[News] The Legal Fight to End Genocide in Gaza: Nadia Ben-Youssef on Why Solidarity Will Save Us – All Of Us

[Anti-Imperialist News]

https://www.counterpunch.org/2023/12/31/the-legal-fight-to-end-genocide-in-gaza/

December 31, 2023 - by Susie Day 
<https://www.counterpunch.org/author/bra3hevuna/>
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*“SOLIDARITY WILL SAVE US – ALL OF US”: NADIA BEN-YOUSSEF ON THE LEGAL 
FIGHT TO END GENOCIDE IN GAZA
*
**
Source: ISM.

Long before October 7 — from at least the 1948 Nakba to this past 
September, when Benjamin Netanyahu showed the UN General Assembly a map 
of “The New Middle East” cleansed of Palestine – it’s been clear to 
large swaths of the world that the state of Israel has explicitly 
targeted Palestinians for genocide. Now, virtually /all /of the world is 
convinced, seeing Israel’s relentless massacre of growing thousands of 
Gazan “human animals,” that genocide is indeed happening. Preventing 
genocide – a covenant that it should “never happen again” – is a 
fundamental concept of international law. The question is, /In the case 
of Palestine, does genocide matter?/

At the Center for Constitutional Rights in New York City, Advocacy 
Director Nadia Ben-Youssef, with the rest of CCR’s staff, has been 
giving her all to stopping the lethal flow of Israeli power. Nadia 
fights, not just with a militant determination, but also in a kind of 
quest for humanitarian wisdom. “What’s the best work we can do; our 
highest contribution to this moment?” she asks. “It feels clear that 
naming the unfolding genocide matters. And, because we’re in the United 
States, the key is focusing on the U.S. role."

The result is /Defense for Children International-Palestine v. Biden/ 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992217-ccrjustice.org/sites/default/files/attach/2023/11/complaint_dci-pal-v-biden_w.pdf?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088>, 
a lawsuit filed in U.S. federal court on November 13, charging President 
Biden, Secretary of State Anthony Blinken, and Defense Secretary Lloyd 
Austin with failure to prevent and complicity in the genocide of 
Palestinians in Gaza. Plaintiffs named are two Palestinian human rights 
organizations, Al-Haq 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992221-www.alhaq.org/?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088> 
and Defense of Children International-Palestine 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992225-www.dci-palestine.org/?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088>; 
three individual Palestinians in Gaza; and five Palestinians in the U.S. 
with family in Gaza. Three days after filing this suit, CCR followed up 
with a preliminary injunction 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992229-ccrjustice.org/sites/default/files/attach/2023/11/pi-20motion_w.pdf?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088>, 
demanding a ceasefire and an end to military and financial aid to 
Israel. I talked with Nadia about her work in all this.

*Nadia Ben-Youssef: *I come from a legacy of refugees and 
revolutionaries. My grandfather 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992233-thefunambulist.net/magazine/forest-struggles/listening-to-our-revolutionary-ghosts-resisting-anti-black-racism-and-comprador-colonialism-in-tunisia?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088> 
was a freedom fighter in Tunisia in the anticolonial struggle against 
France, and part of a global movement against colonialism. In 1961, he 
was assassinated by order of Habib Bourguiba, Tunisia’s first president, 
and my family became political refugees in Egypt. We remained there 
until 1987, when Bourguiba was deposed by Ben Ali.
So my worldview has been defined by struggles for justice and liberation 
from fascism, from colonialism. This has been both a deep knowing and a 
profound question of my life. I went to law school, looking for a 
powerful tool to confront injustice – and recognized early on that the 
law is not a powerful tool; it’s a tool of the powerful, used to 
preserve the status quo of colonialism, capitalism, white supremacy, of 
hetero-patriarchy. During law school I became interested in the issue of 
Palestinian refugees, seeing there was the Palestine exception – that 
there’s a whole world of refugee law, nothing of which applies to 
Palestine. I went to Palestine in 2010, seeing it as a battleground for 
human rights, and worked with Adalah - The Legal Center for Arab 
Minority Rights in Israel.

