Zeynep ConkarA Washington-based human rights group has submitted evidence to the International Criminal Court (ICC) calling for an investigation into former US President Joe Biden and his administration for complicity in Israeli war crimes in Gaza.
In a 172-page document submitted to ICC Prosecutor Karim Khan on January 24, 2025, and made public this Monday, Democracy for the Arab World Now (DAWN) accused Biden, former Secretary of State Antony Blinken, and former Secretary of Defense Lloyd Austin of "aiding and abetting, as well as intentionally contributing to" Israeli war crimes and crimes against humanity in Gaza.
The submission highlights the US government's extensive military, political, and public support for Israel, including more than $17.9 billion in weapon transfers since October 7, 2023, intelligence sharing, and diplomatic backing – such as repeated US vetoes of UN Security Council resolutions condemning Israeli actions.
According to Reed Brody, a veteran war crimes lawyer and DAWN board member, there are solid grounds for an ICC investigation.
"The bombs dropped on Palestinian hospitals, schools, and homes are American bombs. The campaign of murder and persecution has been carried out with American support," Brody tells TRT World.
"So, we find ourselves at a decisive moment for the future of international criminal law, and the question is, will the ICC, and with it the promise of international justice, be yet another victim buried in the rubble of Gaza?"
What are the legal grounds?
Although individuals and organisations cannot directly refer cases to the ICC, they can submit communications or evidence to the Prosecutor, who may decide to open a preliminary examination. If there is enough evidence, the Prosecutor can seek authorisation from the ICC's Pre-Trial Chamber to start a formal investigation.
DAWN’s submission is based on Article 15 of the Rome Statute, which allows third parties to provide evidence relevant to the Prosecutor in response to his call for parties to present information relevant to the ongoing probe.
Additionally, while neither Israel nor the US are members of the ICC, the Court's jurisdiction extends to crimes committed on the territory of member states or by nationals of member countries.
Since Palestine acceded to the Rome Statute in 2015 and was recognised as a state by the ICC in 2021, the Court's jurisdiction extends to crimes committed in Gaza, the occupied West Bank, and East Jerusalem. This means that Israeli nationals and any foreign officials who aid and abet their crimes can be prosecuted under ICC jurisdiction.
Experts say the United States mounted immense pressure, deployed both cajolery and threats, but the judges refused to yield in light of damning evidence of war crimes in Gaza.
How to resist US political pressure?
Despite the principle that no state or leader should be above the law when serious crimes are committed, history suggests otherwise.
The US has a long history of failing to champion the rule of law; exerting political and economic pressure on international legal organisations when investigations target American or Israeli actions.
Washington had previously sanctioned former ICC prosecutor Fatou Bensouda and other ICC staff over the Court's investigations into war crimes by the US in Afghanistan and its ally Israel in the Palestinian territories.
Fast forward to today, one of the first actions Trump took after starting his new term in January 2025 was sanctioning the ICC, including Prosecutor Karim Khan. This was in retaliation for the arrest warrants issued for Israeli Prime Minister Benjamin Netanyahu and former Defence Minister Yoav Gallant.
Despite Biden's threats to the ICC and Trump's continued sanctions, the investigation has not been derailed.
Brody acknowledges the political realities in Washington and The Hague but insists that their role as human rights advocates is to hold leaders accountable.
"As Americans, as lawyers, and as human rights advocates, our role is to tell the hard truth and hold those in power accountable. The truth is our government and its top officials aren't just morally complicit in Israel's crimes, they're legally complicit, too," says Brody.
"Sure, the ICC has a history of political double standards and bending to pressure, that's no secret. But the Court's credibility and the integrity of the entire international legal system depends on its ability to apply the law fairly, no matter who's in power.
"If the rule of law is supposed to mean anything, it has to apply across the board, not just to our enemies, but to our friends and, yes, to ourselves," Brody adds.
As Washington launches a new anti-ICC campaign with sanctions on the horizon, the world braces for yet another instance of the US undercutting global efforts at justice.
Prosecuting Biden, what about Trump?
DAWN's submission also addresses Trump's widely rejected Gaza plan, which includes the forced displacement of Palestinians into neighbouring countries.
The group argues that this could expose Trump to individual liability for war crimes and the crime of aggression under Article 8 of the Rome Statute, as well as obstruction of justice under Article 70.
Brody notes that the US sanctioned the Court because "for the first time in its 22-year history, it indicted a US ally. In fact, almost no international court since World War II had done so."
Up until then, international justice instruments were "used almost exclusively to address crimes by defeated adversaries, as in the Nuremberg and Tokyo tribunals, powerless outcasts – particularly from Africa – or opponents of the West such as Vladimir Putin and Slobodan Milošević," Brody explains.
So, why prosecute Biden and not Trump, who is in power?
"American officials who have aided and abetted such crimes can and should be prosecuted regardless of whether they are still in power or others are committing equally bad or even worse offences," the human rights group argues.
"This is important both to establish that no one – not even officials of the world's greatest superpower – is immune from compliance with the law."
The group has also called on the ICC to investigate other US officials involved in military aid decisions.
"Not only did Biden, Blinken, and Austin ignore and justify the overwhelming evidence of Israel's grotesque and deliberate crimes, overruling their own staff recommendations to halt weapons transfers to Israel,” says Sarah Leah Whitson, DAWN’s Executive Director. “They doubled down by providing Israel with unconditional military and political support to ensure it could carry out its atrocities".
