Holding the foreign policy of a country accountable in court, notably when it comes to criminal matters, can be insuperably challenging. Judges traditionally shun making decisions on policy, even though they unofficially do so all the time. The Centre for Constitutional Rights (CCR), a New York-based civil liberties group, was not to be discouraged, though, especially regarding the Biden administration’s unflagging support for Israel and its war against the Palestinians in Gaza.
In a filing in the US District Court for the Northern District of California in November, the CCR, representing a number of Palestinian human rights organisations including Palestinians in Gaza and the United States, sought an order “requiring that the President of the United States, the Secretary of State, and the Secretary of Defence adhere to their duty to prevent, and not further, the unfolding genocide of Palestinian people in Gaza.”
Such a duty, arising in the UN Genocide Convention of 1948, “is judicially enforceable as a peremptory norm of customary international law.”
The complaint alleged that the genocidal conditions in Gaza had “so far been made possible because of unconditional support given [to Israel] by the named official-capacity defendants in this case,” namely, President Joseph Biden, Secretary of State Antony Blinken and Secretary of Defence Lloyd Austin.At the time proceedings were initiated, the Israeli campaign in Gaza, launched in response to the 7 October attacks by Hamas, had already claimed the lives of 11,000 Palestinian civilians, “more than 4,500 of them children, as well as entire families, numerous journalists and UN workers.” The bombardment had crippled critical infrastructure, led to the displacement of 1.6 million persons, and had been “accompanied by a total siege of Gaza, depriving Palestinians in Gaza the conditions of life necessary for human survival: food, water, medicine, fuel and electricity.” (Currently, the number of Palestinians displaced exceeds two million; the number killed is more than 27,000.)
In reaching his decision to dismiss the case on jurisdictional grounds, Jeffrey S. White admitted it was the “most difficult” of his career. He acknowledged South Africa’s action in the International Court of Justice against Israel, which argues that Israel’s conduct against Palestinians in the Gaza Strip satisfies the legal requirements for classification as genocide.
The 26 January interim order of provisional measures granted by the ICJ explicitly put Israel on notice to comply with the Genocide Convention, punish those responsible for directly and publicly inciting genocide, permit basic humanitarian assistance and essential services to the Gaza Strip, preserve relevant evidence pertaining to potential genocidal acts and submit a report to the ICJ on its compliance within a month. In international law, these interim measures are accepted as binding.
The ICJ also showed some scepticism to arguments that Israel had taken adequate measures to minimise harm to Palestinian civilians and respond to instances where an incitement to genocide could be imputed. None of the measures taken till that point had removed the risk of irreparable harm; to merely assert compliance was not sufficient evidence of it.
In White’s words, “The undisputed evidence before this Court comports with the finding of the ICJ and indicates that the current treatment of the Palestinians in the Gaza Strip by the Israeli military may plausibly constitute a genocide in violation of international law.” Lawyers representing the government also chose not to cross-examine witnesses, bar one Holocaust scholar who testified that Israel’s actions in the Gaza Strip could be classed as genocidal. Unfortunately for the plaintiffs, the claims advanced in this case, involving disputes over foreign policy, raised “fundamentally non-justiciable political questions.” To compel the US government to cease military and financial assistance to Israel were matters “intimately related to foreign policy and national security.”
The plaintiffs had encountered that great limitation articulated by Chief Justice Marshall in 1803: that ‘[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” To do so would violate the separation of powers. The judiciary was, according to White, “not equipped with the intelligence or the acumen necessary to make foreign policy decisions on behalf of the government.”
Despite being bound by weighty precedent and rulings in previous cases, White concluded with a plea. The ICJ had found it “plausible that Israel’s conduct amounts to genocide.” The judge implored the “Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.” Not bad for one supposedly lacking intelligence or the acumen necessary to make foreign policy decisions.
While disappointed in White’s ruling, Brad Parker, a senior advisor to one of the organisational plaintiffs, Defence for Children International Palestine, saw the thickest of silver linings. Along with the ICJ decision, “and the increasing recognition that what Israel is carrying out is a genocide and the US is complicit in those genocidal acts, I think the strong language from a US federal court judge increasingly works to isolate Israel’s actions and also bring pressure on the Biden administration to change course.”
To date, however, the slaughter in Gaza continues. Israeli politicians and military officials persist in claiming that murderously innovative approaches to killing Palestinian civilians are not, by definition, genocidal. But the walls of justifiable impunity, so proudly claimed by Israel in its righteous mission of self-defence, are proving increasingly porous.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.