Failure to conduct end-use monitoring could expose U.S. officials to International Criminal Court liability for aiding and abetting Israeli war crimes
(Washington D.C., October 15, 2023) – U.S. law requires the United States to monitor and ensure the weapons and munitions it provides to Israel and ensure they are not used to commit war crimes in Gaza, Democracy for the Arab World Now (DAWN) reminded Secretary of State Antony Blinken and Secretary of Defense Lloyd J. Austin III in a letter sent Friday, October 13, 2023. Failure to comply with end-use monitoring requirements not only breaches U.S. laws but also could expose U.S. officials to prosecution by the International Criminal Court (ICC) for aiding and abetting war crimes, DAWN warned.
In a separate letter to ICC Prosecutor Karim Khan on Friday, DAWN asked the Prosecutor urgently to issue a public statement reminding the parties to the conflict of the ongoing investigation there and send an investigative team to the Gaza region of Palestine to document and investigate potential crimes under the Rome Statute.
"If U.S. officials don't care about Palestinian civilians facing atrocities using U.S. weapons, perhaps they will care a bit more about their own individual criminal liability for aiding Israel in carrying out these atrocities," said Sarah Leah Whitson, executive director of DAWN. "The American people never signed up to help Israel commit war crimes against defenseless civilians with taxpayer funded bombs and artillery."
The Arms Export Control Act (AECA) and the Foreign Assistance Act (FAA) mandate that the U.S. Department of State and Department of Defense establish end-use monitoring protocols for arms transfers. These measures aim to ensure that the weapons are used responsibly and in compliance with international law. Despite these legal requirements, the U.S. has historically been lax in enforcing these laws regarding arms provided to Israel. Members of Congress have recently called for strengthened end-use monitoring and financial tracking of U.S. aid to Israel. Over $3.3 billion dollars in weapons transfers and weapons financing to Israel remain opaque, with limited information and monitoring.
In addition, the Biden administration's new Civilian Harm Incident Response Guidance (CHIRG) program requires U.S. officials to investigate "civilian harm by partner governments suspected of using U.S. weapons and recommend actions that could include suspension of arms sales." DAWN urged Secretary Blinken to investigate the civilian harms of Israel's use of U.S. arms and munitions in Gaza under the CHIRG program and to confirm that such monitoring is already taking place.
U.S. officials could face individual criminal liability for aiding and abetting Israel with weapons used in the commission of crimes against humanity and war crimes under the Rome Statute, in light of the pending ICC investigation in Palestine, which covers all crimes committed since June 13, 2014. Article 25(3)(b) of the Rome Statute clearly states that "providing the means for [the] commission" of a crime within the jurisdiction of the court, which Gaza is, shall be criminally responsible and liable for punishment in the ICC. Although the U.S. is not a party to the Rome Statute or a state party of the court, U.S. nationals would nevertheless be subject to the jurisdiction of the court where the court has jurisdiction and is conducting an investigation, such as Gaza. Evidence that the U.S. has monitored the use of its weapons by Israel, verified they have not been used in criminal attacks on Gaza, and suspended new arms transfers in the face of evidence of misuse of its weapons could serve as a defense to criminal charges against U.S. officials by the ICC.
Although the ICC formally announced its investigation into crimes in Palestine in March 2021, it has never sent an official investigatory mission to Palestine or Israel. DAWN urged the ICC Prosecutor Khan to urgently remind the parties to the conflict of his ongoing investigation into Palestine to deter the commission of crimes and to send an investigative team there to document any crimes.
"The ICC Prosecutor sent a team of investigators to Ukraine to document and investigate war crimes there as soon as the war started, but over a week into this war the Prosecutor has yet to utter even a word regarding the ICC's active investigation in Palestine," said Michael Schaeffer Omer-Man, Director of Research for Israel-Palestine at DAWN. "If the ICC fails to robustly and prominently investigate and prosecute the crimes now underway in Gaza, he will destroy whatever credibility the court has left as an independent body committed to equal protection for all victims of international war crimes."
Since the most recent escalation of the conflict in Israel-Palestine, the evidence is clear that multiple parties to the conflict have committed serious violations of international humanitarian law, including war crimes and crimes against humanity. This includes deliberate attacks on civilians in southern Israel by Palestinian armed groups and the taking of civilians as hostages now in Gaza. It also includes Israel's total blockade on food, fuel, electricity, and water, collectively punishing over two million Palestinian civilians in Gaza; daily indiscriminate bombardment of civilians; deliberate targeting of civilians, including journalists, in Gaza and Lebanon; targeting of hospitals and mosques; and failure to distinguish between military and civilian targets in its attacks. Israeli bombardment has already caused the displacement of over 400,000 Palestinians, killed over 2,215 civilians, including 724 children and 458 women, and injured 8,714.
