The Legal Case Against Joe Biden for Enabling Israel’s Genocide Against Gaza

Murtaza Hussain interviews Katherine Gallagher of the Center for Constitutional Rights, for Intercepted, January 17, 2024

Editor’s Note: This is an important case.  The fact that the judge is allowing it to go forward is a significant step in US jurisprudence.   The hearing began on January 26, and can be seen HERE.

A panel of judges at the International Court of Justice in The Hague has entered deliberations in the preliminary phase of South Africa’s historic suit against Israel, charging it with carrying out a genocide against the Palestinians of Gaza. While a final ruling in the case could take years, the judges will rule on whether to order a halt to continued Israeli military actions pending a trial.

This week on Intercepted, Katherine Gallagher, a senior staff attorney at the Center for Constitutional Rights, discusses the ICJ case as well as a lawsuit (Opens in a new tab) CCR has filed against President Joe Biden, Secretary of State Antony Blinken, and Defense Secretary Lloyd Austin for the support and failure to prevent genocide in Gaza. Arguments will begin next week in federal court in California.

Gallagher, Jeremy Scahill, and Murtaza Hussain discuss what a ruling in South Africa’s favor would mean for Israel’s U.S.-backed war against Gaza and how the U.S. may try to shield Israel from international consequences, as it has done throughout history. They also examine the history of the U.S. judge who is currently president of the ICJ, as well as U.S. laws that require American officials to take actions to prevent, not enable, genocide, including one that was sponsored by then-Sen. Biden.

Jeremy Scahill: This is Intercepted.

Welcome to Intercepted. I’m Jeremy Scahill.

Murtaza Hussain: And I’m Murtaza Hussain.

JS: Maz, Joe Biden marked a hundred days of his no-holds-barred support for Israel’s war of annihilation against the people of Gaza by pretending that the deaths, the maiming, the displacement of the Palestinian victims in Gaza were invisible. And I found it really interesting that Biden issued this statement, which only emphasized the Israeli deaths on October 7th and the hostages who remain in the custody of Hamas and other groups in Gaza, and made no mention of 10,000 dead Palestinian children … That that statement was issued just as the United States was starting the observation of the Martin Luther King, Jr. holiday …

I’m saying that it seemed fitting, because there’s something symbolic about how Biden’s statement on Gaza erased the existence of — and the deaths of — the Palestinian people while, for decades, the United States government, Democrats, and Republicans [have] tried to erase the parts of Martin Luther King’s legacy that they deemed politically or morally inconvenient, specifically Martin Luther King’s discussion of the way that the United States exports its violence around the world.

And we are now waiting for judges at the International Court of Justice to rule on South Africa’s genocide case against Israel, rule on the request for what are called provisional measures, which means that the South African government’s lawyers are arguing that the International Court of Justice should issue provisional orders for Israel to cease its military operations in Gaza, so that the investigation and trial of the state of Israel for potential genocide in Gaza can take place, and that no further harm or death is going to be inflicted on the people of Gaza.

The world’s eyes are very much on this, Maz.

MH: Yeah, I was very moved by the hearing this month by the ICJ South African lawyers presenting their arguments — and I recommend listeners who haven’t watched it to go back and watch it as well too,  because it was really a very symbolically powerful — and potentially legally and practically politically powerful — demonstration of South Africa showing consistency to the same values that the U.S. claimed to espouse many, many years ago, vis a vis apartheid in that country. And one person who was a quite vocal opponent of apartheid in many cases was, actually, Joe Biden at that time, Senator Joe Biden. And whereas he has shifted to what I’d have to say at this point is a chauvinistic and even xenophobic position against Palestinians, that level of disregard for their humanity, or even the acknowledgement of their own suffering, the South Africans are applying the same principles of opposition to apartheid in their country to Israel and Palestine.

And what we’ve seen in the last three months since this war started has been probably worse than anything that’s taken place in this conflict over 75 years. The level of death, destruction, displacement, just total human misery, is so much greater in scale, even in a conflict that’s been one of the worst for a very, very long time.

It’s really a turning point, and we’re seeing the diminution of moral leadership — or however much moral leadership the U.S. could claim right now — being supplanted by other countries which are outside what you can say is the West, speaking up for values which were deemed to be universal, but have been abandoned by many, many of the same countries which first came up with them in the first place.

JS: While we’re waiting for the judges to potentially issue these provisional measures, there are several cases that have been brought that deal with the Israeli government’s onslaught against the people of Gaza, one of them is taking place in federal court in the United States, and there are going to be arguments [on] January 26th of this year, just next week. There will be arguments in the case that was brought by the Center for Constitutional Rights; the case is called, “Defense for Children International Palestine v Biden,” and that lawsuit names Joe Biden, Secretary of State Antony Blinken, and Secretary of Defense Lloyd Austin, with failing in their legal responsibility to prevent — and also their complicity in — Israel’s unfolding genocide of Palestinians in Gaza.

