The Stakes of the Lawsuit Alleging Biden is Complicit in Palestinian Genocide

A federal court case filed against President Joe Biden and two U.S. cabinet officials for allegedly being complicit in Israel’s genocide against Gazans will move forward with a hearing on Friday.

The case, which names Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin as defendants, was filed by Palestinian human rights groups and individuals with help from the nonprofit Center for Constitutional Rights. Defense for Children International–Palestine v. Biden seeks to stop the U.S. from supporting Israel, which plaintiffs say has cost them the lives of family members, and will be heard in Oakland, Calif.  

“We have lost so many people, but there are still many more who are living, and we owe it to them to do everything possible to stop this genocide,” said Mohammad Herzallah, a plaintiff in the case who has family in Gaza. “I have done everything in my power: I have participated in protests, sit-ins, wrote letters to my representatives, civil disobedience. Now I am asking the courts to end this ongoing genocide.”

Read More: For Antony Blinken, the War in Gaza Is a Test of U.S. Power

More than 25,000 people in Gaza have died since the beginning of the war on Oct. 7, according to the Hamas-run Health Ministry. The military offensive campaign in Gaza began after Hamas killed 1,200 Israelis and kidnapped another 240. 

Throughout the conflict, the U.S. has supported their Middle-Eastern ally, vetoing United Nations resolutions calling for an immediate ceasefire, affirming support for Israel and its right to self-defense, and providing financial and military aid to the country since last fall. 

The Biden Administration is seeking to dismiss the case. “This suit raises quintessential political questions because Plaintiffs seek to have this Court superintend the Executive Branch’s foreign policy and national security judgment and compel the government to prevent Israel from purportedly committing genocide in Gaza,” the defendants said in their motion to dismiss.

The lawsuit is unusual, experts say. “In the past, when such complaints have been filed with an American court, usually the courts tended to throw them out… because of issues of national security,” says George Washington University professor Michael Barnett. “That said, the fact that you have complaints filed in an American court brings attention to the very support that the U.S. continues to give to Israel.”

‘What really matters is that you make noise’

On Nov. 13, Palestinians filed a lawsuit against Biden, Blinken, and Austin to prevent them from providing more “arms, money, and diplomatic support” because they allege Israel is committing genocide “against the civilian population of Gaza.” 

The U.S. government previously filed a motion to dismiss, saying that plaintiffs lacked jurisdiction, the complaint presents a “nonjusticiable political question,” and that the Genocide Convention does not “create a private right of action.” 

But the case is still moving forward to a public hearing on Jan. 26, after which plaintiffs hope the court issues a preliminary injunction that will force the U.S. to “take all measures within their power to prevent Israel from committing genocide,” the complaint says. 

Plaintiffs include Omar Al-Najjar, Ahmed Abu Artema, and Mohammed Ahmed Abu Rokbeh—all currently in Gaza; Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Basim Elkarra, and “A.N.”—all U.S. citizens with family members in Gaza; and human rights groups Defense for Children International–Palestine and Al-Haq. Seventy-seven international human rights organizations, bar associations and lawyers filed an amicus brief in favor of the plaintiffs.

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Plaintiffs have spoken out about the emotional toll the Israel-Hamas war has taken on them and their families. “To be honest, it’s difficult to revisit all the scenes of the past weeks. They open a door to hell when I recall them,” said plaintiff Al-Najjar, a 24-year-old intern physician at Nasser Medical Complex in Khan Younis. “I’ve lost five relatives, treated too many children who are the sole survivors of their families, received the bodies of my fellow medical students and their families, and seen the hospital turn into a shelter for tens of thousands of people as we all run out of fuel, electricity, food, and water. The U.S. has to stop this genocide. Everyone in the world has to stop this.” (Khan Younis, which houses thousands of displaced citizens and health workers, has recently been under attack after Israel Defense Forces increased their military operations in southern Gaza.) 

The legal grounding for the case is based in part on the 1948 Genocide Convention, which the U.S. signed along with 152 other countries. Every signatory to that treaty is obligated to not commit genocide, as well as punish and prevent genocide. Barry Trachtenberg, one of three genocide scholars who submitted a declaration in favor plaintiffs’ motion, will speak at Friday’s hearing. 

U.S. officials have previously denounced genocide allegations against Israel, with John Kirby, the strategic communications coordinator for the National Security Council, calling them “unfounded.”

“That’s not a word that ought to be thrown around lightly. And we certainly don’t believe that it applies here,” Kirby said during a Jan. 11 press briefing.  

As part of its defense, the Biden Administration says Israel is a sovereign nation that controls its own operations. It claims the plaintiffs have not done enough to show that “their alleged injuries” can be traced specifically to U.S. support of Israel. Defendants also note that the U.S. has provided aid “while complying with international humanitarian law.” One example their filing points to includes the Administration’s work to “mitigate the humanitarian crisis” in Gaza, as U.S. officials helped facilitate a seven-day pause in fighting. The Administration also cites the political question doctrine, which limits federal courts ability to answer some questions that are best resolved by the political branches of government.

Even if the court does decide to throw out the case, it could have political effects rather than legal ones. “What really matters is that you make noise, raise the attention and volume,” Barnett says. “You get the ability to stand in court, and register your overall concerns and make your case.”

Public opinion on U.S. involvement in the war has been controversial. Only 35% of adults approve of the Biden Administration’s response to the Israel-Hamas war, according to a Pew Research Center survey published in December. 

“The fact that the U.S. is being charged with actual complicity in these crimes against its longtime ally and friend, Israel, is extraordinary,” Barnett adds. “I think it's worth pausing and taking in this moment because you’re beginning to see American politicians and people in the executive wing begin to reconsider that relationship.”