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Israel-Palestine war: Biden seeks to dismiss lawsuit that says he is failing to prevent genocide of Palestinians

Rights group says president's team evading legal culpability for Israel's actions in Gaza while boasting close US-Israel coordination
A man walks past a giant poster of US President Joe Biden in a street of Jerusalem on 20 October 2023.
A poster of US President Joe Biden in a Jerusalem street amid his support for Israel during fighting in Gaza, on 20 October 2023 (AFP)
By Umar A Farooq in Washington

The Biden administration has filed a motion in federal court calling for a lawsuit accusing the president and his team of failing to prevent a genocide of Palestinians in Gaza to be dismissed.

Rights groups and lawyers say that the administration's filing is an attempt to evade legal responsibility and culpability in what many scholars say is an act of genocide being committed by Israel against Palestinians in Gaza.

"The US government's filing is no less disappointing for being predictable," the Center for Constitutional Rights (CCR), which is a party to the suit, said in a statement shared with Middle East Eye.

"Their lawyers focus on jurisdictional issues rather than the substance of the lawsuit."

The Biden administration's filing was submitted on Friday, a day before the 75th anniversary of the signing of the United Nations' Genocide Convention, and stated that the suit should be dismissed because the administration argues that the lawsuit would override the foreign policy decisions of the US government, and therefore would be "in violation of the constitutional separation of powers".

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"Plaintiffs seek to have the Court override the Executive Branch's foreign policy and national security determinations," the administration's filing said.

"But decisions about whether and how to attempt to influence foreign nations, and whether and how to provide them military assistance, financial assistance, or other support, are constitutionally committed to the political branches of the Government."

The filing also states that the court has no jurisdiction given that Israel is a foreign sovereign nation and its actions are made independent of the US.

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"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," the filing says.

Lawyers for the Palestinian plaintiffs argue otherwise. Washington sent military advisers familiar with urban combat to Israel ahead of the country's ground invasion of Gaza in October.

Biden has also rushed increased arms shipment to Israel and has pledged to give the country billions of dollars in military assistance, in addition to the $4bn the US already gives Israel each year.

A vigil is held outside the White House on 8 December 2023 to commemorate the Palestinian lives lost in Israel's military campaign in Gaza.
A vigil is held outside the White House on 29 November 2023 to commemorate the Palestinian lives lost in Israel's military campaign in Gaza (MEE/Umar Farooq)

"Israel could not be conducting this genocidal campaign without the unconditional diplomatic and military support of the United States," CCR said in its statement.

"The United States boasts about its close coordination with Israel, yet in its filing, it attempts to evade responsibility by underscoring Israel's independence."

The rights group told MEE that it is planning to file a response to the government's filing in the coming days.

A 'clear obligation' to prevent genocide

On 13 November, a group of Palestinians living in the US and the occupied Palestinian territories filed the lawsuit against President Joe Biden, Secretary of State Antony Blinken, and Secretary of Defence Lloyd Austin.

The suit, filed in federal court in northern California,  accused the officials of failing to "prevent an unfolding genocide" against the Palestinian people amid Israel's assault on Gaza.

The lawsuit cites the definition of genocide used in Article II of the UN's Genocide Convention, a definition accepted by the US, which states that genocide means acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group".

'If powerful countries are not held to their human rights obligations to prevent genocide, the law is meaningless'

- Center for Constitutional Rights

Given that the Genocide Convention is an international treaty that the US is a signatory to, lawyers for the Palestinian plaintiffs argue that the Biden administration is in violation of the treaty, which states that countries have an obligation to "prevent and to punish the crime of genocide, including by enacting relevant legislation and punishing perpetrators".

The lawyers cite US laws that state that federal courts have jurisdiction over matters dealing with the violations of international law or treaties.

"The United States has a clear and binding obligation to prevent, not further, genocide. They have failed in meeting their legal and moral duty to use their considerable power to end this horror. They must do so," Katherine Gallagher, a senior attorney at CCR and one of the lawyers who brought the case forward, said in a statement at the time the lawsuit was filed.

As the lawsuit continues its way through the US court system, Biden is facing growing discontent from both the American public and within his own administration over his policy approach to Israel's war in Gaza.

War broke out on 7 October when Hamas and other Palestinian armed groups launched an attack from the Gaza Strip on southern Israel that caught the country's military off guard, killing 1,200 Israelis and other nationals, according to the Israeli government death toll. At least 240 people were also taken hostage. While some have been released, more than 100 are still being held in Gaza.

Israel responded to the attack by declaring war on Hamas and launched an aerial bombardment followed by a ground invasion of Gaza that has so far killed more than 17,700 Palestinians, the majority of them being women and children, according to the Palestinian health ministry.

In addition to the mounting death toll, Israel's military campaign has also displaced 1.8 million Palestinians, targeted civilian infrastructure including mosques and hospitals, and has led hundreds of scholars to warn that Israel may be committing genocide against Palestinians.

When the lawsuit was filed, the death toll in Gaza was at 11,000 Palestinians. A conservative estimate of the death toll published by Haaretz found that in the first few weeks of the war, 61 percent of the Palestinians Israel killed were noncombatants.

Israel-Palestine war: Palestinians sue Biden for failing to prevent 'unfolding genocide' in Gaza
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The US responded to the war by throwing its full diplomatic weight behind Israel, and at the same time has rushed military aid to the country and sent military reinforcements to the region in an attempt to deter regional escalation.

A seven-day truce was established between Israel and Hamas in late November, which saw Israeli captives released in exchange for the release of Palestinian prisoners held in Israeli jails.

The Biden administration has said that it is advising Israel to minimise civilian casualties after it resumed its campaign in Gaza. However, as the death toll of Palestinians continues to rapidly rise, the US is also fast-tracking weapons shipments to the country.

On Saturday, the Pentagon said it was using an emergency authority to bypass congressional review of a shipment of 14,000 tank shells, worth more than $100m, to Israel.

And on Friday, the US was the sole country to veto a UN Security Council resolution calling for a ceasefire in Gaza, a demand supported by the majority of the council as well as dozens of other nations.

"US government leaders have the power and therefore the legal responsibility to stop the genocide. The court has the authority to force them to do so," the CCR's statement said.

"If powerful countries are not held to their human rights obligations to prevent genocide, the law is meaningless."

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