And we’re joined now by one of the attorneys leading that case, Katherine Gallagher. She is the Senior Staff Attorney at the Center for Constitutional Rights, one of the lawyers who’s going to be arguing in court in California next week, in federal court, asking a judge to intervene in this case.

Katie Gallagher, thanks so much for being with us here on Intercepted.

Katherine Gallagher: Thank you very much for having me.

JS: Katherine, in a moment, we’re going to talk in detail about South Africa’s case against Israel that it argued before the International Court of Justice. But first, I want to talk about the lawsuit that you’re involved with, which is directing its attention at the most senior officials in the United States — Joe Biden, the Defense Secretary Lloyd Austin, and other U.S. officials — for failure to prevent genocide. Lay out your case against these U.S. officials.

KG: Sure. So, already, on October 7th, Israel was making clear its intentions against Gaza and the Palestinian population there — the 2.3 million people of whom nearly half are children. The highest level of Israel’s senior political and military leadership made statements on October 7th, 8th, 9th, 10th, laying out that they intended, in effect, to destroy Gaza. They equated all of the population with Hamas, they declared the entire population effectively the enemy, and they promised to shut off and cut off Gaza from the outside world. The Israeli Minister of Defense famously and horrifically declared that there would be no food, no fuel, no electricity, no water for the, quote, “human animals” in Gaza.

And as the statements of intent were being made, senior levels of the United States government — including President Biden, Secretary of State Blinken, and Secretary of Defense Austin — were likewise making declarations about their intentions in the coming days, weeks, months, as we’ve seen. And that was to give unconditional and complete support to Israel. That is complete military support, financial support, diplomatic support for Israel’s mission in Gaza, and against the Palestinian population.

So, quite quickly, CCR saw and understood that we were in a different moment. This is not a question of simply Israel exceeding — as it often has and continually does — the limits of international humanitarian law, in terms of how it has carried out its occupation over the many decades and its 17-year blockade of Gaza. This isn’t simply about breaching the Geneva Conventions and collective punishment against the Palestinian population; this was qualitatively different. Statements such as we were hearing and the immediate military assault and total siege on the Palestinian population of Gaza indicated to us already in those opening days that we were risking and fearing a genocide to be committed.

So, CCR put together a legal and factual analysis by October 18th and, in that, we laid out Israeli statements and actions demonstrating the mental element, the intention for genocide, as well as the underlying acts. And the crime of genocide, just to step back, is the intention to destroy, in whole or in part, a group based on their ethnic, religious, racial, or national identity. And that can be carried out through five underlying acts, which include: killing, the infliction of serious physical or mental harm, or the creation of conditions of life intended to destroy, in whole or in part, that group.

So, when we were hearing promises of total siege by the minister of defense, meaning cutting off all basic necessities, that was a genocidal statement. So we put together those statements and actions by Israel. And if we’ve learned anything over the years, it is that Israeli officials say what they mean and do what they say, so it was clear that this was what was coming.

And then we put together what the United States officials did, those promises of support and the way that military support began to roll out to Israel. So, already, the United States gives $3.8 billion a year in military support to Israel. The United States has over $4 billion in weapons stockpiled in Israel that Israel can use. But even with all of the preexisting military support, the United States was rushing further munitions to Israel, pledging its continued support for the military operations, putting in place in the region, and in Israel, military advisors and forces to be there ready to back Israel up.

So, in doing these actions with the knowledge that Israel was planning to commit or already taking measures to commit genocide, we said that the United States was in breach of two fundamental obligations that it has under customary international law. And those obligations are the duty to prevent genocide, when it is clear that there is a serious risk of genocide, and the obligation to not be complicit or aid and abet a genocide.

So, we put out that legal briefing paper on October 18th. We sent it to President Biden, Secretary of State Blinken, we sent it to the U.S. ambassador to the U. N. And as we send this warning urging the United States to comply with its international obligations, what we saw instead was the United States veto a ceasefire resolution at the security council, and pledge that there would be continual flow of weapons and support with, quote, “no red lines.”

So, understanding that the United States would not voluntarily comply with its legal obligations, we moved quickly to file a case and on — quickly, but it already felt so, so slow, I have to say — on November 13th, we filed a case in the northern district of California on behalf of two Palestinian human rights organizations: Defense for Children International Palestine, and Al-Haq, as well as three plaintiffs from Gaza. And I can say it’s very difficult to maintain contact with our Gaza-based plaintiffs, um, and it is really a heroic action for them to file a case with the risk that comes with that.

