EXPLAINER: Defense for Children International — Palestine v. Biden
The U.S.-Based Case Against the Biden Administration for Complicity in Genocide
Dear Readers,
This edition covers Defense for Children International — Palestine v. Biden. Though it was recently dismissed, I think it is an important case to explain and discuss because of (1) the way in which the case situates the State of Israel’s genocide and ethnic cleansing of Palestinians in context1; (2) the way it attempts to hold the US and Israel to account using legal mechanisms that have often allowed these states to operate with exceptionalism and impunity, particularly with regard to the Palestinian people; and, (3) the way it demonstrates that legal systems may have a role to play in struggles for liberation,2 but they are not and cannot be the means to create the systemic and structural changes needed to meet this moment.
Before diving in, I am compelled to remind us all — legal institutions will not save us from the horror and terror occurring in Gaza and the Occupied Palestinian Territory. If we are horrified, enraged, heartbroken, or at the very least concerned about what the US, Israel, and other European nations are doing to our Palestinian siblings, then we must act. We must call our representatives, protest, and engage in other acts of disruption and solidarity.3 We must be persistent, consistent, and steadfast. It will take all of us standing up and speaking out for there to be a ceasefire, an end to the siege on Gaza, an end to military occupation, and an end to apartheid. (For more on these issues and on the language I am using, please see this previous edition).
A brief summary of the case
In a civil suit against President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin, individual and organizational Plaintiffs asked a U.S. federal district court to order Biden, Blinken, and Austin to adhere to the Genocide Convention, stop its complicity in genocidal acts against Palestinians in Gaza ,and issue a preliminary injunction requiring that they stop providing military and financial support for Israel. The court held a hearing where Palestinian and Palestinian-American witnesses testified about their experiences and their families experiences. Though the court ultimately dismissed the case, the court did find, in agreement with the International Court of Justice (ICJ), that “the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law.”
Format of this Edition
This edition is long, though I try to break it up into bite-size pieces so you can review in more than one sitting, if you’d like.
In order to provide you with the best summary, I explain the case in the following order:
the claims the Plaintiffs have brought against Biden, Blinken, and Austin, outlining what the Plaintiffs are accusing the Defendants of doing, or failing to do;
the court’s decision in this case (and brief commentary made by legal scholar Noura Erekat); and,
the powerful 70+ pages of factual background and support.
Please understand that though I am starting at the end, the Complaint itself provides 70+ pages of facts before identifying its claims and sought after relief.
I am taking the Complaint out of order to better explain it, but the attorneys drafting the Complaint were meticulous in laying out strong factual support before stating its claims.
The Case Background
On October 18, 2023, the Center for Constitutional Rights (CCR) issued an “emergency legal briefing paper” entitled, “Israel’s Unfolding Crime of Genocide of the Palestinian People & U.S. Failure to Prevent and Complicity in Genocide.” Upon its release, CCR sent letters to President Biden and other government officials putting them on notice that they are likely complicit in genocide:
The United States has been obligated, from the time learning of the serious risk of genocide of the Palestinian people, to exercise its influence on Israel to prevent the crime. The United States is not only failing to uphold its obligation to prevent the commission of genocide, but there is a plausible and credible case to be made that the United States’ actions to further the Israeli military operation, closure, and campaign against the Palestinian population in Gaza, rise to the level of complicity in the crime under international law.
For the public, CCR issued a helpful FAQ that summarizes many of these issues. The case page with all kinds of information is here.
The Case Overview
On November, 13, 2023 (approximately five weeks after October 7), organizational and individual Plaintiffs filed a civil complaint against Biden, Blinken, and Austin in the U.S. Federal District Court for the Northern District of California alleging that they are complicit in Israel’s genocide of Palestinians in Gaza and requesting legal intervention by the federal court.
The case is entitled Defense for Children International-Palestine v. Biden, No. 4:23-cv-05829-JSW, in the Northern District of California.
The Plaintiffs were:
Defense for Children International - Palestine and Al-Haq, both “Palestinian nongovernmental human rights organizations dedicated to preserving and promoting the human rights of Palestinian people across the Occupied Palestinian Territory, including Gaza”;
Ahmed Abu Artema, Mohammed Ahmed Abu Rokbeh and Dr. Omar Al-Najjar, “each of whom reside in Gaza and have surviving family members there”; and,
Mohammad Herzallah, A.N., Laila Elhaddad, Waeil Elbhassi, and Bassim Elkarra: “all are U.S. citizens of Palestinian origin and current residents of the United States” who have family members in Gaza.
You can read more about the Plaintiffs here.
The Defendants were:
President Joe Biden
Secretary of State Antony Blinken
Secretary of Defense Lloyd Austin
This is a civil lawsuit brought in a US federal district court because the federal courts have the authority pursuant to 28 U.S.C. §§ 1331 and 1350 over claims arising under customary international law, which is part of federal common law, including arising under the Genocide Convention.
The Plaintiffs sought “declaratory relief and an injunction requiring the United States to fulfill its international law duty to prevent and cease being complicit – through unconditional financial and diplomatic support [of Israel] – in the unfolding genocide in Gaza.”
The Claims
The Complaint delineated the following Claims:
the US has violated its duty to prevent genocide
“As Israel’s closest ally and strongest supporter, being its biggest provider of military assistance by a large margin and with Israel being the largest cumulative recipient of U.S. foreign assistance since World War II, the United States has the means available to have a deterrent effect on Israeli officials now pursuing genocidal acts against the Palestinian people in Gaza.”
“Defendants have been, or should have been, aware that genocide by Israel against the Palestinians in Gaza was about to be committed or is underway since at least October 7, 2023.”
