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Lower court described Israel’s conduct as a “plausible”case of genocide after extraordinary testimony from Palestinian victims of Israel’s U.S.-supported crimes

July 15, 2024, San Francisco, CA – Today, a three-judge panel of the Ninth Circuit Court of Appeals affirmed the dismissal of a historic lawsuit brought by Palestinians, Palestinian human rights groups, and Palestinian Americans who charged President Biden, Secretary of State Blinken, and Secretary of Defense Austin with failing to prevent and complicity in Israel’s ongoing genocide of Palestinians in Gaza.

The judges affirmed a lower court decision, which dismissed the case in January even as it said that Israel’s conduct “plausibly” constitutes genocide and implored the Biden administration to examine its “unflagging support” for Israel’s siege against the Palestinians in Gaza. The panel agreed with the lower court that there is no role for the courts in reviewing Executive branch conduct that touches on foreign policy under the  the “political question doctrine,” even when that conduct is alleged to breach the domestic and international law prohibition against aiding and abetting the intentional destruction of a people – genocide.

“In a ruling that ignores both the legal framework put in place after World War II to ensure that a people is not targeted for destruction because of their identity and the horrifying facts on the ground in Gaza, the three-judge panel effectively gives the president a blank check whenever foreign policy is invoked, contrary to Supreme Court precedent and binding domestic and international law,” said Center for Constitutional Rights Senior Staff Attorney Katherine Gallagher. “On the heels of Trump v. United States, this  stunning abdication of the court’s role to serve as a check on the Executive even in the face of its support for genocide should set off alarm bells for all.”

Today’s ruling affirms the dismissal of an extraordinary case that featured rare testimony from Palestinian and Palestinian-American victims of Israel’s ongoing genocide against the Palestinian population in Gaza. With unconditional U.S. support, Israel has, since October 8, killed an estimated 38,650 people in Gaza, including at least 14,000 children (with an additional 20,000 Palestinian children in Gaza estimated to be lost, disappeared, detained, buried under the rubble, or in mass graves), injured nearly 90,000 Palestinians,  forcibly displaced two million, and inflicted conditions of life leading the entire population of Gaza to be at the brink of famine, as the genocidal assault – and the flow of U.S. weapons – continues.

“This decision is mind boggling and, frankly, scary. It is just unfathomable, while we count our dead, witness the total obliteration of Gaza – aided by our own government,” said Waeil Elbhassi, a plaintiff in the case. “As the the death toll keeps rising and we see nonstop images of carnage during this live streamed genocide, the court washes its hands of our case. We turned to the law to help stop the horror, and the court chose to do nothing. We are beyond disappointed. We have no choice but to continue to fight for our people. Our very existence is at stake.”

In the oral arguments in June, government lawyers did not dispute that Israel’s assault on Gaza constitutes a genocide. Rather, they invoked the “political question” doctrine, arguing that “foreign policy” decisions – even a decision to enable genocide by providing weapons used to kill tens of thousands of Palestinians – are not subject to judicial review.

The plaintiffs’ lawyers, from the Center for Constitutional Rights and Van Der Hout LLP, countered that the political question doctrine cannot be invoked when policy decisions cross over into violations of the law – a line that courts must enforce under our system of separation of powers. Indeed, the lawyers said, throughout U.S. history, from the founding-era to the post-9/11 “enemy combatant” cases, courts have repeatedly determined whether foreign policy decisions violated domestic and international law, and they must do so in this case. Aiding and abetting genocide can never be a mere policy choice, the lawyers said.

Supported by evidence including confirmations of the continued flow of weapons with no “red lines” by the Biden administration and an affidavit from former State Department official Josh Paul, plaintiffs also pointed out the sheer amount of U.S. support, both historically and since October 7 – including tens of thousands of bombs and precision-guided munitions as well as over a million rounds of small arms ammunition – makes Israel’s capacity to carry out the genocide manifestly dependent on the United States.

“We tried every recourse to save our families and our people from this genocide: petitions, protests, lawsuits – and this administration has ignored us and supported this genocide,” said Basim Elkarra, another plaintiff in the case. “While disappointed in this decision, we will continue to hold Biden and this administration accountable, if not legally, then politically.”

The attorneys will be discussing next steps with their clients.

The lawsuit, filed in November, asked the court to enjoin the Biden administration from providing weapons and other forms of support for Israel’s genocide in Gaza. In January, Federal Judge Jeffery S. White largely endorsed the factual case put forward by the plaintiffs, and his statement that Israel’s assault was a plausible case of genocide echoed the historic ruling by the International Court of Justice (ICJ). The ICJ has since issued two more sets of provisional measures in the South Africa v. Israel genocide case and a ruling in a related case that warns states, like the United States, not to breach their obligations to prevent genocide when supplying Israel with arms. Meanwhile, the International Criminal Court has filed applications for arrest warrants, including against Israel’s Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant for international crimes committed against Palestinians in Gaza since October 8th.

The three-judge panel reached its decision despite the arguments in eight amicus briefs – from legal scholars, former diplomats and servicemembers, human rights groups around the world, experts on the use of starvation as a tool of war, and others – filed in support of the appeal.

The panel consisted of Consuelo M. Callahan, Jacqueline H. Nguyen, and Daniel Aaron Bress. Judge Ryan Nelson was originally slated to be on the panel, but recused following the plaintiffs’ motion to disqualify him due to his participation on a World Jewish Congress delegation that took federal judges to Israel this past March to meet with Israeli government officials, explicitly designed to influence U.S. judges’ opinions regarding the legality of ongoing Israeli military action against Palestinians.

The organizational plaintiffs in the case are Defense for Children International – Palestine and Al-Haq. The individual plaintiffs from Gaza are Dr. Omar Al-Najjar, Ahmed Abu Artema, and Mohammed Ahmed Abu Rokbeh; and Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Basim Elkarra, and Ayman Nijim, U.S. citizens with family in Gaza.

For more information, see the Center for Constitutional Rights’ case page.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at ccrjustice.org. Follow the Center for Constitutional Rights on social media: Center for Constitutional Rights on Facebook, @theCCR on Twitter, and ccrjustice on Instagram.

The San Francisco law firm of Van Der Hout LLP is co-counsel in the case.