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Israel Gaza War: The legal risk of complicity

Over 36,500 Palestinians, at least half of them women and children, have so far been killed in Gaza,1 with at least 10,000 more ‘reported missing or under the rubble’ and over 83,000 injured, often in life-altering ways.2 The healthcare system in Gaza has collapsed, disease is epidemic, and famine is widespread. Israel’s invasion of Rafah has just begun, promising to further exacerbate the catastrophe.

Meanwhile, the International Court of Justice (ICJ) is considering a case brought by South Africa alleging that Israel’s actions in Gaza amount to genocide. This is an exceedingly grave accusation and, fittingly, the burden of proof is set very high; it is likely that a verdict in the case may take several years to reach. It is by no means certain whether the bar for genocide will be met, but it is certainly possible.

Against this grim backdrop (and in the face of intense domestic protest), the UK continues to support Israel and its military efforts in ways ranging from intelligence-sharing to arms shipments. What this may mean for UK government ministers and civil servants in the face of an adverse ICJ ruling has been much-discussed, but little has been said about the role, risk and responsibility of service personnel (SP) in such a situation.

In this article, I will argue that SP are, in some circumstances, likely to be made vulnerable to charges of complicity in genocide, particularly in the event of a ruling in favour of South Africa from the ICJ. I will begin by describing the judicial contours of genocide, including highlighting some of its more unintuitive characteristics and their consequences. Specifically, I will discuss the scope of complicity in relation to genocide, and the subtle (and somewhat hazy) distinction between it and ‘aiding and abetting’. I will then lay out the present grounds of the claim that Israel’s military and government are committing genocide in Gaza to demonstrate the urgency of discussing the topic now.3 I will then explore some of the different types of operation UK SP may be involved with: some officially confirmed; some alleged; and some hypothetical, and explore what liability they may pose to those SP in the context of an alleged genocide.

War Crimes, Crimes Against Humanity, and Genocide

It is worth first clarifying the difference between three terms with partially overlapping but legally distinct definitions: ‘war crimes’, ‘crimes against humanity’ and ‘genocide’, all of which fall under the colloquial banner term of ‘atrocity crimes’.4

‘War crimes’ in the context of a non-international armed conflict5 are defined in two places in the Rome Statute, the international treaty that established the International Criminal Court (ICC).6 Art. 8(2)(c) defines them as follows (abridged to only those that pertain to the current topic, as with the subsequent quotations also, along with links to relevant allegations):

…any of the following acts committed against persons taking no active part in the hostilities…:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;

(iii) …;

(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.

Art. 8(e) of the Statute supplements this list with:

…any of the following acts:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) …;

(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance … as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, …,  historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

(v–vii) …;

(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

(ix–xviii) …

Crucially, war crimes are discrete acts with specific perpetrators who can then be charged, prosecuted and sentenced before a court (whether a national court or an international court such as the ICC). And, as the name suggests, they can only occur during conflict.

‘Crimes against humanity’ are defined in Art. 7 of the Statute as:

…any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) …;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) …;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic … or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) …;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Lastly, ‘genocide’ is defined in Art. 6 as: 

…any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) …

Both crimes against humanity and genocide, then, are more corporate crimes, committed at scale and whose key instigators may not have directly participated in any violence. Nonetheless, domestic and international courts may still prosecute those deemed ultimately responsible, as well as the direct perpetrators of violence. They are also not restricted to situations of conflict, and can also occur during peacetime.

It is worth noting that the ICJ adjudicates disputes within states, whilst the ICC and domestic courts deal with individuals; each have their own jurisprudence and perspective and there is the possibility that either the ICJ, the ICC, both or neither could independently find the same acts to be genocidal or not (though ‘the [ICJ]’s analyses of and conclusions regarding international law in its opinions—including the meaning of various treaty provisions that it is called upon to interpret—are considered to be highly persuasive and authoritative by many states and the international community more broadly’7).

