https://twailr.com/global-push-for-u-s-accountability-for-complicity-in-genocide/
The Global Push for U.S. Accountability for Complicity in Genocide
Jeena Shah explores the global efforts to hold President Biden accountable for complicity in genocide. As one of the drafters of the amicus brief supported by scores of international organizations, the author underscores the case’s significance, drawing parallels with South Africa’s actions at the International Court of Justice. The author highlights the transformative potential of these legal actions, challenging the prevailing political climate and advocating for public awareness to end ongoing atrocities.
TWAILR: Reflections #55/2024
In the waning days of 2023, scores of legal and civil society organizations across Africa, Asia, Europe, Australia, and the Americas filed an amicus brief (to which the author contributed in drafting) in support of a lawsuit brought by a group of Palestinian organizations and individuals in or with family members in Gaza against President Biden and the U.S. Secretaries of Defense and State for complicity in genocide and violating the duty to prevent genocide. In their brief, the amici sought to show how these legal claims are both justiciable and vital for the world order and the failure to adjudicate them could have long-lasting and global implications for vulnerable communities everywhere.
It is true that, notwithstanding the law, the political climate in the United States makes this case an uphill battle, or perhaps even a “longshot”, as some scholars have concluded. But the political climate is not immutable. The filings in this lawsuit, together with South Africa’s submission to the International Court of Justice (ICJ) under the Genocide Convention, are incisive and potent legal documents that can help transform the political climate. The two filings pull together in the formal text the daily death, destruction, and displacement that the global public has been watching live, alongside the statements and conduct of Israeli and U.S. officials and real-time assessments by UN human rights mechanisms. Crucially, they do so in a way that breaks through mainstream media’s obfuscation of the “deadliest and most destructive” military campaign in recent history. They further present these facts to be considered and understood under a legal framework that has underpinned the world order for the last 75 years, as a commitment to “never again” in the wake of the Second World War. The considerable power of these filings is visible if we expand our understanding of the enforcement of international law from simply court orders or Security Council resolutions. Law is also enforced through the activation of vast numbers of peoples who organize for its implementation. These filings are capable of shaping the public’s perception and assessment of the atrocities in Gaza, spurring broader pressure on their governments to end them.
The Lawsuit Against Biden
The case against U.S. President Biden was filed in mid-November 2023 by the Center for Constitutional Rights (CCR) in federal court in the Northern District of California. CCR’s lawsuit brings claims under the customary international law norm prohibiting genocide, including its corresponding duties to prevent and not aid and abet genocide. The lawsuit asserts that U.S. federal courts have jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1350 (Alien Tort Statute) over claims arising under customary international law as part of federal common law. CCR’s complaint, and subsequent filings, detail extensive allegations establishing that Israel’s conduct amounts to genocide and the United States’ conduct rendering it liable for complicity in said genocide. At the very least, the allegations in the lawsuit demonstrate how Israel’s conduct carries a serious risk of genocide, which would trigger the United States’ obligation to prevent genocide — a particularly significant obligation given the strength of the United States’ political and military relationship with Israel, as carefully documented in the complaint. The allegations go on to detail how the United States has violated this duty.
Additionally, analogous to South Africa’s request for provisional measures before the ICJ, CCR moved for a preliminary injunction* seeking an order enjoining U.S. government officials “from providing any further military or financial support, aid, or any form of assistance to Israel’s attacks and maintenance of a total siege on Palestinians in Gaza” on the grounds that the allegations show a likelihood of establishing the claims against the United States and an injunction at this stage is necessary to avoid irreparable harm to the plaintiffs.
The U.S. government responded with a motion to dismiss, asserting primarily that the plaintiffs’ claims raise a nonjusticiable political question — an argument that the amici, with their expertise in international law and the ramifications of its violations, sought to address. (The U.S. government also asserted (1) that the plaintiffs lack standing given the allegations of a genocide conducted by a foreign state, even though the plaintiffs clearly seek declaratory and injunctive relief for the United States’ conduct, which has played a determinative role in furthering the genocide; and (2) that “customary international law is not a source of judicially enforceable private rights,” ignoring decades of Alien Tort Statute and § 1331 precedent. In a later reply brief, the U.S. government further asserted that its actions were protected by sovereign immunity, despite the fact that U.S. law’s limitations on suing the federal government for tortious conduct do not extend to claims arising from international law as incorporated into federal common law or claims seeking equitable relief as opposed to damages. But perhaps more fundamentally, violations of peremptory norms like that prohibiting genocide “cannot be considered ‘sovereign’ acts due respect and accorded immunity.”)
