The administration didn’t dispute there’s an ongoing genocide, writes Marjorie Cohn. But the three-judge appeals panel appeared unmoved by the plaintiffs’ contentions the Biden administration is complicit in Israel’s genocide.
U.S. President Joe Biden arriving at the U.S. Military Academy in West Point, New York, to deliver the commencement address on May 25. (White House /Erin Scott)
A lawsuit accusing U.S. President Joe Biden and some of his top officials of complicity in genocide had its latest hearing this month after being dismissed earlier in the year.
On June 10, the Ninth Circuit U.S. Court of Appeals in San Francisco heard arguments in the plaintiffs’ appeal in Defense for Children International – Palestine v. Biden.
The lawsuit was filed on Nov. 13, 2023, by the Center for Constitutional Rights (CCR) on behalf of Palestinian human rights organizations Defense for Children International – Palestine (DCI-P) and Al-Haq, as well as three Palestinian individuals who live in Gaza and five Palestinian Americans who have family in Gaza.
“It is unfathomable that we are still here today,” plaintiff Waeil Elbhassi said at a press conference following the appellate argument.
Although CCR filed this lawsuit in November, “the genocide continues with the same intensity, with the same cruelty,” he noted, adding that many more of his relatives have been murdered in the last six months. “People are trying to flee because they’re fleeing death. They’re literally trapped in a killing field,” he said.
The plaintiffs allege that Biden, U.S. Secretary of State Antony Blinken and U.S. Defense Secretary Lloyd Austin are engaging in complicity in genocide and failure to prevent genocide in violation of the Genocide Convention and customary international law, which is part of federal common law.
“ ‘People are trying to flee because they’re fleeing death. They’re literally trapped in a killing field,’ ” plaintiff Waeil Elbhassi said.
Plaintiffs are asking the court to issue an injunction preventing the Biden administration from sending money and weapons to Israel and from obstructing international efforts to implement a ceasefire in Gaza.
They also want the court to order the Biden administration to exert influence over Israel to end its bombing of Gaza, lift the siege of Gaza and prevent the forcible transfer and expulsion of Palestinians from Gaza. And they seek a declaration from the court that defendants are violating their duty under customary international law that prohibits complicity in genocide and requires them to prevent Israel from committing genocide.
In an earlier hearing on Jan. 26, U.S. District Judge Judge Jeffrey White characterized the testimony he heard from the Palestinian and Palestinian American plaintiffs as “truly horrific, gut wrenching, no words to describe it.” He noted that the government did not dispute the uncontradicted evidence of a “genocide in progress.”
“The Palestinian people are living in fear and without food, medical care, clean water or sufficient humanitarian aid,” White said. “Defendants — the president of the United States and his secretaries of state and defense — have provided substantial military, financial and diplomatic support to Israel.”
Blinken, Biden and Austin at a press event in January 2023. (White House, Cameron Smith)
Nevertheless, on Jan. 31, White reluctantly dismissed the case based on the “political question” doctrine, which reserves foreign policy decisions to the political branches of government (executive and legislative), not the judiciary. That leaves the court with no jurisdiction to check the executive in this case.
At the same time, White wrote, “it is plausible that Israel’s conduct amounts to genocide” and the evidence and testimony “indicate that the ongoing military siege in Gaza is intended to eradicate a whole people.” White exhorted the Biden administration to “examine the results of their unflagging support” of Israel.
Not a ‘Political Question’
In the appeal, CCR argued the court could make a finding that the defendants are engaging in complicity to commit genocide and failure to prevent genocide without making a foreign policy decision.
The defendants have a legal duty to refrain from genocide, so the political question doctrine does not prevent the court from examining the Biden administration’s provision of military, financial and diplomatic assistance to Israel’s genocide.
“Plaintiffs reject Defendants’ suggestion that international embarrassment can come only from questioning conduct of an ally, Israel, and not instead from the U.S.’ open breach of its international law obligations to prevent, and not further, a genocide, an obligation reaffirmed by the [International Court of Justice],” CCR wrote in the appellant’s reply brief.
