By Kristin Trent, Shriya Kali Chittapuram and Karime Montano
OAKLAND, CA – Holocaust Scholar Dr. Barry Trachtenberg spoke Friday in the United States District Court located in Oakland regarding a lawsuit charging U.S. President Joe Biden with complicity in Israel’s attack on Gaza.
The Declaration, filed by the organizational plaintiffs Defense For Children International—Palestine, Alhaq and individual plaintiffs Ahmed Abu Artema, Mohammed Ahmed Abu Rokbeh, Mohammad Herzallah, Laila Elhaddad, Waeil Elbhassi, Basim Elkarra, A.N. and Dr. Omar Elnajjar, charged Biden, U.S. Secretary of State Antony J Blinken, and Secretary of Defense Lloyd James Austin III with being complicit in the genocide against Palestinians following the Oct. 3, 2023, attack on the Gaza Strip.
The attacks have destroyed schools, hospitals, and aid sites, eliminating 45 percent of housing in Gaza, according to the courtroom’s opening statements.
Representing the plaintiffs, Catherine Gallager, argued in her opening statement for the necessity of this matter to be examined in a court of law, citing the constitutional separation of powers as reason to examine the government’s actions involving Israel. “These are not questions of policy, these are questions of law,” Gallager said.
“The United States has a clear and unambiguous duty to condemn genocide,” Gallager continued, citing the US ratification of the Genocide Convention, which was erected to prevent atrocities similar to the Holocaust from reocurring.
Gallager argues the question is legal: “Do the actions taken by the United States fail to uphold the Genocide Convention?”
Gallager, on behalf of the plaintiffs, is tasked to prove if the U.S. has not abided by domestic and international laws by refraining from the direct participating in genocide and maintaining their duty to prevent genocide. Further, she must prove U.S. has knowingly provided and continued to provide assistance to Israel that has had a significant impact on the genocide against Palestinians.
“It is not the role of the court to indict Israel for violating the law,” Jean Lin, defendant representative said in her opening statement citing the Corrie V. Caterpillar case which was dismissed due to the political question doctrine, preventing the court from having jurisdiction over cases that fall under control over other branches of the government.
In response, Gallager noted the Corrie V. Caterpillar case predated the Belarusian Supreme Court’s Zhukovsky decision, which created a new precedent regarding the jurisdiction of the court.
“No one, including the President of the United States, is above the law,” Gallager said.
When asked by Judge Jeffrey S White what an enforceable injunction may look like, Gallager said that the U.S. must cease military support toward the Gaza Strip genocide. This would not implicate providing support for Israel to protect itself from other forces, clarified Gallager.
“If (the suit) should be allowed to continue because it touches on matters of foreign policy, what the separation of powers is, is not unequal branches of government, it’s coequal branches and the administration wants to turn that on its head. The government has said that these defendants can’t be held responsible because Israel is independent in its actions,” stated Gallager.
The seven filing plaintiffs then proceeded to give statements in addition to testimony by a Holocaust expert.
Dr. Omar Elnajjar, Plaintiff: A Palestinian physician, Dr Omar Elnajjar shed light on the current medical situation in the Southern Gaza Strip. Elnajjar joined the courtroom digitally while sitting in the administration hallway of the bustling Rafah City Hospital.
Elnajjar fled his hometown of Jaffa 112 days ago when occupying forces arrived to kill villagers. “We had to leave to preserve our lives,” he said. “My house was 400 meters away from the occupation fence. Originally my grandparents were from Jaffa, they were displaced by Zionists in 1948.”
Elnajjar has been displaced three times since initially fleeing his home. Before coming to Rafah, he worked at Nasser Medical complex located in Khan Younis until Israeli presence forced him to flee once again.
“I have lost everything in this world, I lost my home, my garden, university is gone, friends I haven’t seen in a while, many I have lost teachers and professors, many teachers were killed. My dreams and plans to go to university are all lost. I have nothing but my grief. This has made me devoid of passion and energy, this is what every Israeli and its supporters has done to us. They have done this for years,” revealed Elnajjar.
