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Last month, EarthRights filed an amicus brief on behalf of former U.S. diplomats, service members, and intelligence officers arguing that the judicial branch is empowered to hear claims brought by Palestinians, Palestinian human rights organizations, and Palestinian-Americans alleging that the Biden Administration violated its legal obligations concerning genocide through its military support of Israel since October 7, 2023. This brief supports Plaintiffs’ appeal of a lower court decision recognizing that the Israeli military’s actions “plausibly fall[] within the international prohibition against genocide,” but dismissing their claims on the basis that they presented a “non-justiciable political question.”

The question before the Ninth Circuit is, at its core, whether courts can decide legal questions and enforce legal obligations — even in politically fraught contexts. Amici, supported by 220 years of Supreme Court precedent, argue that the answer is yes.

United States Court of Appeals for the Ninth Circuit, located in San Francisco, California. The Ninth Circuit is the largest of the thirteen appeals courts. Photo credits Canva Inc.

The political question doctrine distinguishes between two types of cases: those challenging the wisdom of policy decisions, which are outside judicial authority; and those challenging the legality of policy choices, which are the responsibility of the courts. Plaintiffs’ claims present a purely legal question: has the executive branch violated the law regarding genocide through its failure to prevent and not further the Israeli military’s siege on Gaza?

The prohibition on genocide is one of the most important norms of international law and imposes non-discretionary legal duties on all nations, including the United States, that must be complied with at all times. Determining whether the executive branch has violated these legal duties involves no more than applying clear, well-established law to the facts. In deciding whether Plaintiffs’ claims are justiciable, the Ninth Circuit need not determine whether the Israeli military is engaging in genocide, nor did amici take a position on that question here. That is a factual determination that will ultimately be made at the district court level. In its decision, the district court found that the undisputed evidence in the record “indicate[s] that the ongoing military siege in Gaza is intended to eradicate a whole people and therefore plausibly falls within the international prohibition against genocide.”

The former U.S. diplomats, service members, and intelligence officers who submitted this brief have always understood their actions to be subject to judicial review. Allowing the executive branch to evade judicial scrutiny here would suggest to the world that the United States takes neither the prohibition against genocide nor the rule of law seriously, and would thereby undermine official policy that the United States act to prevent, and indeed take a leadership role in preventing, genocide.

For more information, see the Center for Constitutional Rights’ case page for Defense for Children International – Palestine v. Biden. The organizational plaintiffs in the case are Defense for Children International – Palestine and Al-Haq. The individual plaintiffs are Dr. Omar Al-Najjar, Ahmed Abu Artema, and Mohammed Ahmed Abu Rokbeh in Gaza; and Mohammad Monadel Herzallah, Laila Elhaddad, Waeil Elbhassi, Basim Elkarra, and Ayman Nijim, U.S. citizens with family in Gaza.

This blog is contributed by Shannon Marcoux and Sydney Speizman.