In full, they allege:
The United States government, through Defendants, has failed to prevent this unfolding genocide, which has thus far resulted in the killing of over 11,000, the majority of whom are women and children, the injuring over tens of thousands, the displacement of over one million people, and an inhumane and deadly closure and total siege. Since October 7, 2023, Defendants have not taken measures to deter Israel’s killing, inflicting conditions of life calculated to bring about destruction or causing serious bodily or mental harm to Palestinian civilians, but instead have consistently and repeatedly affirmed their full support for Israel’s assault on Gaza, pledged and then delivered military equipment, munitions and advisers while declaring that there are no conditions and “no red lines,” and rejecting calls for a ceasefire. Defendants have refused to monitor how assistance or weapons are used, and have failed to initiate internal processes to assess whether there is a genocide unfolding in Gaza, even after officials and others have warned them of the risk of an unfolding Genocide. Even as the death toll rose, and the population suffered due to lack of food, water, fuel and electricity — including for medical facilities — the United States refused to use its considerable influence to call for an end to the bombing, cut off weapons deliveries or take measures to end the siege on the Palestinian populations in Gaza.
The US is complicit in genocide
“Complicity in genocide exists when there is a punishable act of genocide by another State or persons, to which the complicit party associates itself.”
“Aiding and abetting consists of knowingly providing assistance to the principal which has a substantial effect on the perpetration of the violation.”
“Defendants knowingly provided assistance with a substantial effect on the commission of Israel’s violations of international law, and specifically on the underlying acts of genocide . . .”
“An individual, acting in their official capacity, is complicit in genocide if they use the organs under their control with the knowledge that genocide was about to be committed or was under way, and if the aid and assistance supplied, from the moment they became so aware onwards, to the perpetrators of the underlying acts or to those who were on the point of committing them, enabled or facilitated the commission of the acts.”
“Providing weapons or other instruments and means used in the commission of a genocide, knowing that they would be used for that purpose, constitutes complicity.”
The Complaint alleged:
Defendants, acting in their official capacity as President, Secretary of State and Secretary of Defense of the United States, have provided and continue to provide massive and unparalleled amounts of military assistance, equipment, weapons, and support to the Israeli government, without conditions and with promises of more, in full awareness of its plans to target and destroy in whole or in part the Palestinian population in Gaza.
Defendants have also provided encouragement and moral support that has a substantial effect on Israel’s violations, including by coordinating with Third States to remain collectively united in supporting Israel’s assault on Gaza . . .
The United States government’s provision of military assistance, weapons, military advisors and other forms of support has enabled the Israeli government’s bombardment and attacks on, and siege against, the Palestinian people of Gaza . . .
As such, Defendants are complicit in the Israeli government’s genocidal campaign against the Palestinian people of Gaza.
Duty to Prevent Genocide
First, there is a duty to prevent genocide. The argument here is, in sum:
Customary international law prohibits the commission, attempted commission, incitement of, conspiracy to commit, and complicity in genocide. Because of the gravity of genocide, customary international law also places a duty on all States to prevent genocide, and specifically, for those States with the ability to influence the actions of people likely to commit or already committing genocide, to take all measures reasonably available to them to prevent the risk of genocide. This duty starts from the moment the States learn of, or should have learned of, the serious risk that genocide will be committed. The United States recognizes the duty to prevent and punish genocide as part of customary international law.
And the Complaint alleges that the US is violating that duty, as outlined in the Complaint (and summarized later in this edition).
According to the ICJ, “[t]he undertaking to prevent genocide is not a passive obligation but ‘is one of conduct and not one of result’ where States are obligated ‘to employ all means reasonably available to them . . . to prevent genocide.’”
Here, the Complaint cites to Bosnia & Herzegovina v. Serbia & Montenegro, 2007 I.C.J.:
This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences: that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. . . . [A] State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.
How influential a state is on another state is part of the calculus here:
Among the factors to consider in determining whether a State, and its officials, have breached the duty to prevent genocide include strong “political, military and financial links,” as well as links of all other kinds, between the authorities of that State and the main actors in the events. . . .
States will be held responsible for failing to prevent “if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.”
Complicity In Genocide
Then, there is the crime of being complicit in genocide. “Complicity to commit genocide is a standalone crime, triggering both State responsibility and individual criminal responsibility, regardless of position, under the Genocide Convention.”
For individual criminal responsibility, complicity is accomplished by instigation, aiding and abetting, or procuring the means for the commission of the genocide . . . Providing weapons or other instruments and means used in the commission of genocide, knowing that they would be used for that purpose, constitutes a form of complicity . . . . Knowingly aiding in the planning of or enabling acts of genocide constitutes a form of complicity . . . For aiding and abetting genocide, the aider and abettor “commit[] acts specifically aimed at assisting . . . or lending moral support” for the perpetration of the crime, and “this support ha[s] a substantial effect on the perpetration of the crime.”
The intent required for complicity, and aiding and abetting genocide is “knowledge of the principal perpetrator’s genocidal intent; the aider and abettor — convicted for complicity in genocide — does not have to share the intent to destroy in whole or in part the group.”
This means that if the person/state alleged to be complicit, or aid and abet genocide does not have to intend to destroy a group, but instead has to know, or should have known that that is the intent of the person/state to whom they are providing financial, military, or moral support.
To support the allegations that the US is complicit in Israel’s perpetration of a genocide against the Palestinians in Gaza, the CCR utilized a tool adopted in 2014 by the United Nations Office on Genocide Prevention and the Responsibility to Protect called “Framework of Analysis for Atrocity Crimes: A Tool for Prevention.”
