BY MICHAEL ARRIA  

The week, a federal court in Oakland will begin hearing arguments in a lawsuit accusing the Biden administration of failing to prevent a genocide in Gaza. The case could bring U.S. support for the Israeli assault on Gaza to a halt.

This week, a federal court in Oakland will begin hearing arguments in a lawsuit accusing the Biden administration of failing to prevent a genocide in Gaza.

The claim was filed against President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin by the Center for Constitutional Rights (CCR) in November. The legal effort was taken on behalf of two Palestinian organizations and eight Palestinians living in the United States.

The effort is backed by almost 80 human rights organizations across the globe.

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“For the last five weeks, President Biden and Secretaries Blinken and Austin have stood shoulder-to-shoulder with an Israeli government that has made clear its intention to destroy the Palestinian population in Gaza,” said CCR senior attorney Katherine Gallagher after the suit was filed. “As neighborhood after neighborhood, hospital after hospital, and sheltering displaced Palestinians were bombed, while subject to a total siege and closure that denies 2.2 million people basic necessities for life, they have continued to provide both military and political support for Israel’s unfolding genocidal campaign while imposing no red lines. The United States has a clear and binding obligation to prevent, not further, genocide. So far, they have failed in both their legal, moral duty and considerable power to end this horror. They must do so.”

The suit charges the administration with violations of international law, codified in the 1948 Genocide Convention.

“Immediately after the Hamas attacks and the launch of the Israeli assault on Gaza, President Biden offered ‘unwavering’ support for Israel’s military campaign, which he and administration officials have consistently repeated even as mass civilian casualties escalated, Gaza was sealed and basic necessities for life cut, alongside Israeli genocidal rhetoric,” reads the complaint.

The document goes on to detail Israel’s historical oppression of Palestinians, the brutality of the bombing, and

The lawsuit was filed on behalf of the human rights groups Defense for Children International–Palestine (DCIP) and Al-Haq, two organizations that have documented Israeli human rights violations for years.

Plaintiffs also include Great March of Return founder Ahmed Abu Artema, 24-year-old intern physician Dr. Omar Al-Najjar, and Defense for Children field researcher Mohammed Ahmed Abu Rokbeh. All of these clients currently reside in Gaza, where they have been subjected to Israel’s ongoing assault and siege. Rokbeh is currently living in a tent along with his wife and four children.

Plaintiffs Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Bassim Elkarra, and “A.N.” are Palestinians living in the United States with family members back in Gaza.

At the time of filing, the plaintiffs had already collectively lost over 100 family members as a result of Israel’s bombings.

In December, the Biden administration filed a motion to dismiss the case, claiming that the court was being asked to rule outside of its jurisdiction.

“Even if the political-question doctrine did not preclude judicial review here (which it does), Plaintiffs still cannot overcome another jurisdictional hurdle—their lack of standing,” reads the motion. “Plaintiffs’ alleged injuries are the result of the military and other activities of an independent foreign sovereign, Israel, over which this Court has no authority. There is no order that is within this Court’s jurisdiction to fashion that could provide effective relief to Plaintiffs—namely, preventing Israel from taking the sovereign actions it chooses to take to respond to the October 7th attack. Plaintiffs therefore cannot meet the causation or redressability prongs of the standing requirements.”

In reaction to the government’s response, several of the plaintiffs submitted declarations detailing additional harm and deaths sustained after the original filing. Attorneys also submitted a declaration from Josh Paul, a former State Department official who quit his position over Biden’s Gaza policy.

“The United States provides and transfers to Israel a vast amount of military critical technologies and 

capabilities..the United States is aware that these military critical technologies and capabilities will be used in ways that are contrary to U.S. law and Israel’s own commitments to the U.S. under applicable processes and agreements, and other requirements including international law,” it reads.

“If the court rules in our favor, the judge could order the U.S. government to stop providing military and diplomatic support to Israel while the court considers the case. Given the urgency and the hundreds of Palestinians killed every day, we are hoping that will be the case.” DCIP Advocacy Officer Miranda Cleland

In a recent development, the court granted motions for the Jan 26 hearing to be in person and for clients to be able to present live testimony. Testimony will also be presented by Barry Trachtenberg, a genocide scholar who submitted an expert brief in the case. 

DCIP Advocacy Officer Miranda Cleland told Mondoweiss that the historic hearing could potentially have an immediate impact on the administration.

“If the court rules in our favor, the judge could order the U.S. government to stop providing military and diplomatic support to Israel while the court considers the case. Given the urgency and the hundreds of Palestinians killed every day, we are hoping that will be the case,” she said. “This would send a very strong message not only to the Biden administration itself but also to members of Congress. If the federal court system takes the assertion of genocide seriously, that should put all U.S. government officials on notice that they, too, could be held to account for their role. And if the government actually follows the court order, that further isolates the Netanyahu government.”

Earlier this month South Africa filed a petition to the International Court of Justice (ICJ), calling for Israel to be investigated for war crimes in Gaza.

“Israel has now killed in excess of 21,110 named Palestinians, including over 7,729 children — with over 7,780 others missing, presumed dead under the rubble — and has injured over 55,243 other Palestinians, causing them severe bodily and mental harm. Israel has also laid waste to vast areas of Gaza, including entire neighbourhoods, and has damaged or destroyed in excess of 355,000 Palestinian homes [more than 60% of Gaza’s housing stock], alongside extensive tracts of agricultural land, bakeries, schools, universities, businesses, places of worship, cemeteries, cultural and archaeological sites, municipal and court buildings, and critical infrastructure, including water and sanitation facilities and electricity networks, while pursuing a relentless assault on the Palestinian medical and healthcare system,” reads part of the country’s 84-page application to The Hague. “Israel has reduced and is continuing to reduce Gaza to rubble, killing, harming and destroying its people, and creating conditions of life calculated to bring about their physical destruction as a group.”

The Biden administration has been publicly dismissive regarding the South African effort, with National Security Council spokesperson John Kirby calling it “meritless, counterproductive, and completely without any basis in fact whatsoever.”

However, the ICJ will rule on whether it will grant emergency measures to stop the war in Gaza on the same day that the Oakland hearing begins.

“Perhaps the most monumental part of this case is that Palestinians will be testifying in federal court to the impact of the Biden administration’s complicity in Israel’s genocide of Palestinians,” explained Cleland. “Just a couple weeks after the first ICJ hearings, it is a big deal for courts to take Palestinian rights seriously, and no matter how the judge rules on Friday, this case creates a public record of Biden’s complicity.”