Perhaps a useful way of viewing the relationship between the three concepts is to think of individual war crimes as representing either rare exceptional acts to be punished as with other crimes, or as the possible building blocks of a crime against humanity if they form part of a ‘widespread or systematic attack’ against a civilian population. If that systemic attack is conducted against a civilian population with a shared identity, with the intent of destroying that identity group, that crime against humanity would also constitute a genocide.

Or, as South Africa put it in before the ICJ:

…not all violence constitutes genocide. Acts of ethnic cleansing, collective punishment, the targeting of civilians, attacks on hospitals, and other war crimes are all unlawful: but they do not always violate the Genocide Convention. Genocide requires an intent to destroy, in whole or in part, a national, ethnical, racial or religious group. But the fact that what Israel is doing in Gaza may also constitute war crimes or crimes against humanity is no defence and no bar to a charge of genocide.8

Complicity, Aiding and Abetting

‘Complicity’ and ‘aiding & abetting’ are generally used interchangeably in common speech, but in the context of genocide they have specific, though unclear and contested, meanings.

Complicity encompasses various ways in which one can contribute to a criminal offence, without being the principal (or joint principal) actor; this is also known as accessory or secondary liability. In English law, this applies to ‘whosoever shall aid, abet, counsel or procure’ the offence (with those first two commonly grouped into the term ‘aiding & abetting’).9

‘Complicity’ as a blanket term is specifically listed in Art. 3(e) of the Genocide Convention as a punishable act. In international law jurisprudence its treatment has been inconsistent: complicity has at times been treated as a ‘form of responsibility’ rather than a ‘substantive crime’, which ‘are not punishable in and of themselves, but merely serve to attribute criminality to a person when combined with the criminal conduct and mental state of the physical perpetrator.’10 However, these authors continue:

The term ‘complicity in genocide’ would actually appear to be something more than just a form of responsibility or a crime. It could be considered an amalgam of the two: ‘genocide’ is the crime; and ‘complicity’ is one, or a collection, of the several forms of responsibility through which genocide may be realised. In this sense, the term ‘complicity in genocide’ is analogous to the terms ‘ordering torture as a crime against humanity’, ‘planning murder as a violation of the laws or customs of war’ or, indeed, ‘aiding and abetting genocide’. Under this approach, the only conceptual difference between genocide and [other crimes under international law is that] ‘complicity’ applies uniquely to genocide.11

So what is the difference between complicity and aiding & abetting? Under the International Criminal Tribunal for Rwanda (ICTR), ‘Akayesu found that aiding and abetting genocide required that the individual also possess genocidal intent, whereas complicity in genocide only required knowledge that one’s actions would assist the commission of the principal offense.’12 However, ‘as the Ntakirutimana Appeals Chamber has since rejected Akayesu’s analysis, the mental element required for aiding and abetting is now identical to that which Akayesu prescribed to complicity in genocide’;13 namely, no genocidal intent is necessary.14

In the words of another analysis, ‘one guilty of complicity in genocide need not have this heightened mens rea. Instead, a lesser mens rea such as malice or what I term the “specific intent without specific motive,” should suffice to attach guilt.’15 Complicity, in this author’s words, ‘appear designed to capture two very different classes of criminals: those who planned genocide but did not kill, and those who lacked a genocidal plan, but knew that genocide was the foreseeable result of their actions.16

A third analysis, ‘based on a comprehensive survey of every case decided by an international or hybrid criminal tribunal since Nuremberg’, details the specific actus reus and mens rea requirements that have been adopted by various international courts:

The ICTY, ICTR, Special Court for Sierra Leone, and Extraordinary Chambers in the Courts of Cambodia only require that aider or abettors have ‘knowledge’ that their act will assist the commission of the underlying crime. In contrast, the ICC requires that the aider and abettor have the ‘purpose’ of facilitating the commission of the underlying crime.17,18