The Framework “identifies fourteen risk factors for ‘atrocity crimes,’” which include, but are not limited to (as laid out in the Complaint):
Situations of armed conflict or other forms of instability;
Record of serious violations of international human rights and humanitarian law;
Capacity to commit genocide and other atrocity crimes;
Intergroup tensions or patterns of discrimination against protected groups;
Signs of an intent to destroy in whole or in part a protected group;
Signs of a widespread or systematic attack against any civilian population;
Serious threats to those protected under international humanitarian law; and
Serious threats to humanitarian and or peacekeeping operations.
The Complaint then argues that “most, if not all, of the risk factors identified in the Framework are present in Israel’s unfolding genocide against Palestinian people in Gaza.”
Because of the Framework and the risk factors outlined therein, the CCR and the Plaintiffs spent the first 70+ pages of the Complaint outlining Israel’s long history of ethnic cleansing, apartheid, and state-violence against Palestinians, as well as the US’s financial, military, and moral support thereof.
Indeed, the Complaint highlighted that
The United States ratified the Convention in 1988 through legislation that then-Senator Joseph R. Biden co-sponsored, and Congress added 18 U.S.C. § 1091 to the federal criminal code, to provide for punishment for those found guilty of committing, conspiring to commit, directly and publicly inciting to commit, attempting, and complicity in genocide, in accordance with Article I of the Convention.
Numerous risk factors of the Framework have been met, and thus, the Plaintiffs requested that the court take the following actions.
Relief Sought
The Plaintiffs asked the court to order the following (all direct quotes from Complaint):
Declare that Defendants have violated their duty under customary international law, as part of federal common law, to take all measures within their power to prevent Israel from committing genocide against the Palestinian people of Gaza;
Declare that Defendants have violated their duty under customary international law, as part of federal common law, that prohibits their complicity in genocide by knowingly continuing to provide assistance that enables and facilitates Israel’s commission of genocidal acts against the Palestinian people of Gaza.
Issue injunctive relief ordering Defendants to take all measures within their power to prevent Israel’s commission of genocidal acts against the Palestinian people of Gaza, including but not limited to:
Order Defendants to take all measures within their power to exert influence over Israel to end its bombing of the Palestinian people of Gaza, resulting in mass killing and serious injury;
Order Defendants to take all measures within their power to exert influence over Israel to lift the siege on Gaza, including allowing all electricity, fuel, food, water, and humanitarian aid into Gaza;
Order Defendants to take all measures within their power to exert influence over Israel to prevent the “evacuation” or forcible transfer and expulsion of Palestinians from Gaza and ensure freedom of movement.
Issue injunctive relief enjoining Defendants from aiding, abetting, enabling or facilitating Israel’s commission of genocidal acts against the Palestinian people of Gaza, including but not limited to:
Enjoin the Defendants from providing, facilitating, or coordinating military assistance or financing Israel; from initiating, action upon, continuing, expediting, or completing sales, transfers, or delivery of weapons and arms to Israel, and from providing military equipment and personnel, advancing Israel’s commission of genocidal acts;
Enjoin the Defendants from obstructing attempts by the international community, including at the United Nations, to implement a ceasefire in Gaza and lift the siege on Gaza.
How the Case Proceeded
Once the Complaint was filed, a number of things happened.
On November 16, 2023, the Plaintiff’s filed a motion for a preliminary injunction4 arguing irreparable harm will occur if the court waits until the full case is adjudicated (heard and decided) before taking action
a number of the Plaintiffs filed declarations in support of the motion
a declaration from experts John Cox, Victoria Sanford, and Barry Trachtenberg6
The government moved to dismiss the case arguing
that the claims present a political question7 that is “nonjusticiable” (“not capable of being decided by legal principles or by a court of justice”)
that the Plaintiffs do not have standing (meaning that they do not have the right or capacity to bring this claim in court)
that the Genocide Convention does not create a private right of action, meaning that it does not create an avenue for a person/organization to bring a lawsuit based on an alleged violation of the law
The Plaintiffs opposed to the government’s motion to dismiss.
This includes a number of declarations by Plaintiffs, as well as by former State Department official Josh Paul.
The government replied.
Briefs of amici curiae in support of the Plaintiff’s claims are filed.
The Court ordered a hearing on the Plaintiff’s motion for preliminary injunction and Defendant’s the motion to dismiss.
A hearing was held on January 26, 2024. You can watch here.
The judge denied the motion for preliminary injunction and granted the motion to dismiss (explained below) on January 31, 2024.
The Plaintiffs filed a notice of appeal and a motion to expedite the appeals process on February 8 and 12, 2024.
The Ruling By the Court
On January 31, 2024, the Judge Jeffrey White, the district court judge, denied the Plaintiff’s motion for preliminary injunction and granted the Defendant’s motion to dismiss.
Even as he dismissed the case, Judge White took time to outline the ICJ’s order in South Africa v. Israel. He then stated that
the undisputed evidence before this Court comports with the finding of the ICJ and indicates that the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law. 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. It is every individual’s obligation to confront the current siege in Gaza, but it also this Court’s obligation to remain within the metes and bounds of its jurisdictional scope.
Order, at 4.
In his conclusion, Judge White expressed frustration, stating
There are rare cases in which the preferred outcome is inaccessible to the Court. This is one of those cases. The Court is bound by precedent and the division of our coordinate branches of government to abstain from exercising jurisdiction in this matter. Yet, as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide. This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.
Order, at 8.
So, why did Judge White dismiss the case?
Judge White dismissed the case based on the political question doctrine (see Footnote 7), finding that “[b]ecause any determination to challenge the decision of the executive branch of government on support of Israel is fraught with serious political questions, the claims presented by Plaintiffs here lie outside the Court’s limited jurisdiction.” Order, at 8.