I returned to the U.S. in the summer of 2014. That summer – with the 
murder of Mike Brown in Ferguson, the uprisings, and another military 
assault on Gaza, “Operation Protective Edge” – was a crucial shift of 
advocacy on Palestine. I knew we needed to integrate Palestine into the 
vibrant social movements that were emerging and reinventing. In the 
United States, there were cross-movement connections between 
marginalized communities and Palestinians, the resurgence of the Black 
and Palestinian solidarity struggle. I got a kind of clarity at that 
point that solidarity is what would save us, all of us.

I started work at the Center for Constitutional Rights in January 2019. 
Soon after, I was in DC, with members of Palestinian civil society, 
meeting the Squad, who’d just been elected, making these connections, 
and thinking how very few organizations – very zero, except for CCR – 
were taking a principled stand on Palestinian liberation.

*sd:* /So, in international law, Palestinians don’t have a right of 
return, but other groups do? /

*Nadia Ben-Youssef:* Yes. Generally, there’s many international human 
rights protections for refugees. Refugee law is a powerfully established 
body of international law that protects people who flee their countries 
to escape war, persecution, natural disaster, etc. You don’t lose your 
right to your homeland if you leave those borders. And, while there’s an 
important UN Resolution (194) aiming to protect Palestinian refugees, 
there’s also a disconnect between the world of refugee law and how the 
law is applied to Palestinians. The right of return, of a guaranteed 
freedom of movement, to leave, to return, to stay — all that is denied 
to Palestinians.

After the Nakba, the international community established a new, special 
agency, the UN Refugee and Works Agency [UNRWA], specifically for 
Palestinian refugees in a particular geographic area. This was separate 
from the UN High Commissioner for Refugees [UNHCR], which handles all 
other cases of forced migration or displacement. But what may have been 
intended as an additional level of protection for Palestinian refugees 
has actually set the Palestinian refugee question apart from established 
law that guarantees a right of return. It says, in effect, /You’re not 
like other refugees/. Part of our job is to insist on universal 
applicability of international human rights standards and norms. But of 
course the U.S. and Israel are professionals at suspending international 
law and taking themselves outside their scope.

*sd:* /Why has CCR decided to use international law, and not U.S. 
domestic law, to stop genocide in Palestine?/

*Nadia Ben-Youssef:* CCR is a political organization that uses the law – 
whether domestic law, international human rights law [IHRL], or 
international humanitarian law [IHL] – to stand with communities under 
threat. In this case, the obligation to prevent and not be complicit in 
genocide – even though it’s also codified in the Genocide Convention – 
is known as customary international law, which is law that is so 
well-established that obligations exist, even if a state hasn’t signed 
onto a particular human rights treaty.

December 9 of this year marked the 75th anniversary of the Genocide 
Convention 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992237-www.un.org/en/genocideprevention/documents/atrocity-crimes/doc.1_convention-20on-20the-20prevention-20and-20punishment-20of-20the-20crime-20of-20genocide.pdf?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088> 
– the first international human rights treaty ever established, followed 
the next day by the Universal Declaration of Human Rights. What’s 
significant is that the U.S. has not only signed the Genocide 
Convention; it’s also taken steps to ratify it by implementing the 
Convention into international law.

Generally, the United States doesn’t like to do that. Domestic 
implementation of human rights mechanisms is not something it usually 
does because, of course, U.S. exceptionalism is key to U.S. foreign 
policy. However, in 1988, the U.S. passed the Genocide Convention 
Implementation Act 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992241-www.govinfo.gov/app/details/uscode-2011-title18/uscode-2011-title18-parti-chap50a-sec1091?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088> 
that enabled the U.S. to become a full signatory of the Genocide 
Convention. Biden, at the time a senator, was a cosponsor. So the case 
relies on both customary international law and U.S. federal law.

*sd:* /The U.S. and Israel have both signed and ratified the Genocide 
Convention?/

*Nadia Ben-**Youssef*: Yes.

