Palestinian American plaintiffs asked a federal judge in California on Friday to force the White House to withdraw U.S. support for Israel pending a cease-fire in Gaza and accused President Biden and other administration officials of abetting a genocide of the Palestinian people.
In more than two hours of testimony before Judge Jeffrey White in U.S. District Court in Oakland, plaintiffs in the unusual lawsuit expressed grief and outrage, choking back tears as they spoke of their loved ones who have been killed in Gaza.
One Palestinian immigrant, who lives in Fairfield, Calif., said seven members of his family had been killed in airstrikes in Gaza, including the children of a cousin “who is like a brother to me.” Another, living in San Ramon, Calif., said his family had lost more than 100 members, and a single Israeli attack had killed his cousin, his cousin’s son, and 14 members of a neighbor’s family.
The testimony came in the second judicial proceeding in a day to frame Israel’s bombardment of the embattled Palestinian enclave as a potentially grave violation of the 1948 Genocide Convention. Hours earlier, the United Nations’ highest judicial body ordered Israel to prevent genocidal acts by its forces, as part of that court’s consideration of formal charges that Israel’s response to Hamas-led terrorist attacks on Oct. 7 was crafted to deny Palestinians the right to exist.
The federal case in Northern California is unlikely to succeed, given legal precedents that limit judicial power over U.S. presidents on foreign policy decisions. But the lawsuit has energized pro-Palestinian activists, who have convinced about a dozen local governments in the Bay Area, Atlanta and other regions of the country to call for a cease-fire in Gaza.
Telling the plaintiffs that he wanted them to know that they “have been seen,” the judge called the testimony “gut wrenching” and the case “probably the most difficult” he had ever dealt with.
A ruling in the federal lawsuit is expected as soon as next week.
In its defense in the International Court of Justice case, Israeli officials categorically denied accusations of genocide, arguing that their military has tried to preserve civilian life and that they have allowed daily deliveries of supplies to Gaza. Israel also said that inflammatory comments about Palestinians were taken out of context or made by individuals without decision-making power. The International Court of Justice is not expected to rule on the genocide charge for years.
In the months since the Oct. 7 attack, which Israeli authorities say killed about 1,200 people and left some 240 others as hostages, Israel has all but razed parts of Gaza in an attempt to crush Hamas, an armed Palestinian group that is also the governing power in the territory. Local health officials in Gaza say that more than 25,000 people have been killed in the onslaught, including thousands of children, and that the vast majority of the territory’s population of 2.2 million have been forced from their homes.
The legal action in California, argued on Friday by lawyers from a progressive nonprofit, was filed on Nov. 13 by two Palestinian humanitarian organizations and eight individual supporters in the United States and Gaza. It accuses President Biden, Secretary of State Antony J. Blinken and Defense Secretary Lloyd J. Austin III, through their “unconditional support” of Israel, of violating federal common law by defying customary international law binding the United States to the Genocide Convention.
The plaintiffs have asked Judge White, an appointee of former President George W. Bush, to order those officials to “take all measures within their power” to stop “Israel’s commission of genocidal acts against the Palestinian people of Gaza.” They also have requested injunctions halting further aid for Israel and preventing the White House “from obstructing attempts by the international community, including the United Nations, to implement a cease-fire.”
“My family is being killed on my dime,” Laila el-Haddad, a Palestinian activist and author living in Clarksville, Md., told the judge on Friday. One of her relatives is living under a nylon tarp in Gaza with her four children and husband, a cancer patient, she said. Another relative held his brother as he bled to death and then buried him in a mass grave. Israeli attacks have killed 88 relatives just on her mother’s side of the family, she said.
Like the proceeding at The Hague on Friday at the International Court of Justice, which has no means of enforcement, the California case appears to be largely symbolic. The U.S. government’s executive branch generally has wide legal latitude over foreign policy decisions.
“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, are constitutionally committed to the political branches of the Government,” the administration’s lawyers wrote in a filing on Dec. 8.
On Friday, Jean Lin, a special litigation counselor for the Justice Department, told the judge, “Your honor simply has no jurisdiction.”
However, a lawyer for the plaintiffs, Katherine Gallagher of the Center for Constitutional Rights in New York, argued that the court had both the legal discretion and the duty to “serve as a check” against a potential genocide under the terms of the Genocide Convention.
The law is on the government’s side, according to legal experts.
“The case law is clear that challenges to foreign policy are non-justiciable political questions,” Erwin Chemerinsky, the dean of the University of California, Berkeley, law school, said in an interview earlier this week.
The government’s lawyers have also pointed out that President Biden has said since the Oct. 7 attack that the United States “unequivocally stands for the protection of civilian life,” and that the “vast majority of Palestinians are not Hamas.”
Basim Elkarra, a plaintiff and the executive director of the Sacramento Valley chapter of the Council on American-Islamic Relations, said in an interview earlier this week that the plaintiffs were doing what they felt was within their power to stop the Israeli military from killing people in Gaza.
A Palestinian American who spent his childhood summers in Gaza and is now a trustee on a Sacramento school board and a Democrat, Mr. Elkarra said his family alone had lost more than 65 relatives in Israeli bombardments.
“We’re putting the administration on notice,” Mr. Elkarra said.