In other words, the court determined that the claims and relief sought by the Plaintiffs fall outside of the court’s authority because they are political in nature and the separation of powers requires that such questions should be addressed only by Congress and the Executive Branch.
The Court stated that
The [political question] doctrine “excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986).
Order, at 5.
The US Supreme Court has created “six criteria to determine whether a dispute presents a nonjusticiable political question.” Order, at 5. Take a look at the Order for the full explanation.
Here, I focus on the one factor the Court relied on: “Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department[.]” Order, at 5.
The Court found that “[f]oreign policy is constitutionally committed to the political branches of government, and disputes over foreign policy are considered nonjusticiable political questions.” Order, at 6.
The Court held
Here, Plaintiffs’ challenge to the appropriateness of providing financial and military aid to Israel is a challenge to the manner in which the President and Executive Branch officials conduct the foreign affairs of the United States. Plaintiffs’ request to have this Court enjoin the government of the United States from providing military or financial assistance to Israel invokes matters are “intimately related to foreign policy and national security” and are “largely immune from judicial inquiry and interference.” Both Congress and the President have determined that military and economic assistance to Israel is necessary at this time. Plaintiffs’ claims fail the first Baker factor because the judiciary “cannot intrude into our government’s decision to grant military assistance to Israel … [as] that foreign policy decision is committed under the Constitution to the legislative and executive branches.”
Order, at 7.
The Court also noted that any decision to the contrary would
require this Court to “implicitly question[], and even condemn[], United States foreign policy toward Israel” and would “potential[ly] … cause international embarrassment were a federal court to undermine foreign policy decisions in the sensitive context of the Israeli-Palestinian conflict.” Corrie v. Caterpillar, Inc, 503 F.3d 972, 983-84 (9th Cir. 2007)8. “We simply cannot square the primacy of the Executive in the conduct of foreign relations and the Executive Branch’s lead role in foreign policy … with an injunction that compels the United States to” end support and exert influence over Israel. Republic of Marshall Islands v. United States, 865 F.3d 1187, 1201 (9th Cir. 2017)9.
Order, at 8.
A Brief Commentary on the Order By Noura Erakat
Legal scholar, Noura Erakat10, on January 31, 2024, tweeted the following thread contextualizing and critiquing this decision, and the legal system as a whole:
There is a rich legacy of overcoming the political question doctrine in ATS [Alien Tort Statute] cases alleging violation of customary [international] law, like torture, in other countries that implicates US foreign policy and thus risks raising a [question] better suited for the executive branch (political [question]) but never in cases filed against Israel. Significantly, in cases involving the same political context but filed on behalf of Israelis or Zionists against Arabs, a political [question] was not similarly raised. In those cases the legislature had established laws that made such litigation possible.The legal landscape is rigged. Controlling for the identity of the plaintiffs & defendants. We can demonstrate bias in federal courts. I write about this at length in this 2009 article.
Though this case is distinct [because] it is against the Biden admin itself, it relied on Corrie v. Caterpillar (2007) — a lawsuit regarding the trampling of Rachel Corrie, American peace activist in Gaza, by an Israeli soldier operating a Caterpillar bulldozer. The case was dismissed [because] of the political context (Israeli apartheid, occupation, & settler colonization). So this lawsuit’s dismissal is based on a biased framework to begin with.
Noura Erakat’s article, “Litigating the Arab-Israeli Conflict: The Politicization of U.S. Federal Courtrooms,” and her book, Justice for Some: Law and the Question of Palestine are both well worth a read.
For another critique about the use of the political question doctrine and cases brought by Palestinians in US federal courts, take a look at Gwynne Skinner’s article, “The Nonjusticiability of Palestine: Human Rights Litigation and the (Mis)application of the Political Question Doctrine.”
The Factual Background Outlined in the Complaint
The Complaint opened:
This case is brought on behalf of Palestinian human rights organizations and individuals to enforce what is perhaps the most basic and important legal, and moral, obligation in the world – the obligation to prevent genocide, the destruction of a people. This duty is enshrined in the 1948 Genocide Convention, to which the United States, Israel and Palestine have all acceded, and it is judicially enforceable as a peremptory norm of customary international law. Plaintiffs seek an order of this Court requiring that the President of the United States, the Secretary of State, and the Secretary of Defense adhere to their duty to prevent, and not further, the unfolding genocide of Palestinian people in Gaza. If the legal responsibility to prevent an unfolding genocide is to mean anything – indeed, if the rule of law is to signify anything – courts must have a role and responsibility to enforce these foundational international law principles. The lives of so many more people are at stake.
First, the Complaint outlined the significant history of Israel’s ethnic cleansing, occupation, and apartheid of Palestinians in both Gaza and the Occupied West Bank,11 noting that “[t]he forcible displacement of the Palestinian people for the benefit of the Israeli population has prompted Israeli historians such as Ilan Pappé to warn of an ‘incremental genocide’ of Palestinians.”
In this factual section, CCR also outlines the many ways Israel has consistently violated international law in its actions against Palestinian people and land.
Like South Africa’s application to the ICJ, this Complaint is a helpful resource if you are looking for an abbreviated recent history of Palestine. In particular, take some time to review pages 15-24 — it is plainly written (i.e. not in legalese) and succinct.
Importantly, the Complaint explained that Israel’s right to self defense is limited under international law:
Israel’s sustained military hostilities and assaults against Palestinians, even when alleged to be “self-defense,” breach fundamental principles of international law. As the Occupying power, Israel cannot both exercise control over territory it occupies (the occupied Palestinian territory, including Gaza) and simultaneously militarily attack that territory on the claim that it is “foreign” or imputable to a “foreign State.” Article 51 of the U.N. Charter, which sets the confines for the invocation and use of self-defense by States, is inapplicable when the threat originates from a territory over which Israel exercises control.