*sd:* /You’re using international law, but you’ve chosen to file your 
Complaint in a domestic court. Why?/

*Nadia Ben-Youssef:* There’s many reasons for that. It’s not to say we 
won’t pursue international tribunals – CCR has a long history of doing 
work before the International Criminal Court and the International Court 
of Justice. But such work is often backward-looking, at crimes already 
committed. Our obligation is do everything we can now to pressure the 
Biden administration to stop its support of Israel’s ongoing genocide. 
And there are plaintiffs here – Palestinians in the United States with 
families in Gaza – who, together with Palestinians in Gaza and 
Palestinian human rights organizations, are being harmed by U.S. 
actions. The law and the facts give us an opening in U.S. federal court.

*sd:* /How did you choose Biden, Blinken, and Austin as your defendants?/

*Nadia Ben-Youssef:* That’s the question: Who has the ultimate 
authority; who creates the conditions and gives the green light to 
Israel to go ahead with its genocide? Obviously, President Biden. But 
similarly, Secretary of State Blinken, who’s advancing the 
administration’s interests along with those of Netanyahu’s Israeli war 
cabinet; and Secretary of Defense Lloyd Austin. There was definitely 
debate around naming individuals like Kamala Harris, U.S. Ambassador to 
the UN Linda Thomas-Greenfield, National Security Council Coordinator 
John Kirby – all of whom are mentioned in the Complaint 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992217-ccrjustice.org/sites/default/files/attach/2023/11/complaint_dci-pal-v-biden_w.pdf?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088>. 
We wanted them for the historical record. But you'll see, throughout the 
Complaint, the level of complicity is so strong – it felt compelling to 
narrow in on these three defendants.

*sd:* /You end your Complaint with a “Prayer for Relief,” asking these 
defendants to stop what they’re doing. Isn’t there some way you could 
also demand accountability, reparation?/

*Nadia Ben-Youssef:* This is the difference between a civil and a 
criminal complaint. CCR’s is a civil complaint, asking the court to 
intervene to stop what’s happening. In the future, definitely – there’s 
no statute of limitations for the crime of genocide. That opens the door 
for endless work with regard to accountability and repair, to efforts 
against these and other defendants. But the urgency now is about 
stopping the harm. Meanwhile, partners in Palestine 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992245-www.aljazeera.com/news/2023/11/9/three-rights-groups-file-icc-lawsuit-against-israel-over-gaza-genocide?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088> 
have continued years of work before the International Criminal Court, 
asking the Prosecutor to arrest Israeli officials responsible for the 
genocide, as another means to stop this crime of crimes.

*sd: */How much of your case rests on the court’s accepting your 
definition of genocide?/

*Nadia Ben-Youssef:* In fact, the case doesn’t at all rest on proving 
genocide. Whether genocide – which is a very fact-intensive endeavor to 
prove – has been committed or not, is not something for the moment to 
consider. What’s important is whether the U.S. has a duty and an 
obligation, under both U.S. law and customary international law, to 
/prevent/ genocide and to not be complicit. We received powerful 
declarations from leading genocide experts like William Schabas 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992249-ccrjustice.org/sites/default/files/attach/2023/11/declaration-20expert-20william-20schabas_w.pdf?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088>. 
While Schabas is typically conservative in his analysis, he nonetheless 
felt compelled to speak about this as an unfolding genocide, noting the 
U.S.’s obligation to prevent it.

*sd:* /Schabas cites /Ukraine v. Russian Federation/, //now before the 
ICC, in which the United States appears to //accuse Russia of genocide/ 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992253-www.loc.gov/item/global-legal-monitor/2022-09-15/united-states-department-of-state-files-declaration-of-intervention-to-international-court-of-justice-in-ukraine-v-russian-federation-genocide-matter/?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088>/in 
Ukraine./

*Nadia Ben-Youssef*: Back to the early part of this conversation: the 
U.S. does not apply human rights obligations and international law 
obligations universally. It’s a reflection of a terribly unjust world 
order that’s created categories of human beings who are and are not 
valued. It’s really an indictment of whether the U.S. respects 
international law and human rights at all.