For those tribunals that apply the knowledge standard for mens rea, the aider and abettor need not share the principal perpetrator’s intent [though] in practice, the ad hoc tribunals’ purported requirement of ‘knowledge’ is sometimes treated as something closer to a more lenient ‘recklessness’ standard.19

Ongoing Cases

South Africa v. Israel is a case currently before the ICJ in which South Africa accuses Israel of breaching its commitments as a Genocide Convention signatory.20On Jan 26, the Court ruled that the case could go ahead, stressing that ‘at the present stage of the proceedings, the Court is not required to ascertain whether any violations of Israel’s obligations under the Genocide Convention have occurred’, but acknowledging that ‘the Court considers that there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision’. It ordered Israel to implement several provisional measures,21 variously voting 15–2 and 16–1 in favour of each, and required Israel to submit a report within one month of its compliance efforts.

The Israeli government has rejected the ruling and intensified its operations, including most recently embarking on an assault on the city of Rafah. South Africa have so far made three requests for additional protective measures in response: the first was rejected on the grounds that they were already provided by the initial order whilst the second and third were granted with near-unanimous (and in one case unanimous) votes in favour. Israel’s report has not been made public.

Elsewhere in the UN, the Human Rights Council has passed a resolution urging an arms embargo whilst the General Assembly voted overwhelmingly in favour of an immediate ceasefire as far back as December (followed by the Security Council in March). In addition, a report released shortly after the Court’s initial decision byby the UN’s Special Rapporteur on the occupied Palestinian territories—titled ‘Anatomy of a Genocide’—summarised its findings as follows:

By analysing the patterns of violence and Israel’s policies in its onslaught on Gaza, this report concludes that there are reasonable grounds to believe that the threshold indicating Israel’s commission of genocide is met.

Shortly after the initial ruling on provisional measures, Nicaragua lodged its own ICJ case against Germany for also breaching its duties under the Genocide Convention by supporting Israel with arms and suspending funding for the UN Relief & Works Agency (UNRWA). Though the Court rejected Nicaragua’s request for provisional measures, it declined to throw out the case and hearings are ongoing. The case is notable as ‘the first case to allege contribution to the act of genocide rather than the commission of the act itself’.22

That Israeli troops have committed war crimes in Gaza is not in dispute; its staunchest ally has admitted as much, and this is not unusual in situations of conflict. The key question facing the ICC, then, is whether those war crimes represent exceptional breaches to an otherwise-lawful norm or constitute a systemic crime against humanity, and who should be held accountable if so.23 Concurrently, the question before the ICJ is whether Israel as a state is guilty of perpetrating and failing to stop a genocide. A positive ruling in the latter case would mandate all parties to the Genocide Convention to act to ‘prevent and punish’ this, as well as providing the ICC with a compelling basis on which to prosecute individuals for genocide in place of or in addition to crimes against humanity.24

Several domestic legal cases have also been filed. A civil case was filed against US President Biden and members of his Cabinet on behalf of Palestinian Americans whose family members have been killed by Israel. This was dismissed on jurisdictional grounds, reluctantly, with the judge writing that ‘there are rare cases in which the preferred outcome is inaccessible to the Court [and] this is one of those cases’.25 A case brought against the UK government seeking to stop weapons exports was dismissed and then revived and is now due to be heard in October. 

Opposition within governments is also on the rise. A collection of US federal government attorneys have issued a public letter warning that ‘there is strong evidence that American weapons are being used to commit a genocide and war crimes against the Palestinian people in Gaza’. In the UK, over 600 lawyers (including former Supreme Court justices, judges, King’s Counsels and others) submitted a legal opinion claiming that the devastation in Gaza ‘demonstrate[s] a pattern of behaviour giving rise not only to specific violations of [international humanitarian law] and of crimes against humanity but also, when taken together with the evidence of genocidal intent in statements by senior Israeli officials cited by the ICJ in its Provisional Order, a serious risk of genocide’ and exhorting the UK to ‘act now in accordance with its obligation to prevent genocide’. Civil servants in the UK Department for Business & Trade are reported to ‘have asked their employers to stop giving them tasks related to export licences to Israel, alongside other work that may be related to Israel’s war on Gaza’, and the PCS trade union is considering taking legal action in support of its members’ right to refuse such work. Similarly, hundreds of Foreign Office civil servants have allegedly raised formal concerns. Evidently, one cannot act now and later argue to have been unaware of the controversy or the possibility of a genocide taking place.