And then, also, on behalf of Palestinian Americans, who have family in Gaza and are themselves enduring days, weeks, months now of just absolute anguish as they watch their government, their families, their people.

JS: Katherine, we also have watched as President Biden has repeated, knowingly repeated, now-proven false claims about beheaded babies. We’ve watched as the United States claimed that it had its own independent evidence that Hamas operated what was effectively described by the Israelis as an underground Pentagon under Al-Shifa hospital.

We had the president of the United States undermining the extent of the death toll in Gaza among civilians, particularly among children. We’ve had the Secretary of State Antony Blinken — not once, but at least twice — circumvent basic congressional processes for expediting weapons shipments to Israel.

And we also have — and this is relevant to your case — the fact that there are also U.S. laws that deal with prevention of genocide; among these is the Genocide Convention Implementation Act, which was signed into law in 1988. And I went back, and I looked at the legislative history of that law, and the original sponsor of the Genocide Convention Implementation Act was a senator named Joe Biden.

Talk about the U.S. legal aspect of this, and laws that, potentially, the administration is violating inside the United States.

KG: The United States has unquestionably recognized its obligations to prevent and punish genocide. As you noted, yes, it was Senator Biden who finally pushed through the United States becoming a party to the genocide convention, 40 years after most other countries had. And, in his time as vice president under Barack Obama and within his own administration, he has claimed that the prevention of mass atrocities and specifically identified genocide is a matter of national policy and national priority.

But when it comes to the genocide against the Palestinian people in Gaza, again, half of the victims are children who have been killed, rendered orphans, maimed, homeless, with no schools to go to. When president Biden issued a statement over the weekend marking 100 days since October 7th, he failed completely to recognize the harms that have occurred and been carried out against the Palestinian civilian population in Gaza.

There is no reference to the fact that over 23,000 people have been killed. And that number, of course, is really an unknown, because so many people are buried under the rubble, and Gaza is cut off from the outside world. To a large extent, that statement did not talk about the way that U.S. weapons from the air, from the sea, from the ground, are being used every day to maim and kill Palestinians.

That statement was limited to discussing the hostages and, really, not only didn’t repeat the falsehoods — again, which is incredible that President Biden continues to put forward falsehoods about the very serious harms that have been carried out, no doubt, since October 7th — but he just is ignoring the human cost and responsibilities. Indeed, the U.S. has put forward, about a year ago, a submission to the International Court of Justice in the case of Ukraine v Russia.

In that submission, in that intervention, the United States recognizes that the duties to prevent genocide and the responsibility, the prohibition on complicity in genocide,  are what’s called erga omnes obligations. These are the highest level of obligations on states, and that violation of these obligations is, again, the highest level of violation of international law.

So, the Biden administration knows what the law is internationally, and it knows what the law is domestically. It has expressed that these are also policy principles for the administration. But when it comes to implementation, when the victims are Palestinian and the perpetrators are Israel, we see the United States do a 180 and absolutely ignore its obligations to not provide the means by which a genocide is being carried out.

And as, again, the United States has recognized in pleadings that it’s made elsewhere, that is a form of aiding and abetting genocide, and that is prohibited, again, under both international and domestic law.

MH: So, Katie, in addition to your own filing domestically, this month, South Africa had an 84-page filing at the International Court of Justice, drawing upon many of the same very incriminating statements made by Israeli officials at the outset of this military campaign in October. The 84-page filing describes the military campaign as exceptionally brutal, and says that genocidal actions have been taking place that constitute flagrant violations of Israel’s obligations under the Genocide Convention.

Can you tell us, just in brief, what is the significance of South Africa bringing this case to the ICJ, and what could the consequences be for Israel, if it’s found culpable of violating a genocide convention, ultimately?

KG: South Africa’s filing against Israel at the International Court of Justice in The Hague is truly a historic document, and a historic moment. The hearings that took place last week was a day that I think anyone who listened or watched, and certainly for some of the Palestinians who traveled from Gaza to be there in the court and hear that, it was a day that won’t be forgotten.

South Africa put the genocide in a context, which I think is so important in this moment where, for many, the clock starts on October 7th. It framed the current genocide in the context of the Nakba and Israel’s action since 1948, through the prolonged belligerent occupation and the closure of Gaza for the last 17 years. So that, in and of itself, I think, was quite notable.

And then it laid out in great detail the horrifying truths that we all have borne witness to. And one of the Council for South Africa spoke particularly powerfully about how this is a genocide that has been broadcast, and we are all watching. And Gazans, Palestinians in Gaza are using whatever means they have, with the limited electricity that they have, to try and broadcast their own destruction, with the hope that someone will hear an action will be taken, and that is what South Africa did on behalf of the Palestinian people.