Describing the current conditions of the hospital, Elnajjar noted the high level of complications occurring for those who could not receive hospital intervention given inability to reach a hospital and lack of hospital supplies.
Al Najar’s sister’s mother-in-law was living in a refugee area when she suffered a stroke in the middle of the night. Fearing for their lives if they left to transport her mother-in-law to a hospital amidst air strikes, she died in the camp, Al Najar said.
During a recent night shift, Al Najar received a father who had come to the hospital with news that his wife had delivered a baby in the middle of the street, just feet from the hospital. The child was cyanosed, convulsing and diagnosed with a brain injury.
“There are two million in Rafah. The current hospital lacks an intensive care unit and medications, original capacity was three for patients, but daily receiving over 2,000 people with injuries and severe medical injuries and infectious diseases has run rampant. For patients with chronic diseases, there is no medication for them,” affirmed Elnajjar.
Alhaq, Organizational Plaintiff: Plaintiff Akhmed Abofoul, representative of Alhaq, a Palestinian Human Rights Organization, said “The current situation in Gaza is like nothing we’ve seen before.”
Currently residing in the Netherlands, Abofoul was born and raised in Gaza as a third-generation refugee. Crediting his survival of three wars as the reason he decided to become an international lawyer and legal researcher, he now works to promote the rights of the Palestinian people.
Having lost contact with two colleagues residing in Gaza, Abofoul reported Alhaq has been unable to cover Gaza properly for the first time since its establishment. “(My colleague’s) sister has been critically injured and her three children killed. We have to choose between the documentation of human rights and our staff,” he said.
Abofoul reported personally losing over 60 family members with 50 of them being during a single air strike in the north. His sister, who recently gave birth, is unable to breastfeed due to lack of access to adequate food and water.
“I grew up hearing from my grandparents about how we were displaced. My grandfather (recently) refused to leave. ‘That is exactly what they told me in 1948 and I haven’t been able to go back since,’ my grandfather said.”
Laila Elhaddad, Plaintiff: Author, writer and mother of four living in Maryland, Elhaddad uses her writing to document Gaza’s heritage. Elhaddad’s entire extended family lives in Gaza and has lost 89 family members since Israel launched their attacks.
“Gaza is the place my parents were born, raised, practiced as physicians and the place I returned to every summer. I returned as a new mother and raised my son there and became a journalist there,” she shared.
“I remember visiting Gaza city and as a young mother taking my son down to the park of the unknown soldier which extends all the way to the Parliament building, walking with my mother as we ate peanuts and ice cream. That entire area was destroyed and is now a large pile of sand. All the way from the fountain, to the cultural center, to the swing sets.”
The humanitarian crisis in Gaza has deeply troubled Elhaddad, she said, adding, “This has consumed every aspect of my life, a living nightmare literally and figuratively. I have nightmares where I’m in Gaza and it’s unrecognizable, and I look through the rubble. All my days revolve around this, I’m trying to do what I can and use my privilege to lobby or speak to my representatives. It has been layers upon layers of trauma as the best way to describe it.”
She continued, “I wish I could say I had the luxury to be able to grieve. I haven’t had a moment to process. My family is being killed on my dime, there is no time for feelings right now,” using a tissue to wipe tears from her eyes.
She continued, “(It) left me with a profound feeling of not just sorrow and sadness but helplessness and injustice, in arabic its called zulm. All of this is coming from the knowledge of my government and my taxpayer money is complicit in the killing of my people and everything I loved.”
“It (has) also made me feel unseen, as a Palestinian Muslim woman, I’ve felt discriminated against, dehumanized, to hear our President not only actively support it but to cast doubt on the deaths. Despite the fact that Biden can end this with one phone call, he has decided to aid and encourage this, I’m here to ask the court to do everything in its capacity to further prevent this genocide.” stated Elhaddad.
Elhaddad urged the court to do everything in their power to bring the genocide in Gaza to a complete halt. “Despite President Biden being able to stop this with one phone call, I am asking the court to hold the US government accountable,”she said.
