Palestinians sue US administration over alleged complicity in genocide

Palestinians have taken the US administration to Federal Court, alleging complicity in genocide by President Joe Biden, Secretary of State Antony Blinken, and Defence Secretary Lloyd Austin.

The plaintiffs are seeking an injunction for the United States to cease its military and financial support of Israel's attacks on Gaza.

Early on Friday, at a federal courtroom in Oakland, California, hundreds of people, carrying signs, banners and Palestinian flags, gathered in the courtyard of the federal complex to show their support for the plaintiffs while they gave testimony in a courtroom with space available for around 30 attendees.

Presiding Judge Jeffrey White said the case "will be the most difficult judicial decision I've ever made".

The case, Defense for Children International - Palestine v. Biden, was filed on 13 November by the Center for Constitutional Rights along with aid organisations Defense for Children International – Palestine and Al-Haq, representing plaintiffs who had lost family in Gaza.

The complaint alleges that the US administration failed to influence Israel to prevent the genocide of Palestinians.

Katherine Gallagher, an attorney with the Center for Constitutional Rights, said that the case raises two questions - whether US officials have violated international law in failing to prevent genocide when knowing about the serious risk to the population in Gaza, and whether they violated international law with their substantial assistance to Israel's attacks on Gaza.

The plaintiffs invoked the genocide convention, which was unanimously adopted by the United Nations in 1948.

Article 3 forbids genocide, defined as acts "committed with intent to destroy, in whole or in part, the national, ethnic or racial group as such". The treaty also forbids complicity in genocide, which the plaintiffs argue implicates the US in this role.

Moreover, Gallagher noted that Biden, upon taking office, said that "the prevention and punishment of mass atrocities, including genocide, are cases of national interest and a matter of national policy".

The opposing side, representing the US administration, did not go into the same level of detail as the other side, possibly a sign of the security of the executive office in a case that would not be expected to be ruled in favour of the plaintiffs.

Jean Lin, an attorney for the US Department of Justice, argued that US courts don't have jurisdiction over this matter, which falls under the category of foreign policy, something that would be considered a political question.

Such matters, she suggested, could be addressed at the United Nations. This international body, the plaintiffs noted, is where the US has vetoed resolutions related to Palestinian human rights. 

Seeing the limitations of his position in a case that he described as not having a legal precedent to refer to, Judge White, an appointee of former President George W. Bush, described these circumstances to the courtroom.

"At the heart of the political question doctrine is the separation of powers among the three branches of government, a fundamental and guiding concept enshrined in the United States Constitution," he said. 

"I understand what is at stake here, and the importance of the plaintiff's lawsuit. I also understand the limitations placed on my office by the separation of powers and binding legal precedent," he added.

The political question doctrine would be a recurring theme in the arguments made by both sides. And though its interpretation is seen differently, there is little doubt of the power wielded by the executive branch. 

As the Palestinian plaintiffs took the witness stand, answering their attorneys' questions, they gave testimony of their families, memories and their ties to Gaza.  

Speaking by video from a hospital in Rafah was Omar Al-Najjar, a doctor sitting on what appeared to be a hallway floor. As he tried to communicate through background noise, the judge asked him if he could move to a quieter place, which he said wouldn't be possible.

The young doctor described the effects of Gaza's depleted healthcare system. At the hospital where he works, which is operating far beyond capacity, he is seeing cases of infectious diseases, diarrhoea and dehydration. He said his family is on their fourth displacement, calling the situation a heavy burden on his heart. 

"I have nothing left but grief," he said. "This is what Israel and its supporters have done to us."

Ahmed Abofoul, who was born and raised in Gaza and now lives in the Hague, where he works as a legal researcher for Al-Haq, described the current situation in Gaza as "like nothing we've seen before".

He said that growing up he had heard his family's stories of the Nakba, but he said: "I never imagined we'd live it and experience it." 

He told the courtroom that for the first time, he and his organisation were unable to cover Gaza. properly, having to choose between documenting human rights violations and the survival of their staff, leading to the suspension of their core work.

"The Gaza we know no longer exists," he said, as he named buildings and areas where he used to spend time that are now destroyed. Amid the ongoing destruction, he says his family continues to search for relatives under the rubble.

His grandfather, fearing another permanent displacement after what he had experienced in 1948, had to be carried to a new safe location.

Laila el-Haddad, a Palestinian culinary writer living in Maryland, described how she had worked over the years to preserve his family's heritage through her work and had spent extended periods in Gaza. Now, she says: "My family is being killed on my dime."

For the defendants, the most controversial testimony came at the end, from Barry Trachtenberg, a professor of Jewish history and a Holocaust and genocide scholar, who had been called as an expert witness by the plaintiffs. 

"Everything that we feared and more is unfolding," he said, as the defence repeatedly objected to his presence, several of his statements, and the admission of his CV as evidence. 

"What makes this situation so unique is that we’re watching the genocide unfold as we speak. And we’re in this incredibly unique position where we can intervene to stop it using the mechanisms of international law that are available to us," he said.

Friday's hearing in Oakland took place hours after the International Court of Justice in the Hague, in a case brought by South Africa, found that it was possible Israel was committing genocide and ordered it to take measures to improve the humanitarian situation.

During the breaks, those inside the courthouse could see through the glass windows the crowd of supporters growing outside. After the testimonies ended, Judge White assured the witnesses that they had been heard, adding that a decision should be expected soon.

As the plaintiffs' attorneys and witnesses exited the courthouse, they were greeted with a long round of applause. 

"I felt a particular need to do this, as a Jewish lawyer here, who's been fighting on the side of Palestine for five decades now," said Marc Van Der Hout, as he spoke before the cheering crowd. 

He thanked the plaintiffs and witnesses and expressed optimism that the judge would decide in their favour. 

"It was amazingly powerful," he said. "They were able to tell the world what is going on in Gaza in a United States district court."