District court judge found “plausible” case of genocide but dismissed lawsuit on jurisdiction grounds 

September 10, 2024, San Francisco – An array of authorities from government to academia to the nonprofit sector is backing Palestinians’ effort to secure court review of their claims that President Biden is enabling genocide in Gaza. Last month, a three-judge panel of the Ninth Circuit affirmed the decision of a lower court, which dismissed the case on jurisdictional grounds even as it said Israel’s assault “plausibly” constituted genocide. In an en banc petition filed last month, the plaintiffs argue that courts have a constitutional duty to assess the legality of the Biden administration's actions.   

The lawsuit, filed in November, claims Biden, Secretary of State Blinken, and Secretary of Defense Austin are violating international and federal law for failing to prevent and being complicit in Israel’s genocide. It asks the court to enjoin the administration from supporting the assault on Gaza with weapons or other means. 

If the Ninth Circuit grants the petition for a rehearing, the case would be heard by an eleven-judge en banc court. A case needs to meet at least one of two requirements for en banc review: it must involve a matter of “exceptional importance” or have resulted in inconsistency with other court rulings. The plaintiffs’  petition, filed on their behalf by the Center for Constitutional Rights and Van Der Hout LLP, argues that their case fulfills both. 

Amicus briefs submitted by a range of advocates and experts from across the country and the world support the petition:

• Constitutional and international law scholars say the panel, like the district court, “badly misinterpreted the political question doctrine” by claiming courts cannot review allegations of international law violations where U.S. “foreign policy decisions are strongly implicated.” This “breathtaking pronouncement” – which would mean that “a plaintiff could never challenge a U.S. policy that employed or abetted torture or genocide overseas” – ignores longstanding Supreme Court precedent.
  
  
• Former diplomats describe how a refusal by the Ninth Circuit to apply the law would seriously erode the United States’ moral authority and influence on the international stage, and would have lasting impacts on the effectiveness of U.S. foreign policy, as well as on international peace and security writ large. 
  
  
• The Center for Civilians in Conflict (CIVIC) shows that the Biden administration has continued to send large quantities of weapons to the Israeli government even as it uses them to kill civilians in violation of international humanitarian law, and despite the high risk that it will use them to commit atrocities. 
  
  
• Civil rights and grassroots organizations that collectively advocate for the rights and interests of the Palestinian people and of Black, Arab, Middle Eastern, Muslim, and South Asian communities detail the harms to Palestinian Americans resulting directly from U.S. complicity in the ongoing genocide in Gaza. The brief highlights the devastating impact on Palestinian Americans and their families in Gaza as well as here in the United States, from mental anguish to material hardship to discrimination. 
  
  
• Human rights organizations, bar associations, and social justice movement lawyers from around the world assert that domestic courts are supposed to be the primary enforcement mechanism of international law and, in the context of the United States, are the only meaningful forums.
  
  
• The Center for Justice and Accountability outlines one of the most fundamental requirements set out by international law: that U.S. courts must provide access to an effective remedy where the United States is implicated in the commission of gross human rights violations such as genocide.  
  
  
• Jewish Voice for Peace and IfNotNow argue that courts must review the complicity of the United States in Israel’s ongoing genocide in Gaza, which not only erases the memory of those Jews and others slaughtered during the Holocaust, but also makes a mockery of the Genocide Convention.
  

The organizational plaintiffs in the case are Defense for Children International – Palestine and Al-Haq. The individual plaintiffs are Dr. Omar Al-Najjar, Ahmed Abu Artema, and Mohammed Ahmed Abu Rokbeh from Gaza; and Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Basim Elkarra, and Ayman Nijim, U.S. citizens with family in Gaza.

For more information, see the Center for Constitutional Rights’ case page.  

The San Francisco law firm of Van Der Hout LLP is co-counsel in the case.