Indict Blinken

 

United States Department of Justice

Criminal Division

Human Rights and Special Prosecutions Section

Hope Olds, Chief

Via email only to Hope.Olds@usdoj.gov

Courtney Spivey Urschel, Deputy Chief

Via email only to Courtney.Urschel@usdoj.gov

 

Matthew Graves, Esq.

U.S. District Attorney

United States Attorney's Office

601 D Street, NW

Washington, DC 20579

Via email to matthew.graves@usdoj.gov

 

RE: Request for immediate empanelment of grand jury to investigate criminal violations of federal laws governing provision of military weapons and munitions aid to Israel

 

Dear Ms. Olds, Ms. Urschel and Mr. Graves: 

 

  On behalf of the members of Veterans For Peace (VFP), an international organization of former military, we urgently request that you, as DOJ attorneys entrusted with enforcement of human rights laws, immediately empanel a grand jury to investigate whether U.S. Secretary of State Antony Blinken and U.S. Ambassador to Israel Jack Lew have:

 

1. lied to the U.S. Congress in violation of 18 U.S.C. § 1001; 

2. violated the Export Control Act, 22 U.S.C. § 2778(a)(2) by misrepresenting and/or disregarding the contents of official U.S. government reports documenting acts by the government and military of Israel to block delivery of humanitarian assistance to the population of the Gaza Strip; 

3. violated the Genocide Prevention Act, 18 U.S.C. § 1091, by failing to treat acts by the government and military of Israel of blocking delivery of humanitarian assistance to the Gaza Strip as furtherance of genocide of that population, and so attempting and/or conspiring to cause genocide of Palestinians;  

4. violated the War Crimes Act, 18 U.S.C. § 2441 by failing to treat acts by the government and military of Israel to block delivery of humanitarian assistance to the Gaza Strip as genocidal and/or war crimes, and doing so in order to continue U.S. military aid to Israel to perpetrate offensive war crimes against the population of Gaza. 

 

BACKGROUND

 

1. Israel’s inducement of famine and disease in Gaza

 

On September 24, 2024, the nonprofit investigative journalism group ProPublica published a news article captioned, “Israel Deliberately Blocked Humanitarian Aid to Gaza, Two Government Bodies Concluded. Antony Blinken Rejected Them.” That essay documented that in May 2024, despite having two official reports that concluded the government of Israel was systematically denying and blocking humanitarian food and medical assistance to the Gaza Strip in violation of U.S. foreign aid laws, Secretary of State Blinken reported to the U.S. Congress that “We do not currently assess that the Israeli government is prohibiting or otherwise restricting the transport or delivery of U.S. humanitarian assistance.”

 

ProPublica reported that in late April 2024, the U.S. Agency for International Development (USAID) and the State Department Bureau of Population, Refugees, and Migration (PRM) delivered their assessments to Secretary Blinken and others of the role of Israel in directly causing humanitarian aid deliveries to, and within, the Gaza Strip to fail. USAID wrote a detailed 17-page memo on Israel’s misconduct, describing instances of Israeli sabotage of and interference with aid efforts, including killing aid workers, razing agricultural structures, bombing ambulances and hospitals, sitting on supply depots and routinely turning away trucks full of food and medicine. Separately, the State Department’s PRM also determined that Israel was blocking humanitarian aid and that the federal Foreign Assistance Act should be triggered to freeze some $830 million in taxpayer dollars earmarked for weapons and bombs to Israel. 

 

These conclusions were significant because the federal Foreign Assistance Act, (22 U.S.C. § 2378-1) requires the cutoff of U.S. weapons shipments where a country prevents the delivery of U.S.-backed humanitarian aid. The cutoff of U.S. military assistance to Israel could greatly affect Israel’s ability to continue its genocidal war, as some 70% of Israel’s bombs, weapons and other munitions are imported from the U.S. 

 

ProPublica portrayed the USAID memo as indicative of a deep rift within the Biden administration on the issue of unimpeded military aid to Israel. In March 2024, the U.S. ambassador to Israel, Jack Lew, sent Secretary Blinken a cable arguing that Israel’s war cabinet, including Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, should be trusted to facilitate aid shipments to the Palestinians. Lew recommended continued military assistance because he had “assessed that Israel will not arbitrarily deny, restrict, or otherwise impede U.S. provided or supported” shipments of food and medicine. In the months leading up to his March cable, Ambassador Lew’s underlings repeatedly told him of instances where the Israelis blocked humanitarian assistance, according to four government sources, but Lew had retorted that “No other nation has ever provided so much humanitarian assistance to their enemies.”