“Genocide can never be a legitimate foreign policy choice,” CCR Senior Staff Attorney Katherine Gallagher told Circuit Judges Jacqueline Nguyen, Daniel Bress and Consuelo Maria Callahan during the June 10 argument. This case is about whether the judicial branch is “powerless” when the executive branch violates international law, she said.
“ ‘Genocide can never be a legitimate foreign policy choice,’ ” CCR Senior Staff Attorney Katherine Gallagher told the judges.”
The Genocide Convention defines genocide as acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group,” including killing members of the group, inflicting serious bodily or mental harm on members of the group, or deliberately inflicting conditions of life calculated to bring about the group’s physical destruction in whole or in part. The International Court of Justice found a plausible case that Israel was committing genocide.
The Genocide Convention also forbids complicity in genocide and imposes a duty to prevent genocide, which is erga omnes — binding on all countries. Individuals can be complicit in genocide by knowingly providing assistance for its commission even if they don’t share the perpetrator’s specific intent to commit genocide.
South Africa presenting its genocide case against Israel at the International Court of Justice at the Hague on Jan. 12. (ICJ, Wikimedia Commons, CC BY-SA 4.0)
Genocide also violates customary international law and is considered a jus cogens prohibition, which means no country can ever legalize it.
But the three-judge panel appeared unmoved by the plaintiffs’ contentions.
Callahan, a George W. Bush appointee, asked Gallagher whether a federal court would be “second guessing” U.S. ally Israel if it opined in this case. Bress, a Trump appointee, worried that the court would be “running the U.S. military.” Nguyen, an Obama appointee, was concerned that the court would have to “condemn the foreign policy choices of the political branch.”
Gallagher replied that the judicial branch can review executive conduct to ensure it complies with the law. “Here, reviewing executive conduct — whether it is aiding and abetting the specific intent to destroy, in whole or in part — it is the responsibility of the court to review that conduct against clearly established definition of genocide, of complicity in genocide,” she said. “The Supreme Court made clear that even in moments of crisis, the executive is still bound by law.”
She cited four cases in which the Supreme Court set limits on executive actions during the George W. Bush administration’s “war on terror,” including Hamdi v. Rumsfeld, where the court reaffirmed that “a state of war is not a blank check for the president.”
‘Blank Check’ to Slaughter Civilian Population?
Israel forces operating in the eastern neighborhood of Rafah in Gaza, on May 8. (IDF, Wikimedia Commons, CC BY-SA 3.0)
Plaintiff Ahmed Abu Artema participated in the post-hearing press conference by audio from Gaza. In October, the Israeli military targeted his house and killed six members of his family, including his 13-year-old son Abdallah.
“I was so consumed by agony that I could scarcely feel the pain of the second-degree burns covering my own body,” he said. Israeli forces blew up Abu Artema’s apartment in Khan Yunis. “I am now, like everyone else in Gaza, homeless…. I sleep on sidewalks or what used to be sidewalks.”
Baher Azmy, CCR’s legal director, called the plaintiffs “incredibly courageous,” noting that they “collectively have lost hundreds of family members in the ongoing genocide.” Azmy said the U.S. is sending “billions of dollars of weapons of mass slaughter, starvation and destruction” that are “intentionally and knowingly used on a civilian population for the purpose of effectuating the genocidal campaign to destroy the Palestinian people in Gaza.”
The Biden administration didn’t dispute that there’s an ongoing genocide. “After all, how could they?” Azmy asked. “It is open and notorious.” The question is whether the courts will give the government “a blank check to slaughter a civilian population.” Ultimately, he said, “this administration will no doubt be condemned for their cowardice and for their complicity.”
Plaintiff Ayman Nijim noted that since Gaza is among the most densely populated areas in the world — and children make up 52 percent of the population — “you know you will hit children” when Israel drops its bombs. Nijim’s family members were forcibly displaced in 1948 from their home in the northern village of Asdod and have been refugees in Gaza since. They are hosting more than 120 members of their extended family who have fled northern Gaza.
Last week, plaintiff Basim Elkarra lost 10 family members in one attack. More than 90 of his relatives have been killed. Many are still missing, he said.
“Today we heard the Biden administration’s lawyer say, ‘We can commit genocide without any kind of accountability, there’s no check on us, no law, when we decide the policy we want to support is genocidal,’” Gallagher stated. “That’s a terrifying proposition.”
