US soldiers could be liable for war crimes in Gaza. Will they be prosecuted?

Human rights groups and activists who protest against continued US support for Israel have focused primarily on the flow of US weapons, warning that continuing to send weapons to a state which has been documented using them in probable war crimes makes the US complicit.

However, this week, Human Rights Watch (HRW) highlighted another facet of US military support for Israel: military cooperation and intelligence sharing.

Individual US military personnel who assist Israeli forces in committing war crimes could face criminal prosecution for their actions, the rights group said.

The US has made no secret of its operational support for Israel throughout its 22-month war in Gaza. The US has provided Israel with intelligence at various points during its military operations, and also embedded US military forces within Israeli operational planning.

The direct participation of US forces in Israel’s military activities in Gaza makes it a party to the conflict – and this would mean those individual US soldiers could be liable for any war crimes committed with their assistance, according to Omar Shakir, the Israel and Palestine director at HRW.

“It goes beyond complicity, the US has directly participated in hostilities. If you played a role in it and the Israeli forces carried out a war crime, you could still be liable for the war crime,” he said.

More recently, the White House press secretary, Karoline Leavitt, told reporters that the Trump administration was consulted by Israel before it resumed strikes on 18 March, killing more than 400 people.

A growing list of potential war crimes has not slowed US support for Israel. A strike on al-Nasser hospital in southern Gaza which killed 20 people, including five journalists, on Monday joins a long series of indiscriminate attacks killing civilians in Gaza.

Any US military personnel who provided the Israeli military with intelligence, or even material support in an operation that is against international humanitarian law, would have helped commit that war crime.

The US has previously come under criticism in similar cases. US help in refueling Saudi-led coalition aircraft in its war on Yemen drew outrage for its high civilian death toll. Even though it was not US pilots dropping bombs on Yemenis, their support enabled the coalition to continue bombarding the country.

In theory, US service members who assisted in war crimes could face criminal prosecution, potentially in the US, countries with universal jurisdiction such as Belgium and Germany, or the international criminal court (ICC).

“In principle, the Rome statute envisages that a person can be individually responsible for a crime under the jurisdiction of the Rome statute if he/she ‘aids, abets or otherwise assists in its commission or attempted commission,’” said Janina Dill, the co-director of the Oxford Institute for Ethics, Law and Armed Conflict. The ICC has jurisdiction over crimes committed Gaza, even if the US is not a signatory to the Rome statute which created it, she explained.

But whether US service members would ever actually face prosecution for alleged war crimes is doubtful.

The current political climate in the US, and countries with universal jurisdiction like Germany, is largely supportive of the war in Gaza. The ICC is overstretched and the US has threatened the court’s members in the past when it contemplated opening an investigation into misconduct in Afghanistan.

Besides individual instances of US operational support for Israeli military operations in Gaza, US weapons transfers and sales have been critical to the war in Gaza. As of April, the US has $39.2bn in active foreign military sales to Israel – on top of the $4.17bn in arms transfers since October 2023.

The result is a complete package of US support to Israel’s war in Gaza. The US provides the weapons via sales and arms transfers, provides intelligence to help Israel aim the weapons, and provides political support to shield Israel on the international stage from growing global backlash against its conduct in Gaza.

Rights groups have argued that all of this military support should stop, in light of the growing instances of alleged war crimes.

“Not only is the US a party to the conflict but it could be liable for war crimes. The American public is paying for this and I don’t think they have a sense of what’s being done by their own country,” said Sarah Yager, Washington director at HRW.