And knowing it was South Africa, with its history of fighting off a colonialist apartheid regime, was very profound. And I think, for the South Africans in the court, they felt that weight of moral responsibility, and this is a country that met the moment. They really showed up, not just legally, but with heart and with love.

And, for me, listening as an international lawyer, where so often we have to maybe cabin off parts of ourselves to just focus on the facts, applying them to the law. What was done so beautifully by South Africa was hitting every single legal element, but continually grounding it back in humanity, and explaining what this case is ultimately about. And it’s about our shared humanity, and that is something that the Genocide Convention, being a reflection of a global commitment to never again target a population because of who they are, this global movement, and the question for all of us as to whether or not we are truly committed to global humanity, I think was as much what came out over those three hours of argument.

Equal to arguments around provisional measures, and what’s the scale and scope of what a provisional measure might be, or whether specific intent was satisfied, and explaining it in detail which, again, South Africa did so well, the ways that this underlying act of creating conditions of life to destroy, in whole or in part, a population, they really explained that. And powerfully used the warning statements over these last three months by U.N. officials and humanitarian organizations, about the impact of Israel’s actions. And, again, actions that matched their statements of intent.

So, there was a lot that was in the courtroom. But the fact that South Africa was the state that was there for Palestinians, I think, really, was so powerful.

MH: And Katie, as a follow up, I’m curious about the potential implications of a verdict in this case. Obviously, there have been many international injunctions against Israel on various issues, including over the apartheid wall in the West Bank, and Israel has generally tended to ignore those rulings and continue on without meaningful political consequence.

If there is a final guilty verdict of genocide in this case, which I believe could take quite a while to come, what would the consequences be for Israel? Is it something that they could continue to brush off? And, secondly, can you explain the context of provisional rulings that the court could make, because, obviously, the situation in Gaza is a crisis happening right now, and there could be injunctions short of a final ruling that come in the coming days or weeks. What might those mean, and can Israel and its supporters in the U.S. or in the European Union elsewhere, can they ignore these rulings as they have in the past?

KG: Yes. Right now at the International Court of Justice, we are in the very first phase of a case. South Africa, because of the urgency of the moment, has asked the World Court to put in place some provisional measures while the merits of the case are being adjudicated. And, just to draw a parallel, that is the same thing that we have asked the court in California to do in our genocide case against President Biden.

We have sought a preliminary injunction, where we say, at this moment, because of the ongoing risk of or actual genocide, we need you, court, to act now. So, it’s a very similar proceeding to a preliminary injunction, where you’re asking the court to enjoin cert to stop and cease and desist certain actions because of the huge risk of irreparable harm. You can’t bring back human lives that are lost in the course of a genocide by finding a good ruling three years down the road.

So, what South Africa has asked the court to do — and this is why the hearing happened less than two weeks after South Africa’s application — is to put in place a number of measures. The first of which is to order a ceasefire, to stop the military assault on Gaza, and this is something that has been ordered in prior proceedings. I mentioned that there is a case pending between Ukraine and Russia. And, in those proceedings, the International Court of Justice did order a secession of military activities. So, a ceasefire is one of the steps that South Africa is asking the court to take right now, and we could see an order from the court within weeks.

Now, even if it doesn’t order the complete secession of hostilities, the total siege is also an underlying act of genocide; the starvation that the population is facing right now, the denial of access to medical care because Gaza is sealed. These are measures that, if the total siege were to be lifted and the court were to order that, it would also be taking out one of the underlying acts of genocide. So, there are concrete measures that the court can take that would have a direct and immediate impact on the Palestinian population in Gaza, in saving lives.

What that means more broadly … Certainly, Israel may choose to not comply with provisional measures that would be very akin to what Putin decided in Russia after the ICJ made its ruling. So, that would be the framework in which Israel is operating, that of Russia’s government. And that position has been highly criticized by the United States, by the European Union, and by most countries in the world that say we have to respect rulings from the International Court of Justice.

So, first, for Israel, it will put them further on the outside of the international legal order, so to speak, in a way that being labeled or found to be a committer of genocide certainly will, as well. But the provisional measures would have larger ramifications, too, for all of the countries of the world, and certainly all of the signatories of the Genocide Convention. Because every country, every state has the obligation to prevent and to punish genocide.

So, if the International Court of Justice were to rule that at this moment there’s a serious risk of genocide, or an ongoing genocide, and it can be either all states, and especially those states that have the ability to influence Israel’s behavior, must take immediate action, or themselves also be in breach of it of the ICJ’s ruling.