More broadly, the International Court of Justice (“ICJ”) has been clear that self-defense under Article 51 of the U.N. Charter is “subject to certain constraints . . . inherent in the very concept of self-defense.” It found that the right of self-defense must be subjected to “the conditions of necessity and proportionality [as] a rule of customary international law.”
This is a critical component — since 1967, Israel has been a military occupying power over the Occupied Palestinian Territories and must adhere to the laws governing such a role.
This includes Gaza, because, as the ICRC explains, “Israel still exercises key elements of authority over the strip, including over its borders (airspace, sea and land – at the exception of the border with Egypt).” Indeed, Israel has cut off food, electricity, water, telecommunications, and humanitarian aid since October 7, clearly indicating its control and authority over Gaza.
Gaza
As to Gaza, the Complaint outlined the sixteen year land, air, and sea blockade that Israel forcibly imposed on Gaza, as well as the “five mass military attacks on the Palestinian civilian population in Gaza” in 2008, 2012, 2014, 2018, and 2021. These bombardments have
killed at least 4,269 Palestinians, including 1,025 children, as well as journalists, medical workers, and unarmed protestors, injured tens of thousands, with widespread destruction to civilian housing units and, repeatedly across successive military assaults, critical civilian infrastructure including medical facilities, health clinics and educational facilities.
Notably, the Complaint highlights that “Israel and often members of the international community use the term “Hamas” without explanation or apparent limitations”:
Hamas (an acronym for “Islamic Resistance Movement”) is a political party, serving as de facto governing authority in the Gaza Strip, where it fulfills administrative governmental functions, such as running schools, the health sector, social affairs, policing, and security. The civil servants who carry out such administrative functions are civilians; separately, military groups associated with Hamas, such as the al Qassam Brigade, carried out the October 7 attacks. However, as recognized under IHL, applicable to the international armed conflict (occupation), a clear distinction must be drawn between the political wings and the military wings of all organizations or groups.
Critically, the Complaint clarifies that
On October 7, 2023, the military wing of Hamas launched a series of attacks outside Gaza including direct attacks against civilians in predominantly residential areas, which killed approximately 1,200 Israeli civilians and soldiers, and took approximately 240 civilian hostages and military captives back into Gaza. The killing and abduction of civilians are serious crimes under international law. These unlawful attacks cannot, however, justify the campaign against Palestinians in Gaza as a policy of collective punishment, direct targeting and attack, and corresponding international law violations of war crimes, crimes against humanity and, ultimately, genocide.
The Occupied West Bank
Additionally, the Complaint outlined Israel’s violations of international law occurring in the Occupied West Bank while all eyes are understandably on Gaza. For example, the Complaint stated
Between October 7 and November 12 2023, attacks on Palestinians in the occupied West Bank have been surging, with at least 172 Palestinians killed, 2,586 injured and at least 1,149 forcibly displaced from their homes. Israeli soldiers have filmed themselves abusing, torturing and humiliating Palestinians in the West Bank. Israeli settlers have killed at least eight Palestinians since October 7, and injured 74 others. Israeli authorities have distributed hundreds of assault rifles to Israeli settlers, and have sought 24,000 assault rifles from the United States to be distributed to Israeli police as well as civilians. Israeli forces and settlers, accompanied by the military or wearing reserve uniforms, have raided Palestinian villages at night and given them ultimatums to leave within 24 hours or be killed, that they would do to them what they did to Gaza. Israeli settlers and Israeli forces have also cut off Palestinian communities from vital resources like water and electricity, and stolen their vehicles, making their lives unlivable.
Allegations As to An Unfolding Genocide Against Palestinians in Gaza
In this section, starting on page 24, the Complaint turns to events beginning on October 7, 2023. These segments of the Complaint outline Israel’s actions such as
cutting off water
blocking fuel from entering “resulting in a loss of electricity for over 2 million Palestinians”
blocking food and other humanitarian aid from entering
bombing “the Rafah crossing at the Gaza-Egyptian border, damaging the crossing and blockading Palestinians – from movement or supplies – in Gaza”
launching airstrikes targeting residential units, and all other forms of civilian infrastructure, such as water sources, sewage management resources, bakeries and grocery stores, universities, hospitals, schools, and telecommunications
ordering the evacuation of hospitals, and then subjecting those hospitals to attack
targeting of healthcare workers, including paramedics trying to rescue injured people
targeting of journalists
targeting churches and mosques, including those taking shelter therein
using white phosphorous “in densely populated areas across Gaza”12
orders “to ‘evacuate’ to southern Gaza within 24 hours, an order that spread terror and sought to effectuate forcible transfer
then targeting civilians as they evacuate on the “identified ‘safe route’”
cutting off telecommunications
targeting heavily populated areas, including refugee camps, with large bombs and munitions
The Complaint also laid out numerous statements by Israeli officials to support the required element of intent, a requirement under the Convention.
For instance, to list only a few13:
On page 25-26: “Ariel Kallner, a Member of the Knesset and Prime Minister Benjamin Netanyahu’s Likud, stated: ‘Right now, one goal: Nakba! A Nakba that will overshadow the Nakba of 48. Nakba in Gaza and Nakba to anyone who dares to join!’ Israeli Member of the Knesset Haim Katz stated: ‘We need to deal a blow that hasn’t been seen in 50 years and take down Gaza.’”14
On page 26: Minister of Defense Yoav Gallant stated, “As reported by the UN, the Minister also threatened to ‘bomb those attempting to provide humanitarian aid to the Gaza Strip.’”
