On Mar. 7, 2024, the Center for Constitutional Rights (CCR), together with co-counsel from Van Der Hout LLP, filed their opening brief to the Ninth Circuit Court of Appeals on behalf of Defense for Children International-Palestine (DCIP), Al Haq, and Palestinian individuals living in Gaza and the United States (U.S.) in a recent lawsuit against the Biden Administration. The lawsuit claims that the U.S. “is failing to uphold its legal obligation to prevent genocide, and President Biden and other high-level officials are actively aiding and abetting the Israeli government’s genocide of the Palestinian people.”
Case Summary Thus Far
On Nov. 13, 2023, the Plaintiffs filed a complaint against President Biden, U.S. Secretary of State Blinken, and U.S. Secretary of Defense Austin. The Plaintiffs, seeking declaratory and injunctive relief, asked the District Court “to declare that these U.S. officials have failed to prevent genocide and are aiding and abetting genocide, and to order an end to U.S. military and diplomatic support to Israel.” The Plaintiffs also filed a preliminary injunction motion for an emergency order that would prohibit “any further U.S. military and diplomatic support to Israel while the case is being considered.”
The U.S. government moved to dismiss the case on Dec. 8, 2023, arguing that the Court does not have jurisdiction to hear the case under the “nonjusticiable political question doctrine” (explained below) and a lack of standing. On Jan. 26, 2024, the District Court held a hearing on the preliminary injunction motion filed by the Plaintiffs and the government’s motion to dismiss. During the hearing, CCR argued that the court “has a constitutional duty to enforce the government’s legal obligations to prevent and not be complicit in genocide, and that it is clear, as both the U.S. and Israel have acknowledged, that Israel’s unfolding genocide could not happen without U.S. weapons and diplomatic cover.” At the hearing, Plaintiffs provided “heart-wrenching and compelling” testimony via video from Gaza and Ramallah, as well as live in-court testimony, that demonstrated the devastation that they have experienced due to Israel’s response to the Oct. 7 attacks by Hamas. One Plaintiff, Ahmed Abofoul, testified that 60 members of his extended family had been killed since the filing of the original complaint on Nov. 13, 2023.
On Jan. 31, the District Court dismissed the case, claiming that it did not have jurisdiction to hear the case. Nevertheless, the District Court found, similar to the International Court of Justice’s order issued days before, that it is “plausible” that Israel is committing genocide:
“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,” said the District Court.
The District Court also “implore[d] [the U.S.] to examine the results of their unflagging support of [Israel’s] military siege against the Palestinians in Gaza.”
The Plaintiffs filed their notice of appeal on Feb. 8, 2024 and their opening appellate brief to the Ninth Circuit Court of Appeals was filed on Mar. 7, 2024.
District Court Arguments
The Plaintiffs’ Arguments
The original complaint filed by the Plaintiffs outlines the ways in which Israel is committing genocide against Palestinians in Gaza, and how the U.S.’ diplomatic and military support to Israel demonstrates complicity and a violation of the duty to prevent genocide under the Genocide Convention. The complaint makes the following arguments:
1. Israel’s longstanding occupation and blockade of Gaza have enabled the conditions for genocide
2. Israel is currently committing genocide under the Genocide Convention against Palestinians in Gaza through:
a. An escalation of military attacks and announcing a “campaign of erasure and destruction of Palestinians in Gaza”
b. Israeli officials’ statements calling for “collective punishment” of “human animals”
c. Israel using starvation as a weapon
d. Israel maintaining a siege on Gaza that blocks essential necessities and humanitarian services while continuing indiscriminate and wide-scale bombing, the use of chemical weapons, and evacuation orders
e. Deliberately targeting hospitals and disruption of life-saving services, despite warnings of fatalities to vulnerable groups, such as newborns, ICU patients, pregnant people, and others
f. The imposition of a “near-total blackout” to Palestinians in Gaza through disruption of telecommunication and internet services
g. Deliberately targeting densely populated civilian areas and shelters, such as refugee camps, schools, and critical infrastructure
3. The U.S. is complicit in genocide and is violating its duty to prevent genocide under customary international law, which is a part of U.S. federal common law, by:
a. Expressing its unconditional support to Israel
b. Pledging and providing military, financial, and security assistance for Israel’s assaults on Gaza
c. Refusing to call for a ceasefire and vetoing UN resolutions calling for “humanitarian pauses”
d. Rejecting calls to limit Israeli use of U.S. military assistance, admitting to influencing and “guiding” Israeli military strategy, and refusing to monitor U.S. weapon use in the unfolding genocide
The Genocide Convention
The Genocide Convention defines genocide as specific acts “committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group.” Those acts include:
- killing members of the group;
- causing members of the group serious bodily or mental harm;
- destroying their living conditions so as to bring about their destruction;
- preventing them from giving birth; and
- forcibly transferring their children to other groups.
The Genocide Convention has been ratified by 153 countries, including the U.S. and Israel. Genocide is a crime of individual responsibility, but States can be held responsible as well.
The Duty to Prevent Genocide:
Article I of the Genocide Convention creates a legal obligation to prevent genocide. It states:
“The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”
Under customary international law, a primary consideration in determining whether a State has failed to prevent genocide is “the capacity to influence effectively the action of persons likely to commit, or already committing genocide.” Bosn. & Herz. v. Serb. & Montenegro, 2007 I.C.J. at 221, ¶ 430. The complaint notes that additional 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.” (Complaint, para. 269).