“Last week, plaintiff Basim Elkarra lost 10 family members in one attack. More than 90 of his relatives have been killed. Many are still missing, he said.”
U.S. Circuit Judge Ryan Nelson, a Trump appointee, agreed to recuse himself from this case after the plaintiffs learned he was one of 14 U.S. judges who participated in a March visit to Israel sponsored by the World Jewish Congress.
The delegation, which met with Israeli legal and military officials, “was explicitly designed to influence U.S. judicial opinion regarding the legality of ongoing Israeli military action against Palestinians — a core question on appeal of this case,” plaintiffs wrote in their motion to disqualify Nelson. Callahan replaced Nelson on the three-judge panel.
CCR hopes the Ninth Circuit will issue a decision in the next couple of months. If the panel rules against the plaintiffs, CCR will likely ask the entire appeals court to hear the case en banc, which requires the agreement of a majority of the 30-judge court. If that petition is denied, or if it’s granted and CCR loses after an en banc hearing, they can file a petition for certiorari in the U.S. Supreme Court.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. She is founding dean of the People’s Academy of International Law and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.
This article is from Truthout and reprinted with permission.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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What a travesty!
Selina
June 18, 2024 at 16:46
Pure, unadulterated gutlessness. These emotionally undeveloped and cognitively over refined judicial scaredy cats employ words as a defense against re-cognizing, i.e. naming the reality.
———
We are reading minds of people who express themselves cautiously, so we have to spun conjectures. What kind of fear are we talking about here? It is not like judges can be fired, suffer a paycut, at most, they may have be blocked from further advancement. So the fear factor is not personal, it is the fear of Establishment about the fate of the country if laws are applied without limit. E.g. we must have intelligence agencies allowed to commit a variety of crimes, otherwise the power of USA will be crippled. Similarly, military and police must have considerable leeway to break laws. As we are not in the Establishment, we do not have positive emotional attachment to the “power of the country”, but judges, selected by the Establishment and ipso facto, the members do have it. Hence fear of diminishing it.
In respect, then, to Selina’s moral question as it applies to the judicial, it’s irrelevant. Judge White may have expressed moral sympathy vs. the latest trio of “the gutless,” but he is bound to produce technicalities to excuse inaction due to this power factor (the political question/factor). Meanwhile, a global upheaval in disgust at this dog eat dog mentality is spreading.
The US perpetrators have a special passport to impunity – “the right nose”
I think on the contrary the judges were moved. They were moved by the menace and threats which issue from all US regimes which warn of what they can and will do if they are defied. The only difference between the US government and the mafia is the mafia has a code it generally sticks to and those who break it are dealt with harshly. In the US case not even international law dare touch these thugs.
I think the direct applicability of international law in domestic trials is tricky absent explicit legislation how those treaties should be implemented. But there are domestic laws prohibiting complicity in human right abuses, among which genocide is paramount, in the form of arms supplies (and other support?), and these laws were violated.
But courts bent many times in the past by deferring to “privileges of executive”, a nebulous principle that can be stretched to absurd, and this seems to happen here. While the constitution enacts three branches of power, if the judicial power cannot enforce laws passed by Congress upon executive, the whole purpose of having a government branch enacting laws is nullified.
The US explicitly brought the Genocide Convention into US law through 8 U.S. Code § 1091. I truly wish they would seek a Writ of Mandamus ordering the DOJ, in DC or VA, or MD, to do its job and charge the entire Biden Administration under this law. This can be done where they live, work, or even travel. Any US Attorney can be so ordered, and if not, we need this to be on record.
Special Counsel at the minimum to investigate the charges. What are we waiting for? Note, “an offense under this section, an indictment may be found, or information instituted, at any time without limitation.”
The US explicitly brought the Genocide Convention into US law through 8 U.S. Code § 1091. I truly wish they would seek a Writ of Mandamus ordering the DOJ, in DC or VA, or MD, to do its job and charge the entire Biden Administration under this law. This can be done where they live, work, or even travel. Any US Attorney can be so ordered, and if not, we need this to be on record.