On its political question argument specifically, the U.S. government asserted that the plaintiffs seek judicial intervention on “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,” that is, decisions which “are constitutionally committed to the political branches of the Government.” The plaintiffs countered that their claims simply ask the court “to do what the judiciary is obligated to do: apply the facts to clearly-established law, and make a determination as to whether Defendants have violated a legal duty.” As the plaintiffs argue in their reply, the claims do not require the court to review “the exercise of ‘foreign relations’ or ‘diplomatic affairs’” nor determine “whether to provide ‘foreign aid’ to Israel or if such aid is ‘necessary.’” Rather, the claims arise from “violations of a non-discretionary legal duty — the specific, universal and non-derogable legal mandate to prevent, not further, genocide,” which, as a peremptory norm of customary international law, “[t]he executive branch has no more discretion to violate…than it would to violate the [ ] norm against torture.” (The plaintiffs distinguished their case from previously dismissed cases concerning U.S. actors’ relationship with the Israeli occupation on the ground that the plaintiffs here do not ask the court “to review the wisdom of permissible and discretionary ministerial decisions or ‘policy choices’” but instead conduct that may never constitute a legitimate policy choice.)
This political question issue is one that has actually been resolved by federal appellate courts in the plaintiffs’ favor. Indeed, on a question that CCR, and the author of this post, previously litigated in Al Shimari v. CACI Premier Technology, a lawsuit challenging abuses at Abu Ghraib, the Fourth Circuit in 2016 held that claims of torture and war crimes cannot raise a nonjusticiable political question because such conduct is “contrary to settled international law or applicable criminal law” and thus “[t]he commission of unlawful acts is…not a function committed to a coordinate branch of government.” Accordingly, just as claims arising from military judgments that would normally be unreviewable may be judicially assessed if they amount to torture, U.S. conduct in furtherance of genocide cannot be immune from judicial review, even if occurring through diplomatic and military assistance.
Global Network of Movement Lawyers convening in Morocco in 2019. Members of the network joined as amici in the lawsuit against Biden
Role of Amici Representing Movements and Organizations Across the Globe
The amici range from international bar associations, such as the African Bar Association and American Association of Jurists, to national-level legal advocacy organizations, such as Ayuda Legal Puerto Rico, DITSHWANELO the Botswana Centre for Human Rights, the Kashmir Law and Justice Project, and the National Union of Peoples’ Lawyers in the Philippines, and social movements such as Equal Education in South Africa and the Movement for Black Lives in the United States. The collective weight of their experience and stake in the future of international law give their brief global significance and deep credibility.
Reinforcing the justiciability of the plaintiffs’ claims, the amicus brief first lays out the well-established elements of the norm prohibiting genocide. While some legal scholars debate whether Israel’s actions in Gaza are accompanied by the requisite genocidal intent or may only be assessed under the legal frameworks governing states’ use of force and the laws of war, these amici explain that (1) genocidal intent can be demonstrated through a holistic analysis of “the overall context and systematic nature, scale, or repetition of attacks directed against the same group” as well as “the use of ‘dehumanizing narratives and rhetoric’ in officials’ public statements” — all of which the plaintiffs’ allegations demonstrate, and (2) genocide can occur in the context of an armed conflict and regardless of a state’s claim of acting in “self-defense,” however misguided in the context of a belligerent occupation.
The brief next elucidates the judicially manageable standards long used by international courts and tribunals to assess conduct under the duty to prevent genocide and prohibition of complicity in genocide. While legal scholars have discussed how South Africa’s institution of proceedings at the ICJ could implicate all States’ distinct duty to prevent genocide — the existence of which even the United States affirmed in its declaration of intervention in Ukraine’s case against Russia at the ICJ — most have overlooked the allegations here of the United States’ complicity in genocide. Amici lay forth the elements of complicity to show how the plaintiffs’ allegations — including those that specifically “enumerate the United States’ meetings and statements reflecting moral encouragement through ‘their unrestrained support’ of Israel in its assault on Gaza and describe in detail the United States’ ‘unconditional military financial assistance, equipment, and personnel to support and further its assault on Gaza’” — satisfy such a claim against U.S. government officials.