On page 26: “Israel Defense Forces (IDF) spokesperson Daniel Hagari announced that the Israeli military had already dropped ‘hundreds of tons of bombs,’ adding that ‘the emphasis is on damage and not on accuracy.’”
On pages 30-31: “Israeli Minister of Energy and Infrastructure Israel Katz declared: ‘All the civilian population in [G]aza is ordered to leave immediately. We will win. They will not receive a drop of water or a single battery until they leave the world.’”
The Allegations That The U.S. Is Complicit in Genocide
The Complaint alleges, in sum:
Under international law, the United States has a duty to take all measures available to it to prevent a genocide. Yet, Defendants [Biden, Blinken, and Austin] have repeatedly refused to use their obvious and considerable influence to set conditions or place limits on Israel’s massive bombing and total siege of Gaza. They have done so despite escalating evidence of Israeli policies directed at inflicting mass harm to the Palestinian population in Gaza, including the creation of conditions of life calculated to bring about their physical destruction through a total siege, and even in the face of mounting deaths including of thousands of children. U.S. officials did not even call for a life-saving ceasefire and lifting of the siege, even vetoing United Nations measures calling for a ceasefire, in the face of overwhelming international support for one. Instead, their actions to fund, arm, and endorse Israel’s devastating bombing campaign and total siege of the Palestinians in Gaza constitutes a failure to prevent an unfolding genocide and complicity in its development.
To outline the relationship between the US and Israel, the Plaintiffs highlighted the following data points:
“As of 2022, U.S. foreign assistance represents about 16% of Israel’s military budget.”
“Since 1946, the United States has sent $260 billion (inflation-adjusted) dollars in military and economic assistance to Israel[.]”
“In 2016, the United States pledged $38 billion in military assistance to Israel over the 10-year period between 2019-2028.”
“Israeli warplanes are entirely US-sourced.”
The U.S. “has consistently used its veto power to block or threaten to block United Nations Security Council resolutions critical of Israeli human rights and international law violations[.]”
Since October 7, the US has “unconditionally” supported Israel. One example was
On October 10, with the knowledge of Israeli Defense Minister Gallant and other Israeli officials’ dehumanization of Palestinians in Gaza and declaration that all residents of Gaza would be deprived of basic necessities of life, and the killing of 830 people, including at least 140 children by Israeli airstrikes, Defendant Biden reasserted that the United States “will make sure Israel has what it needs to take care of its citizens, defend itself, and respond to this attack.”
On that same day, when Department of State spokesperson Matthew Miller was asked about the large number of Palestinians killed and whether the United States will “call on Israel to cease its . . . effort now in cutting off medicine, water, humanitarian aid [and electricity]” to Gaza, he spoke approvingly of Israel’s response: “Israel has a right to conduct an aggressive response to respond to the terrorism that’s been committed against its citizens. We expect them to follow international law, we believe that they will, and we will remain in close contact with them about it.”
The US has “provided Israel with unconditional military financial assistance, equipment, and personnel to support and further its assault on Gaza[,]” such that “[t]he munitions killing Palestinians in the Gaza Strip are overwhelmingly American-made.”15 For example:
“Boeing accelerated delivery of 1,000 small diameter bombs which were reported to have been flown from a U.S. Air Force base to Israel”
“white phosphorus artillery shells with U.S. Department of Defense identification codes had been positioned in Sderot, outside Gaza”
“United States’ material support to Israel includes ‘supplying ammunition, interceptors to replenish Israel’s Iron Dome, alongside other defense material,’ with the first shipment of support having already arrived”
On or around OCtober 19, 2023, “tens of thousands of 155mm artillery shells that had been set aside for Ukraine had been withdrawn and redirected to Israel.”
“Reports also indicated that a million rounds of 7.62mm ammunition and tens of thousands of 30mm rounds had been delivered by the United States to Israel earlier that week.”
“Lt. Gen. James Glynn, a three-star Marine general, and other officers had been sent by the United States to Israel to advise Israeli officials on its plans for the attacks on Gaza.”
Another allegation is the the US government has ignored its own employees’ and the broader public’s call for a ceasefire, including the introduction of a House bill, and the large protests.
To support this claim, the Complaint quoted Josh Paul, a US State Department official who resigned due to the US ‘s unconditional support of Israel in its actions against Palestinians in Gaza, who wrote an opinion piece in The Washington Post (and also a declaration in support of the Plaintiffs motion for injunctive relief)
“Israeli requests for munitions started arriving immediately, including for a variety of weapons that have no applicability to the current conflict.” He had urged caution because “[t]he risk is obvious that American weapons provided to Israel, especially air-to-ground munitions, will inflict civilian harm and violate human rights.” Yet Defendants were “so adamant to avoid any debate on this risk,” which in Paul’s experience was “an unprecedented unwillingness to consider the humanitarian consequences of our policy decisions.” He continued, “[t]he absence of a willingness to hold that debate when it comes to Israel is not proof of our commitment to Israel’s security. Rather, it is proof of our commitment to a policy that, the record shows, is a dead end — and proof of our willingness to abandon our values and turn a blind eye to the suffering of millions in Gaza when it is politically expedient.”
United Nations and other experts were cited as “sounding the alarm on the crimes against humanity in Gaza.” This included the October letter from the CCR to President Biden referenced above.
Further still, the US has vetoed any effort in the UN Security Council to call for a ceasefire, and voted against any resolutions in the General Assembly, though it “nonetheless passed with an overwhelming majority on October 27.”