Ongoing Defence Activities

We have seen that war crimes, crimes against humanity, and genocide are related and in many cases overlapping, but that there are important distinctions between each. We have seen that Israel is alleged to be committing genocide, and that complicity in genocide is both a crime in itself and does not necessarily require any genocidal motive. And we have seen that resistance is on the rise within government itself, supported by at least one prominent civil service trade union.

However, UK SP are not entitled to join trade unions and therefore have no such organisations to advocate on their behalf, or even to advise them on their rights and duties. The UK government has repeatedly refused to publish its legal advice surrounding Israel, though media reports suggest that it is not complimentary. All of this combines to put UK SP in a particularly vulnerable position. We know that Defence personnel are currently deployed in the region to ‘support Israel and reinforce regional stability’; this much is publicly acknowledged. However, it is not currently clear exactly what these operations entail, and I claim no special knowledge. So now we must look at what these SP are being (or may be) asked to do in and around Gaza and the potential legal risk posed by participation.

(a) Humanitarian Operations in Gaza

The UK Government has publicly announced that the RAF are flying humanitarian supplies into Egypt intended for Gaza, as well as performing airdrops over Gaza itself. Rumours have recently circulated that SP may be deployed to facilitate aid delivery through the new US-built sea port. Delivery of humanitarian aid to the prospective victims of a genocide can plainly not be complicity in genocide, and I think it should be clear that SP tasked with such roles have nothing to fear.

(b) Independent Military Operations in the Area

The UK has its own interests to pursue in the region, such as the rescue of British nationals trapped inside Gaza (both British-Israeli hostages and British-Palestinian civilians); initial media reports suggested that Special Forces were being held at readiness in Cyprus for this reason. Missile strikes against Ansar Allah in Yemen, commonly known as the Houthis, would also fall into this category, as the ban on maritime piracy is considered a peremptory norm on par with the prohibition on genocide.26 As UK SP engaged in such activities are pursuing the legitimate interests of the UK, even if a side effect of these operations may be to benefit Israel, they are likely protected from charges of complicity.

(c) Military Support for Israel

The Government has acknowledged that aircraft ‘have provided surveillance support to Israel’, though few other details have been provided. However, investigative journalists have alleged that Israeli Air Force jets may be using British bases in Cyprus to refuel and re-arm, that Israeli military aircraft have used UK airbases for unknown purposes and that UK aerial surveillance efforts have been more extensive than previously suggested. The government has responded by blocking MPs’ questions about the use of the airbases. Similarly, the aforementioned Special Forces deployments have since been subject to a D Notice and there has been little coverage of the matter since.

If such operations are taking place, they would represent material Defence support for Israeli military operations.27 Should those operations be found to be genocidal, this would almost certainly amount to complicity under the international definition and aiding, abetting and providing counsel under English law. However, this may be difficult to prove given the government’s blocking of information. For example, without further information on the nature of the UK’s aerial surveillance, it is hard to gauge whether it is primarily for the purpose of hostage identification as claimed (and therefore likely to fall under the category above) or military purposes.

(d) Participation in Israeli Military Operations in Gaza

I am not currently aware of any allegations, credible or otherwise, that UK SP are directly engaged in hostilities in Gaza. I have included this category as a potential one for the sake of completeness. Clearly, direct military participation in a genocide would go beyond mere complicity to become direct criminality. In addition, this would be the case even if the genocidal intent threshold was not met but Israel’s actions were nonetheless judged to amount to crimes against humanity.