*sd: */About “international law”: we assume that it’s democratic and 
universal, and can somehow correct whatever atrocity is occurring: /“You 
can’t do that; it’s against international law!”/But in fact, 
international law is a system outside the legal order of any country. 
The UN has no power to create binding laws. The U.S. still holds people 
in Guantanamo, despite the Geneva Conventions. Basically, there’s no 
executive international authority to enforce humanitarian law. /

*Nadia Ben-Youssef:* You’re right; it’s an aspirational vision of a 
global community that has never existed, certainly since the inception 
of international law. The Genocide Convention, the Universal Declaration 
of Human Rights, were adopted in 1948. What else happened in 1948? The 
establishment of the state of Israel and the Nakba, right? So how, from 
this beginning, could international law accommodate ongoing colonization 
— which requires human subjugation, a hierarchy of life? That’s the 
antithesis of a declaration that says everyone has inalienable rights. 
Even the best laws are not applied equally. The greatest violators of 
international law, including the United States, are never held 
accountable. They wrote the laws, so it makes sense that they’ve created 
this system.

I don’t think human rights or international law will lead us toward 
liberation – they’re tools for human beings to make sense of their 
material circumstances, then to build toward something else. The reason 
I find human rights so compelling, is that it validates our collective 
knowing that human dignity is the core of our experience. Protecting 
human dignity is sacred work. I think people know that if you violate 
someone’s dignity, that’s the core of their humanity. We can judge 
whether something is legitimate or not – we know that racism, 
xenophobia, homophobia, transphobia, ableism strike at the core of our 
dignity – and so are not legitimate, and neither is any law or 
institution upholding them. So we don’t fight for human rights for it 
for its own sake, but for its power to inspire us toward a different 
society. That’s why I’ve always been compelled by human rights, despite 
a deep, deep critique about how the human rights framework emerged and 
how human rights are applied.

What if we start our inquiry about policies and laws with whether or not 
they preserve and protect human dignity? Suddenly, we’re in a very 
different world. Our opportunity is to imagine a nonwestern, nonwhite, 
nonimperialist human rights. And many people are doing that. I think the 
language of human rights on the street /is/ that.

*sd:* /How is the government responding to your lawsuit?/

*Nadia Ben-Youssef:* The government responded on December 8 with a 
motion to dismiss 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992257-ccrjustice.org/sites/default/files/attach/2023/12/38_12-8-23_mtd_w.pdf?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088> 
and a response to the Complaint: /Who are these plaintiffs? How have we 
really harmed them? This is all Israel; why are you coming to us?/ So 
full steam ahead with the status quo. On December 22 we filed a Reply 
<http://mail01.tinyletterapp.com/Snidelines/the-legal-fight-to-end-genocide-in-gaza-nadia-ben-youssef-on-why-solidarity-will-save-us-all-of-us/22992261-ccrjustice.org/sites/default/files/attach/2023/12/44_12-22-23_pi-reply-mtd-oppn_w.pdf?c=8620623b-65a0-7fdd-c7da-e0a5d6d3d088>, 
refuting those arguments and others. We have a hearing scheduled for 
January 26, in Oakland. It feels painful that it’s so far off. But it 
gives us a chance to continue building pressure.

*sd:* /What if your case is dismissed and you lose this legal platform, 
do you have other plans? /

*Nadia Ben-Youssef: *This is just one thread of a huge ecosystem that’s 
turning up for Palestine. We’re in conversation with partners around the 
world. Partly, our work is to ensure that this case creates an 
opportunity for the movement, for people to feel strong and validated in 
calling out what’s happening to Palestinians and their families. And you 
can leverage this complaint; it’ll be a tool for activists – even for 
artists.

Until Palestine is free, we’re using all the available mechanisms. This 
is one. And there will be more.

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