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“Failure to Prevent Genocide”: Biden Sued as U.S. Provides Arms & Support for Israel’s Gaza Assault

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As Israel rejects growing international calls for a ceasefire in Gaza, the Center for Constitutional Rights in the United States is suing President Biden for failing to prevent genocide. The center is seeking an emergency order to block Biden, Secretary of State Antony Blinken and Defense Secretary Lloyd Austin from providing further military funding, arms and diplomatic support to Israel. Katherine Gallagher, a senior attorney at the Center for Constitutional Rights on the case, argues the U.S. is complicit with Israel in the “crime of crimes” by “aiding and abetting genocide” with military aid, advisers and political support despite clear signs of intent to collectively punish the Palestinian population.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: Israel is rejecting a United Nations Security Council call for urgent and extended humanitarian pauses in Gaza as Israel’s bombardment of the besieged enclave continues for a 41st day. The U.N. Security Council passed the resolution by a vote of 12 to 0, with the United States, Britain and Russia abstaining. It’s the first resolution passed by the U.N. Security Council since Israel began its bombardment after the Hamas attack on Israel on October 7th.

This comes as Israel is continuing its military raid on Al-Shifa, the largest hospital in Gaza. Israel has long claimed Hamas placed a major command center underneath the hospital, but Israel has not shared any evidence of this so far. Israel has displayed images of weapons they claim were found inside the hospital, but Hamas has dismissed the photos as propaganda. On Wednesday, the [director]-general of the World Health Organization, Tedros Adhanom Ghebreyesus, condemned the raid on Al-Shifa.

TEDROS ADHANOM GHEBREYESUS: Israel’s military incursion into Al-Shifa Hospital in Gaza City is totally unacceptable. Hospitals are not battlegrounds. We’re extremely worried for the safety of staff and patients. Protecting them is paramount. WHO has lost contact with health workers at Al-Shifa Hospital. But one thing is clear: Under international humanitarian law, health facilities, health workers, ambulances and patients must be safeguarded and protected against all acts of war. Not only that, they must be actively protected during military planning.

AMY GOODMAN: As Israel rejects growing international calls for a ceasefire in Gaza, there are mounting efforts to hold Israel and its backers accountable for committing war crimes in Gaza. Here in the United States, the Center for Constitutional Rights has sued President Biden, accusing him of failing to prevent genocide. Today CCR is seeking an emergency order to block Biden, as well as Secretary of State Antony Blinken and Defense Secretary Lloyd Austin, from providing further military funding, arms and diplomatic support to Israel.

We’re joined now by Katherine Gallagher, senior attorney at the Center for Constitutional Rights, one of the lawyers who brought the case.

Katherine, can you lay out the case for us? What are you demanding of the U.S. government, of President Biden?

KATHERINE GALLAGHER: Good morning, Amy.

This case, filed on Monday, was filed on behalf of two Palestinian human rights organizations — Defense for Children International–Palestine, Al-Haq, which is the oldest Palestinian human rights organization, which for the first time in its history is unable to do its work in Gaza because of the conditions — as well as three Palestinians in Gaza and five Palestinian American families, who have members of their families killed, injured and under direct threat right now in Gaza.

We filed this case against President Biden, Secretary of State Blinken and Secretary of State [sic] Austin with two claims. One is that they have absolutely and completely failed in their duty under international law and U.S. law to take all measures possible to prevent the unfolding genocide against the Palestinian population in Gaza. The United States is a signatory to the Genocide Convention. And in recognition of the severity, that this is the crime of crimes, when it requires the specific intent to destroy a group, a national or ethnic group, in whole or in part, that is such a serious crime that states are obligated to take all measures within their control, all measures possible, from the second, from the minute they learn of the possibility of genocide, to stop that. We have not seen the United States do that, despite its considerable influence over Israel in the form of hundreds of billions of dollars in military aid that it’s sent over the decades and billions in the past year. Instead of using that influence to stop the killing, to stop the imposition of a total siege, denying all basic necessities to 2.2 million people in the enclosed space of Gaza, they have rushed weapons. They have given unconditional political support. Up until yesterday, when we saw a Security Council resolution not yet call for a complete ceasefire, the United States had blocked all measures at the international level. So we are bringing the first claim for its failure to prevent the unfolding genocide.

