Holding the foreign policy of a country accountable in court, notably when it comes to matters criminal, can be insuperably challenging.\u00a0 Judges traditionally shun making decisions on policy, even though they unofficially do so all the time.\u00a0 The Center for Constitutional Rights, a New York-based civil liberties group, was not to be discouraged, most notably regarding the Biden administration\u2019s unflagging support for Israel and its war in Gaza.<\/p>\n
In a filing<\/a> in the US District Court for the Northern District of California last November, the CCR, representing a number of Palestinian human rights organisations including Palestinians in Gaza and the United States, sought an order \u201crequiring that the President of the United States, the Secretary of State, and the Secretary of Defense adhere to their duty to prevent, and not further, the unfolding genocide of Palestinian people in Gaza.\u201d\u00a0 Such a duty, arising in the UN Genocide Convention of 1948, \u201cis judicially enforceable as a peremptory norm of customary international law.\u201d<\/p>\n The complaint alleged that the genocidal conditions in Gaza had \u201cso far been made possible because of unconditional support given [to Israel] by the named official-capacity defendants in this case,\u201d namely, President Joseph Biden, Secretary of State Antony Blinken and Secretary of Defense Lloyd Austin.<\/p>\n At the time proceedings were initiated, the Israeli campaign in Gaza, launched in response to the October 7, 2023 attacks by Hamas, had already claimed the lives of 11,000 Palestinian civilians, \u201cmore than 4,500 of them children, as well as entire families, numerous journalists and UN workers.\u201d\u00a0 The bombardment had crippled critical infrastructure, led to the displacement of 1.6 million persons, and had been \u201caccompanied by a total siege of Gaza, depriving Palestinians in Gaza the conditions of life necessary for human survival: food, water, medicine, fuel, and electricity.\u201d\u00a0 (Currently, the displaced number exceeds 2 million; the number of dead towers at 26,000.)<\/p>\n In reaching his decision<\/a> to dismiss the case on jurisdictional grounds, Jeffrey S. White admitted it was the \u201cmost difficult\u201d of his career.\u00a0 He acknowledged South Africa\u2019s action<\/a> in the International Court of Justice against Israel, which argues that Israel\u2019s conduct against Palestinians in the Gaza Strip satisfies the elements of genocide.<\/p>\n The January 26 interim order of provisional measures granted<\/a> by the ICJ explicitly put Israel on notice to comply with the Genocide Convention, punish those responsible for directly and publicly inciting genocide, permit basic humanitarian assistance and essential services to the Gaza Strip, preserve relevant evidence pertaining to potential genocidal acts and submit a report to the ICJ on its compliance within a month.\u00a0 In international law, these interim measures are accepted as binding<\/a>.<\/p>\n The ICJ also showed some scepticism to arguments that Israel had taken adequate measures to minimise harm to Palestinian civilians and respond to instances where an incitement to genocide could be imputed.\u00a0 None of the measures taken till that point had removed the risk of irreparable harm; to merely assert compliance was not sufficient evidence of it.<\/p>\n In White\u2019s words, \u201cthe 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.\u201d\u00a0 Lawyers representing the government also chose not to cross-examine<\/a> witnesses, bar one Holocaust scholar who testified that Israel\u2019s actions in the Gaza Strip could be classed as genocidal.\u00a0 Unfortunately for the plaintiffs, the claims advanced in this case, involving disputes over foreign policy, raised \u201cfundamentally non-justiciable political questions.\u201d\u00a0 To compel the US government to cease military and financial assistance to Israel were matters \u201cintimately related to foreign policy and national security\u201d.<\/p>\n The plaintiffs had encountered that great limitation articulated by Chief Justice Marshall in 1803: that \u2018[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court\u201d.\u00a0 To do so would violate the separation of powers.\u00a0 The judiciary was, according to White, \u201cnot equipped with the intelligence or the acumen necessary to make foreign policy decisions on behalf of the government.\u201d<\/p>\n Despite being bound by weighty precedent and rulings in previous cases, White concludes with a plea.\u00a0 The ICJ had found it \u201cplausible that Israel\u2019s conduct amounts to genocide.\u201d\u00a0 The judge implored the \u201cDefendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.\u201d\u00a0 Not bad for one lacking intelligence or the acumen necessary to make foreign policy decisions.<\/p>\n While disappointed in White\u2019s ruling, Brad Parker, a senior advisor to one of the organisational plaintiffs, Defense for Children International Palestine, saw<\/a> the thickest of silver linings.\u00a0 Along with the ICJ decision, \u201cand the increasing recognition that what Israel is carrying out is a genocide and the US is complicit in those genocidal acts, I think the strong language from a US federal court judge increasingly works to isolate Israel\u2019s actions and also bring pressure on the Biden administration to change course.\u201d<\/p>\n To date, the slaughter in Gaza continues.\u00a0 Israeli politicians and military officials persist in claiming that murderously innovative approaches to killing Palestinian civilians are not, by definition, genocidal.\u00a0 But the walls of justifiable impunity, so proudly claimed by Israel in its righteous mission of self-defence, are proving increasingly porous.<\/p>The post The Dangers of Complicity: The US Courts, Gaza and Genocide<\/a> first appeared on Dissident Voice<\/a>.\n This post was originally published on Dissident Voice<\/a>. <\/p>","protected":false},"excerpt":{"rendered":" Holding the foreign policy of a country accountable in court, notably when it comes to matters criminal, can be insuperably challenging.\u00a0 Judges traditionally shun making decisions on policy, even though they unofficially do so all the time.\u00a0 The Center for Constitutional Rights, a New York-based civil liberties group, was not to be discouraged, most notably [\u2026]<\/p>\n The post The Dangers of Complicity: The US Courts, Gaza and Genocide<\/a> first appeared on Dissident Voice<\/a>.<\/p>\n","protected":false},"author":30,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[56058,287,288,1217,82,73997,116,118,473,36],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1488016"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/30"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=1488016"}],"version-history":[{"count":2,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1488016\/revisions"}],"predecessor-version":[{"id":1488138,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/1488016\/revisions\/1488138"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=1488016"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=1488016"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=1488016"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}