In conclusion, it is currently not possible to say with certainty whether or not UK SP are being used to support Israeli military operations, at least in intelligence or logistics capacities. However, there are credible allegations that they may be and a worrying unwillingness from the government to provide further details to elected representatives. Currently, the SP involved and their officers are some of the only people who know what exactly they are being asked to do, further reinforcing the importance of a candid discussion of the legal situation and the risks of complicity to empower them to make informed decisions.

Possible Consequences for Service Personnel

Genocide is considered the ‘crime of crimes’, and as such is a rare crime with universal jurisdiction. This means that prosecution can be brought in any country, regardless of the nationality of the accused or the location of the alleged acts. This can include private prosecutions: any individual can initiate criminal proceedings, not just the state. Also, largely due to the Israeli Supreme Court’s judgement in the famous case against Adolf Eichmann, there is no requirement that ‘the state seeking to exercise universal jurisdiction must first offer to extradite the suspect to that person’s own state’ or even ‘that the state where the crime occurred had legal priority over other state’.

This is important, as the territory of Gaza is internationally considered to be Palestinian and illegally occupied by Israel, though it is governed by Hamas rather than the Palestinian Authority. It’s not clear whether either the Israeli or Palestinian judicial systems can claim authority to try crimes alleged to have occurred in Gaza, but it seems highly unlikely that either side will be willing to surrender themselves to the other’s courts. Similarly, the US is likely to veto any UN Security Council attempt to set up an International Criminal Tribunal or enforce the ICJ’s rulings given its own intense support for Israel, and the ICC generally limits itself to pursuing high-level leaders. Domestic courts therefore appear to be the most likely venue for cases against lower-level participants and, unlike the kind of politically-motivated espionage charges seen in various recent bouts of hostage diplomacy, these would be absolutely in line with international legal obligations and norms.

Genocide and ‘conduct ancillary to’ genocide are specifically illegal in English law under ss 51–52 & 55 of the International Criminal Court Act 2001. As previously mentioned, it is also an offence to ‘aid, abet, counsel, or procure the commission of any indictable offence’. Should the ICJ subsequently rule that Israel’s actions do amount to genocide (which is a much higher bar to overcome than mere plausibility, but well within the realm of possibility), under this legislation otherwise non-criminal acts in support would then become offences: conduct ancillary to, and complicity in, genocide.

Joint Service Publication 383 plainly states that ‘orders to commit genocide or crimes against humanity are considered to be manifestly unlawful’ and that ‘a service-man is under a duty not to obey a manifestly unlawful order’.28 However, this appears to only address direct orders to commit plainly genocidal acts, rather than to provide indirect support for one. As far as I can tell, nowhere in that document or in any other published policy or guidance is the more ambiguous case of complicity addressed; this is unsurprising given the lack of clarity around the concept in international jurisprudence. What is nonetheless clear is that participation in acts of genocide, even if one’s own conduct is otherwise lawful, is legally fraught both in England & Wales and internationally. To my knowledge, the British Armed Forces have not faced a situation this legally perilous before; not even the invasion of Iraq.29

Whilst a final verdict in South Africa v Israel may take years, several countries have declared their support for South Africa’s case and at least one (Nicaragua) has threatened to launch its own case against the UK: a threat they have already followed through on with Germany. It is also clear that many civil society actors around the world are interested in and supportive of the South African case and in pursuing their own domestic legal actions.

