under this order. This order could subject Trump to individual criminal liability for obstruction of justice under Article 70 of the Rome Statute. The US president has also proposed a plan to forcibly displace all Palestinians from Gaza and to take over the territory.
Such a plan, if implemented, would also subject Trump to individual liability for war crimes and the crime of aggression under Article 8 of the Rome Statute.
“Trump isn’t just obstructing justice; he’s trying to burn down the courthouse to prevent anyone from holding Israeli criminals accountable,” said Raed Jarrar, DAWN’s advocacy director. “His plan to forcibly displace all Palestinians from Gaza should also merit ICC investigation, not just for aiding and abetting Israeli crimes but for ordering forcible transfer, a crime against humanity under the Rome Statute.”
DAWN submitted its 19 January communication in response to the Prosecutor’s 17 November, 2023 call for parties to present to his office information relevant to his office’s ongoing probe into violations of the Rome Statute in Palestine, including the current war in Gaza.
The submission presents extensive documentation of decisions by these three American officials to provide Israel with military support, including providing over $17.9bn in weapons and active military support, including US-operated combat operations, intelligence gathering and targeting support. The submission also details the trio’s political support, including actions at the UN Security Council to veto ceasefire resolutions, and public support encouraging Israeli atrocities, each with the goal of aiding and abetting and ensuring the continuation of Israeli crimes. It analyses how specific actions and decisions by these officials meet the legal threshold for both aiding and abetting and intentionally contributing to crimes under international criminal law, drawing on established ICC jurisprudence and precedent from other international tribunals.
The submission demonstrates that Biden, Blinken, and Austin were aware of how their assistance would be used to commit crimes.
Since October 2023, US and Israeli officials have repeatedly acknowledged Israel’s crucial reliance on US military, financial and political support to wage war in the Gaza Strip. Multiple credible sources, including the Biden administration itself, documented how the Israel Defence Forces persistently, repeatedly and predictably used US-supplied weapons to carry out attacks and military operations violating international humanitarian, human rights and criminal law.
The MEM report further says that the named Biden administration officials repeatedly intervened to block efforts to curb US military assistance, despite knowledge of its role in facilitating Israeli crimes. Indeed, they ensured that US support continued despite the knowledge that such support violated US laws prohibiting military assistance to abusive security forces, ignored pleas from UN officials and agencies, and defied the International Court of Justice’s orders to cease the sale, transfer and diversion of weapons to Israel that could be used to commit genocide in Gaza.
The submission provides extensive evidence showing how President Biden, Secretary Blinken and Secretary Austin fulfilled the material (actus reus) and mental (mens rea) elements of aiding and abetting, as well as facilitating the commission of crimes committed by Israeli forces in the Gaza Strip since 7 October, 2023. Article 25(3)(c) of the Rome Statute creates criminal liability when, for the purpose of facilitating the commission of a crime, an individual “aids, abets or otherwise assists in its commission… including providing the means for its commission.” Article 25(3)(d) criminalises the intentional contribution to a crime “by a group of persons… made in the knowledge of the intention of the group to commit the crime.”
These three American officials all purposely intended to further the military activities – including criminal operations – committed by Netanyahu, Gallant and their subordinates, and knew the intention of the group to commit the crimes. By continuously providing military, political and public support to Israel while fully aware of the specific crimes committed by Netanyahu, Gallant and their subordinates, they contributed substantially to the commission of those crimes while knowing the intention of the group to commit the crimes, and intentionally furthering such criminal activity.
President Biden personally made the transfer of US weapons and funds to Israel possible within and outside the strict US regulations, including by, in some cases, bypassing congressional review, preventing public scrutiny and substantially contributing to the commission of the crimes. He ordered US intelligence services to “work side-by-side with their Israeli counterparts” and announced the deployment of US intelligence assets in the Gaza Strip. He authorised his ambassador to the UN, Linda Thomas-Greenfield, to veto seven Security Council resolutions, including those calling for the provision of humanitarian aid, and to abstain in the voting for all four successful resolutions that attempted to halt or limit Israeli attacks against civilians in the Gaza Strip since 7 October, 2023. These vetoes underline President Biden’s role in depriving civilians in the Gaza Strip of objects indispensable to the survival of the Palestinian population, a starvation-related crime. Moreover, President Biden repeatedly made public statements demonstrating his personal and unwavering support for Israel despite knowledge of its ongoing crimes, even justifying these crimes as acceptable “self-defence”.
Secretary Blinken personally authorised the transfer of military aid and direct commercial arms sales to Israel, overriding objections from his own staff about how such transfers violate US law, despite his knowledge of how Israel was using these weapons to commit crimes. He thereby intentionally and substantially contributed to the commission of Israeli crimes in Gaza. As the US Secretary of State, Blinken’s repeated statements of political support to Israel, justifying and legitimising its crimes, also encouraged the commission of the crimes committed by Israeli authorities.
Secretary Austin’s actions and decisions to continuously and purposefully provide Israel with military and political support satisfy the requirements for aiding and abetting, as well as facilitating, the crimes committed by Israeli military forces in the Gaza Strip. The submission details multiple instances where Secretary Austin repeatedly approved arms sales and military support for Israel, despite knowledge of how Israel was using these weapons to commit crimes, in breach of US laws prohibiting arms transfers for the commission of crimes. He thereby substantially and intentionally contributed to the commission of these crimes, as Israeli forces relied heavily on US military support to conduct their unlawful operations in Gaza. Secretary Austin also consistently emphasised his and the US government’s unconditional, unwavering support for Israel’s actions in the Gaza Strip, even in the face of unmistakable evidence of their crimes.
“The court should hold US officials accountable for their role in facilitating Israeli crimes, which Israel could not have committed without US military and political support,” said Whitson.
“By investigating and prosecuting US officials, the ICC can deter and discourage further international support for Israeli crimes in Gaza and demonstrate that no one is above the law.”
While the United States, like Israel, is not a member of the ICC, DAWN’s submission explains why the ICC nevertheless has subject matter, territorial and geographic jurisdiction over US officials in its ongoing investigation into violations of the Rome Statute in Palestine. The Court has jurisdiction over perpetrators of crimes committed in Palestine, regardless of their nationality or whether the state of which they are a citizen is a party to the ICC. The submission further details the absence of complementarity in US courts: that not only are US prosecutors and courts unable to investigate the crimes committed by US officials in Palestine, but they are unwilling to do so.
“We have tried every available avenue within the US to stop our government’s complicity in the outrageous crimes we’ve witnessed since October 2023 in Gaza,” said Jarrar. “When domestic institutions fail to uphold black-letter laws prohibiting military support to commit war crimes, we have a particular responsibility as Americans to hold American officials accountable for their roles in those crimes.”
DAWN’s submission further urged the prosecutor to examine the role of other Biden administration officials in aiding and abetting, and contributing to, violations of the Rome Statute, including: Jake Sullivan, then National Security Advisor; Gina Raimondo, then Secretary of Commerce; Bonnie Jenkins, then Under Secretary of Arms Control and International Security; Stanley L. Brown, acting Assistant Secretary Political-Military Affairs; Amanda Dory, acting Under Secretary of Defence for Policy; and Mike Miller, acting Director of the Defence Security Cooperation Agency.
“It is important for the international community, and Palestinians in particular, to know that the American people do not support the crimes their elected officials committed in Palestine and that American organisations are doing their part to hold these officials accountable,” said Whitson. “We have a duty, not just a right, as American civil society, to exercise our free speech to serve truth and seek justice.”
