On January 31, 2024, a Senior Judge of the U.S. Federal District Court issued a stinging rebuke of Biden’s “unflagging support” for Israel’s genocidal assault on Gaza.
In November of last year, the U.S. Centre for Constitutional Rights (CCR) filed a lawsuit in U.S. Federal District Court against Biden, Antony Blinken and Lloyd Austin.
CCR filed the lawsuit on behalf of two Palestinian human rights organizations, Defence for Children International Palestine and Al Haq. Several Palestinians in Gaza joined in their lawsuit.
The plaintiffs alleged violations by the defendants of customary international law and the Genocide Convention of 1948. They requested that the Court issue an injunction against the defendants ordering them to take all measures within their power to prevent Israel’s genocidal acts in Gaza.
Lack of jurisdiction
In response to the lawsuit, the Biden administration argued that the Court lacked jurisdiction to issue the requested order.
Judge White, who was nominated to the federal judiciary by the George W. Bush administration, agreed. He dismissed the lawsuit, citing the “political question doctrine”. Specifically, he concluded that the Court was precluded from intervening because foreign relations decisions of the U.S. government are essentially immune from judicial review and intervention.
CCR has announced that its clients “strongly disgree” with Judge White’s jurisdictional ruling. It remains to be seen whether the plaintiffs will appeal that aspect of his decision.
Israel is plausibly committing genocide
Nonetheless, Judge White left no doubt that he agrees with the January 26 ruling of the International Court of Justice (ICJ) that Israel’s actions in Gaza plausibly amount to genocide. He wrote:
In its recent decision, the [ICJ] found that the “acts and omissions complained of … appear to be capable of falling within the provisions of the Genocide Convention”…
The ICJ further observed that the Genocide Convention “‘was manifestly adopted for a purely humanitarian and civilizing purpose’, since ‘its object on the one hand is to safeguard the very existence of certain human groups and on the other to confirm and endorse the most elementary principles of morality.’” The International Court found that it considered it “plausible [that the] rights in question in these proceedings, namely the right of Palestinians in the Gaza Strip to be protected from acts of genocide and related prohibited acts identified in Article III of the Genocide Convention, … are of such a nature that prejudice to them is capable of causing irreparable harm.”
The ICJ further ruled that “Israel must, in accordance with its obligations under the Genocide Convention, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births.
Similarly, 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. Both the uncontroverted testimony of the Plaintiffs and the expert opinion proffered at the hearing on these motions as well as statements made by various officers of the Israeli government indicate that the ongoing military siege in Gaza is intended to eradicate a whole people and therefore plausibly falls within the international prohibition against genocide.
It is every individual’s obligation to confront the current siege in Gaza, but it also this Court’s obligation to remain within the metes and bounds of its jurisdictional scope.
[Emphasis added; citations omitted.]
Judge White did not stop there. At the conclusion of his decision, he added:
There are rare cases where the preferred outcome is inaccessible to the Court. This is one of those cases. The Court is bound by precedent and the division of our coordinate branches of government to abstain from exercising jurisdiction in this matter. Yet, as the ICJ found, it is plausible that Israel’s conduct amounts to genocide. This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.
[Emphasis added.]
Legal noose tightens around Israel and its Western backers
As I observed after the ICJ rendered its decision on January 26, the Court’s 15-2 vote in favour of South Africa’s request for provisional measures constituted a crushing defeat for Israel. In particular, the fact that all Western judges on the ICJ agreed with the granting of provisional measures demolished any argument that the ICJ’s decision was merely the product of ‘anti-Israel bias’.
Now, a U.S. Federal Court judge has concurred with the ICJ’s ruling that Israel is plausibly committing genocide.
This should be headline news in the West. Predictably, however, the Western corporate media have largely ignored Judge White’s ruling. So too has the Western political elite.
Their silence, however, does not alter the reality that the legal noose is tightening around Israel’s neck. As more and more judges add their voices to the ICJ’s damning conclusions, the pressure for Western governments to abandon Israel may well become irresistible.
Thank you, Dimitri, for your excellent work on behalf of all of us.