Secretary Blinken rejected both the USAID and State Department staff findings. On May 10, 2024, Blinken formally wrote to Congress, “We do not currently assess that the Israeli government is prohibiting or otherwise restricting the transport or delivery of U.S. humanitarian assistance.” This contrived finding allowed the U.S. to continue to provide hundreds of millions of dollars’ worth of military aid to Israel despite voluminous contrary evidence. Secretary Blinken’s lie to Congress likely also violated the Arms Export Act and the Genocide Prevention Act, as detailed below.

2. Veterans For Peace (VFP) publicly warned of aid violations in February 2024

Veterans For Peace is a 39-year-old international organization composed of war veterans and other opponents of war. Throughout its existence, VFP has been a public watchdog and critic of U.S. foreign and military policy toward Palestine for many years and supports the cause of ending the Israeli occupation of the Gaza Strip and West Bank. Military veterans possess specialized knowledge of how wars happen and how weapons and munitions are used in them. VFP investigators have for decades visited Gaza and the West Bank to bear witness to humanitarian rights violations and war crimes perpetrated by Israel and its military. Since the tragic and unfortunate events of October 7, 2023 caused by the Hamas organization, VFP members have monitored the ongoing hostilities pitting the superior Israel Defense Force against the guerilla resistance of Hamas. VFP’s investigation has particularly tracked suspected and apparent violations of humanitarian laws and treaties and the commission of war crimes by the parties.  

 

On February 9, 2024, VFP delivered a lengthy annotated letter to U.S. Secretary of State Antony Blinken; Jessica Lewis, Assistant Secretary of State for Political-Military Affairs; Barbara A. Leaf, Assistant Secretary of State for Near Eastern Affairs; Robert S. Gilchrist, Senior Bureau Official of the Bureau of Democracy, Human Rights, and Labor; and Diana Shaw, Esq., then Acting Inspector-General of the Department of State, addressing the Department of State’s possible violations of the Foreign Assistance Act, Arms Export Control Act, Leahy Laws, the Conventional Arms Transfer Policy (NSM-18) of February 2023, the U.S. War Crimes Act and the Genocide Implementation Prevention Act. Those laws variously prohibit transfers of weapons and munitions to Israel if there is credible evidence the arms will be used by Israel to commit, or aggravate risks of committing, genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, or other violations of international humanitarian or human rights law. 

 

The U.S. Department of State has never responded to, nor even acknowledged receipt of, VFP’s February 9, 2024 letter.

 

In their letter, VFP recounted credible reports of humanitarian crimes committed by units of the Israel Defense Force during its ongoing invasion of the Gaza Strip. The IDF, which heavily depends on U.S. weapons and munitions to prosecute its operations in Gaza, has continually committed genocidal acts and promoted genocidal incitements causing war crimes, crimes against humanity, and crimes of aggression, all with the material support of the U.S. VFP cited summary executions and intentional mass killings of noncombatant Palestinians, disproportionate attacks by the IDF that had killed thousands, attacks on hospitals and other health services as well as, cultural, historical and governmental properties, ethnic cleansing, intentional starvation of civilians and deprivations of water and energy supplies. We pointed to the Human Rights Watch report of December 2023 which documented allegations that Israel has been using starvation of the Palestinians in Gaza as a weapon of war. We also cited the World Food Programme’s eyewitness observations that exposed Israel’s aid inspection regime as a central culprit in disallowing humanitarian aid.

VFP reminded the State Department of the findings of the January 26, 2024 Order of the International Court of Justice which found that South Africa had demonstrated a “plausible risk” that Israel is conducting genocide in Gaza. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). In the near-unanimous ruling, the Court ordered Israel to prevent the commission of genocide of Palestinians in Gaza; to avoid inflicting conditions calculated to destroy Palestinians; to prevent and punish direct as well as public incitement to commit genocide against Palestinians; and to take immediate and effective measures to provide urgently needed basic services and humanitarian assistance to Palestinians in the Gaza Strip. See Order at ¶ 30, ¶ 54, ¶ 59, and ¶ 66. 

 

VFP further brought to Secretary Blinken’s attention certain of the findings made by a U.S. federal judge in a February 1, 2024 “Order Granting Motion to Dismiss.” In Defense for Children International—Palestine, et al. v. Joseph Biden, et al., ruling on evidence on the plaintiffs’ motion for a preliminary injunction, the court held that:

 

Both the uncontroverted testimony of the Plaintiffs and the expert opinion proffered at the hearing on these motions as well as statements made by various officers of the Israeli government indicate that the ongoing military siege in Gaza is intended to eradicate a whole people and therefore plausibly falls within the international prohibition against genocide.

 

Extensive sworn testimony subject to cross-examination was taken on January 26, 2024. 

