Will a US court order Biden to stop ‘complicity’ in Gaza genocide?

Shawan Jabarin wants to know when it will be enough: When will the death toll in Gaza be high enough for United States President Joe Biden to end his unequivocal military and diplomatic support for Israel?

“How many Palestinian civilians have to be killed until he says, ‘This number is enough’? How many? Two million Palestinians? One million? 700,000? It [would be] good if he can tell us which number wakes up his human conscience.”

Jabarin, the general director of the Palestinian human rights group Al-Haq, said Israel’s war on the Gaza Strip would not be possible without US support.

The Israeli military campaign has killed more than 25,000 Palestinians, and United Nations officials and other experts have repeatedly warned of a risk of genocide.

Yet, since the war began in early October, the Biden administration has bypassed Congress to greenlight arms sales to Israel and blocked efforts to secure a ceasefire.

That’s why Al-Haq, alongside two other advocacy groups and individual Palestinians affected by the war, filed a lawsuit in the US late last year accusing Biden and other senior US leaders of being complicit in genocide.

The first hearing in the case is set for January 26 in a federal court in California.

“Without American support — militarily, politically — nothing like [this could have] happened,” Jabarin told Al Jazeera in a phone interview from Ramallah. “The US are not complicit indirectly. No, directly. They are helping to commission a genocide in Gaza.”

The case

Filed in mid-November, the lawsuit (PDF) accuses the Biden administration of failing to meet its responsibilities under international and domestic law to prevent genocide.

The 1948 Genocide Convention, which the US ratified, states that “genocide, whether committed in time of peace or in time of war, is a crime under international law which [state parties] undertake to prevent and to punish”. It also outlines that “complicity in genocide” is a punishable act.

Additionally, the obligations to prevent and punish genocide have been recognised as being part of “customary international law” — a term that refers to “a general practice accepted as law”.

Drawing from those statutes, the lawsuit alleges “the United States has been obligated, from the time it learned of the specter of a genocide of the Palestinian people, to exercise its clear and considerable influence on Israel to prevent this grave crime from unfolding”.

The complaint names three defendants: Biden, Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin. It claims they “have not only been failing to uphold the country’s obligation to prevent a genocide, but have enabled the conditions for its development”.

The lawsuit also emphasises that US leaders were fully aware of Israel’s “genocidal” objectives. “Dehumanising” remarks by senior Israeli officials, including Defence Minister Yoav Gallant, demonstrated a clear intent to pursue the “erasure and destruction of Palestinians”, it explained.

Gallant, for instance, called Palestinians “human animals” when he ordered the total siege of Gaza in early October. Israeli Prime Minister Benjamin Netanyahu also said, “The enemy will pay an unprecedented price,” before ordering Palestinians to “get out” of Gaza.

“Those statements were not mere rhetoric. Israeli officials said what they meant and [they] do what they say,” said Katherine Gallagher, a senior staff lawyer at the Center for Constitutional Rights (CCR), one of the organisations involved in the case.

“States that have the ability to influence a country that is at serious risk of — if not already — committing genocide have to take all measures within [their] power to prevent [it],” she told Al Jazeera. “And the United States did not do that. Instead, it offered unconditional military support, financial support, and diplomatic cover and support for Israel’s ongoing genocidal campaign.”

Gallagher explained that the plaintiffs are asking a district court to declare that the US has breached its obligations to prevent genocide. They are also requesting a preliminary injunction ordering officials to “take all measures within their power” to fulfil its legal responsibilities.

“That would mean cutting off and ceasing the military support for the genocide,” she said.

Government’s defence

But the Biden administration has asked that the lawsuit be thrown out. In a December filing (PDF), it argued the court is being asked to “intrude into areas committed to the political branches of the government and violate constitutional separation of powers”.

Since foreign policy is decided by the executive branch, not the courts, the lawsuit “should be dismissed as nonjusticiable”, the filing said.

Oona Hathaway, a law professor at Yale University Law School, explained that this argument — known as the political question doctrine — is commonly used in foreign affairs cases, including challenges to the use of US military force abroad.

“I think there is a good chance that a court will decide that this [US complicity in genocide case] is barred by the political question doctrine,” Hathaway told Al Jazeera.

“I will say, I am myself really not a fan of the political question doctrine because I think that it means that legal violations often go unaddressed,” she said. “The truth of the matter is that, if the courts won’t address the possible legal violations, the chance that Congress is likely to do so is extremely slim.”

Hathaway questioned whether the federal court would allow the claim to move to the merits stage, where parties present why their arguments should win. But even if that does not happen, Hathaway said the plaintiffs are likely hoping “to start a conversation” and bring attention to the situation in Gaza.

“I think it’s part of raising the visibility of these concerns and ensuring that lawmakers and the American public are aware that there [are] potential legal obligations on the United States, not just on Israel, that are relevant to this conflict.”

Effort ‘to stop this genocide’

For their part, the plaintiffs have rejected the government’s use of the political question doctrine.

“This is not a case about run-of-the-mill policy decisions by the executive branch,” said Gallagher. “This is a case about compliance with the law, and no one, including the president of the United States, can be empowered to commit or fail to prevent genocide.”

“There are a lot of big legal issues here,” she continued. “Yes, it’s about upholding obligations of international law, but not in the abstract. It’s really in an effort to try and save lives and stop this genocide.”

Jabarin at Al-Haq said he hoped the federal court would rule in their favour, calling the case “unprecedented”.

“This is important, I think, for the American system, the judiciary. And this is important for the victims and for everyone who does believe in the rule of law … and peace and justice and dignity.”