So, that means that the United States and all of the European countries, Australia, countries that are providing military support to the genocide must cease doing so. So, we may see a change in behavior by those countries who are providing the means and support by which Israel is carrying out its genocidal acts. We will see countries having to take a different position regarding support for the total siege of Gaza and, ultimately, arguably, for the occupation of Gaza.

And if the entire European Union, the United States, Australia, Canada, and other countries decide that at this moment they’re going to simply ignore the International Court of Justice’s ruling, that does throw into question the legitimacy of the entire legal system, and that is no small outcome.

I think, for some, there may already be serious questions about the efficacy of the international legal order and these international treaties, but international law does provide some backstops and parameters by which countries are expected to act. And, if decisions by the world court are easily ignored, it really does raise questions as to where and how countries will act.

JS: Benjamin Netanyahu, after Israel finished its rebuttal at the International Court of Justice, gives a speech in which he says, quote, “Nobody will stop us. Not the Hague, not the Axis of Evil, and not anybody else.” Your response to Netanyahu.

I mean, first of all, they introduced — the South Africans did — at court, statements that Netanyahu and others made, including Netanyahu’s invoking of the biblical tale of Amalek, where God orders the Israelites to kill all of the men, women, children, infants, and cattle. And the Israeli lawyers basically said, oh, the South Africans don’t understand theology, and, by the way, they’ve failed to continue reading the quote where Netanyahu characterizes the Israeli Defense Force as the most moral army in the history of humanity, and says that we only go after the terrorists.

But Netanyahu, already — even before there’s been any ruling, even on provisional measures — is saying, nobody will stop us. Not the Hague, not the Axis of Evil, and not anybody else.

KG: Yes. Prime Minister Netanyahu’s statements stood in stark contrast to what Israel’s lawyers tried to do over three hours on Friday in The Hague, and that was to tell the court: don’t worry, we have it under control, trust us, and we’re scaling back operations anyway. So, just let us wrap this up.

That was essentially what three hours of argument by Israel boiled down to, with statements of self-defense, and legitimizing or justifying their actions also attempted in that time. And then when you had Netanyahu come out the next day and say, hey, no, we won’t follow anything, we can do what we want.

I think for judges who are currently considering the application for professional measures, that will give them serious pause as to whether or not they can or should trust Israel.

JS: Katie, on that issue, though, of the judges, I do want to make sure to ask you a question about the current president of the court. She happens to be an American, Joan Donahue, she’s the chief judge on this panel. Her term ends, I think, next month, but she clearly is going to be presiding at least over this phase of the proceedings dealing with potential provisional measures.

For people that aren’t in the weeds on all of this: Joan Donahue, she served in the Obama administration at the State Department, and she was the principal legal advisor to the State Department under Hillary Clinton, at a time that the Obama administration was dramatically expanding American drone strikes, the U.S. assassination programs.

But, deeper back in Donahue’s history, she was a legal advisor for the United States when Nicaragua sued the United States at the world court for backing the contra death squads in Nicaragua, for the mining of the harbors and the shores around Nicaragua. And the court in that case had 15 decisions that it voted on, and it found in its verdict that the United States was in breach of its obligations under international law, not to use force against another state, not to intervene in its affairs, not to violate its sovereignty, not to interrupt peaceful maritime commerce, and in breach of a number of other treaties.

So, this judge has very deep ties to, not just powerful figures within the United States, but served at some of the highest levels of the U.S. State Department, also served as part of the defense of the United States when it argued that the court had no jurisdiction to hear Nicaragua’s claims about the United States sponsoring death squads in their country.

KG: Yeah. Thank you for sharing all of that background. And I would just add two more pieces that I think should be considered when we’re thinking about these judges, and that is that Judge Donahue in the last four years has twice weighed in on the obligations under the Genocide Convention.

She has found in the Gambia case against Myanmar that there are duties to prevent genocide for all states, and outlined that sending weapons in support of a genocide can be a form of complicity. And then she made the same ruling in the context of Ukraine v Russia. So, this is a judge who is also on record in The Hague about what the obligations are for all states.

So, stepping back, we have a panel of 15 judges at the ICJ, and it is a diverse set of judges. And we often see that there can be dissents or concurring opinions because those countries on both sides of a dispute are allowed to have their own judge. So, South Africa appointed a judge, Israel appointed a judge.

And because of the geopolitical nature of things, we often see, when you have a judge from the United States, for example, and a judge from Russia, that they may not be aligned … And a judge from China. You have some of the dynamics that we see in the security council.