 

In our February letter to Secretary Blinken, VFP also provided evidence that the Department of State likely had violated federal restrictions on exports of military aid to Israel via the sworn declaration of Josh Paul. Mr. Paul, former Director of Congressional and Public Affairs in the State Department’s Bureau of Political-Military Affairs, had attested to significant failures by the Department in a declaration filed in the Defense for Children International—Palestine lawsuit:

 

I believe it is clear that the U.S. government is failing not only to execute the due diligence required under existing U.S. laws, but is actively creating and utilizing processes that help insulate Israel from accountability or sanctions in accordance with existing U.S. laws and policies. In my experience, the U.S. government is aware that U.S.-origin weapons, munitions, and equipment will be used by Israel in ways that are contrary to U.S. law, including applicable provisions of the Foreign Assistance Act, Arms Export Control Act, Leahy Laws, the Conventional Arms Transfer Policy (NSM-18) of February 2023, among others, and Israel’s own commitments to the United States under applicable processes and agreements, and other requirements that their end use of U.S.-origin weapons, munitions, and equipment be used in accordance with international law. The failure to execute meaningful due diligence or adequately apply existing U.S. laws permits the unfettered flow of military assistance to Israel forces with minimal oversight that leads to unnecessary civilian harm, gross violations of human rights, and impunity for violations of international law.

 

Further, VFP pointed out that the State Department’s emergency certification allowing sales of tank and artillery munitions to Israel in December 2023 apparently contradicted the guidelines of Sections 2, 3 and 4 of the Department’s Conventional Arms Transfer Policy (“CAT”) (NSM-18) (February 2023). We expressed skepticism that the provisions of CAT Section 2, to “prevent arms transfers that risk facilitating or otherwise contributing to violations of human rights or international humanitarian law,” were being fulfilled. We suggested that the Department’s ammunition transfer approvals did not weigh that Israel “may use the arms transfer to contribute to a violation of human rights or international humanitarian law, based on an assessment of the available information and relevant circumstances, including the capacity and intention of the recipient to respect international obligations and commitments.”

VFP pointed out that the State Department seemed to violate CAT Section 4, which  directs that “no arms transfer will be authorized where the United States assesses that it is more likely than not that the arms to be transferred will be used by the recipient to commit, facilitate the recipients’ commission of, or to aggravate risks that the recipient will commit genocide; crimes against humanity; grave breaches of the Geneva Conventions of 1949, including attacks intentionally directed against civilian objects or civilians protected as such; or other serious violations of international humanitarian or human rights law, including serious acts of gender‑based violence or serious acts of violence against children.” This guidance has been continually disregarded since October 7, 2023.

Two weeks after Secretary Blinken lied to Congress about the state of humanitarian assistance to Gaza, the International Court of Justice on May 24, 2024 by a 13-2 vote ordered Israel to immediately halt its military offensive in southern Gaza and to keep the crossing from Egypt into Rafah to be kept open for the “unhindered provision at scale of urgently needed basic services and humanitarian assistance.” Israel has not complied with these orders.

THE SECRETARY OF STATE AND U.S. AMBASSADOR TO ISRAEL MAY HAVE SERIALLY VIOLATED U.S. DOMESTIC CRIMINAL LAW

VFP submits that Secretary Blinken’s maladministration of the Foreign Assistance Act and Export Control Act by not cutting off military aid to Israel comprises criminal wrongdoing.  We thus request that the Department of Justice urgently convene a grand jury to investigate the possibilities of these criminal violations by Secretary of State Blinken and Ambassador Lew:

● The Export Control Act, 22 U.S.C. § 2778(a)(2), which requires that “[d]decisions on issuing export licenses under this section shall take into account whether the export of an article would . . . increase the possibility of outbreak or escalation of conflict.” Violations are punishable by up to 20 years’ imprisonment under 22 U.S. Code § 2778(c).

Despite having available expert reports documenting multiple acts by the Israel government and military to thwart provision of humanitarian assistance, Secretary Blinken neither integrated that information into his report to Congress nor did he account for the possibility that Israel might increase or prolong its invasion of Gaza and commit  acts of genocide. Similarly, by intentionally declining to invoke Section 620I of the Foreign Assistance Act (22 U.S.C. § 2378-1) and not requiring Israel as a military aid recipient to allow unimpeded delivery of humanitarian assistance to Gaza, Secretary Blinken also failed to account whether under the Export Control Act the provision of military aid would escalate the ongoing genocide by the Israel Defense Force.

Secretary Blinken may have based his decision not to force delivery of sufficient aid to Gaza in part on the false representations of Ambassador Lew, who ignored multiple reports from underlings of Israel’s blocking assistance and insisted merely that Israel is superlative in delivering humanitarian aid.