Israeli officials have openly acknowledged its dependence on American weapons and funding:
Israeli Defense Minister Gallant indicated how crucial, and influential, military support by the United States is to Israel and its assault on Gaza: as reported by Israel’s Channel 12, when asked by a Knesset committee about the provision of humanitarian aid to Gaza before the hostages had been released, Gallant stated that “[t]he Americans insisted and we are not in a place where we can refuse them. We rely on them for planes and military equipment. What are we supposed to do? Tell them no?”
Notably, the Complaint explained that “the Conventional Arms Transfer policy issued by the Biden Administration in 2023 prohibits transfer of weapons when “it is more likely than not” that those weapons will be used by the recipient to commit genocide or other serious violations of international humanitarian or human rights law.” Yet still, as John Kirby “again reiterated[,] the United States ‘is not drawing red lines for Israel[.]’”16
In sum, the Complaint laid out in significant detail the many ways in which Israeli officials made their intent clear, while at the very same time, despite these explicit statements of intent by Israeli officials, the US continued to voice and demonstrate unconditional support.
And the Complaint also laid out the ways in which the US government, including Biden, demonstrate their own knowledge as to their impact on Israel’s actions. For example, “On November 1, Defendant Biden acknowledged his substantial influence over Israel, saying ‘I’m the guy that convinced Bibi to call for a cease-fire to let the prisoners out.’”
A repeated theme is US government officials, such as Vice President Kamala Harris, stating that “we are not going to create any conditions on the support that we are giving to Israel to defend itself.” Israel has the right to defend itself.
However, as noted previously in the Complaint, Israel’s right to self defense is limited under international law, and is limited further by its role as an occupying military force.
In the conclusion of this section of the Complaint, the Plaintiffs emphasized that
[a]s of November 10, 11,078 Palestinians have been killed, including 4,506 children and 3,027 women. Defendants have not called for a ceasefire or placed any conditions on their military and other assistance to Israel. Defendants are instead currently attempting to send at least $14.1 billion in additional military assistance, as well as at least $320 million worth of military equipment transfers to Israel.
From here, the Complaint outlined the legal facets of the claims against the Defendants, as outlined in the first section of this edition.
Thank you so much for reading. I know this was a dense edition, but I hope you found it useful, even if consumed in small doses.
Next up will be a further exploration of the cases currently in front of the ICJ.
Respectfully submitted,
Amy
As discussed in a previous edition, I am very intentional with my word choices.
Dr. Martin Luther King observed: “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important.” Wall Street Journal, November 13, 1962.
Here are just a few resources to help you take action:
These organizations provide scripts and email templates for contacting representatives, as well as information about direct actions and protests.
The motion for preliminary injunction requested
an order enjoining Defendants and all persons associated with them from providing any further military or financial support, aid, or any form of assistance to Israel’s attacks and maintenance of a total siege on Palestinians in Gaza, in accordance with their duty under federal and customary international law to prevent, and not further, genocide.
Schabas wrote:
I conclude that there is a serious risk of genocide committed against the Palestinian population of Gaza and that the United States of America is in breach of its obligation, under both the 1948 Genocide Convention to which is is a party as well as customary international law, to use its position of influence with the Government of Israel and to take the best measures within its power to prevent the crime taking place.
Cox, Sanford, and Trachtenberg wrote:
Our research and studies of these past genocides lead us to the conclusion that the time for legal remedies is now, especially considering calls for a “second Nakba", by members of the Knesset . . . The stage is thus set for more than the Nakba, indeed for genocide.
Further, they warned
that all Palestinians in Gaza are right to fear for their lives, for the coordinated attacks on them now alarmingly resemble those of genocidal campaigns in recent decades, such as in the 1982 genocide of Mayan people in Guatemala, the 1994 Rwandan genocide of Tutsis, the 1995 genocide of Bosnian Muslims, the 2003-2005 genocide in Darfur, the 2014 genocide against Yazidis in Iraq, and the 2016-2017 genocide against Rohingyan Muslims.
The political question doctrine has a long history and has been exercised selectively. (Also see the section on Noura Erakat’s commentary for more information regarding the political question doctrine and the Palestine question.
Ballotpedia defines it as “disputes that courts determine are best resolved by the politically accountable branches of government: the president and Congress.”
It is defined by the Legal Information Institute as
the rule that Federal courts will refuse to hear a case if they find that it presents a political question. This doctrine refers to the idea that an issue is so politically charged that federal courts, which are typically viewed as the apolitical branch of government, should not hear the issue. The doctrine is also referred to as the justiciability doctrine or the non-justiciability doctrine . . .
The political question doctrine is infamously controversial and difficult to apply. The doctrine involves balancing the separate powers of each branch of government with the judicial review authority of the Supreme Court. Courts only apply the doctrine in the most clear of cases.
If you would like to geek out more on this, the Congressional Research Service did a six-part series on the issue.
Corrie v. Caterpillar, Inc, 503 F.3d 972, 980 (9th Cir. 2007) was a civil suit brought because
Corrie v. Caterpillar was a federal lawsuit filed against Illinois-based Caterpillar, Inc. on behalf of the parents of Rachel Corrie and four Palestinian families whose relatives were killed or injured when Caterpillar bulldozers demolished their homes. Corrie, a 23-year old American human rights defender, was crushed to death by a Caterpillar D9 bulldozer in 2003 as she attempted to defend a Palestinian family’s home from being demolished by the Israeli military while the family was inside.
The allegation was that “the Israeli Defense Forces ("IDF") demolished homes in the Palestinian Territories using bulldozers manufactured by Caterpillar, Inc., a United States corporation. The IDF ordered the bulldozers directly from Caterpillar, but the United States government paid for them.” Corrie v. Caterpillar, Opinion.
