The case against Biden, Blinken and Austin

The work of Doost covers a diverse range of human rights support for subject peoples, including defending Palestine liberation advocates. DANIEL PETER AL-NADDAF, also a Bertha Fellow and a Public International Law specialist in Cape Town, South Africa, interviewed Doost on the case brought against the American President, Secretary of State and Secretary of Defence. The matter was heard in a federal court in Oakland, California.

Please provide a brief overview of the charges brought against the President, Secretary of State and Secretary of Defence.

Palestinian human rights organisations Defense for Children International, Palestine and Al Haq, along with individuals Dr Omar Al-Najjar, Ahmed Abu Artema and Mohammed Ahmed Abu Rokbeh (who are in Gaza) and Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Basim Elkarra and Ayman Nijim (who are US residents with family in Gaza) brought forth this suit against President Biden and members of his Cabinet – Secretary of State Blinken and Secretary of Defense Austin – as official representatives of the US government.

The lawsuit was brought under the United States’ violation of customary international law, which is part of federal common law, for not only Defendants’ violation of their duty to prevent – but also complicity – in genocide. There is a claim of genocide when underlying acts are committed with the intent to destroy – in whole or in part – a group, which can be identified by national, ethical, racial or religious grounds. In other words, two elements must be shown to successfully demonstrate that genocide is or has occurred: intent and underlying acts. For the latter, such underlying acts include killing members of the group, deliberately inflicting on the group conditions of life calculated to bring about physical destruction in whole or in part, and causing serious bodily or mental harm.

The CCR filed its motion for a preliminary injunction on November 16 and the motion refers to Israeli military operations and US support in Gaza since October 7, but it also refers to the much longer history of wide-scale dispossession and violence against Palestinians for more than 76 years. Could you explain CCR’s approach at this time?

For any court, entity, or individual to understand the gravity of Israel’s sustained crimes and violence against Palestinians, not only in this current genocidal moment but leading up to what we have – and are seeing – unfold, it is critical to go back to the time of the Nakba when all but 15% of the Palestinian population was forcefully displaced, when more than 500 Palestinian towns and villages were destroyed, when 750,000 Palestinians were subjected to expulsion, and when 15,000 Palestinians were killed from over a dozen massacres.

And since the Nakba, for over seven decades, Israel’s campaign against Palestinians has continued, with limited to no international condemnation, while Palestinians have been killed en masse, forcefully expelled, arbitrarily detained, and tortured throughout the West Bank and Gaza. And this, all while Israel has enjoyed impunity and cover.

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Specifically in Gaza, Palestinians have been subjected to a land, sea, and air blockade since 2007, as well as brutal Israeli occupation. Israel has for years declared the population of Gaza as “the enemy” and classified the territory as “hostile,” carrying out at least 5 major military assaults against the Palestinians in Gaza before this latest siege, campaign, and assault.

The Plaintiffs in this case have explained, numerous times, that they are no strangers to Israel’s wars and military assaults on Gaza, and so immediately knew this latest assault and siege would be different, including because of, but certainly not limited to, the unparalleled rhetoric, dehumanization, and calls for collective punishment on the entire population of Gaza. As Dr Barry Trachtenberg, a genocide and Holocaust scholar who provided expert testimony during the January 26 hearing has emphasized, it is extremely rare for a government or its officials to be so clear in their intent to commit a genocide, and announcing that intent before and during a genocide.

By October 9th, if not already by October 7th, senior Israeli government officials were publicly announcing their genocidal intent – we saw this with the announcement of a complete siege on Gaza, when the Israeli Defense Minister stated “There will be no electricity, no food, no fuel.” We saw this when an Israeli Defense Forces spokesperson revealed that “hundreds of tons of bombs” were dropped and that “the emphasis [was] on damage and not on accuracy.” Israel’s President criminalized all of Gaza by stating “It is an entire nation out there that is responsible.” All of these statements were made within the first week of Israel’s military assault and campaign in Gaza and have continued, not only daily, but at times, multiple times a day throughout the last nearly four months. And at the time of our complaint, it was already reported that over 11,000 Palestinians were killed, over 27,000 injured, and refugee camps, UN shelters, schools, churches, mosques, ambulances, evacuation convoys, even flour stores, bakeries, fisherman’s boats, and solar units and electricity panels were bombed. But all the while, the United States maintained its unequivocal material, political, and diplomatic assistance and cover to Israel, even furthering and accelerating Israel’s ability and capacity to commit genocidal acts. In fact, a Washington Post article in December revealed that within the first 6 weeks of Israel’s war on Gaza, Israel dropped over 22,000 Washington-supplied bombs on Gaza. And within that same timeframe, the United States, according to the same report, transferred at least 15,000 bombs – including 2,000-lb bunker buster bombs and over 50,000 155mm artillery shells which human rights organizations have warned are inherently indiscriminate.