Finally, the amici, many of whom represent marginalized communities across the globe, including those facing racist state action that could amount to precursors of genocide, further warned in their brief of the on-the-ground ramifications should the U.S. judiciary fail to hold executive branch officials to their non-derogable duties under international law. Amici cite as examples the consequences of the United States’ prior contributions to the erosions of peremptory norms of international law, including its 2003 invasion of Iraq, which Russia has pointed to in its justifications for invading Ukraine, and the way the United States’ lawless conduct in the “War on Terror” has influenced the proliferation of harmful counterterrorism measures around the world, used to “silence human rights defenders” and often “‘directed against religious, ethnic and cultural minorities, women, girls and LGBT and gender-diverse persons, indigenous communities, and other historically discriminated against groups in society.’”
Why the Lawsuit Against Biden and ICJ Proceedings Matter
Both this U.S. lawsuit and South Africa’s ICJ case against Israel can help end atrocities by leveraging the intersection of the political and legal conditions of this moment.
Doubts raised by scholars as to the willingness of a U.S. judge to rule in favour of the plaintiffs, in this case, are similar to those raised as to the enforceability of any ruling by the ICJ in South Africa’s favour: they all arise from the lack of existing political will in and of the United States. What is missing from both discussions is the indirectly self-enforcing role of the law. As Professor Noura Erakat has explained:
[L]egal norms can indirectly shape state behavior by providing a discursive framework. A legal framework has the ability to shape how policymakers and states understand a conflict, as well as imagine its proper remedies, thus ordering their diplomatic agendas. International law and norms may also be critical in justifying, organizing, and constraining a policymaker’s decisions even though the law and related norms may not be directing an outcome. International law can be doing a lot of work even as it explicitly fails to exact punishment or command state behavior. It is not merely at the instrumentalist disposal of the most powerful states for furthering their interests, though it certainly does that too.
Noura Erakat, Justice for Some: Law and the Question of Palestine (Stanford University Press, 2019).
Put in the current context, Professors Erakat and John Reynolds recently reflected that any judicial rulings finding genocide can spur all other States, on an individual level, to comply with their duties to prevent and not further the genocide, “further politically isolat[ing] Israel and its primary ally, the United States.”
They go further in observing that the lawsuits themselves can expand “popular recognition” of Israel and the United States’ conduct as criminal, a significant step in “establishing the moral and political foundation for accountability.” As a shaper of commonly held norms, legal frameworks can help the general public better understand situations such as Israel’s conduct in Gaza. Instead of viewing such situations as overly complex and better left to small circles of policymakers, legal frameworks can empower laypersons to assess how their governments ought to respond. Together, South Africa’s submission to the ICJ and CCR’s filings in the lawsuit against President Biden expose how Israel’s conduct in Gaza clearly meets the elements of genocide and how the United States is aiding and abetting genocide. These documents have the power to shape public perceptions and record what we are watching live before our very eyes. Equipped with this understanding, these two lawsuits — also proceeding as entirely viable legal instruments — can ramp up public pressure to end this atrocity.
Professor Erakat teaches us that “[o]n its own, the law can neither undo the conditions that engendered the violation nor recalibrate the balance of power that sustains it; it can be used only as a tool in support of a political strategy that aims for this transformation.” This amicus brief, and the scores of organizations across the globe on behalf of whom it was submitted, seek to carry forth this lesson.
*A hearing on the plaintiffs’ motion for a preliminary injunction and on the U.S. government’s motion to dismiss is scheduled for Friday 26 January 2024 at 9am PST in the district court at 1301 Clay Street in Oakland, California and will be webstreamed to the public. Before the hearing, lawyers, advocates, and organizers will share an analysis of the importance to the Palestinian solidarity movement of this momentous court hearing in a live stream.