Complicity in Genocide
Complicity to commit genocide is a crime under international law as well as U.S. domestic law (18 U.S. Code § 1091). As noted in the Plaintiff’s complaint, to be found guilty of complicity in genocide, there must be “some positive action . . . to furnish aid or assistance to the perpetrators of the genocide, including the provision of means to enable or facilitate the commission of the crime.” (Complaint, para. 271). Notably, the State complicit in genocide “need not share the specific intent to commit genocide, but must act with the knowledge of the perpetrators’ specific intent when it provides aid or support.” (Complaint, para. 271).
The Plaintiffs argue that the U.S. has the means to deter Israel 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.” (Complaint, para 317). They also argue that the U.S. has admitted to guiding Israel’s military strategy and has knowingly provided military assistance, equipment, weapons, and diplomatic support to Israel, without conditions, with full cognizance of Israel’s genocidal intent. (Complaint, para. 332). Therefore, the Plaintiffs make the claim that the U.S. has both failed to prevent genocide and is complicit in Israel’s genocide against Palestinians in Gaza.
The Defendants’ Arguments
The U.S. government argues that the Plaintiffs’ claims:
- Raise a “nonjusticiable political question”; and
- Lack standing because their injuries are caused by an independent third party, Israel.
What is the Political Question Doctrine?
The “nonjusticiable political question doctrine” limits the ability of federal courts to hear constitutional questions when subject matter exists that courts deem “inappropriate for judicial review because discretionary power [over said subject matter] should be left to the politically accountable branches of government.” The political question doctrine can be traced back to Marbury v. Madison, 5 U.S. 137 (1803), which is also the landmark U.S. Supreme Court case that established that the U.S. Constitution vests federal courts with abilities to conduct judicial review. Marbury v. Madison held that “[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Historically, the political question doctrine has been cited by courts when they decline to rule on cases of foreign policy and military action because courts view that these decisions should be made by other branches of government.
As an example, the government’s brief cites Corrie v. Caterpillar, 503 F.3d 974 (9th Cir. 2007), a 2007 case in which Rachel Corrie, a 23-year-old human rights defender (HRD), was run over and killed by a bulldozer in the Gaza Strip while peacefully protesting against Israeli expansion into Palestinian territory. Corrie’s family sued Caterpillar, Inc., the US-based corporation that supplied bulldozers to the Israel Defense Forces (IDF), claiming that Caterpillar, Inc. was liable for “aiding and abetting war crimes and serious human rights violations” by providing these bulldozers to the Israeli military with the knowledge that they would demolish homes and endanger Palestinian lives. The District Court dismissed that case under the political question doctrine, holding that it would “interfere with the foreign policy of the United States of America,” agreeing with Caterpillar’s argument that the case “challenge[d] the actions of a foreign government and implicate[d] United States foreign policy.” On appeal, the Ninth Circuit affirmed the District Court’s ruling, a decision that precluded the ability for Corrie’s family to litigate against a corporation with a history of involvement in human rights violations in Palestine.
In their response to the government, the Plaintiffs in the present case contested the government’s claim that the political question doctrine bars the case, reminding the Court that the doctrine is narrow, citing Baker v. Carr, 369 US 186 (1962), which held that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” The Plaintiffs also noted that the question they pose is solely a legal one:
“[W]hether Defendants are in breach of their clearly-established, unambiguous and non-derogable obligations to prevent, and to not aid and abet, genocide, under customary international law, and as codified in the Genocide Convention and the Genocide Statute, (18 U.S. Code § 1091). Plaintiffs’ claims do not require the Court to second-guess discretionary judgments or policy choices – but rather whether Defendants’ conduct violates the law.”
(Plaintiff’s reply to government’s motion to dismiss, pg. 11)
What is Standing?
The government also argued that the Plaintiffs lack standing to bring the case because their injuries are caused by an independent third party – Israel.
Under Article III of the US Constitution, federal courts only have jurisdiction over actual “cases-or-controversies.”DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006). The Article III “case or controversy” requirement mandates that all plaintiffs must establish standing to sue another party. To achieve standing, a plaintiff must establish:
- “an injury in fact that
- is fairly traceable to the challenged conduct and
- has some likelihood of redressability.”
See Jewel v. Nat’l Sec. Agency, 673 F.3d 902, 908 (9th Cir. 2011), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
The Plaintiffs contest the government’s claims on standing, and argue that the government is wrong both “legally and factually.” They argue that the significant support provided by the U.S. to Israel demonstrates that the injuries the Plaintiffs have suffered are “directly traceable” to the U.S. government’s actions. Plaintiffs also argued that the injuries are redressable, as “a majority of the weapons used by Israel in carrying out the attacks and killings of civilians . . . have come from the United States.” Therefore a Court injunction that orders the U.S. government to halt its arms transfers to Israel “would undoubtedly restrict the Israeli government’s ability to continue its genocidal attacks on Palestinian people in Gaza.”
What’s Next?
The Plaintiffs have requested an expedited appeal in the Ninth Circuit and have filed their appellate briefs. Next, the government will file its response, and the Ninth Circuit will determine if and when the case will proceed to oral arguments. C&SN will continue to monitor the developments in this case and update this page accordingly.