Special Counsel at the minimum to investigate the charges. What are we waiting for? This administration has set the precedent of charging former presidents. Note, “an offense under this section, an indictment may be found, or information instituted, at any time without limitation.”
May they have visions of prison all the days of their lives.
Joe Biden won’t have such an easy time with St. Peter.
So much for “administering justice between parties in courts held for that purpose”–a definition of what it means to be a judge. “Careful consideration” also required. What would these judges have said about Hitler? Gee, yes, he’s pretty bad but we can’t go there, it’s political. Sorry.
Indeed, the doctrine of “political question” can be stretched to “Fuererprinzip”, i.e. the will of the Leader (here, President and his appointees) axiomatically overriding laws.
Send the asteroid. Quick. Humanity is beyond redemption.
I remember when Reagan first got selected as president, someone said in 50 years the US would be the most regressive country on the planet. Here we are!
Pure, unadulterated gutlessness. These emotionally undeveloped and cognitively over refined judicial scaredy cats employ words as a defense against re-cognizing, i.e. naming the reality. After all, what human behavior besides shitting and choosing what freeway to go on is not political? Shooting your neighbor because his dog continues to shit behind the marigolds could be construed as a political act. For crying out loud, isn’t the real judicial discrimination between civil and criminal? Yet again, a lot of civil cases are an escape route when judicial parsing closed the criminal door because corporate behavior excludes CEO deciders from criminal prosecution. “Judgment”. Were it based on wisdom, instead of sneaking around in the world of judicial hedging verbiage and false discriminations, anyone in their “right” mind who see that the guy providing the machine gun and the bullets to the hit man would clearly understand they are witnessing a mass slaughterer using the machine gun and the bullets his supplier knowingly and without hesitation provided him. I wonder among these commentators here – if there is anyone can teach us something about the process of moral development? And someone else can clarify what psycho-emotional, intellectual, character-logical, political, educational and experiential commonalities exist among this class called judges?
On the process of moral development, I would point to TV advertising. Many here may be entirely oblivious to it as I was until recently. Essentially, today’s TV advertising not only teaches there is a product for every human need, but that narcissism is the very definition of the good life. It’s your life! Do whatever you want to emphasize me! me! me! Judges covering their asses, in fear of losing position or reward? Hell, that’s the way it is, of course! Follow the money, follow satiating your every desire! Here’s a favorite example from the specific group emphasizing speed in buying an automobile. An adult gets into a sleek looking sports car driven by an eight year old. Get in, the kid says, we got torque! The adult gets in and says What’s that? Away they go (the standard now is zero to at least 60 in four seconds), as the kid demonstrates. I don’t believe the number of people killed on the highway these days is declining. Moral development? No, it’s all Money + Self development.
Our “Looneyversity” Law schools need to be completely revamped to teach HONOR and wisdom, rather than how to defend the Mob and get away with it. The future needs Universities that turn away or boycott privileged dirty money, and teach how to honor, defend and uphold honest whistleblowers of conscience, and fighters for truths and freedoms, while turning to dust the crooked con men and killers of rights and freedoms. Half of the young graduates of today are either working at Daddy Gotbucks serving caffeine addicts and trying to pay off ovetwheming student debts, or holding jobs they feel are so amoral they are on the verge of suicide anyways.
Biden differs from Trump only in the depth of his cruelty coupled with a knowledge of how to carry it out. For God’s sake, we want this horror to end. Shades of the award winning picture from Vietnam days of the little girl running, afire from napalm. Why must human kind be subjected to such torture, again and again?
“Why must human kind be subjected to such torture, again and again?”
A: Capitalism.
Capitalism is a philosophy that justifies evil. It does so by claiming that morality does not matter, but the only thing that matters is how much money you have. Everything, every act of evil, is justified by the bottom line. If you doubt this, somewhere, at an arms show, someone in business attire is pitching the same bombs and missiles that are at the same time killing human beings in Gaza. And you can find stock analysts who will tell you of the great return on investment you can get from investing in the makers of the bombs and missiles that are killing human beings. Capitalism makes them all do it.
