In January 2024, the International Court of Justice applied the Convention on the Prevention and Punishment of the Crime of Genocide to the ongoing Israeli actions in the Gaza Strip, after a December 2023 application by South Africa.[1] The South African government ruled that Israel must “take all measures within its power to prevent the commission of all acts within the scope”[2] of the convention against genocide. This includes acts listed in Article II of the Genocide Convention including killing, causing serious bodily/mental harm, deliberately inflicting conditions of life calculated to bring about its physical destruction, imposing measures to prevent births, and forcibly transferring children of a particular group.[3] These acts encompass ones “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.”[4] The court identifies that the Palestinians can be regarded as, and are therefore a protected group.[5] In July 2024, the court expanded on this ruling, saying the continued occupation of Palestinian territories is illegal and that other states should not recognize its legitimacy.[6] These rulings should be extended to the United States (“U.S.”) since the Convention “conspiracy to commit genocide” as a preventable act, in accordance with its language.[7]
The U.S. and Israel have long held what has been coined as a “special relationship,”[8] which likely led to the unwavering support the U.S. gives Israel today.[9] This history begins with the U.S. being the first nation to recognize Israel as a sovereign nation, eleven minutes after its founding in 1948.[10] The U.S. has since provided $310 billion in economic and military assistance to Israel[11], making them the largest cumulative recipient of U.S. aid, by billions of dollars.[12] The only limitation – other than a congressional approval, which usually passes – placed on this aid is that it must be used by Israel for self-defense.[13] However, the Hamas attacks on October 7, 2023, have allowed Israel to receive $250 million in U.S. aid, as well as stockpiles of weapons including tanks, bombs, and rockets,[14] under the guise of self-defense. These self-defense tactics were widely approved by the American public directly after the attacks, but as time goes on, more people are questioning the necessity of the self-defense as Israel repeatedly attacks civilians.[15]
The International Court of Justice’s (“ICJ”) recent rulings requiring Israel to do everything in their power to stop the attacks and preserve Palestinian life should be extended to the U.S.; without the overwhelming amount of American aid, Israel would not be able to continue these attacks.[16] Both the U.S. and Israel are member states to the Genocide Convention, meaning they must follow it. The Convention specifically condemns commitment to and complicity in genocide,[17] which would implicate the U.S. and Israel. In its prior ruling regarding the Serbian genocide, the ICJ ruled that Yugoslavia had violated the convention by “aiding and abetting” those engaged in committing genocide.[18] Yugoslavia was found complicit in the Bosnian genocide, providing precedent which could hold the U.S. complicit in the current Palestinian genocide.[19] Aiding and abetting is defined as “knowingly provid[ing] practical assistance, encouragement or moral support.”[20] The U.S.’s ongoing funding and supplying of weapons to Israel would make them complicit, as the genocidal actions were reasonably foreseeable when they provided the aid.[21]
The drawback to a ruling by the ICJ is that the court has no binding force [22] and therefore no way to enforce its rulings. The court must rely on member states to recognize its authority and follow its rulings accordingly.[23] While the Court itself, United Nations (“UN”) organs, and domestic courts can potentially enforce rulings, there are many challenges in doing so; addressing non-compliance would “require a coordinated and multi-dimensional response form the international community.”[24] This has become increasingly difficult to achieve, as states do not often hold a consensus on international policy issues. While the ICJ upholds promising ideals for the international community, like the UN itself, it has little enforcement power and leads many people to lose faith in its authority.[25] The ICJ often leaves the enforcement of its rulings to the international community, as well as the organizations to which the relevant issue pertains.[26] This approach leaves the ruling vulnerable to being ignored, with little to no repercussions. Often, ICJ decisions are a signal to the international community that a country’s actions break UN protocol and should be stopped. This is an idealistic approach that can help ensure that countries abide by the agreements they’ve made under international law and move the world towards peace.
A ruling against the U.S. could also raise questions about other countries supporting Israel, as well as garner disapproval from America’s largest allies.[27] Countries like Germany, Italy, the United Kingdom, Spain, and France have all supplied weapons to Israel in the wake of October 7, 2023.[28] These countries are key European allies for the U.S., and even with an ICJ ruling, the U.S. is likely not to comply just to maintain diplomatic relations with these countries. Furthermore, such a ruling may create a barrage of complaints about these other countries’ involvements in the conflict, opening the door to many ICJ rulings that would lead to little development with the conflict.
The ICJ’s ruling against Israel’s actions in the Gaza Strip is a step in the right direction, but the U.S. should be held liable for its aid to Israel and it’s continuous actions against the Palestinian people. The U.S. can be classified as aiding and abetting the Palestinian genocide because of the amount of aid its government has provided – and continues to provide – to Israel.
[1] Application of the Convention of the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel), Judgement, (Jan. 26, 2024), https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf.
[2] Id.
[3] G.A. Res. 260 A(III), Convention on the Prevention and Punishment of the Crime of Genocide (Dec. 9, 1948).
[4] Id.
[5] Supra note 1.
[6] Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion, (July 19, 2024), https://www.icj-cij.org/sites/default/files/case-related/186/186-20240719-pre-01-00-en.pdf.
[7] Supra note 3
[8] Fayez Hammad, A brief history of the US-Israel ‘special relationship’ shows how connections have shifted since long before the 1948 founding of the Jewish state (USC Dornsife), https://dornsife.usc.edu/news/stories/brief-history-of-us-isreal-relations/.
[9] Id.
[10] Id.
[11] Jonathan Masters and Will Merrow, U.S. Aid to Israel in Four Charts (Council on Foreign Relations), https://www.cfr.org/article/us-aid-israel-four-charts.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Supra note 8.
[17] Supra note 3.
[18] Case Concerning Application of The Convention on the Prevention and Punishment of the Crime of Genocide, Judgement, (Bosnia and Herzegovina v. Serbia and Montenegro), (Feb. 26, 2007), https://www.icj-cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf.
[19] Id.
[20] Questions and Answers on the Crime of Genocide, ICJ Global Redress and Accountability Initiative (August 2018), https://www.icj.org/wp-content/uploads/2018/08/Universal-Genocide-Q-A-FINAL-Advocacy-analysis-brief-2018-ENG.pdf.
[21] Id.
[22] ICJ, How the Court Works, https://icj-cij.org/how-the-court-works.
[23] Id.
[24] Sanjay Sarraf, Enforcing International Law: An Analysis of ICJ Decisions, (April 4, 2023), https://ijcrt.org/papers/IJCRT2304409.pdf.
[25] Supra note 22.
[26] Id.
[27] Antoinette Radford, Who supplies Israel with weapons?, (Oct. 16, 2024) https://www.cnn.com/2024/10/16/middleeast/where-israel-get-its-weapons/index.html.
[28] Id.