The Plaintiffs brought this lawsuit as part of widespread efforts to not only end the United States’ complicity in this genocide, but to ultimately end the genocide.

Outside the USA, we tend often to focus on its foreign policy, but many people in the USA who seek justice have expressed how difficult it often is to advocate for or even discuss Palestine domestically. Could you speak about the significance of the case as a platform for Palestinian and allied voices to be heard, especially in that context?

Palestinians have, and continue to be, criminalized and retaliated against for condemning genocide – for condemning Israel’s genocidal acts against the entire population of Gaza. The U.S. government continues to attempt to discredit and undermine UN warnings and most recently, the International Court of Justice’s finding that there is, at the very least, a “plausible” case of genocide. But during the hearing on Friday, seven Palestinian witnesses from Gaza, Ramallah, and the United States testified and in harrowing detail outlined Israel’s targeting and killing of civilians – including their own family members, neighbors, and community members – as well as outlined the horrific conditions in Gaza. The Judge, in his decision which he issued on Wednesday, January 31st, concluded just as the ICJ did that there is a plausible case that Israel is committing genocide and stated that his assessment is based on the “uncontroverted” live testimony of Plaintiffs and the expert opinion of genocide and Holocaust scholars. The Court recognized the United State’s significant role in aiding and abetting this genocide, and not only stated that “It is every individual’s obligation to confront the current siege in Gaza,” but “implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.” This decision is historic and unprecedented, and is disrupting this narrative which Defendants have relied on for far too long to evade legal and moral responsibility.

We know that your case is separate from and was filed before the ICJ case that South Africa brought against Israel, but many of the linkages are quite clear, and it was powerful to see the ICJ order provisional measures on the same day that your preliminary injunction hearing took place. Do you think the ICJ case has any effect on the merits of the case brought by the CCR, especially now that provisional measures have been ordered?

South Africa’s case is critical and historical – the level of detail and documentation in South Africa’s application was horrific and irrefutable. CCR went into the hearing on Friday just hours after the ICJ ordered provisional measures. Our legal team was able to bring to the Court’s attention the ICJ’s findings as persuasive legal authority. Ultimately, the Court independently arrived at the same conclusion as the ICJ. And so the implications of this are significant. Remember, under the Genocide Convention, the very moment a state is aware of, or should be aware of, a serious risk of genocide, that state must use all available measures to prevent the genocide. The United States and more specifically, the Biden Administration, is on notice by the World Court and now a domestic federal court – both of which have concluded that Israel is plausibly committing a genocide. This has serious consequences for state parties, including the United States, who have failed to uphold their obligations under the Genocide Convention, specifically by failing to oblige by their duty to prevent Israel’s genocide against the Palestinian people in Gaza and in the case of the United States, by aiding and abetting Israel in their commission of this genocide.

⁠About a week ago on January 26, the district court in Oakland heard the preliminary injunction motion and motion to dismiss. Could you explain briefly what these are, and what the next steps for the case are?

A preliminary injunction can be seen as parallel or akin to South Africa’s request for provisional measures. In essence, both are requesting that an urgent, emergency decision be issued as the case continues to be considered on the merits.

The government has moved to dismiss the entire case, not on the merits but on technical grounds – specifically, that because the case touches on political questions, the Court lacks jurisdiction to hear this case and so the Court reluctantly dismissed the case, explaining that this is a rare case where “the preferred outcome is inaccessible to the Court,” while concluding, for the first time in history, that a sitting U.S. President is providing “unflagging” support to a government plausibly committing a genocide.

We, alongside our Plaintiffs, are exploring all available legal avenues.