The 9th Circuit dismissed the case based on the political question doctrine, holding “Plaintiffs' action cannot proceed because its resolution would require the federal judiciary to ask and answer questions that are committed by the Constitution to the political branches of our government.”
In Republic of Marshall Islands v. United States, 865 F.3d 1187 (9th Cir. 2017), the Marshall Islands sued the US because it in “continuing breach” of the Treaty on the Non–Proliferation of Nuclear Weapons because of “what the Marshall Islands describes as ‘the grim legacy of the United States nuclear weapons program,’ including the detonation of sixty-seven nuclear weapons in the Marshall Islands that resulted in ‘horrific and multi-generational consequences from nuclear proliferation.’” Republic of the Marshall Islands v. United States, 865 F.3d 1187, 1191 (9th Cir. 2017).
This case was also dismissed because of the political question doctrine. The court held:
At bottom, the suit is doomed because diplomatic negotiations among parties to this Treaty fall quintessentially within the realm of the executive, not the judiciary. Parleying a halt to the nuclear arms race and achieving nuclear disarmament involve decision-making delegated to the political branches . . . Asking the federal court to order the United States to negotiate in "good faith" on "effective measures" for nuclear disarmament puts the judiciary in the role of nanny to the executive. Under our system of separation of powers, the federal court cannot give the Marshall Islands the judicial relief it seeks.
Republic of the Marshall Islands v. United States, 865 F.3d 1187, 1190-91 (9th Cir. 2017).
I cannot recommend following Noura Erakat on Instagram and/or X (@4noura) enough. She is an incredible scholar, and author of Justice for Some: Law and the Question of Palestine. She is an expert on these issues and should be one of your first sources of information on these issues. She has also been on numerous podcasts of late, so I recommend finding her there, too— Democracy Now, The Dig, The Owen Jones Podcst, and The Katie Halper Show.
For example, the Complaint outlined on pages 15-16:
Between 1947-1949, carrying out sentiments reflected in future Prime Minister David Ben Gurion’s 1937 letter to his son that “we must expel the Arabs and take their places,” Zionist militias forced the displacement of 85% of the Palestinian population, destroyed 531 villages across Palestine, killed approximately 15,000 Palestinians and violently forced the expulsion of 750,000 Palestinians from their ancestral homes, rendering them refugees. In one particularly devastating massacre in Deir Yassin in 1948, the Lehi unit of the Zionist armed forces killed more than 100 Palestinians, including children.
. . .
Indeed, a great number of refugees from the 1948 Nakba were displaced to Gaza, where now 2/3 of the current population is refugees. Later, in the 1967 Six Day War, Israel occupied the West Bank, including East Jerusalem, and the Gaza Strip, which resulted in the expulsion of 145,000 registered Palestinian refugees for the second time in 19 years. Reflecting a goal of its expropriation of Palestinian territory for Israeli possession, former Defense Minister Moshe Dayan stated in 1969 that “We came to this country which was already populated by Arabs and we are establishing . . . a Jewish state. . . There is not one place built in this country that did not have a former Arab population.”
According to the World Health Organization, “The use of white phosphorus may violate Protocol III (on the use of incendiary weapons) of the Convention on Certain Conventional Weapons (CCCW) in one specific instance: if it is used, on purpose, as an incendiary weapon directly against humans in a civilian setting.”
Though not a current member of the Israeli government, the Complaint highlighted the following incident on page 31:
The views of Israeli officials that Palestinians are not human and should be destroyed were promoted by the 95-year old Israeli army reservist Ezra Yachin, who was reportedly called for his reserve duty to “boost morale” ahead of any ground incursions. While dressed in military fatigues, he declared in a clip widely circulated on social media, speaking to other soldiers in statements aimed at inciting others to act:
“Be triumphant and finish them off and don’t leave anyone behind. Erase the memory of them. Erase them, their families, mothers and children. These animals can no longer live. . . . Every Jew with a weapon should go out and kill them. If you have an Arab neighbour, don't wait, go to his home and shoot him. . . . We want to invade, not like before, we want to enter and destroy what’s in front of us, and destroy houses, then destroy the one after it. With all of our forces, complete destruction, enter and destroy. As you can see, we will witness things we’ve never dreamed of. Let them drop bombs on them and erase them.”
Yachin was a member of the Zionist Lehi unit, which in April 1948 was involved in the Deir Yassin massacre where Zionist militias killed more than 100 Palestinians including children.
As explained by the Institute for Middle East Understanding (IMEU) — a great resource — “The Nakba (‘catastrophe’ in Arabic) refers to the violent expulsion of approximately three quarters of all Palestinians from their homes and homeland by Zionist militias and the new Israeli army during the state of Israel’s establishment (1947-49).”
As another example of the juxtapositioning between Israeli intent and US unconditional support, the Complaint recounted on page 49
In response to a question from a reporter about whether the United States would withhold military aid to Israel—which by this point had cut off food, water, electricity, and fuel to Gaza—until it created a humanitarian corridor, White House National Security Council Coordinator John Kirby responded: “We are providing [Israel] military aid as we speak. So, no, there’s no plans of — of holding back military assistance. We wouldn’t do that. The President has been talking now for three days about how we’re going to keep giving them the capabilities that they need.” Later, Kirby stated that the U.S. is “actively having conversations with the Israelis and the Egyptians about a safe passage corridor so that people who want to leave can leave,” and having “conversations” about humanitarian goods.
Deputy Pentagon Press Secretary Sabrina Singh stated, “We are not putting any limits on how Israel uses weapons that is provided [sic]. That is really up to the Israel Defense Force to use in how they are going to conduct their operations. But we’re not putting any constraints on that.”