US Legally Obligated to Prevent, Punish Israel’s Genocide of Palestinians in Gaza
IMEU Policy Project Memo #23
A virtual legal consensus has emerged that Israel’s atrocities against Palestinians in Gaza over the past two years constitute genocide. As far back as January 2024, the International Court of Justice (ICJ) found that it was “plausible” that Israel’s actions constituted genocide and ordered provisional measures to halt genocidal acts and preserve evidence of the commission of genocide.
Since then, many organizations, academic associations, and individuals, including leading scholars of genocide, have correctly identified Israel’s action as such and compiled evidence of its genocidal acts. These include academic associations such as the International Association of Genocide Scholars, human rights NGOs such as Amnesty International and Human Rights Watch, ten leading Palestinian human rights organizations, Israeli NGO’s B’Tselem and Physicians for Human Rights Israel, along with dozens of Members of Congress.
Since October 2023, Israel has killed more than 67,000 Palestinians, sought to flatten Gaza through the annihilation of homes and critical infrastructure, forced Palestinians into ever shrinking areas where disease rampaged, weaponized food which resulted in starvation and famine, and planned for the ethnic cleansing of Palestinians from Gaza.
Whether the current ceasefire agreement–which Israel has already violated–holds or not, Members of Congress are obligated to recognize Israel’s genocide, hold Israel accountable for its actions, and impose consequences.
TOPLINES
The US has an obligation to prevent and punish genocide. As a party to the Genocide Convention and according to its own laws (detailed below), the US has the responsibility to prevent and punish genocide. By delivering more than $30 billion in weapons to Israel to fuel its genocide of Palestinians in Gaza, the US failed miserably in its duty to prevent genocide; however, by holding Israel accountable, the US still has the opportunity to make good on its duty to punish genocide.
Israel has committed acts of genocide as enumerated in the Genocide Convention. A UN-backed independent commission found that Israel has committed four of the five acts of genocide specified in the convention. The commission also found that statements made by Israeli officials throughout the genocide constituted evidence of genocidal intent.
Israel must not be exceptionalized and allowed to get away with committing genocide. Not only does the US have general obligations under both international and domestic laws to prevent and punish genocide, but in recent decades Congress has also enacted legislation to punish the crime of genocide in at least six countries–Cambodia, Iraq, Syria, Sudan, Burma, and Ukraine (detailed below)–by funding investigations and encouraging prosecutions of genocide in both domestic courts and international tribunals. Not doing the same in the case of Israel’s genocide of Palestinians in Gaza would constitute blatant hypocrisy and provide–yet again–more evidence of the US failing to hold Israel accountable to the same standards to which others are held.
American voters, and especially Democratic voters, say Israel has committed genocide and want the US to take action: Several polls have shown that many American voters, including a majority of Democrats, believe that Israel has committed genocide in Gaza. Other polls have shown robust support for decisive action–including restricting weapons transfers and imposing sanctions–in response to Israel’s genocidal atrocities.
DETAILS
On December 9, 1948, the US joined in a unanimous vote in the UN General Assembly (UNGA) to adopt the Convention on the Prevention and Punishment of the Crime of Genocide (UNGA Resolution 260 A (III)).
Article I of the Genocide Convetion obligates Contracting Parties “to prevent and to punish” genocide “whether committed in time of peace or in time of war”. Article V obligates Contracting Parties to enact domestic legislation “to provide effective penalties for persons guilty of genocide”. And, of note, the US “led the fight” for the inclusion of an amendment in the final text of Article VI, which calls for the trial of those accused of genocide in an “international penal tribunal”.
Ernest Gross, Legal Adviser of the Department of State and Representative on the US Delegation to the UNGA, stated on December 9, 1948 that the passage of the Genocide Convention “reflected the determination to ensure that the barbarous crimes which had shocked the conscience of mankind in the preceding years would never again be repeated.” He asserted that the Genocide Convention, “once adopted, would constitute a milestone in the progress of international law.”