Waeil Elbhassi, Plaintiff: Born and raised in Kuwait and currently residing in San Ramon, California, Waeil Elbhassi has lost over 100 members of his extended family in Gaza as a result of Israeli interference.
“It’s always a fear, hearing about the loved ones being killed the next day – you never know,” he said. “Israel is ethnically cleansing the Gaza strip, they are making it unlivable, and when they leave they will not be able to come back,” Elbhassi said, referring to his family members.
Elbhassi expressed his frustration with the U.S. approach to the conflict. “We have demonstrated, rallied, taken to the streets, appealed to the world and nothing is happening – the killing continues. The people in power are complicit.”
At the end of his testimony, he added, “If I may, one of the really disturbing images I saw come out of Palestine was thousands of people walking on foot and my brain instantly recalled the same images from those in 1948 of Palestinian’s fleeing.”
Mohammed Mondadel Herzallah, Plaintiff: Mohammed Mondadel Herzallah, a resident from Fairfield, CA, with family in Palestine revealed that he had lost seven family members from Israeli attacks in Gaza since Oct. 8, including two he considered his “adoptive” sons. The youngest was a four-year old girl.
“I am 63 years old and the last 16 weeks have been the hardest – the most rough ever. Not even animals can survive these conditions,” stated Herzallah.
Inspired to take action by his late wife Mona, who had been diagnosed with a terminal illness a week after the attacks on Oct. 8, Herzallah, his wife and son have continued to demonstrate their commitment to raising awareness for Palestine weekly.
“The first thing I do in the morning is check and see if I’ve received any updates about Gaza. Then I check my TV which I always leave on to see what has happened with this madness,” said Herzallah.
“While my wife was in the ICU with a terminal disease, we were paying just as much attention to the (hospital) television. When she was discharged and under hospice care, the three of us, every week, one of us would be in action. My son and I would trade off, one of us would be with her while the other went out to demonstrations. Until her last dying moment, she was always encouraging us to move forward and ‘raise your voice, fight this injustice taking place,’” Herzallah remarked.
“I am proud to have a partner that was motivating me to do everything I can,” he reflected, adding in his role as the plaintiff, he was suing defendants Biden, Blinken and Austin on the basis that “they have the authority (and) the power to stop this.”
“We have the opportunity to cherish the moments of our loved ones. These people in Gaza don’t have that, they don’t have that opportunity. I wanna make her wishes come true. One of us was there even in her last moments,” Herzalah reflected.
Basim Elkarra, Plaintiff: Residing in Sacramento, California, Basim Elkarra has felt the guilt of living in the U.S. while he continues to lose family members in Gaza. “Calling from America, you feel tremendous guilt,” he said.
With both of his parents born and raised in Gaza, Elkarra has lost 78 family members and continues to lose family to the Israeli conflict, noting, “During the break, I just received (news) that my cousin’s son was murdered and two of our family members are missing.”
“One and two ton bombs are being dropped – bombs that were used in Vietnam that were used in wide fields are now being used on the densely populated Gaza strip. People can’t sleep, and we’re paying for it.You live with this guilt knowing that your taxpayer dollars are funding these bombs. You become angry, you become numb. We wake up every morning calling our family seeing who survived,” he said gravely.
The occupied territory has struggled with overcrowding, lack of clean water, along with various sanitary issues, according to Elkarra.“There are no menstruation pads, there are no diapers. We’ve lost family members in many attacks over the years and this is what Israel calls ‘putting Gaza on a diet,’” he said.
“They’ve (Israel) said it publicly, quoting biblical verses calling for the slaughter of men, women and children. These are things reminiscent of previous genocides and the president and secretaries justifying what is happening in Gaza. “Despite knowing this, the United States is sending more fighter pilots, more bombs. Not only are they aware, they are complicit.”
