People in front of the Peace Palace ahead of a ruling by the International Court of Justice (ICJ) on a request from South Africa for emergency measures for Gaza, in The Hague, Netherlands, 26 January 2024. (Photo: EPA-EFE/Remko de Waal) 
A US federal court has found that Israel is plausibly committing genocide against the Palestinians of Gaza and has urged the US to stop its “unflagging support for the military siege” in Gaza.
However Judge Jeffrey White of the federal court in Oakland California concluded that he could not order the Biden administration to stop its support of Israel’s military campaign in Gaza as that would interfere in the executive’s right to conduct foreign policy.
In its ruling on Wednesday, the court recognised that the prohibitions on genocide are fundamental and binding international law, but White said this was a “rare” instance where “the preferred outcome is inaccessible to the Court”.
He nonetheless rebuked the US government, saying that “as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide” and, therefore, the “Court implores Defendants (the Biden administration) to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.”
White was referring to the 26 January ruling of the International Court of Justice (ICJ) in a case brought by South Africa, that there was plausible evidence of genocide by Israel and provisionally ordering the Israeli government to prevent acts of genocide and to provide the Palestinian people with basic services and humanitarian aid, pending the court’s final determination of whether or not Israel is committing genocide.
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The California case was brought by the NGO Defense for Children International — Palestine which charged the Biden administration with failing in its duty to prevent, and otherwise aiding and abetting, the unfolding genocide in Gaza.
The US court based its assessment on what it called the “uncontroverted” live testimony of seven Palestinian witnesses, including one from Gaza and one from Ramallah, who testified firsthand to Israel’s killing of their nieces, cousins, aunts, uncles, elders, and members of their community, to the mass displacement of their families reminiscent of the 1948 Nakba, and to the devastating conditions of life in their homeland as the siege leads to mass starvation, according to the Center for Constitutional Rights, which supported the application.
It said the court had also relied on the expert opinion of genocide and Holocaust scholars “who confirmed that Israel’s military assault and totalising humanitarian destruction bears the hallmarks of a genocide based on legal and historical precedent,” the Center said.
The court wrote, “Both the uncontroverted testimony of the Plaintiffs and the expert opinion proffered at the hearing on these motions as well as statements made by various officers of the Israeli government indicate that the ongoing military siege in Gaza is intended to eradicate a whole people and therefore plausibly falls within the international prohibition against genocide.”
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The court recognised the substantial role of the United States in furthering the genocide and noted that “as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide” and, therefore, the “Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.”
The court added, “It is every individual’s obligation to confront the current siege in Gaza.”
‘Unflagging US support for Israel’
Katherine Gallagher, Senior Staff Attorney at the Center for Constitutional Rights who argued the genocide case before the court said, “The court affirmed that what the Palestinian population in Gaza is enduring is a campaign to eradicate a whole people — genocide — and that the United States’ unflagging support for Israel is enabling the killing of tens of thousands of Palestinians and the famine facing millions.
“While we strongly disagree with the court’s ultimate jurisdictional ruling, we urge the Biden administration to heed the judge’s call to examine and end its deadly course of action. Together with our plaintiffs, we will pursue all legal avenues to stop the genocide and save Palestinian lives.”
Diala Shamas another senior staff attorney for the Center for Constitutional Rights, said; “To be clear, this is far from a win for the US government. It is unprecedented and damning that a federal court has all but affirmed that Israel is committing a genocide while criticising defendants Biden, [Secretary of State Antony] Blinken, and [Secretary of Defence Lloyd] Austin’s ‘unflagging’ support for the acts that constitute that genocide.”
Plaintiff Waeil Elbhassi told the Center for Constitutional Rights, “My family lived through and was displaced by the first Nakba (catastrophe) in 1948, which the world has barely acknowledged.
“Yet in court on Friday, I testified to make a record of Israel’s horrific slaughter of my family, and the destruction of my homeland and Palestinian heritage, and to demand that the United States stop giving the Israeli government its total financial and diplomatic support for this ongoing genocide, a second Nakba.” DM