U.S. and Foreign Litigation Relating to the Events in Gaza

High profile cases against Israel and Germany have been bought before the International Court of Justice, alleging violations of international law with respect to events in Gaza following the October 7, 2023, attacks by Hamas. The prosecutor of the International Criminal Court is seeking five warrants of arrest against Israelis and Hamas leaders for war crimes and crimes against humanity during the conflict in Gaza after October 7.

By comparison, litigation before domestic courts around the world has received far less attention. Domestic cases face significant hurdles in any country, but resulting judgments may have greater practical effect (especially in the short and medium term) than the proceedings before international courts and tribunals. Domestic litigation involving Israel may become more important following an advisory from the International Court of Justice. It held in July that Israel’s continued presence in the Occupied Palestinian Territory violates fundamental norms of international law, and that third states are “under an obligation not to render aid or assistance in maintaining the situation created by Israel’s illegal presence in the Occupied Palestinian Territory.” For countries with domestic laws that require their governments to comply with international legal obligations, domestic litigation is a possible tool to restrict economic relationships with Israel that support settlements in the West Bank, as the Dutch case discussed below illustrates.

TLB has already covered domestic U.S. litigation focused on events in Gaza. This post updates that coverage and describes similar cases in Germany, the Netherlands, and a handful of other countries.

U.S. Litigation – Updates

As described on TLB back in May, victims of the October 7^th, 2023, attacks by Hamas sued AJP Educational Foundation, Inc. (also known as American Muslims for Palestine (AMP)) and National Students for Justice in Palestine in a case called Parizer v. AJP Foundation. The complaint focuses on the relationship between AMP and earlier groups founded by Hamas, such the Islamic Association for Palestine. Parizer relies in part on Boim v. American Muslims for Palestine, in which judgment was entered against the American Muslim Society, the Holy Land Foundation for Relief and Development, and the Islamic Association for Palestine under a U.S. statute, the Anti-Terrorism Act. These organizations disbanded, did not pay the judgment, and reorganized into new entities. In ongoing litigation, the Boim plaintiffs seek to hold AMP liable for the conduct of the disbanded organizations and Hamas. The Parizer plaintiffs similarly seek to tie AMP to Hamas leadership. The defendants have filed a motion to dismiss.  In July, other victims of the October 7 Hamas attack sued Iran, Syria, and North Korea under the state-sponsors exception to the Foreign Sovereign Immunities Act, alleging that those countries provided material support to Hamas.

In different litigation, Defense for Children International v. Biden, plaintiffs filed suit in U.S. court to limit support by the U.S. government for Israel. President Biden and administration officials are allegedly complicit in genocide in violation of articles 1 and 3 of the Convention on the Prevention and Punishment of Genocide (Genocide Convention). The plaintiffs requested declaratory and injunctive relief, including an order to prevent “the President and other senior Executive Branch officials from providing military, diplomatic, and financial support to Israel in its ongoing operations in the Gaza Strip.” The district court dismissed the case as presenting a political question in an opinion that did not cite the leading contemporary case on the topic, Zivotofsky v. Clinton.

My initial post on TLB analyzing the district court’s opinion was skeptical about the application of the political question doctrine in this case. Determining whether the president is acting consistently with a federal statute should rarely be dismissed as political question under Zivotofsky, even if the president wins the case on the merits either because the statute affords him discretion to take the challenged action or because the statute was unconstitutional.

On appeal, the Ninth Circuit affirmed, reasoning in part that the allegations in the complaint require “evaluating the ‘military decisions and strategy’ the United States has followed with respect to Israel, the scope of the United States’ influence over Israel, whether the United States should have imposed ‘conditions on its support to Israel’, and how the United States has acted in the United Nations Security Council.”

The Ninth Circuit’s decision is problematic.  A court is only required to make such evaluations if the plaintiffs can state a plausible claim for relief that turns on those facts. If there is no statute that would permit the plaintiffs to recover – no statute that requires this evaluation of the government’s conduct – then the case can be dismissed at the outset for failure to state a claim. If there is such a statute and it requires judicial review of the government’s military strategy and other conduct, then that statute might be an unconstitutional intrusion into presidential power. If so, the statute is unconstitutional, and the case fails for that reason. In both situations the plaintiffs lose, but in neither situation is the political question doctrine appropriate.  To be sure, it might be that in resolving some specific statutory issue or claim, a question arises that would be “political” and not appropriate for judicial decision-making. But the Ninth Circuit’s extremely broad holding in this case is difficult to reconcile with Zivotofsky.

