Plaintiffs preparing appeal in federal case against Biden administration over complicity in Gaza genocide

Attorneys representing Palestinians who are suing the US administration for its role in Israel's war on Gaza are preparing for another day in court next month as they appeal a judge's decision to dismiss the case.

The case, Defense for Children International-Palestine et al. v. Biden et al., which was argued in federal court in California in January, is a lawsuit filed on behalf of Palestinians who have been personally affected by Israel's war in Gaza. 

"What our clients are requesting, first and foremost, is to end the supply of weapons used in Gaza. Any US weapons being used for Gaza, the court should order an end to the supply," Astha Sharma Pokharel, a staff attorney with the Center for Constitutional Rights, told The New Arab.

Though January's trial resulted in a dismissal, the plaintiffs say they are hopeful for a successful appeal, given the judge's statement after the trial, saying there was cause to believe genocide was taking place, as well multiple domestic laws which they argue should preclude the US from the extent of its support for Israel's war on Gaza.

The court noted that "as the [International Court of Justice] has found, it is plausible that Israel's conduct amounts to genocide", and the "Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza." Days earlier, the ICJ in the Hague had ordered Israel to take action to prevent acts of genocide. 

Though the judge in the US federal court dismissed the case on jurisdictional grounds, he implored the Biden administration to stop its "unflagging support" for Israel's siege of Gaza.

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." 

In their latest brief, filed earlier this month, the plaintiffs emphasised the judge's reluctant dismissal of the case. They then point to the United States' system of checks and balances, stressing that the US Constitution doesn't give the executive branch a "blank check" to carry foreign policy contrary to US law.

"The Supreme Court has long emphasized – in landmark decisions Defendants ignore – that our  Constitution does not give the Executive such a 'blank check' to carry out foreign policy in defiance of law, the plaintiffs write in their brief, filed earlier this month," the briefing reads.

The plaintiffs also noted that the US has ratified the Genocide Convention to prevent and not further genocide, which they write in a press release, "the occurrence of which is manifested through the clear intention in both word and deed of Israeli officials..."

A central point of reasoning for the judge's dismissal of the case is the political question doctrine, which allows for space for the executive branch's discretion. However, this "was never intended to offer blanket immunity for illegal actions," the plaintiffs write in their appeal.

In their brief, the plaintiffs bring up the strong influence the US has on Israel, citing a 1982 New York Times report indicating that Israel agreed to halt its bombing of Lebanon within 30 minutes of then-President Reagan calling on them to stop.

"A declaratory judgment that Defendants are aiding and abetting and failing to prevent genocide, in violation of the law, would likewise cause Defendants to cease their illegal acts to comply with the Court's declaratory order," reads the brief.

Despite the power of the US administration and the dismissal of the case in January, Pokharel of the Center for Constitutional Rights believes the court has the power and the potential to side with the plaintiffs.

She said, "Is the US violating the law? What is the remedy? To stop abetting genocide. The court has the power to do it, and the US has the requirement to do it."