Raquel, any “ism” has it’s faults for sure. But it’s not the money. It is how it is used. The Ogres that use it to multiply death and despair have sold good people on the idea that all that killing and immorality are not their fault, and that money made them do it. It is the nature of that kind of beast. They stand there holding the smoking gun while the blood gushes out, and blame the gun or the gun laws that put it in their hand. It’s true that criminals hate laws, but they for sure can’t and won’t take responsibility for their own crimes. That is why it is so important to have groups like CCR.
What would YOU do if you had a ton of money? At least donate to Consortium News for putting truths out there. Or CCR for their heroism and persistence. And if you’re poor, well….try to get others to send bucks they can manage without, towards such worthy, truly worthy causes. They need it.
Thank God for CCR, authors like Marjorie, and people with integrity that don’t give up. Do the Judges not realize by being “unmoved” they are sentencing not just the Palestinians, but the world to death? They should ask themselves if that is what they really want. If it is, they need to leave their jobs in disgrace.
I am reminded in 1984. O’Brien holds up four fingers and asks Winston Smith, ” How many fingers?”. “Four.”, replies Winston.
“No Winston, it is five! Now let’s start again…”
You’re right.
It’s so obvious to those of us who are paying attention to this horror that indeed Biden, Blinken and Lloyd Austin are complicit in the genocide of the Palestinian people. Will US citizens find one more institution that we lose respect for because they have no courage and no teeth and are obviously there, like our police to protect the privileged.
Judges unmoved? Then judges, like Biden, Blinken and Austin, lack humanity and care nothing for the rule of law. Simple as that.
No balls, and afraid to bell the cat. Or perhaps emasculated by political expedience? There is a special corner in hell reserved for such morally deficient people.
I suggest they were in fact ‘moved’ (threatened) by deep state forces (think 3 letter agencies) – to drop the case, or at least plead lack of jurisdiction, thus avoiding the issue.
So now the US court is explicitly complicit. More and more jail cells will need to be constructed to house these “legal” malefactors.
Sorry to be so skeptical and negative, but the “rule of law” has become something of a cruel joke in the USA. I have no faith in the so-called justice system and no faith in the so-called Supreme Court of the United States given the institutional corruption they routinely display. All three branches of govt. demonstrate deep institutionalized corruption – the constitution is defunct. I think Bush Jr. said it was “just a god-damned piece of paper” during his criminal regime.
We are supposed to “vote” for POTUS this year, yet the only “choices” the Big Money Mass Media Cartel (MiniTrue) shove in our faces is between two senile, amoral, genocidal freaks. Sorry, I don’t believe in fairy-tales, and I don’t believe in the myth of US “justice” or “democracy”. I hope I am proved wrong.
Sorry. You have already been proven correct.
Tell me again, what do we consider the most trusted branch of government?
Carl Sagan aptly noted that governments lie. Imagine that!
I suspect that if you asked the revolutionaries who founded this nation, the answer would always have been “none.”
They believed in weak government, with power dispersed and not concentrated. They designed a weak central government expecting the states to do most of the governing, and they designed a weak President and Executive Branch who’s task was the execute the decisions of the legislature which would be in charge. They didn’t trust nobody. Even with weak government and weak branches of government, they still set up a system of what was supposed to be checks and balances because they still didn’t trust any of it. And even then, the author of the Declaration of Independence recommended a revolution every 20 years.
The people.
The judges express the position that policy should not be subject to legal review. Legal review of actions is the entire basis of law. Have we only rolled back the Magna Carta, or are we also dropping the Code of Hammurabi?
In some way, I suppose, that makes sense: genocide and nuclear annihilation are in some sense the greatest of crimes. The perpetrators want impunity without limit.
Not in “some” sense. In EVERY sense.
Unless that policy is women seeking abortion via pill, then the courts are all over it.
When the policy was that a 17 year old took a gun it was illegal for him to possess and went out into the streets and shot protestors, that WI judge didn’t have any problem with that policy.
Or the list goes on and on in this nation that resembles a police state with judges being right in the middle of that policy.
Judges are very happy to rule on policy, and set policy, especially when they think it will make Senators promote them to a higher court.
All it takes for evil to succeed is for the good to remain silent.
Or in this case, since all judges are members of the two corporate war and genocide parties in America’s strange justice, all it takes for evil to succeed is for their co-conspirators to remain silent in agreement with the genocide.