In late December, 77 groups — representing tens of thousands of lawyers, civil society leaders, and activists from six continents — filed an amicus briefOpens in a new tab in a lawsuit that Palestinian human rights organizations, residents of Gaza, and U.S. citizens with family members impacted by Israel’s ongoing assault brought against the Biden administration.
In the amicus brief, which is an avenue for groups not directly involved in a lawsuit to give the court information to consider in its ruling, the organizations argue that the plaintiffs establish that a genocide, or serious risk of genocide, of Palestinians in Gaza is occurring. They also argue that the U.S. is violating its duties under international law to prevent and not be complicit in genocide, and that those U.S. failures contribute to the erosion of “long and widely-held norms of international law,” including the Genocide Convention and Universal Declaration of Human Rights, both established in 1948 in the wake of World War II.
The lawsuit is headed for a hearing in the U.S. District Court for the Northern District of California later this month. Meanwhile, in an 84-page complaintOpens in a new tab brought by South Africa, Israel faces charges of genocide at the International Court of Justice at The Hague. The court will begin to hear arguments in that case on Thursday and could issue provisional measures. That could include directing Israel to suspend its military operations in Gaza, stop any procedures that are forcibly displacing or starving Palestinians in Gaza, or preserve evidence related to the allegations.
The lawyers overseeing the U.S. lawsuit believe that the decisions rendered by the ICJ could indirectly impact their case as well.
“While the District Court is obviously not bound by the ICJ, it will have to, and the government will have to, contend with the fact that the highest authority, the world court, has issued an order in which it has found that the case of genocide — there’s a plausible case,” said Astha Sharma Pokharel, staff attorney at the Center for Constitutional Rights, an organization representing the plaintiffs against the U.S. “It will have implications for the United States around both its failure to prevent this genocide and for its complicity.”
Opens in a new tab that the plaintiffs are asking the court to act beyond its purview to “override the executive branch’s foreign policy and national security determinations.” The administration also argued that the plaintiffs don’t have standing to bring the lawsuit because the court has no authority over the activities of another sovereign state.
Top administration officials have been dismissive of the case before the ICJ as well, with White House National Security Council spokesperson John Kirby callingOpens in a new tab it “meritless, counterproductive, and completely without any basis in fact whatsoever,” and Blinken deridingOpens in a new tab it on similar terms. On Wednesday, Kirby doubled downOpens in a new tab in his assessment.
FILED IN NOVEMBER as the horrifying statistic arose that Israel had killed one out of every 200 peopleOpens in a new tab in Gaza, the lawsuit against the U.S. argues that Biden administration officials “repeatedly refused to use their obvious and considerable influence to set conditions or place limits on Israel’s massive bombing and total siege of Gaza.” The plaintiffs — including the Palestinian human rights organizations Defense for Children International – Palestine and Al-Haq, Gaza residents, and U.S. citizens with family members who have been killed and displaced by Israel’s war — cite U.S. vetoes of United Nations resolutions calling for a ceasefire and its actions to “fund, arm, and endorse Israel’s mass and devastating bombing campaign and total siege of the Palestinians in Gaza.”
At the time, the death toll in Gaza was around 11,000. It has now exceeded 23,000. It is believed that one in four people in Gaza are starving, and 90 percent are dangerously food insecure, while most health facilities are no longer functional.
In late December, the Biden administration delayed a U.N. Security Council vote for humanitarian aid to Gaza for days while working to water it down. The administration negotiated the removal of the word “cessation” in a call to end fighting, as well as a provision that would have allowed an independent inspection of aid going into Gaza, rather than the Israel-administered checks that have slowed aid shipments to a crawl. The changes were made to avoid another American veto — only for the U.S. to abstain from voting.
BOTH THE LAWSUIT against the Biden administration and South Africa’s case against Israel lay out in extreme detail expressions of genocidal intent by Israeli officials. On October 9, just two days after Hamas’s attack on Israel, Defense Minister Yoav Gallant ordered a complete siege of Gaza, which is home to more than 2 million people. “I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel, everything is closed,” Gallant said at the time. “We are fighting human animals and we are acting accordingly.”
In late October, Prime Minister Benjamin Netanyahu invoked a biblical verse about an enemy of ancient Israel that has long been citedOpens in a new tab to justify killing Palestinians. “You must remember what Amalek has done to you, says our holy Bible,” he saidOpens in a new tab. “And we do remember, and we are fighting.” (South Africa’s ICJ complaint points out that weeks later, Israeli soldiers were recorded in Gaza dancing and chanting, “May their village burn, may Gaza be erased,” and “We know our motto: there are no uninvolved civilians,” and “to wipe off the seed of Amalek.”)
According to Law for Palestine, a human rights and legal advocacy organization, there have been at least 500 instancesOpens in a new tab of Israeli lawmakers, officials, and officers inciting genocide.
Sourani said that the statements by Israeli officials, along with the actual blockade, the indiscriminate attacks on civilians and civilian buildings, the basic lack of safe space, and the mass displacement of millions of Palestinians makes it clear: “All of this is tantamount to genocide.”
The plaintiffs respondedOpens in a new tab to the administration’s motion to dismiss on December 22, arguing that there is precedent for U.S. courts to adjudicate questions surrounding genocide and that their legal challenge is about more than the actions of a foreign state. Rather, the plaintiffs argued, their injuries are “fairly traceable” to the actions of the U.S. government. “The suggestion that the U.S. does not or cannot influence Israel borders on the absurd, not least because the Israeli government acknowledges its actions could not happen without U.S. license and support, and Defendants have boasted about their coordination with and influence over Israel,” the plaintiffs wrote.
The Biden administration has until Friday to issue a response. The Oakland, California-based federal court is set to hear arguments on the plaintiffs’ motion for a preliminary injunction, and on the Biden administration’s motion to dismiss, on January 26. (The Biden administration is facing another federal lawsuitOpens in a new tab that accuses it of failing to protect Palestinian Americans stuck in Gaza, drawing a contrast to its efforts to help Israeli dual nationals.)
In the lead-up to the ICJ trial, U.S. officials saidOpens in a new tab that their Israeli counterparts told them they will be shifting away from a wide-scale assault on Gaza to a more “targeted” approach. On Tuesday, the Israel Defense Forces posted a videoOpens in a new tab expressing its concern for the “suffering of civilians in Gaza,” arguing they are “ready and willing to facilitate as much humanitarian aid as the world will give.” Despite such claims, Israel has continuedOpens in a new tab to drop bombs on civilians, reportedly targeting ambulancesOpens in a new tab, hospitalsOpens in a new tab, and Doctors Without Borders sheltersOpens in a new tab with little abandon. As of Wednesday, Israeli forces had killed at least 147 people in the past 24 hours.
Correction: January 10, 2024, 4:45 p.m. ET
A previous version of this article incorrectly stated that Prime Minister Benjamin Netanyahu invoked Amalek in November; in fact, he made those comments in late October.