Administration sidesteps ‘genocide’ claim
In a final round of written arguments to a Bay Area federal judge, President Joe Biden and top aides have strikingly avoided saying whether they think Israel is committing genocide, with U.S. support, against Palestinians in Gaza.
Instead, they said the courts should not interfere in disputes over U.S. diplomatic and military policy. They also sought, unsuccessfully, to prevent testimony by Palestinians and their relatives at a hearing next week.
“It is not the Court’s role to sit in judgment of U.S. foreign policy decisions concerning the conflict in Gaza or to assess whether Israel has transgressed limits imposed by international law,” Justice Department lawyers told U.S. District Judge Jeffrey White, who is hearing the suit by Palestinians, U.S. relatives and human rights groups.
They said the suit is not authorized by federal law and would stymie “the Executive Branch’s need for flexibility in calibrating diplomatic measures to accomplish foreign-policy objectives.”
At the Jan. 26 hearing in Oakland, the plaintiffs want to present testimony by Palestinians and Americans whose family members have been killed by Israeli forces, and by a historian in genocide and Holocaust studies. But the Biden administration’s lawyers said such testimony would serve no purpose because the suit “should be dismissed on legal grounds.”
In a one-sentence order late Tuesday, White said he would allow live testimony at the hearing. The government filing followed arguments Thursday and Friday in the United Nations’ International Court of Justice in a separate suit by South Africa accusing Israel of committing genocide in Gaza and seeking court orders to halt its military strikes.
Israel responded that it has acted in self-defense and that the only war crimes were the attacks by the Palestinian group Hamas on Oct. 7, which killed more than 1,200 people, mostly civilians, according to Israel’s government. Israel’s counterattack has killed more than 24,000 Palestinians, most of them women and children, according to Gaza health officials, and has destroyed hospitals and cut off food and water supplies.
A final ruling in that case may take a year or more, but if a court majority finds that South African has presented a credible case, it could issue provisional orders directing Israel to halt illegal conduct. If so, the court is likely to issue those orders before Feb. 5, when the terms of four of the 17 judges hearing the case are scheduled to expire. But the court has no enforcement mechanisms apart from the U.N. Security Council, where the United States has vetoed several resolutions calling for a ceasefire.
An international treaty signed by 153 nations, including the United States and Israel, defines genocide as actions “committed with the intent to destroy in whole or in part a national, ethnical, racial or religious group.”
The Bay Area suit, filed Nov. 13, accuses Biden, Secretary of State Antony Blinken and Defense Secretary Lloyd Austin of complicity in genocide by providing billions of dollars in military assistance to Israel along with political support.
The suit seeks court orders requiring administration officials to “take all measures within their power” to end Israel’s bombing and siege of Gaza and withdraw their opposition to a cease-fire. White, appointed by President George W. Bush in 2002, will face dueling requests at the Jan. 26 hearing: The plaintiffs will seek injunctions requiring immediate government action, while the administration will ask for dismissal of the suit.
While the Biden administration has publicly disputed claims that Israel is violating international law — Blinken, on a recent trip to the Middle East, told reporters South Africa’s suit was “meritless” — it has steered clear of the issue in the federal case and is seeking to have the suit dismissed without any need for the courts to discuss genocide.
Constitutional separation of powers between the executive, legislative and judicial branches prohibits a judge from ordering administration officials “to undertake foreign policy or military measures to prevent or stop a foreign sovereign from engaging in military and other conduct abroad,” Justice Department lawyers said in their court filing.
“U.S. foreign policy and Israeli military conduct are at the heart of this litigation,” the lawyers wrote, and the orders sought in the lawsuit would require the courts “to secondguess discretionary judgments or policy choices of the political branches of the government.”