 

● The Material False Statement law, 18 U.S.C. § 1001(a), prohibits falsification or

concealment of material facts orally or in writing to the U.S. Congress. 18 U.S.C. § 1001(c)(1) prohibits falsification of “a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch.” Violations are punishable by up to 8 years of imprisonment. 18 U.S.C. § 1001(a)(3).

Secretary Blinken’s lack of candor with the Congress to continue the provision of military aid to Israel meant concealing the existence of the USAID and State Department reports showing repeat violations of aid requirements. The concealed reports explicitly recommended the immediate cutoff of military aid to Israel. By allegedly lying to Congress, Secretary Blinken caused ongoing genocidal acts and war crimes against the Palestinians by continuing the supply of weapons and munitions to Israel.

  ● The Genocide Prevention Act, 18 U.S.C. § 1091, forbids intentional destruction of national, ethnic, racial, or religious group by killing, causing serious bodily injury or subjecting them to conditions of life that are intended to cause the physical destruction of the group in whole or in part. 

The intentional refusals by Secretary Blinken and Ambassador Lew to properly conduct the vetting and investigations and make the findings indicated by evidence under the Export Control Act and Foreign Assistance Act exemplify complicity in, or aiding and abetting the crime of genocide.  Genocide is punishable by imprisonment up to life, or the death penalty, depending on circumstances. 

 

● The War Crimes Act, 18 U.S.C. § 2441, forbids the direct commission of, or

complicity in committing, various offenses that comprise aspects of genocide. 

Complicity can include aiding and abetting. The provision of weapons has been

held to constitute complicity. In Akayesu, the ICTR Trial Chamber held that the “procuring [of] means, such as weapons, instruments, or any other means” satisfies the actus reus (action or conduct requirement) of complicity. In the Zyklon B case, the British military court convicted defendants of aiding and abetting who, via their businesses, supplied poison gas into Germany knowing that it was to be used in extermination camps. The international court further clarified that acts of complicity may include “provision of means to enable or facilitate the commission of the crime.”

Specific intent to commit genocide is not required for a finding of complicity. It is sufficient for a State to act with the knowledge that the direct perpetrator had the specific intent to commit genocide, as affirmed by the ICJ in Bosnia and Herzegovina v. Serbia and Montenegro. The District Court in the Hague, which adjudicated a case involving the application of a Dutch statute implementing the Genocide Convention, held that a finding of complicity requires knowledge of “the genocidal intention of the perpetrator” rather than specific genocidal intent of the accomplice. The Trial Chamber in Akayesu and the Appeals Chamber in Ntakirutimana noted that complicity does not require that the perpetrator share the same specific intent, only that the accomplice must have known of the genocidal plan and that the assistance would help in the commission of the act.

 

CONCLUSION: The Acts of the U.S. Secretary of State and the U.S.

Ambassador to Israel Should Be Criminally Investigated by a Grand Jury

 

Secretary Blinken’s failure to implement U.S. federal law and halt weapons shipments to Israel touches upon both domestic and international law. The International Court of Justice has repeatedly reminded Israel since at least January 26, 2024 of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide to avoid without fail the causation of genocide and associated crimes. The United States enforces our domestic prohibition of genocide to fulfill our country’s responsibilities under the Genocide Convention, which as a treaty is part of the “supreme Law of the land.” U.S. Const. Art. VI. To avoid complicity in the commission of genocide, the U.S. is required to uphold and implement International Court orders, which are interpretations of the “supreme Law of the land.” In short, the Department of Justice need not determine whether the Secretary of State is responsible for preventing genocide. It is a constitutional as well as statutory mandate.

 

Against this framework, the alleged wrongdoing of Secretary of State Blinken of lying to Congress, supported by what looks like willful provision of inaccurate information from Ambassador Lew, combined to save Israel from interruption of U.S. provision of weapons and munitions. Thus Israel was able to continue to perpetrate war crimes and genocidal acts. Secretary Blinken and Ambassador Lew appear to have violated the objectives of U.S. foreign policy against formenting war, against allowing war crimes and against the commission of human rights violations enabled Israel to breach the Genocide Convention and the orders of the International Court of Justice.

 

Israel’s genocidal invasion of Gaza horrifically continues as of this writing. And in the past week, Israel has initiated an illegal war against Hezbollah and the nation of Lebanon which also requires large quantities of U.S. weapons and munitions. Israel could not prosecute either of these wars absent weapons and munitions from the United States. 

 

For all of these reasons, it is urgent that a grand jury be empaneled to investigate potential criminal violations by Secretary Antony Blinken and Ambassador Jack Lew. 

 

Thank you very much.

 

Sincerely,

Susan M. Schnall, President

Veterans For Peace