Despite US support for the Genocide Convention and the leading role it played in calling for an international tribunal to prosecute the crime of genocide, the US was slow to ratify the convention. Congress only passed legislation–the Genocide Convention Implementation Act of 1987 (the Proxmire Act) (P.L. No.: 100-106)–defining genocide as a crime in 1988. Ironically, the legislation was sponsored by Sen. Joe Biden, who as president three decades later delivered $18 billion in US weapons to Israel to fuel its genocide of Palestinians in Gaza. President Ronald Reagan signed the bill into law, enabling US ratification of the Genocide Convention in November 1988.
The original law did not include provisions to arrest foreign nationals in the US for the crime of genocide committed outside the borders of the US; however, the Human Rights Enforcement Act of 2009 (P.L. No.: 111-122) amended the law to allow for the arrest of those “present in the United States” who committed genocide, incited to genocide, or attempted or conspired to commit genocide “regardless of where the offense is committed”. This law obligates all US law enforcement agencies to arrest people such as Israeli Prime Minister Benjamin Netanyahu and former Israeli Defense Minister Yoav Gallant who face arrest warrants from the International Criminal Court (ICC) for war crimes and crimes against humanity.
Both the Executive Branch and Congress have taken subsequent additional measures to elevate the significance of genocide and other mass atrocity prevention as a central goal of US foreign policy. For example, President Barack Obama’s Presidential Study Directive-10 (PSD-10) stated that “preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States.” PSD-10 also established an interagency Atrocities Prevention Board to coordinate “a whole-of-government approach to prevent mass atrocities and genocide.” (Ex. Ord. No. 13729. A Comprehensive Approach to Atrocity Prevention and Response)
Congress strengthened the role of this board by declaring it “critically important” and stating that atrocity prevention, defined as including genocide prevention, is in the US “national interest” through the Elie Wiesel Genocide and Atrocities Prevention Act of 2018 (P.L. No.:115-441). This bill also established an annual Executive Branch reporting requirement to Congress detailing “current efforts to prevent and respond to atrocities”, including genocide.
In addition, aliens who “ordered, incited, assisted, or otherwise participated in genocide” are inadmissible to the US under the Immigration and Nationality Act (8 USC §1182). This law should prevent entry to the US for all Israelis involved in Israel’s genocide against Palestinians in Gaza from any low-ranking soldier to the prime minister.
Lastly, Congress has also enacted a number of laws in recent years designed to prevent and punish genocide in particular countries. For example:
Congress mandated the establishment of an Office of Cambodian Genocide Investigation in the State Department’s East Asia and Pacific Affairs Bureau to investigate the Khmer Rouge genocide and advocate for an international tribunal to prosecute those suspected of committing genocide. (Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Part D–The Cambodian Genocide Justice Act (P.L. No.:103-236))
Congress authorized the State Department and USAID to fund criminal investigations of ISIS members suspected of committing genocide in Iraq and Syria, and instructed Executive Branch officials to encourage foreign governments to apprehend and prosecute ISIS members suspected of committing genocide. (Iraq and Syria Genocide Relief and Accountability Act of 2018 (P.L. No.:115-300))
Congress authorized the president to fund assistance to document, investigate, and identify those responsible for genocide in Sudan, to collect, document, and protect evidence of genocide, and to prosecute genocide in Sudanese courts or international tribunals. (William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Subtitle G—Sudan Democratic Transition, Accountability, and Fiscal Transparency Act of 2020 (P.L. No.:116-283))
Congress authorized the Secretary of State to identify suspected perpetrators of genocide in Burma, to collect and protect evidence of genocide, and to support transitional justice mechanisms to hold accountable those responsible. (James M. Inhofe National Defense Authorization Act for Fiscal Year 2023, Subtitle E–Burma Act of 2022, P.L. No.:117-263)
This same bill also made it US policy to collect, analyze, and preserve evidence and information related to war crimes and other atrocities, defined to include genocide, committed by Russia against Ukraine. The bill also encouraged efforts to identify and prosecute those responsible for atrocities, including genocide. (Sec. 5948–Ukraine Invasion War Crimes Deterrence and Accountability Act)
The 116th Congress also passed resolutions to commemorate the Ottoman Empire’s genocide of Armenians, reject genocide denial, and encourage public understanding of this genocide. (S.Res.150 and H.Res.296)
Cover Photo: ImageBank4u, via Shutterstock. Stock Photo ID: 2521144365 | tayifmukta, via Shutterstock. Stock Photo ID: 2521144365