Complicit in genocide

With likely findings of war crimes and genocide by the International Court of Justice (ICJ) against Israel; and arrest warrants against two members of the Israeli war cabinet by the International Criminal Court (ICC), it may be time to consider the possible liabilities of the state and individual parties that have aided and abetted Israel in its war on Gaza. What are the governing laws? How have the international legal institutions addressed complicity in other cases of genocide? Could the complicity provisions apply to the United States and its leaders for assisting Israel in a war on Gaza that has cost so many thousands of civilian lives?

The 1948 Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as including the killing (“with intent to destroy, in whole or in part”) members of a “national, ethnical…or religious group.” The crime includes “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” The ICJ’s interim judgment of last January in South Africa’s case against Israel held that the claim of genocide in Gaza was “plausible.” While the genocide law rests on “intent,” complicity in genocide has no such requirement. Article IV of the Genocide Convention provides that “persons committing genocide’ (or complicity in genocide) shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”

The ICC prosecutor is now seeking arrest warrants for two members of the Israel war cabinet who have allegedly committed war crimes in the Gaza war. Both the ICC and the ICJ make complicity in genocide a crime under international law. The ICC has jurisdiction over individuals, while the ICJ can accept cases against both individuals and states.

US law also condemns genocide. In US Code Section 1091 (“Basic Offense”) there is language similar to the Genocide Convention’s definition of genocide. Although there is no reference to “complicity,” the law contains a section entitled “Incitement Offence.” It provides that “whoever directly and publicly incites another” to commit a genocide offense “shall be fined not more than $500,000 or imprisoned not more than five years, or both.”

The Genocide Convention, Article V requires the Contracting Parties to “provide effective penalties for persons guilty of genocide.” Article VIII allows “Any contracting party” to “call upon the competent organs of the United Nations to take such action” against states under the UN Charter “as they consider appropriate for the prevention and suppression of acts of genocide….”

How has the issue of complicity been dealt with in other genocide cases? The International Criminal Tribunal for Rwanda convicted many individuals for complicity in the 1994 genocide, including government officials and military officers. Following the Bosnian genocide of 1992-1995, a number of senior political and military leaders were convicted of complicity in genocide. The ICJ held Serbia responsible for failure to prevent the Bosnian genocide. The Cambodian genocide of 1975-1979 resulted in the conviction of senior leaders of the Khmer Rouge regime.

Individuals convicted of complicity in genocide or related cases have included top leaders. For example, former Liberian President Charles Taylor was convicted by the Special Court for Sierra Leone for aiding and abetting war crimes and crimes against humanity, but not specifically genocide. Genocide requires proof of a specific discriminatory intent, while crimes against humanity require only proof of a general intent to attack a civilian population.

Excerpted: ‘Complicity in Genocide’.

Courtesy: Counterpunch.org