And the second claim is that it’s actually complicit in genocide. We lay out the case that Israel is actually committing genocide at this moment. And we are able to do so, unfortunately — it’s with no pleasure that we say this — at this early moment because of the very clear statements of intent by Prime Minister Netanyahu, by his minister of defense and other senior Israeli officials about their intentions against the entire population in Gaza. They have been clear that they see this, the people, the children of Gaza, as less than human, describing the population as “monsters” or “human animals,” and then taking away all of the basic necessities — food, fuel, water, electricity. We’ve certainly, as you just played, heard what has happened to the healthcare and medical facilities: bombed and invaded. And so, in the face of all of this, the United States, when it has continued to send weapons, to send military advisers, to rush aid and give moral and political support to Israel’s actions, we say it is aiding and abetting genocide.

NERMEEN SHAIKH: And so, Katherine, could you — because it seems that there’s some disagreement or dispute about whether what’s taking place right now is a genocide or ethnic cleansing, even among scholars of genocide, so could you explain the distinction between the two and how it is that the people who you’ve had advising you on this case are convinced that what’s happening right now — not what is to come — what is unfolding right now is a genocide?

KATHERINE GALLAGHER: So, just to first clarify, ethnic cleansing is actually not a crime. Ethnic cleansing is a description that is often used, whether for crimes against humanity, such as extermination, or forcible transfer and deportation. And I want to be very clear: Those, in and of themselves, are serious crimes. The International Criminal Court has jurisdiction over those crimes. And frankly, it should be bringing arrest warrants for those crimes at this moment. So, that is the first point.

As to why we believe it is a genocide, the elements of genocide are that specific intent to destroy, in whole or in part, a group, and then there are underlying acts for genocide. And we think three of the five underlying acts are present in this case: killing, causing serious bodily or mental harm, and creating the conditions of life intended to destroy a population, in whole or in part.

And so, to unpack that a bit, what we have at the front end — and usually specific intent is something that needs to be determined and only able to be concluded after the fact. I worked at the Yugoslav war crimes tribunal on the Srebrenica cases, and I know how difficult even in that case it was to make the conclusion that it was genocide. Here we have those statements up front. And what we have from the Israeli officials is backing up those statements to impose a total siege and deny an entire population the basic necessities of life — the access to, as I said, food, fuel, electricity, which are necessary for hospitals to run, for people to be able to make their food, for water. We are seeing the start of starvation happening.

And, of course, all of that has happened under intense and continual military bombardment of a space that has a blockade and closed borders. And that blockade has been in place for 16 years. And again, I would say that there have been crimes against humanity being committed against the Palestinian population in Gaza at least throughout the entirety of that 16-year blockade.

What we have seen now is the expression of specific intent to destroy that population. And that, with the killings that we have seen — already well over 11,000 people have lost their lives, including over 4,600 children — we see that this is a campaign against the entire population. So, for genocide, when you take that specific intent, as expressed by the senior Israeli officials who have the capacity to carry out those threats and then the actions — and we are seeing that they are carrying out exactly what they promised — then you are able to make the case for genocide.

And I just want to emphasize again that because of the seriousness of this crime of crimes, the duty to prevent kicks in as soon as a country is on notice of a serious risk of genocide. And the United States has been on notice since at least October 9th, when the minister of defense announced the total siege, which was then imposed, if not already on October 7th, when Prime Minister Netanyahu made threats to turn the entire Gaza Strip into rubble and to erase it off the Earth. And so that is why we feel that that duty to prevent, if not already liability for complicity, is present.

And what we need — we don’t need to be quibbling about legal definitions at this moment. What we need is action. We need the president of the United States, the secretary of state and the secretary of defense to do what the vast majority of the world has been calling for for weeks, and that is, stop this killing. Stop the siege on Gaza. Allow the 2.2 million people to live with dignity, to have their rights respected, and to not be subjected to this horror that we have all been witnessing, and trying to do whatever we can to make the most powerful country on Earth have some compassion and comply with the law.

AMY GOODMAN: Katherine Gallagher, we thank you for being with us, senior staff attorney at the Center for Constitutional Rights, which is seeking an emergency order today to block President Biden, as well as Secretary of State Antony Blinken and Defense Secretary Lloyd Austin, from providing further military funding, arms and diplomatic support to Israel.

Coming up, we go to France and Italy to speak with human rights attorneys — rather, Germany and France — to hold Israel and its backers, including the U.S., legally accountable. And we’ll try to reach a human rights attorney in Gaza. Stay with us.

[break]

AMY GOODMAN: “Toyour” by Rasha Nahas and Dina El Wedidi. Rasha Nahas is a Palestinian singer who held a concert Tuesday in Berlin, donating all proceeds to Médecins Sans Frontières, Doctors without Borders.

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