Lower court found “plausible” case of genocide, dismissed suit on jurisdictional grounds; starvation rampant as Israel prepares Rafah attack

March 8, 2024, San Francisco, CA – Palestinian human rights organizations, Palestinians, and Palestinian-Americans filed an appeal last night in their case against President Biden, arguing that the court has a constitutional obligation to hear their claims that top U.S. officials failed to prevent – and are complicit in – Israel’s genocide in Gaza. A lower court found a plausible case of genocide and urged the Biden administration to reexamine its “unflagging support” for Israel’s assault but said it was powerless to review “foreign policy” decisions, dismissing the lawsuit on jurisdictional grounds. 

In dismissing the case, Judge Jeffrey S. White relied on the political question doctrine, which has often been interpreted to put discretionary policies of the executive branch outside the purview of the courts. In the brief submitted on the plaintiffs’ behalf, the Center for Constitutional Rights and co-counsel Van Der Hout LLP say that aiding and abetting genocide can never be a policy decision, and the Constitution requires that the federal judiciary uphold its duty to apply the law, including the Genocide Convention, and that this obligation takes on “an urgent, even existential dimension when the legal violation at issue is facilitating and even accelerating the destruction of an entire people.” 

“With each passing week, Israel’s onslaught on Gaza claims the lives of more of my family members while the rest are struggling to survive, enduring deliberate starvation, and fearing for their lives and wondering what future remains to go back to. And it is happening with the Biden administration’s complicity and financial, diplomatic and military cover,” said Laila Elhaddad, a plaintiff in the case. “The time to act, and to hold this administration accountable for failing to prevent what the courts have called a plausible genocide, is now. There should be no discretion in the matter.”

With Gaza on the brink of famine, children are dying of dehydration and malnutrition, adding to a death toll that has already surpassed 30,000. That number is expected to rise sharply once Israel begins its ground assault on Rafah, where more than a million people have taken refuge after being forced to evacuate from other areas in Gaza. Even as international outrage grows, the Biden administration continues to send weapons to Israel and recently wielded its third veto of a United Nations Security Council resolution calling for a cease-fire. Yesterday marked five months since Israel began its genocidal campaign. On this anniversary, Biden announced that the U.S. military will construct a temporary port in Gaza in the hopes of securing future deliveries of humanitarian aid at the same time as reports revealed 600 active cases of potential weapons transfers to Israel, worth more than $23 billion.

“Defendants Biden, Blinken, and Austin, have chosen to disregard numerous warnings by international experts, and even two court rulings – a federal court in the U.S. and the International Court of Justice – that Israel is plausibly committing a genocide,” said Pam Spees, a senior staff attorney at the Center for Constitutional Rights. “Despite all of these warnings, and despite the horrors unfolding for the world to see, they have continued to rush weapons and diplomatic assistance to Israel as it carries out this genocidal assault. Our courts must not shy away from their duty to ensure that even our highest officials are answerable to the law – not least a law intended to prevent the killing and destruction of an entire people.”

The lawsuit, filed in November in the Northern District of California, asked the court to enjoin defendants President Biden, Secretary of State Blinken, and Secretary of Defense Austin from providing weapons and other forms of support being used to further the genocide in violation of domestic and international law. Leading genocide and Holocaust scholars and former State Department official Josh Paul submitted declarations in support of the lawsuit. 

While dismissing the lawsuit, the district court judge largely endorsed the factual case made by the plaintiffs in their 85-page complaint and through live testimony, which he called “uncontroverted.” Over the course of a four-hour hearing on January 26th, plaintiffs testified to the killing and displacement of their family members since October 7 and situated Israel’s assault on Gaza within its historic subjugation of Palestinians. The judge’s finding echoed the ruling by the Internatonal Court of Justice that came out the day of the hearing that also found a plausible case of genocide by Israel and ordered a set of provisional measures, including ordering Israel to stop its genocidal acts and ensure access to humanitarian assistance. The day before the appeal was filed in the U.S. case this week, South Africa renewed its request to the ICJ for additional provisional measures in light of accelerating starvation.

Under the expedited schedule, the Court of Appeals for the Ninth Circuit will hear oral argument in San Francisco in June 2024.

The organizational plaintiffs in the case are Defense for Children International – Palestine and Al-Haq. The  individual plaintiffs are Dr. Omar Al-Najjar, Ahmed Abu Artema, and Mohammed Ahmed Abu Rokbeh in Gaza; and Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Basim Elkarra, and Ayman Nijim, U.S. citizens with family in Gaza.

For more information, see the Center for Constitutional Rights’ case page. 

The San Francisco law firm of Van Der Hout LLP is co-counsel in the case.