Every evening, from his home in California, Basim Elkarra calls his family in southern Gaza to see who survived Israel’s bombardment that night. Since the relentless siege of Gaza began in October, he has lost more than 60 family members.
“The count goes up everyday,” he says. “There’s still folks under rubble. There’s a lot of folks we can’t get a hold of.”
The devastation has left him with a sense of survivor’s guilt — and complicity in the massacre of his own family.
“[We’re] living here in the United States, with a wealth of safety and freedoms. Our people don’t have that. The bombs that are killing our people are manufactured here. Our taxpayer dollars are being used to fund this genocide.”
Now, he and other Palestinian Americans are suing U.S. President Joe Biden, as well as Biden’s Secretary of State Anthony Blinken and Defense Secretary Lloyd Austin, for their failure to prevent and complicity in Israel’s “genocide” against the Palestinians in the Gaza Strip.
Backed by top genocide and Holocaust experts, the New York-based Center for Constitutional Rights (CCR) filed the federal lawsuit on Nov. 13 on behalf of a coalition of Palestinians in Gaza, U.S. citizens with family in Gaza, and two Palestinian human rights organizations.
“I joined this lawsuit to hold accountable everyone responsible for this — every supporter with blood-stained hands — to stop the genocide we’re facing,” plaintiff Dr. Omar Al-Najjar, a 24-year-old intern physician at Nasser Medical Complex, said in a voice note from Gaza’s Khan Yunis.
‘No red lines’
The complaint argues that the U.S. is in breach of its “binding” obligation under both federal and international law to prevent genocide, and asks the court to prohibit the Biden administration from providing additional military, financial and diplomatic support to Israel. The plaintiffs are seeking an emergency order to suspend U.S. support for Israel’s assault on Gaza while the case is being decided.
“The bombs that are killing our people are manufactured here. Our taxpayer dollars are being used to fund this genocide.”
That means, the CCR says in its filing, that “the United States has the means available to have a deterrent effect on Israeli officials now pursuing genocidal acts against the Palestinian people in Gaza.” Even as human rights groups and the UN warned of the likelihood of mass atrocities, the complaint accuses, the U.S. threw its full support behind Israel and began a flood of arms shipments.
“On Oct. 7, Netanyahu vowed to wipe Gaza off the map,” CCR lawyer Katherine Gallagher said during a press conference announcing the filing. “The U.S. was on notice. What they did was fly to Israel and vow that they would stand shoulder to shoulder with no red lines or conditions and back it up with deliveries of munitions and other forms of military support.”
Since Hamas’s Oct. 7 attack, Israel’s bombardment of Gaza has killed more than 11,460 Palestinians — including more than 4,600 children. (The death toll is likely significantly higher now; Gaza’s ministry of health stopped updating this data following the collapse of the enclave’s health system, and an untold number of bodies are buried beneath the rubble of collapsed buildings.)
Thousands more are missing, and millions are displaced as a direct result of Israel’s destruction of residential buildings, hospitals, schools and most infrastructure in Gaza.
This is a rare instance of genocide with clear, mounting evidence of intent, CCR argues, echoing a growing coalition of genocide experts globally. After the Oct. 7 attacks, top Israeli officials have on multiple occasions made brazen statements that experts categorize as genocidal and dehumanizing rhetoric.
The Genocide Convention of 1948 defines genocide as acts committed “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” As a signatory, the U.S. has failed to act in accordance with international law, argues the lawsuit: The 1948 Convention explicitly calls for its signatories’ active cooperation “to prevent and to punish” genocide committed in both times of war and peace. The Convention also stipulates that the International Court of Justice can resolve interpretive disputes.
While Biden himself has called Russia’s atrocities in Ukraine a “genocide,” the U.S. is now enabling similar atrocities by Israel.
In its complaint, the CCR references a recent U.S. intervention when the nation “explicitly acknowledged” its “obligation to prevent” and subsequent duty to take immediate action upon learning of evidence of genocide in Ukraine’s case against Russia. While Biden himself has called Russia’s atrocities in Ukraine a “genocide,” the U.S. is now enabling similar atrocities in Israel.
As American-made weapons rain on Gaza, the complaint accuses, the U.S. is not only intensifying its material support of Israel but also simultaneously vetoing U.N. resolutions calling for “humanitarian pauses” to Israel’s bombardment and refusing to call for a ceasefire.
‘Every strategy possible’
The lawsuit comes amid repeated warnings from U.N. experts, who have sharply criticized several member states’ unilateral support of Israel’s campaign of indiscriminate bombardment.
“The international community has an obligation to prevent atrocity crimes, including genocide, and should immediately consider all diplomatic, political and economic measures to that end,” the experts said. “We are deeply disturbed by the failure of governments to heed our call and to achieve an immediate ceasefire.”
This week, Canadian Prime Minister Justin Trudeau and three Canadian ministers were issued a notice of intention to seek prosecution for “aiding and abetting war crimes in Gaza.”
Filed by the International Centre of Justice for Palestinians, the notice warns that government officials could be individually liable for complicity in Israeli war crimes and crimes against humanity.
The CCR’s lawsuit may feel like a mere symbolic move, but CCR has an established track record and has won complaints against the federal government. In 2004, it won a landmark case in the Supreme Court that established the rights of foreign nationals detained in Guantanamo Bay to challenge their detention in the U.S.
“Israel is waging this violence with an extreme, unprecedented amount of force. It’s absolutely vital that we try every strategy possible to stop this violence.”
Applying legal pressure is a crucial strategy to push Western powers to withdraw support from Israel as quickly as possible, experts say.
During the Holocaust, scholar of Jewish history Barry Trachtenberg argued during CCR’s press conference, over 6 million people lost their lives because the United States took years to intervene. He credits the efforts of advocacy groups and internal staffers for pushing the American government to save an untold number of lives. This time, he says, the U.S. cannot make the same mistake.
“We don’t have years,” Trachtenberg says. “Israel is waging this violence with an extreme, unprecedented amount of force. It’s absolutely vital that we try every strategy possible to stop this violence.”
If the U.S. government does begin to throw its weight behind a ceasefire as public attitudes shift, that would not be the end of the lawsuit, plaintiffs clarify.
“Ceasefire is the bare minimum humanitarian response,” says Brad Parker, a senior adviser for the Defense for Children in Palestine, one of the plaintiffs. “There’s so much more the U.S. is complicit in. They’re not dismantling the underlying problematic relationship the U.S. has in Israel.”
For Palestinians and Palestinian Americans feeling helpless in the face of an existential threat, the lawsuit is a desperate attempt to save lives.
“I joined to use any glimmer of hope to stop this,” Al-Najjar said from Khan Yunis. “The U.S. supports this directly and has the power to end it. I have done everything in my power on the ground. Now, the case is in your hands.”