So, I’m not going to prejudge at this moment what Judge Donahue may or may not decide in this case, but what I would say is, the jurisprudence of the international court of justice is very clear on what the obligations are for Israel, and for all other states, including the United States. And if there were to be a carveout from that jurisprudence given to Israel — and, again, by extension, those countries that are failing to prevent or indeed even supporting Israel’s genocide — I think that this court that President Donahue is currently the president of will have a serious crisis of legitimacy on its hands. And I hope that that is a factor that all judges at the International Court of Justice are taking into account.

We need an International Court of Justice to be independent, to apply the facts to the law equally for all peoples in protection of all peoples, and being willing to hold the powerful to account. So, I agree that this is a moment of reckoning for international justice and accountability, and I hope that a majority of judges — if not all judges — recognize the gravity of the current situation for Palestinians in Gaza, and issue the provisional measures with urgency that are needed to save lives.

MH: You know, Katie, genocide itself is a crime that has universal jurisdiction, and if the ICJ finds that Israel and Israeli officials are culpable of genocide, in this case in Gaza, it would also open the door, I think, to domestic courts in other countries filing their own charges against Israeli officials, which could preclude them from travel, which could lead them to the danger of extradition when they do travel to various places.

And you mentioned Vladimir Putin recently as well, too. He also has notably been pretty grounded in Russia since the ICC issued this warrant against him. So, international law, even though the enforcement of it is in many cases lacking, it could have knock on effects for how people comport themselves vis a vis domestic criminal culpability.

Can you talk a bit about what some of the concrete fears may be on the part of Israeli officials if they are found culpable in this case? And, you know, Benjamin Netanyahu is continuing to make these very provocative statements about the Hague, and ignoring its ruling, and so forth. But also, it seems like the Israelis have been a bit chastened or a bit worried about this case, given how hard they’re now fighting against it.

Talk a bit about what could happen if Israel finds itself in legal jeopardy as a result of a ruling by the ICJ.

KG: Yes. I think it is quite notable that right after South Africa filed its application on December 29th, the tone, the rhetoric coming out of Israel was different, if not yet the actions on the ground. So, right there, we do see that international law has some power, and enforcement looks different at the international level than it might in a pure criminal case at the domestic level.

The levers of enforcement of something like the obligation to prevent or to punish genocide could take the form of sanctions, it could take the form of divestment from Israel. It could take the form of support for a ceasefire resolution at the security council, if a resolution were to come up again.

So, one thing could very well be criminal cases at the national level against senior Israeli officials and others who have perpetrated or supported the genocide against the Palestinian population. But it could also be what might be seen as softer forms of enforcement and accountability, and isolating Israel in a way that it hasn’t felt before.

And I think here it’s important to go back to the South African example, and the fact that it’s South Africa that brought the case. In many ways, we may be finding ourselves back in the 1980s, again, in a slightly more positive way, where we have the feeling of the waning days of the apartheid regime in South Africa, where you have the majority of the world saying: This must stop, we have to take actions to end this, and doing so using diplomatic and legal measures to isolate apartheid South Africa.

At this moment, the United States stands alone at the security council in blocking ceasefire resolutions, in condemning the killing of tens of thousands of Palestinians, and the destruction of so much of the Gaza Strip. The rendering of 1.8 million people unhoused at this moment with so many of their homes destroyed. The United States is really out there almost on its own. We even see changes in language and, possibly, of actions, by the U.K., by France, by Australia.

So, when Israel at the world court on Friday spoke of South Africa as a terrorist-supporting state, I believe it further reignited the division between maybe the Global North and the Global South, or even countries that abide by basic principles of humanity, and those that think it’s OK to colonize and kill those who are other or different.

So, the ramifications of the ICJ proceedings, I think, are already being felt, in terms of making states choose which sides they are on, the side of humanity or the side of arrogance and destruction of the other. And the concrete ruling will have even further effect, both legally, in the form of potential cases at the national level, and certainly diplomatically, where we may see moves to isolate Israel, and also to have countries behave differently, in terms of how much support they are willing to give to a regime that is attempting a genocide against the Palestinian people.

JS: There’s been decades of … And it’s not, it’s certainly not just the Democrats. I mean, both Democrats and Republicans, when they’re in power, have used the full force of the United States government to protect Israel from any international consequences for its actions. This is certainly true at the United Nations, and at the security council through the use of the veto.

In fact, one of the great scandals of the early Trump era was this maneuvering that took place to try to assure Israel that Trump was going to be on its side if the Obama administration directed the U.S. ambassador to the U.N. at the time to simply abstain on a vote that was against Israel’s policies in the West Bank. That was one of the real scandals that was drowned out by the Russiagate stuff.

