US Court Affirms Plausible Charge of Genocide by Israel in Gaza
The judge dismissed a suit against Biden on technical grounds, but affirmed the recent ICJ decision in strong terms
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No doubt, supporters of the Biden administration’s support for Israel’s genocide in Gaza are busily spinning a victory narrative about a federal ruling yesterday on a lawsuit brought against the administration by the Center for Constitutional Rights alleging the administration is complicit in genocide in Gaza.
CCR brought the suit on behalf of Defense for Children international – Palestine and al-Haq as well as eight Palestinians and Palestinian Americans who have lost multiple family members and endured other major losses in Gaza. You can find their stories here. A federal court ruled that it did not have jurisdiction to decide the case, as it was political in nature. For what it’s worth, I’m no lawyer, but I have had some experience of these kinds of cases over the years, and I think that decision was probably correct. Indeed, as I am about to argue, it was actually the most beneficial one for Palestine advocacy.
The court ruled that deciding on this case meant passing judgment on American foreign policy and, as written in the decision, “Because 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.”
That’s correct, according to the principle of the separation of powers and the fundamental constitutional structure of the federal government. Undoubtedly, this is disappointing for anyone who held even a glimmer of hope that a U.S. court might rule in favor of CCR’s suit. It may well be that I can take a more positive approach here because I never for a moment thought there was any chance of an actual court victory, and my support for the suit was always rooted in the benefits just bringing it held. In those terms, this decision far exceeded my expectations.
The court wrote in its decision that “[T]he 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.”
Stop for a minute and read that again. This is a federal judge, and he didn’t just cite the International Court of Justice’s ruling that there was a plausible case that Israel was committing genocide in Gaza. He went further than that and affirmed that there was a plausible case, even using language that implied that he thought the case was quite convincing. That is a huge step forward, and we need to make this the lead, not a ruling based on a technical jurisdictional issue. A federal judge went as far as he could possibly go in affirming that the United States was abetting Israeli genocide in Gaza.
Indeed, the judge went even further in his conclusion. “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.”
The judge says that he wishes that the law allowed him to grant CCR’s and the other plaintiffs’ motion. He clearly expresses that they have the right of it, but that he is legally powerless to act on their request. That is a monumental statement. He even goes so far as to tell Joe Biden and the rest of his criminal administration to reconsider their murderous policy. This must not be minimized.
This is not a loss. The judge, Jeffrey White, actually engineered a scenario that is more of a win, in my view, than if he had decided in favor of CCR.
Had he done that, the administration would immediately have appealed and quite certainly would have gotten a temporary injunction preventing the implementation of the decision until that appeal is resolved. On appeal, it’s overwhelmingly likely that the decision would have been overturned as the judicial overreach it would have been.
But it is almost as likely that a higher court would also have affirmed the Biden administration’s position that the ICJ case is “without merit,” and likely would have defended Israel and U.S. policy here as well. That would have blunted White’s decision almost completely.
This way, White’s decision is the last word, and it stands as an affirmation of the ICJ decision. More than that, it stands as a rebuke from the United States’ own legal system to Biden’s support of Israel’s genocide in Gaza.
This needs to be shouted from every rooftop in the United States. This was not a defeat, this was an enormous victory for Gaza, for Palestine, and, yes, for justice and even for the better parts of the U.S. We are all indebted to CCR for bringing this suit, and for the seven brave individuals—Ahmed Abu Artema, Dr. Omar Al-Najjar, Mohammed Ahmed Abu Rokbeh, Laila Elhaddad, Waeil Elbhassi, Mohammad Herzallah, Basim Elkarra, and another anonymous plaintiff—as well as DCI-Palestine and Al-Haq for bringing this suit.
And yes, we owe gratitude to Jeffrey White for standing up and telling the truth, speaking for justice. I know many are disappointed that he didn’t rule differently. I get that. But in my view he did everything he could within the bounds of the law, and, in fact, ended up taking what would be the most politically advantageous path for Palestine advocacy and support.
This was a major victory, and we need to treat it as such.
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That is an insightful piece. Over here in the UK I was unaware of this suit at all and the outcome is, as you describe it, a victory for the pro-Palestine cause. I shall pass this around and let's hope it's the beginning of something.