It’s also important to note that ICJ rulings are binding on all parties to a case, and countries and bodies that were not initially supportive of the South African case have nonetheless accepted the rulings: for example, Canada quickly froze its future arms exports to Israel and the EU has demanded implementation of the provisional measures. 152 countries have signed and ratified the Genocide Convention, implementing its provisions into domestic law,30 though ‘these duties are also now part of customary international law and are therefore binding even without any conventional obligation’.31 As a rough barometer of the state of international state opinion, the UN General Assembly voted 87–26 (with 53 abstentions) on resolution 77/247 to request that the ICJ begin advisory proceedings on the legality of Israel’s occupation last year. Just last month, the Assembly voted 143–9 (with 25 abstentions) on resolution ES-10/23, elevating Palestine’s membership in a rebuke to the vetoing by the US of a 9–1 Security Council decision to extend full membership.

Lastly, whilst the US is by a large margin the main supplier of Israeli arms and support (a point that the Foreign Secretary has repeatedly made when arguing against cutting off UK arms sales), they also have a reservation to the Genocide Convention that requires them to consent to any attempt to prosecute their nationals. They have ignored unfavourable ICJ rulings in the past (see Nicaragua v United States) and they have a Bush-era law informally known as the Hague Invasion Act still on the books that authorises ‘all means necessary and appropriate to bring about the release of [US military personnel or government officials] detained or imprisoned by, on behalf of, or at the request of the International Criminal Court’.32 The US enjoys, however unfairly, the impunity that comes with global hegemony, with the consequence that other nations like the UK and Germany may make more attractive targets for legal action.

All this is to say that all countries are legally obliged to act to stop genocide and to pursue those accused of genocide,33 and there is clearly strong international opposition to Israeli actions in the Occupied Territories far beyond any one power bloc or set of alliances. In addition, under customary international humanitarian law, there is no statute of limitations to war crimes and crimes against humanity; the Overseas Operations Act 2021 specifically excludes the offences listed in the ICC Act mentioned above. Lastly, Article 33 of the Rome Statute is clear on the (non)-defence of superior orders: ‘orders to commit genocide or crimes against humanity are manifestly unlawful’.

In sum, universal jurisdiction for genocide means that the UK Government would be unable to meaningfully protect Defence personnel from prosecution overseas, regardless of any domestic laws that may be passed to mitigate against such prosecutions.34 Defence personnel who act in support of, and are thus complicit in, a genocide could face a lifetime of legal hounding wherever in the world they may go: an unenviable life bearing the stigma of hostis humani generis, an enemy of mankind. 

Concluding Questions

These questions relate specifically to those personnel engaged in operations in and around Gaza:

    1. Are Defence personnel being made aware of the specific legal risks of participating in operations in support of Israel in light of the ongoing ICJ and ICC cases? Are they provided with the option to object?
    2. If not, how does the MOD plan to protect its personnel from these risks, given the universal jurisdiction of genocide and its assumption of command responsibility?

However, this specific case raises many important questions around the right and ability of SP to object to illegal (or possibly illegal) orders in cases that are anything less than clear-cut; questions such as:

    1. Do SP have a right to selectively object? Should they? If so, how should this be managed?
    2. How can greater awareness of the existing right to conscientious objection be ensured?
    3. How can SP square their duty to object to manifestly unlawful orders with the fact that orders may not be clearly unlawful until after the fact?

These are questions to be explored in a subsequent article.

Ben

Reservist for just shy of a decade, mostly in and around the Army Medical Services (AMS). International humanitarian law geek. Writing in a personal capacity; all opinions are my own and do not reflect those of my employers, colleagues or any affiliated groups.

