Court's Inaction on U.S. Complicity Could Set Dangerous Precedent for Global Human Rights, Legal Filing Warns

Almost 140 international human rights groups, representing thousands of social justice and movement lawyers globally, have submitted a critical amicus brief in support of the appeal filed by several Palestinian human rights organizations, Palestinians in Gaza, and Palestinian-Americans, Defense for Children International - Palestine et al v. Biden et al. (U.S. Ct. of Appeals, 9th Cir. case no. 24-704). The appeal arises from the district court’s decision to decline ruling on the case because it deemed the matter to be reserved for the political branches of government. The brief argues that it is imperative to address allegations that senior U.S. officials have not only failed to prevent, but have also been complicit in, alleged acts of genocide by Israel in Gaza.

The brief emphasizes the dire need for the federal judiciary to rule in this case as the only forum available to assess the U.S.’s conduct under the Genocide Convention. It further warns that neglecting these claims could set a dangerous precedent for the international world order, leading to an erosion of legal and moral standards internationally. This is the second amicus brief filed by international human-rights organizations in this case; it is particularly relevant in light of the International Court of Justice’s recent ruling in the South Africa vs. Israel case, which suggested that Israel’s actions might plausibly be classified as genocide.

The legal argument

The brief makes four key points in arguing how and why the U.S. must be held accountable for its actions and inactions related to the Israeli invasion and bombing of Gaza:

• The norm against genocide is one of the most fundamental international legal norms: The Genocide Convention codifies the universally binding international legal norm prohibiting genocide. No state can make a policy decision to violate its obligations under the treaty or customary international law. 

• The justiciability of the United States’ duties to prevent, and not be complicit in, genocide: Courts and tribunals have built a robust jurisprudence on the elements of genocide that must be applied by the federal court in this case. 

• Domestic courts are the appropriate place to enforce of the prohibition against genocide: Since the U.S. has hindered international courts from acting on these rules, U.S. federal courts are now the only place where these important rules can be enforced. The brief points to the recent ruling by a Dutch appeals court to block exports of parts of F-35 fighter jets stockpiled in the Netherlands as an example of how domestic courts must step in.

• The United States’ contribution to the erosion of long- and widely-held peremptory norms of international law: If the U.S. doesn’t correct its actions that go against its responsibility to prevent and not contribute to genocide, this negligence could damage international law standards. The U.S.’s actions and inactions could embolden other nations to disregard fundamental international norms, posing dire risks to vulnerable populations worldwide and jeopardizing the U.S.’s own moral and strategic interests.

International movement lawyers on Upholding International Duties and Moral Imperatives

“Seventy-five years ago, the U.S. helped draft the Genocide Convention and the Universal Declaration of Human Rights. It played a significant role in establishing laws that would protect people from the terrible crimes seen in World War II, such as genocide,” says Meena Jagannath, one of the amicus brief’s authors, who is also the director of Global Programs at Movement Law Lab and coordinator of the Global Network of Movement Lawyers. “If the United States does not address its failures to prevent and avoid involvement in what other courts have ruled as plausible genocide, it could undermine international legal norms meant to maintain global peace and security.”

Hossam Bahgat, an Egyptian human-rights activist and Executive Director of the Egyptian Initiative for Personal Rights, expressed concerns over the inability to hold the US accountable: “For months, people in the Arab world and across the Global South have observed the Biden administration's inability to halt the ongoing violence in Gaza. This inaction, coupled with the U.S. supplying Israel with weapons, funds, and diplomatic support has raised serious concerns. Not holding Biden, Blinken, and Austin accountable would undermine international norms and the rule of law.”

Miguel Ruiz Díaz-Reixa, an attorney and human rights researcher, emphasized the importance of global moral responsibility, stating, “Stopping the genocide in Gaza and preventing future genocides is the essence of our moral commitment as human beings. Failure to fulfill this commitment would mean taking steps towards the same abyss that the international community tried to prevent after the Second World War.”

Grave Conditions for the Palestinian People

Amid the escalating conflict in Gaza, international observers and human rights organizations have raised grave concerns over the humanitarian crisis and alleged violations of international law. A comprehensive report by Human Rights Watch underscores the dire situation, noting that the blockade of Gaza has severely limited access to essential goods and services, leading to significant hardships for civilians. The report highlights that Palestinians are facing chronic power outages, lack of access to clean water and basic nutrition, painting a stark picture of a population in crisis.

Conclusion

The filing of this amicus brief in the Ninth Circuit U.S. Court of Appeals signals a significant moment for the global human-rights community, highlighting the necessity for swift measures to alleviate the humanitarian emergency. It underscores an imperative to advance towards a resolution that honors the rights and humanity of the Palestinian people, while cautioning against the broader legal and ethical ramifications of allowing U.S. foreign policy to continue supporting plausible genocide without accountability.

"Federal courts are the only place where U.S. violations of the Genocide Convention can be meaningfully reviewed.  Legality and morality must walk hand-in-hand if we are to safeguard human dignity.”

Jeena Shah, Associate Professor of Law, CUNY School of Law