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The US is a party to the 1948 genocide convention (full text here), and is obligated by it not to support genocide, and, in fact, to act to prevent genocide. It has also codified the convention into federal law: The Genocide Convention Implementation Act (18 U.S.C. § 1091).

Recently, a group of plaintiffs including Defense of Children International - Palestine, Al-Haq and others, filed a case in US court (district court for the northern district of California), against the President, the secretary of defense and others, praying the court to...

  • declare violations of the legal duties to prevent and not to assist in genocide;
  • order the defendants to exert influence over Israel in various ways to prevent the genocide.
  • enjoin the defendants from arming Israel and from obstructing the UN and others from implementing a cease fire.
  • any further relief

Now, the court has dismissed the case, finding it lacks jurisdiction to hear it, applying the "Political question doctrine":

“There are rare cases in which the preferred outcome is inaccessible to the Court,” wrote U.S. District Judge Jeffrey S. White. “This is one of those cases. The Court is bound by precedent and the division of our coordinate branches of government to abstain from exercising jurisdiction in this matter. Yet, as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide. This Court implores Defendants to examine the results of their unflagging support of the military siege against the Palestinians in Gaza.”

I'm not a US legal scholar, but this sounds a rather bizarre argument. The convention, and its codifying act, bind all branches the entire US government, does it not? How come the convention (and the act) do not override intra-US legal precedent, compelling the court to hear the case? i.e. why can the court say "Hey international community, I know the US is bound by the convention, but my friends here inside the US tell me that we have a custom of me not butting in, so I too, as part of the government, will refuse to act to prevent genocide, despite the US not having indicated any doctrinal exceptions to its accession to the convention." ... I don't see how this makes sense. Does it?

Note that the court could have heard the case, stating that it will only grant general and inspecific relief rather than order specific acts (like a weapons embargo) based on that doctrine, if the argument had been "it is not for the courts to say how to politically and logistically achieve the satisfaction of convention obligations" - but that's not the direction it took.

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  • "this sounds a rather bizarre argument": it's not an argument; it's a ruling.
    – phoog
    Feb 2 at 16:56

1 Answer 1

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The Genocide Convention was/is understood to not be self-executing in US domestic law. The President was not to deposit the U.S. instrument of ratification until after Congress had enacted legislation implementing the treaty.

This reflects a dualist approach to this treaty. It creates obligations on the US to the world; it does not create law within the US.

The US chose to implement the convention domestically via the creation of a criminal offence. See Public Law 100-106, An Act to Implement the International Convention on the Prevention and Punishment of Genocide, 102 Stat 3095. Notably, the implementing act does not create a private cause of action or avenue for injunctive relief (either prohibitory or mandatory). This is made explicit in the following section that was inserted at 18 USC 1092:

Nothing in this chapter shall be construed as precluding the application of State or local laws to the conduct proscribed by this chapter, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any proceeding.

Note that the United States has gone further than Canada, for instance, to actually implement penalties for acts enumerated in Article 3 of the Convention. Canada's criminal offence only covers two of the five enumerated acts, while the US definition incorporates all of them and adds a sixth.

The relief sought seeks to deploy the concept of genocide in areas squarely left to political decision-making. There are no justiciable rights that would give rise to the relief sought. The relief sought also interferes with foreign relations, another matter understood to be generally within the discretion of the executive branch.

In summary, the convention binds the US at international law, not in domestic law. What is codified at 18 USC 1091 is a criminal offence. That is the extent to which the US has implemented the convention domestically.

There is also nothing more that the Genocide Convention requires to be implemented in domestic law.

  • Article 1 is a statement made by the signing state to the world: "The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish."
  • Articles 2–4 set out the specifics of what and who should be punished.
  • Article 5 tells parties to enact "the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III."
  • Article 6 says charges of genocide will be tried by a "competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction."
  • Article 7 directs states to not consider genocide as a "political crime" for the purpose of extradition, which can be given effect by appropriate exercise of executive discretion during extradition requests.
  • The remainder are boilerplate treaty terms.
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  • Well, is the fact that the convention not binding in US domestic law not in itself a breach of the convention? Of article V specifically? And the refusal of the court to hear the case, a breach of article VI?
    – einpoklum
    Feb 3 at 10:45
  • Yes, it is in violation of the convention, but it’s not in violation of US domestic law which is all US courts have jurisdiction to decide.
    – Dale M
    Feb 3 at 11:36
  • Well, a genocide-related charge has been made in federal court against someone for acts they did in the US: Joseph R. Biden, Lloyd Austin etc., in the district court of northern California.
    – einpoklum
    Feb 3 at 15:10
  • @Jen: Not the federal government, I meant the plaintiffs in Defense for Children International Palestine vs Biden
    – einpoklum
    Feb 3 at 18:37

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