New Filings in Gaza Genocide Lawsuit: Palestinians Refute Biden Admin Arguments That Court Cannot Review Its Role in Furthering Israel’s Genocide

Declarations included from former Biden State Department official Josh Paul and from plaintiffs 

December 23, 2023, New York – Hours after the U.S. abstained on a United Nations Security Council resolution that it had delayed for days seeking to allow humanitarian aid to Gaza, Palestinian organizations and individuals filed a reply last night to the U.S. government’s response to their
genocide case, Defense for Children International-Palestine v. Biden. The filing supports the Palestinian plaintiffs’ request that the court immediately order the U.S. to stop supporting Israel’s unfolding genocide of Palestinians in Gaza and opposes the government’s efforts to have the case dismissed. 

The Center for Constitutional Rights and co-counsel Van Der Hout LLP submitted detailed, sobering declarations from several of the plaintiffs (linked below) and from Josh Paul, the former high-ranking State Department official who resigned to protest U.S. support for and continued transfer of arms to Israel that would be used to commit human rights abuses and lead to significant civilian casualties in Gaza. The plaintiffs’ declarations describe additional harms and deaths –  including at least 50 members of Al Haq’s Ahmed Abofoul’s extended family – suffered since they filed their complaint in mid-November, underscoring the need for an immediate injunction.  

“The death count is unfathomable to me,” plaintiff A.N. wrote in one of the declarations submitted. “To be no longer in the dozens, nor the hundreds, even the thousands, and now the tens of thousands is something that I don’t have the capacity to process. I really can’t even count the dead, people under the rubble, or picture children dying from starvation.” 

The case, filed on November 13, charged President Biden, Secretary of State Blinken, and Secretary of Defense Austin with failing in their legal responsibility to prevent – and their complicity in – Israel’s unfolding genocide of Palestinians in Gaza. It seeks an emergency court order to halt U.S. military and diplomatic support for Israel’s assault, including by enjoining the transfer of more weapons and support to the Israeli government. In its response, the government does not contest that Israel is committing genocide or that it is complicit in it, but rather focuses on technical jurisdictional issues, arguing that the court cannot review its policy choices and that it is Israel, an “independent actor,” causing plaintiffs’ injuries. 

Last night’s filings refute those arguments and others, explaining that the court has a constitutional duty to enforce defendants’ legal obligations to prevent and not be complicit in genocide, and that it is clear, as both Israel and the U.S. have acknowledged, that Israel’s genocide could not happen without U.S. weapons and diplomatic cover. 

“Israel is killing Palestinian children in Gaza – more than 8,000 so far – and is starving the rest, including our clients’ families, as Biden, Blinken, and Austin rush more weapons and block international efforts to stop them,” said Maria LaHood, Deputy Legal Director of the Center for Constitutional Rights. “While the world watches in horror, feeling powerless, the court has the power, and the duty, to enforce the laws put in place to stop genocide and complicity in it. The rule of law, and our very humanity, depend on it.”  

Josh Paul, the former State Department official, wrote in a declaration, “the United States provides and transfers to Israel a vast amount of military critical technologies and capabilities; that the United States is aware that these military critical technologies and capabilities will be used in ways that are contrary to U.S. law and Israel’s own commitments to the U.S. under applicable processes and agreements, and other requirements including international law; that the U.S. is willing and able to address such violations when they arise, or could arise, with other partners; and, that should the court direct the suspension of such military transfers and assistance to Israel, it would—‘more likely than not,’ to borrow a phrase from the Biden Administration’s own Conventional Arms Transfer Policy—have an impact on the Israeli military operations of concern to the Plaintiffs in this case.”

The filing also detailed information that has come to light since the complaint was filed, including reports on the transfer and use of U.S. weapons. The filing cites reports from early December that the United States had transferred to Israel at least 15,000 bombs, and more than 50,000 155mm artillery shells, which are inherently indiscriminate. Israeli Prime Minister Benyamin Netanyahu also thanked President Biden on December 10th for the urgent shipment of 14,000 tank shells. Israel’s bombing and siege of Gaza has killed over 20,000 Palestinians in 76 days, including more than 8,000 children. 

The plaintiffs in Gaza describe not only the fear and anxiety of the Israeli military assault, but the drastic deterioration of conditions of life for the people of Gaza: Dr. Omar Al-Najjar wrote in his declaration, “We are seeing enormous amounts of children with severe dehydration, febrile convulsions, and infectious diseases, including hepatitis and mumps. There are no oral rehydration salts in the Gaza Strip, which is a fluid and electrolyte therapy especially for dehydrated children with severe diarrhea. I have never seen these levels of malnutrition especially amongst children that I’m seeing now.” 

The complaint was brought by the Palestinian human rights groups Al-Haq and Defense for Children International – Palestine; Palestinians who live in Gaza – Dr. Omar Al-Najjar, Ahmed Abu Artema, and Mohammed Abu Rokbeh; and Palestinians in the U.S. with family members who live in Gaza – Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Bassim Elkarra, and “A.N.” They are seeking an emergency court order to halt U.S. support for Israel’s genocidal assault. 

The original complaint was accompanied by a declaration from William Schabas, the world’s leading legal expert on genocide, and a second declaration from the genocide and Holocaust scholars Dr. John Cox, Dr. Victoria Sanford, Dr. Barry Trachtenberg.

The government’s next filing is due January 12, and the court will hear arguments on January 26, 2024.

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

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

Below are each of the Plaintiffs’ Declarations:

Josh Paul’s expert declaration is here.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at


Last modified 

December 23, 2023