While Dismissing Case on Jurisdictional Grounds, U.S. Judge “Implores” Biden Administration to Stop its “Unflagging Support” for Israel’s Ongoing Siege of the Palestinian People in Gaza

January 31, 2024, Oakland, CA – After a federal court heard arguments and testimony in the case Defense for Children International – Palestine v. Biden on Friday, January 26, charging the Biden administration with failing in its duty to prevent, and otherwise aiding and abetting, the unfolding genocide in Gaza, a federal judge found that Israel is plausibly engaging in genocide of the Palestinian people in Gaza and that the United States is providing “unflagging support” for the massive attacks on Palestinian civilians in contravention of international law. The court’s decision follows a historic ruling by the International Court of Justice last Friday, which also found the Israeli government was plausibly engaged in a genocide of the Palestinian people in Gaza, and which issued a series of emergency measures Israel must take to end its genocidal campaign. 

The U.S. court based its assessment on the “uncontroverted” live testimony of seven Palestinian witnesses, including one from Gaza and one from Ramallah, who testified firsthand to Israel’s killing of their nieces, cousins, aunts, uncles, elders, and members of their community, to the mass displacement of their families reminiscent of the 1948 Nakba, and to the devastating conditions of life in their homeland as the siege leads to mass starvation. The court also relied on the expert opinion of genocide and Holocaust scholars who confirmed that Israel’s military assault and totalizing humanitarian destruction bears the hallmarks of a genocide based on legal and historical precedent. Nevertheless, the court reluctantly dismissed the case on jurisdictional grounds. While the court recognized that the prohibitions on genocide are fundamental and binding international law, this was a “rare” instance where “the preferred outcome is inaccessible to the Court” and it found it lacked power to resolve the case because it implicated executive decision-making in the area of foreign policy.   

Delivering a historic rebuke of Israel and the United States for its flouting of the Genocide Convention, the court wrote: 

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. 

The court recognized the substantial role of the United States in furthering the genocide and noted that “as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide” and, therefore, the “Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.” 

The court stated, “It is every individual’s obligation to confront the current siege in Gaza.” 

According to Katherine Gallagher, Senior Staff Attorney at the Center for Constitutional Rights who argued the genocide case before the court, “The court affirmed that what the Palestinian population in Gaza is enduring is a campaign to eradicate a whole people – genocide – and that the United States’ unflagging support for Israel is enabling the killing of tens of thousands of Palestinians and the famine facing millions. While we strongly disagree with the court’s ultimate jurisdictional ruling, we urge the Biden administration to heed the judge’s call to examine and end its deadly course of action. Together with our plaintiffs, we will pursue all legal avenues to stop the genocide and save Palestinian lives.” 

According to plaintiff Waeil Elbhassi, “My family lived through and was displaced by the first Nakba (catastrophe) in 1948, which the world has barely acknowledged. Yet in court on Friday, I testified to make a record of Israel’s horrific slaughter of my family, and the destruction of my homeland and Palestinian heritage, and to demand that the United States stop giving the Israeli government its total financial and diplomatic support for this ongoing genocide, a second Nakba.” 

Plaintiff Mohammed Monadel Herzallah said, “It is important that the court recognized the United States is providing unconditional support to Israel’s ongoing genocide in Gaza and that a federal court heard Palestinian voices for the first time, but we are still devastated that the court would not take the important step to stop the Biden administration from continuing to support the slaughter of the Palestinian people. Currently, my family lacks food, medicine, and the most basic necessities for survival. As Palestinians, we know this is a hard struggle, and as plaintiffs we will continue to do everything in our power to save our people’s lives.” 

“To be clear, this is far from a win for the U.S. government. It is unprecedented and damning that a federal court has all but affirmed that Israel is committing a genocide while criticizing defendants Biden, Blinken, and Austin’s ‘unflagging’ support for the acts that constitute that genocide,” said Center for Constitutional Rights Senior Staff Attorney Diala Shamas.

The Palestinian plaintiffs, represented by the Center for Constitutional Rights, together with co-counsel from Van Der Hout LLP, are the Palestinian human rights organizations Defense for Children International – Palestine and Al-Haq; and the individuals Dr. Omar Al-Najjar, Ahmed Abu Artema, and Mohammed Ahmed Abu Rokbeh, who are in Gaza; and Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Basim Elkarra, and Ayman Nijim, who are U.S. residents with family in Gaza.

To watch a recording of the hearing, visit the court’s website.

To watch a recording of the plaintiffs’ press conference following the hearing, visit the Center for Constitutional Rights YouTube page.

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