But also, I think it bears repeating that there is a law on the books in the United States that was signed by George W. Bush in 2002, that is known in the human rights law community as the Hague Invasion Act. And it relates directly, not to the International Court of Justice, but to the International Criminal Court, because the International Criminal Court can prosecute individual leaders, whereas the ICJ is dealing with nation states and the crimes of states. But the ICC can actually prosecute individuals, and has prosecuted individuals.

And that law that was signed in 2002 was passed by an overwhelming bipartisan majority; it was 75-19 in the Senate. Notably, Joe Biden dissented on that and voted against it. But, just to remind people, what that act authorizes, it provides for the President of the United States to, quote, “Use all means necessary and appropriate to bring about the release of any person who is detained by the International Criminal Court.” That is, not just a member of the United States Armed Forces or an official of the United States government, but also covered allied persons, meaning personnel from NATO states. But then it also specifies major non-NATO allies of the United States, including Australia, Egypt, Japan, Argentina, the Republic of Korea, New Zealand and Israel.

So, you know, there also are cases that are in process where there’s an effort to try to get an arrest warrant issued for Netanyahu and other Israeli officials at the ICC. I don’t think there’s any chance in hell that that’s going to happen, but, you know, I respect the effort.

But that’s how extreme — and this is the point I’m making — this is how extreme the U.S. position is on the application of international law to not just the United States and its actions, but the actions of its allies, including Israel. And when we look at that, that the U.S. actually has a law that says the president can use military force, essentially invade The Hague in the Netherlands to, quote-unquote, “liberate American personnel,” or, in this case, potentially Israeli personnel, you understand what the people of Gaza are up against when it comes to international law.

And what I want to ask you specifically, though, is: at the end of the day, if provisional measures are ordered by the court, and Israel is told it must cease its active military operations pending this litigation moving forward at the International Court of Justice, is, at the end of the day, Katie, can’t the U.S. stop it? Even using legitimate legal maneuvers at the United Nations, isn’t it true that the U.S. can actually, at the end of the day, stop that, and halt the court from doing it?

KG: Look, I think the United States can try, but in the long term, or even the midterm, the United States is taking on a losing battle if it is willing to take the measures that you just described, and to buck international law as blatantly as it would be demanded, if the ICJ were to order a ceasefire. If the United States were to say, well, sorry, we’re going to continue to rush 155 millimeter artillery worth $106 million to Israel, which it did the same day. It did not issue the veto against the ceasefire resolution. Or send tank munitions worth $150 million without going to Congress, which it did on December 29th, the same day that South Africa filed the application at the International Court of Justice.

If it continues this behavior of aiding and abetting a genocide, then the United States is making clear that it, too, is a pariah state. I think there are already many countries in the world, and many of us, who doubt that the United States really believes the principles of international law that it urges others, or demands others comply with. But such a blatant break with principles that, again, just last year in the Ukraine v Russia proceedings it espoused, really will take a lot of explaining to do.

And I think, also, with the International Criminal Court, we have a prosecutor right now, Karim Khan, who has raised many questions for those who want to see the ICC succeed in being an independent arbiter of justice and accountability. We have not seen the kinds of statements — and certainly not the kinds of actions — needed to meet the moment with an ongoing genocide in Gaza. But I think for someone like Karim Khan, a decision by the International Court of Justice that recognizes an unfolding genocide against the Palestinian people will make inaction by him far more difficult.

So, while we might not see an arrest warrant against Benjamin Netanyahu, we might see an arrest warrant against the minister of defense who ordered a total siege against the Palestinian population that has led to mass starvation. And that is not only an underlying act of genocide, it is also part of a crime against humanity, of extermination. It is also a war crime. There is a war crime of starvation. And that is something that we have heard even the ICC prosecutor, Karim Khan, warn against repeatedly in the last few weeks and months.

So, I do think there will be spillover effects that reach not only Israel, but the United States, if the ICJ puts out a ruling that acknowledges that there is an unfolding genocide. And that requires all states to take measures to stave off the risk of further death and destruction for Palestinians.

MH: Katie, I just want to ask you one more question to put things in a broader perspective. Obviously, the ICJ and these other institutions of international law were created kind of out of the moment of World War II, and the destruction and the chaos that had been unleashed, to try to put some sort of guidelines around human rights, and the way states and peoples are allowed to deal with each other.

And now, it seems like, with this crisis, it’s almost come to an inflection point, because the United States, the country which did the most — in theory and however flawed — to try to build this infrastructure, and promote it, and lend it some legitimacy, is now faced with a situation where it may be the prime abettor of violations, of very brazen violations of international law by a client state. And even directly complicit itself in active genocide for its own officials. And it may, as you said, it may end up being in this position, rejecting or ignoring injunctions directly aimed at its own actions.