Defense for Children Palestine, Organizational Plaintiff Representative Khaled Quzmar: Khaled Quzmar, Director of Defense for Children Palestine (DCIS) emphasized the dire situation for Palestinian children enduring the Israel conflict. He joined the hearing from Ramallah, the de facto administrative capital of Palestine.
“DCIS is established to provide legal services to children in Palestine. (This) includes psychosocial support. It monitors human rights violations against children. We work in occupied Palestinian territories like Ramallah, Hebron, West Bank, East Jerusalem and Gaza city,” said Quzmar.
“Gaza has become a graveyard for the children. UNICEF has published reports that all the children killed in armed conflict areas since 2019 is less than half of the children killed in Gaza,” he said.
He added, “DCIS has emphasized the need for increased care for the children in occupied Palestine, many of whom have experienced significant impacts on their mental and physical well being due to increased Israeli presence.”
Visiting schools, Qzmar works with children to help them process their feelings amidst the intense conflict they are living through. “They shared with us the atrocities they are living in,” Quzmar shared.
Qzmar illustrated the realities for children enduring the Israeli conflict through the story of 12-year old Dunia. “A war plane bombed her house and killed her father, mother, brother and her leg was cut off. She found out that she was the sole survivor. Dunia was to get outside the country for proper medical care to get a new leg. She was supposed to study to become a doctor. Later the hospital was bombed by Israel and Dunia was killed, ending Dunia’s family.”
He continued, “This story is not uncommon. Children in Gaza are sustaining (realities) sometimes worse than those who are killed. When they are sick or have injuries and they don’t have medical care and all the hospitals are being attacked and bombed by Israelis, they’re dying from injuries (and) starvation. This kind of situation is an ongoing suffering for them. It’s very complicated for them.”
“The executive branch has no discretion to violate the law, including legal binding applications arising out of international laws, prohibitions relate to the most serious of crimes genocide and it is the duty…when half of them are children,” added Quzmar
The ongoing genocide in Gaza has resulted in the deaths of more than 10,000 children since Oct. 7. Those who have survived barely have any resources to cope with the physical and mental trauma that they have endured.
Dr. Barry Trachtenberg, Expert Testimony: Dr. Barry Trachtenberg, Doctor of Jewish History, teacher of comparative genocide and author of two books regarding the Nazi Holocaust, provided expert testimony regarding genocide.
A 12-page declaration published three months prior reports the killing of 11,000 Palestinians by Israeli forces written by Trachtenberg in collaboration with other scholars. Now, this number has risen to over 26,000, according to Trachtenberg.
Trachtenberg argues Israel’s actions toward Gazans suit the definition of genocide: “What makes this situation so unique is we’re watching the genocide unfold as we speak. . . we’re seeing it happen before our eyes,” he said.
He also noted the biblical verses used by Prime Minister Benjamin Netanyahu comparing Palestinians to “Amalekites” to promote the dehumanization of Palestinans
On multiple occasions, the defense interrupted Trachtenberg’s testimony, questioning his credentials with the claim that he is “not an expert in national security.”
“I hold the Reuben presidential chair (at) University of Vermont. And the statements and actions of intent right we’re very well familiar to two have an event for fall under the 1948 Convention of genocide requires both action and intended here we see that very very clearly…” Trachtenberg refuted.
Upon presenting closing statements, Gallager strongly conveyed, “If the court accepts this position (the defense) all of this framework, the genocide convention, everything that has been put into place to prevent genocides, means nothing when its US officials that are enabling it.”
Presiding over the court, Judge Jeffrey S White said “The testimony that the court heard was truly gut wrenching, there are no other words to describe what’s been testified, to the population, to the people of Gaza, to Palestinians. There is now on the record, uncontradicted evidence that they believe that there is a genocide happening in front of us.”
Judge White continued,“From 27 years on the bench, I can say this is one of the most difficult cases factually and legally. This will be one of the most important decisions I have made, and I will do it thoughtfully.”
During his last statements, Judge White seemed to question the limits of the court’s power in continuing the civil suit, but affirmed that he will make the best decision he could considering his constitutional obligations and promised that his decision making would be addressed with the utmost importance.