Footnotes

  1. I will note here that Israel’s present assault was launched in response to the October 7 attacks by Hamas (and allied groups) within Israel in which over 1,000 were killed (almost 70% of whom were civilians) and 252 were taken hostage. Whilst Hamas and its allies are certainly guilty of war crimes and likely crimes against humanity, they will not be addressed in this article for the following simple reasons: 1) the conduct of one’s enemy can never serve as justification to commit war crimes and 2) there is no suggestion that the UK is supporting Hamas et al.
  2. These figures are taken from the latest impact report of the United Nations Office for the Coordination of Humanitarian Affairs (OCHA).
  3. I will not be attempting to present a balanced view of both sides of the case. There are plenty of people litigating this already, and many of them are actual legal professionals. The purpose of this article is to lay out the weight of the case for genocide as it currently stands, and then to explore the potential consequences of an adverse finding against Israel; assessing the odds of this actually happening are beyond my scope.
  4. The term ‘ethnic cleansing’ lacks legal meaning, but can be thought of as a distinctive subset of crimes against humanity as well as a possible precursor to genocide. However, it’s worth noting that the term has been subject to some controversy.
  5. There is an ongoing debate over precisely how this conflict should be classified. However, the precise classification does not have a substantive impact on the arguments put forth in this article.
  6. The definitions provided by the Statue have generally been incorporated into domestic legislation by its signatories verbatim, so these definitions are as close to universal as can be. However, subsequent jurisprudence within each country may have resulted in divergent interpretations: for example, Argentinian courts have acknowledged that the massacre of leftist dissidents by the right-wing military junta during the so-called ‘Dirty War’ amounted to genocide, despite political groups not having been included in the Statue definition. The definition of genocide given in the Bolivian penal code is similarly broadened to encompass peasants, indigenous groups and more and to specify that the law applies to all ‘perpetrators and direct and indirect culprits of bloody massacres’.
  7. Karen Sokol, ‘The International Court of Justice and the International Criminal Court: A Primer’ (Congressional Research Service Reports on Foreign Policy and Regional Affairs, 4 Apr 2024) <https://sgp.fas.org/crs/row/R48004.pdf> accessed 20 May 2024.
  8. Application of the Convention on the Prevention and Punishment of the Crime of  Genocide in the Gaza Strip (South Africa v. Israel) (Pending) Verbatim record 2024/1 <https://www.icj-cij.org/sites/default/files/case-related/192/192-20240111-ora-01-00-bi.pdf#page=76> accessed 19 May 2024 [14].
  9. Accessories and Abettors Act 1861, s 8
  10. Gideon Boas, James Bischoff and Natalie Reid, ‘Complicity and aiding and abetting’ in International Criminal Law Practitioner Library: Volume I: Forms of Responsibility in International Criminal Law (CUP 2008) 284
  11. ibid 290
  12. Grant Dawson and Rachel Boynton, ‘Reconciling Complicity in Genocide and Aiding and Abetting Genocide in the Jurisprudence of the United Nations Ad Hoc Tribunals’ (2008) 21(2) Harvard Human Rights Journal 241, 257
  13. ibid 264
  14. Also of interest is this passage (ibid 264–265, emphasis mine):

    Akayesu also differentiated the physical element required for complicity in genocide from the physical element of aiding and abetting. In that case, the Chamber found that, where aiding and abetting can be perpetrated by act or omission, only a positive act could cause liability to attach for complicity in genocide. No Chamber has since discussed this particular finding in Akayesu, likely due to the fact that no Chamber has yet been confronted with an omission that is alleged to amount to genocide or complicity thereof.