Germany

A case has been brought on behalf of five Palestinians living in Gaza whose family members were purportedly killed by Israeli rockets. The claim was based on § 6 III Nr. 2 of the Arms Control Law (Kriegswaffenkontrollgesetz), which requires the government to deny a permit for weapons delivery if required by the federal government’s obligations under international law. The claimants argued that permitting weapons delivery to Israel would put Germany in violation of its obligations under the Arms Trade Treaty, the Genocide Convention, and the Geneva Conventions. They accordingly asked the court to require the government to deny permits for arms deliveries to Israel as long as the hostilities in Gaza continued.

In September 2024, an administrative court found for the government. Some of the court’s reasoning was familiar from a U.S. perspective, because it emphasized that courts should afford discretion to the government in such matters, the need for confidentiality, and standing. But some of the reasoning was more granular and technical. In particular, the court discussed the ICJ case mentioned at the outset of this post, Nicaragua v. Germany. In that case, the ICJ declined to issue provisional measures (interim relief), based in part on the actions taken by the German government to ensure compliance with international law, and in part because some of the factual allegations involved pending licenses that had not yet been granted. The German regional court reasoned that because the ICJ held that the German review of export licenses for war weapons was adequate, Germany had done enough to comply with international law. The court also refused to adjudicate the permissibility of future licenses.

The Netherlands

Parts for F-35 fighter planes are distributed from Woensdrecht in the Netherlands to a number of countries, including Israel. Because these U.S.-made parts are military goods, an export permit is required under Dutch law.  Pursuant to the law of the European Union, Member States must “refuse an export license if there is a clear risk that the military equipment or technology will be used in the commission of serious violations of international law.” The plaintiffs, several Dutch non-profit organizations, argued that this EU requirement meant that the Dutch government had to suspend the export license because the exported equipment is used by Israel in the Gaza strip, in violation of international humanitarian law, including the Geneva Conventions and the Arms Control Treaty.

The Dutch government argued that one of the plaintiffs did not adequately represent the people of Gaza based on the organization’s articles of association – an argument that U.S. lawyers would frame in terms of standing. The government also argued that it should have wide discretion to consider a broad set of interests, including its relationship with Israel and the United States, and that judicial oversight should be very restricted in national security and foreign policy matters. This argument, too, is familiar from U.S. cases, including the case against the Biden administration discussed above. Finally, the Dutch government said that there was insufficient information about the circumstances of concrete combat operations to rule in favor of the plaintiffs.

The court rejected all of these arguments. It reviewed the evidence about the war in Gaza submitted by the plaintiffs, some of which was uncontested by the Dutch government, and concluded that “there is a clear risk that serious violations of humanitarian law of war are committed with the F-35” and that “under various international regulations to which the Netherlands is a party, the Netherlands must impose restrictions on the export of military goods in such a case.”

Other Countries

In a case brought by the France-Israel chamber of commerce, the Paris Commercial Court, decided in June that a ban ordered by the French government barring Israeli companies from Eurosatory, a defense and armaments industry exhibition, was discriminatory and must be rescinded. A case brought in Bobigny against Eurosatory’s organizer,Coges, by Al-Haq, Association France Palestine Solidarité, and other organizations had earlier held the ban also prohibited Israeli officials and intermediaries from attending Eurosatory.

The Supreme Court of India has dismissed a petition filed by former government officials, academics, and activists who sought an injunction on “the export of arms and military equipment to Israel.” The petition argued that by providing arms to Israel, India had breached its obligation under international law. The Court outlined three reasons for denying the petition: first, it would require the court to make findings regarding the conduct of a sovereign nation, Israel, who could not be brought before the court; second, the requested injunction would be a decision to “breach of international contracts and agreements,” which would have consequences “cannot be appropriately assessed by this Court”; third, the government, not the courts, is the proper body to make a decisions on foreign policy.

Canadian Lawyer for International Human Rights (CLAIHR), Al-Haq, and four Canadian citizens have sued the Canadian Foreign Minister, Mélanie Joly, for authorizing the exportation of arms and ammunition to Israel allegedly in violation of Canada’s obligations under international law. CLAIHR has said it seeks “an order that the Canadian government cease issuing permits for all exports of military goods or technology destined for Israel.” Similarly, Denmark and the Netherlands have also apparently been sued to stop the sale and shipments of arms to Israel.

Conclusion

 It is unlikely that any of these cases – even the successful Dutch case – will have an immediate impact on Israeli military operations.  But foreign domestic litigation could over time be an important tool to push Israel towards compliance with international law and to limit the actions of organization around the world with ties to Hamas.

Many thanks to Vanderbilt Law School students Savannah Sparks and Caroline Spencer for research that contributed to this post.