Why We Asked the ICC to Investigate Biden for Aiding and Abetting Genocide

The evidence that Joe Biden, Antony Blinken, and Lloyd Austin helped Israel commit war crimes is overwhelming.

Antony Blinken, Joe Biden, and Lloyd Austin provided Israel with military, diplomatic, and public support knowing that such support would facilitate attacks on civilians, mass murder, and the deliberate deprivation of items needed for Palestinians in Gaza to survive, argues Sarah Leah Whitson.(Alex Wong / Getty Images)

An image of Mahmoud Ajjour, a 9-year-old Palestinian boy who lost his arms in an Israeli attack on his home, was seared in my mind as my organization, DAWN, made the decision to ask the International Criminal Court to investigate war crimes perpetrated by senior US officials. Ajjour is one of thousands of child amputees in Gaza—now home to the largest such population in the world. Compared to the 13,000 children that Israel killed, he is perhaps one of the lucky ones.

In late January, our organization, which works to reform US foreign policy in the Middle East, filed a 172-page legal brief to the International Criminal Court urging it to investigate former President Joe Biden, former Secretary of State Antony Blinken, and former Defense Secretary Lloyd Austin for aiding and abetting war crimes, crimes against humanity, starvation, and genocide against Palestinians in Gaza. The court has already charged the Israeli prime minister, Benjamin Netanyahu, and the former defense minister, Yoav Gallant, for committing these same crimes. Seeking the prosecution of US officials in the only global criminal court was not a decision we took lightly, particularly as the court faces threats from the United States itself. But the evidence against Biden, Blinken, and Austin is so overwhelming and the devastation to Palestinians so horrific that we felt it was our duty as a US-based organization to demand accountability for their crimes.

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Article 25 of the Rome Statute, which governs the ICC, defines accessorial support for a crime as a crime itself. To be held liable for aiding and abetting an international crime under the Rome Statute, there must be evidence that a person has not only substantially contributed to crimes but knew such contribution would facilitate the commission of crimes.

It was not difficult to document such evidence.

Biden, Blinken, and Austin provided Israel with military, diplomatic, and public support knowing that such support would facilitate Israeli attacks on civilians, mass murder, and the deliberate deprivation of items needed for the survival of Gaza’s people. Israeli officials spoke openly about starving Palestinians as a punishment for October 7, and Israel deliberately blocked food and water from entering the territory, which now imports nearly all of its food, creating famine-like conditions.

The military support that these officials authorized was essential to Israel’s ability to carry out its atrocities. Beyond the nearly $20 billion in weapons, Israel relied on the United States to provide intelligence and targeting assistance; attack armed groups in Iraq, Syria, and Yemen; and deploy backup forces, such as US warships and planes. Without this help, Israel could not have so fully obliterated the civilian infrastructure in Gaza. In October 2023, Gallant admitted that Israel depended on US assistance for its military operations, stressing that the Israeli government “relies on them for planes and military equipment.” Other Israeli officials explained that “while Israel has its own intelligence, the United States and Britain have been able to provide intelligence from the air and cyberspace that Israel cannot collect on its own.” And when the Biden administration briefly suspended arms shipments to Israel, the Israel Defense Forces was forced to ration its use of certain munitions.

Supplying this aid to Israel was illegal under US law. Biden, Blinken, and Austin rejected the advice of their own staff to halt these weapons transfers because they violated US laws, such as sections 620I and 502B of the Foreign Assistance Act and the Leahy Law, which prohibit sending weapons to abusive forces.

Several senior State and Defense Department officials publicly resigned in protest of the Biden administration’s Israel policies. Even the Biden administration’s own report to Congress admitted that Israel had failed to comply with international laws prohibiting attacks on civilians, used US weapons to target civilians and civilian objects, and blocked humanitarian aid—including food, water, and medicine—to Gaza. Biden himself warned Israel that it was losing international support because of its “indiscriminate bombing” of Gaza.

These officials knew that Israel would use US weapons to continue its crimes, but instead of following the law and cutting off the flow of arms, they replenished and even accelerated the supply of bombs, artillery shells, mortar rounds, and missiles.

Just as important was the political support that President Biden authorized. The United States vetoed seven Security Council resolutions, including those calling for the provision of humanitarian aid, and abstained in votes for all four successful resolutions that attempted to halt or limit Israeli attacks against civilians. This was coupled with Biden’s, Blinken’s, and Austin’s public justifications of Israeli atrocities—when they sometimes amplified falsehoods, about, for instance, beheaded babies or mass rape, designed to incite rage against Palestinians and neutralize public opposition to US support for Israel. Without the resolute backing of these three US officials, the international community may have been able to order Israel to abide by a ceasefire and halt the bloodletting under threat of sanctions.

Urging the ICC to investigate US officials is a politically fraught undertaking, and with the new Trump administration, it carries additional legal risks. On February 6, President Donald Trump renewed an executive order for sanctions against the ICC—an attempt to obstruct its investigation of Israeli officials. On February 13, the Treasury Department sanctioned ICC Prosecutor Karim Khan under this order, prohibiting the provision of “services” to him by US persons, which could be deemed to include the submission of evidence. Although a federal court enjoined Trump’s previous sanctions on the ICC as an unconstitutional infringement on free speech, it’s unclear whether a new court would reaffirm that finding. DAWN’s January 24 submission predated Trump’s new sanctions regime, but providing any new evidence to the court will be risky, and ICC lawyers and partner organizations have expressed fear of being hit by sanctions and other penalties themselves.

Seeking the ICC’s prosecution of US officials could also trigger a congressional backlash against the court. Though Senate Democrats succeeded in narrowly defeating a bill for much broader sanctions against the court in January, the specter of investigations against US officials may well spur a renewed effort to pass the bill.

The pressure on the court is tremendous, and its survival is at stake—and not only as a direct result of its chief prosecutor being sanctioned. If the ICC fails to prosecute those responsible for the crimes in Gaza because of political pressure, it will lose what credibility it retains and reaffirm the view that it exists merely to prosecute culprits deemed acceptable to the United States—to date, nearly all Black Africans—thereby instigating a stampede of withdrawals from Global South member states. If it continues to prosecute not just indicted Israeli officials but US ones for the genocide in Gaza, the United States will undoubtedly demand that its allies—like the United Kingdom, Germany, Japan, and France, which provide the bulk of the court’s funding—abandon their membership in the court as well, just as it is now demanding that they refuse to enforce the court’s arrest warrants against Netanyahu and Gallant should they visit their countries.

Standing up to these attacks is critical to protect not just the ICC but all the institutions of international law that are targets of the Trump administration. Giving in to the pressure tactics will only make it easier for the Trump administration to dismantle the International Court of Justice and other international bodies that dare to challenge the impunity of the United States, Israel, and Western countries more broadly. We must not allow Gaza to become the graveyard of international law, lest new graveyards multiply all around the world.

Where else can Ajjour seek justice if not the ICC? Who else can hold the criminals who maimed him accountable, and challenge the impunity that has led Israeli and even US officials to treat every man, woman, and child in Gaza as a “terrorist” and summarily sentence them to death? Calculations of political expedience that depend on excluding Ajjour and the people of Palestine from seeking justice are a dead end; because unless there’s justice for all, there will be justice for none.

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Katrina vanden Heuvel

Editorial Director and Publisher, The Nation