Can you talk about what the implications would be for the U.S. to turn its back so brazenly on international law in a situation where we have such damning and incriminating evidence in the clear light of day? And what would that mean for the entire project of international law in the post-World War II system, which people had tried to create very much in earnest for all these years.

KG: I think you said it absolutely correctly, in identifying this as an inflection point. We are at a critical moment for humanity, and for the principles under good international law, which are supposed to be about the protection of humanity.

We had an amicus brief go into our case in the U.S. proceedings, our case against Biden, by 77 human rights organizations, bar associations, international legal organizations that are committed to ensuring that the best of international law, the best of those principles, apply equally for the protection of all. And that brief warned about the real risk to the international legal order, and to humanity, if the United States continues down the course of action that it’s on, of fueling, rather than ending, a genocide.

It spoke about the fact that there would be a complete erosion of rights. And, as a Palestinian human rights defender that some of us know, Raji Sourani often says, “We either have the rule of law or the rule of the jungle.” And I think we are at that moment.

What was also important, though, about that amicus brief is it put in context how we got to this place that is a breaking point, and that it went back to the post-9/11 so-called “war on terror.” The United States’s embrace of torture regimes. embrace of so-called “targeted killings,” embrace of a global battlefield where it could bomb and shoot anyone who they considered a, quote, “terrorist,” with impunity and without explanation. Or where they can have a preventive, so-called “

” war against Iraq. A war by choice that led to a horrifying occupation with tremendously cruel and long lasting impacts for the Iraqi population and their country.

This is the context that we need to see to understand why a case at the International Court of Justice between South Africa and Israel is about much more than just the outcome in a judgment. It’s really about what kind of world we want to have, and is it going to be one where some powers have to comply with the law while punishing others who don’t. Or will it be a moment where the law will equally protect and hold the powerful to account?

Impunity breeds repetition and recurrence, and what we’ve seen from Israel with its military assaults on Gaza — in 2009, in 2012, in 2014, in 2018, in 2021 — is that each military assault they’ve gotten farther, been even more brutal, with more destruction, more death, and they’ve never had to pay a cost. And that is why, at this moment, we have at least 23,000 Palestinians who’ve been killed, 1.9 million who’ve been displaced, and so much of the infrastructure, including homes, destroyed in Gaza.

So, international law really needs, at this moment, to be given effect, or else we are in a point of a true lawlessness, and it will extend far beyond the occupied Palestinian territory in Israel, or even far beyond what the United States has done in black sites it over the years of the War on Terror. It really will be a lawlessness that will be global.

And I think when we see so much risk of the end of democracy, as we’ve been experiencing these last five, ten years, it’s really quite a concerning moment. A scary moment.

JS: On that dark note, Katie Gallagher, I want to thank you very much for being with us here on Intercepted.

KG: Thank you. Thanks for having me.

MH: That was Katherine Gallagher, a Senior Staff Attorney at the Center for Constitutional Rights. CCR will be in U.S. federal court on January 26th, suing President Biden, Secretary Blinken, and Secretary Austin for their failure to prevent the genocide taking place in Gaza, and for U.S. complicity.

JS: And that does it for this episode of Intercepted.

Intercepted is a production of The Intercept. José Olivares is the lead producer. Our supervising producer is Laura Flynn. Roger Hodge is Editor-in-Chief of The Intercept. Rick Kwan mixed our show. Legal Review was performed by David Bralow and Elizabeth Sanchez. This episode was transcribed by Leonardo Faierman. Our theme music, as always, was composed by DJ Spooky.

MH: If you want to support our work, you can go to theintercept.com/join. Your donation, no matter what the size, makes a real difference. And if you haven’t already, please subscribe to Intercepted, and definitely do leave us a rating and review wherever you find our podcast. It helps other listeners to find us as well.

JS: If you want to give us additional feedback, you can email us at .

Thank you so much for joining us. Until next time, I’m Jeremy Scahill.

MH: And I’m Murtaza Hussain.

*Featured Image:  illustration: Elise Swain/The Intercept: Photos: Getty Images


Jeremy Scahill is an American investigative journalist, writer, a founding editor of the online news publication The Intercept, and author of Blackwater: The Rise of the World’s Most Powerful Mercenary Army, which won the George Polk Book Award

Murtaza Hussain is a reporter at The Intercept who focuses on national security and foreign policy

Katherine Gallagher is a Senior Staff Attorney at the Center for Constitutional Rights. She works on universal jurisdiction and international criminal law cases involving U.S. and foreign officials and torture and other war crimes, and civil actions involving private military corporations and torture at Abu Ghraib.

 

 

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