  15. Daniel Greenfield, ‘The Crime of Complicity in Genocide: How the International Criminal Tribunals for Rwanda and Yugoslavia Got It Wrong, and Why It Matters’ (2008) 98(3) Journal of Criminal Law and Criminology 921, 924.
  16. ibid 927 (emphasis mine)
  17. Oona Hathaway and others, ‘Aiding and abetting in international criminal law’ (2020) 104 Cornell Law Review 1593, 1607.
  18. See ibid 1609, Table 1 for a visual representation of the different standards.
  19. ibid 1615.
  20. Concurrently, the ICJ is also in the midst of separate advisory proceedings on the legality of Israel’s long-standing occupation of the Palestinian territories.
  21. Order of 26 January 2024 <https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf> accessed 19 May 2024 [78]–[81].
  22. Imogen Saunders, ‘Interventions and Inadmissibility: Nicaragua v Germany, the Monetary Gold principle and the Genocide Convention at the International Court of Justice’ (ANU College of Law, 6 Mar 2024) <https://law.anu.edu.au/interventions-and-inadmissibility-nicaragua-v-germany-monetary-gold-principle-and-genocide> accessed 19 May 2024.
  23. Whilst ICC prosecutor Karim Khan has not included a charge of genocide in his recent application for arrest warrants against Hamas and Israeli leaders, he did not rule out the possibility of additional indictments in a subsequent interview.
  24. Even a negative ruling from the Court may not provide absolution, as Mexico have argued in their intervention that ‘it is clear that a State may be internationally responsible for conspiracy, direct and public incitement, attempt, and complicity in relation to genocide, even if no genocide takes place.’ Declaration of intervention filed by Mexico <https://www.icj-cij.org/sites/default/files/case-related/192/192-20240524-int-01-00-en.pdf> accessed 31 May 2024 [50])
  25. Defense for Children International-Palestine et al v. Biden et al, No. 4:2023cv05829 – Document 91 (N.D. Cal. 2024) [21]–[22].
  26. Whilst the group have stated that their attacks on shipping in the Red Sea are a response to Israel’s assault and that they will continue ‘until food and medicine reach the people of Gaza’, any claim to be acting under the Genocide Convention is undermined by the indiscriminate reality of the attacks, which have included ships with no known ties to Israel. Whilst the group have not, to my knowledge, specifically claimed to be acting under the Convention, they are not the internationally-recognised government of Yemen (though the UK has so far not followed the US in proscribing them as a terrorist group) and, in any case, ‘a state is not authorized to violate international law in order to fulfill [its] obligations’ under the Convention.
  27. Beyond direct military support, the UK also exported £42m worth of materiel to Israel in 2022. There are serious concerns about how much visibility the UK Government has into the use of this equipment; for example, they do not appear able to decisively rule out whether British equipment has been used in a recent Israeli attack on a British medical team. However, unless SP are directly involved in these transfers this remains the domain of civil servants and the private sector, and so beyond the scope of this article (although much of what I argue around complicity will also apply to them).
  28. The Joint Service Manual of the Law of Armed Conflict (JSP 383) (2004) [16.47.3]
  29. Though the invasion of Iraq was highly controversial, with many arguing that it represented the crime of aggression and was therefore illegal, the International Criminal Court (ICC) did not adopt a definition of aggression until many years after the fact, and so this was never litigated (though an attempt was made); the definition also specifically targets leaders rather than rank-and-file participants in a way that genocide does not.
  30. For example, Title 12, Chapter 1, Article 485 of the Nicaraguan Criminal Code states that ‘Provocation, proposition and conspiracy to commit genocide will be punishable by ten to fifteen years in prison.’
  31. Guénaël Mettraux, ‘Duties to Prevent and to Punish Genocide’ in International Crimes: Law and Practice: Volume I: Genocide (OUP, 2019).
  32. The decisions of the ICC, on the other hand, are only binding on its member states, which neither the US nor Israel are. However, ICC arrest warrants have nonetheless caused issues for non-members before, as most recently seen with Vladimir Putin’s cancelled visit to South Africa for last year’s BRICS summit. Relatedly, Britain had to change its own laws in 2010 to protect visiting Israeli dignitaries from domestic arrest warrants for war crimes, the issuing of which now requires approval from the Director of Public Prosecutions.
  33. This obligation is more forceful than that under the Responsibility to Protect commitment, but the latter is clearly also applicable here.
  34. An assumption that one’s military service can remain confidential is shown not to be robust in the light of the (very) recent MOD payroll data breach, multiple UK police force leaks in 2023, the MOD’s 2021 compromise of Afghan nationals seeking relocation and the devastating 2020 US Federal Government and 2015 Office of Personnel Management breaches. Once leaked, which should be treated as a ‘when’ rather than an ‘if’, any such data is out in the open for good.

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