‘Palestinians are taking the stand’: can legal challenges to Israel’s war in Gaza stop the continuing onslaught?

On the seventh floor of a quiet building in lower Manhattan, Diala Shamas sits in an office stacked with folders and cardboard boxes, as Signal messages ping on her phone.

Shamas is an attorney with the Center for Constitutional Rights (CCR) who has spent the last year trying to harness international and US law to stop the war in Gaza .

She is one of a cadre of lawyers operating in courthouses from California to The Hague, where both the power and limits of legal frameworks like the Geneva conventions and the Genocide convention have been on display since Hamas killed 1,189 people on 7 October 2023 and took 250 people hostage, and Israel responded by killing more than 41,000 Palestinians in Gaza.

The most lofty developments have come in the international court of justice, the United Nations' top court, which found a "plausible risk" of genocide in Gaza. In a separate case, the chief prosecutor of the international criminal court recommended arrest warrants for the leaders of Hamas and Israel. (The ICJ rules on disputes between countries, whereas the ICC tries individuals for war crimes.) At the same time, legal challenges to the supply of weapons to Israel have moved forward in a number of other countries.

"We've seen more action and more direct engagement with international law in this last year than I think I can remember," Shamas says. "It's been a moment for it to really be put to the test."

As the Biden administration supplies heavy weapons that have been used to decimate a society of 2 million Palestinians and triggered genocide and other war crimes charges against Israel at the international level, Shamas and her colleagues have also reached for American courts to rein in what they view as Joe Biden's complicity – but have largely come up empty.

In November 2023, the CCR sued the Biden administration in an Oakland, California, federal court for providing weapons to Israel that it alleges have been used to carry out a genocide of Palestinians in Gaza. The CCR said Biden, his secretary of state, Antony Blinken, and his secretary of defense, Lloyd Austin, were in violation of the Genocide Convention Implementation Act, which Congress passed in 1988.

The federal judge dismissed the case in January on the grounds that the transfer of weapons was a "political question" outside the court's jurisdiction. An appeals court upheld the dismissal and, on Wednesday, refused to rehear the case.

But despite the disappointing rulings, there were some breakthrough moments in the case.

In their testimonies, the Palestinian plaintiffs – some calling in from Gaza and others appearing in person in Oakland – named their ancestral villages and spoke about the impact that the Nakba, the Arabic word for Israel's dispossession and displacement of Palestinians in 1948, had on their lives.

"I can say fairly confidently that the word 'Nakba' has never been uttered in federal court" before, Shamas says. "This is probably a first in federal court history where Palestinians are taking the stand, and they're not on the defense."

And then there was the way in which the court reinforced the findings of the international court of justice. Judge Jeffrey White, in his ruling, wrote: "It is plausible that Israel's conduct amounts to genocide." He went on to implore Biden and his team to "to examine the results of their unflagging support of the military siege against the Palestinians in Gaza".

"There are rare cases in which the preferred outcome is inaccessible to the Court," he continued. "This is one of those cases."

Shamas disagrees with the judge's conclusions. "That is just the ultimate declaration of helplessness of the judicial system," she says. "It's absolutely the wrong conclusion on the law, but also a really stunning thing to have put in those stark terms."

Shamas was born and raised in Jerusalem. Growing up, the checkpoints near her home became a microcosm for the changing shape of Israel's occupation, from the relative openness of the 1990s-era Oslo accords era to the clampdowns of the second intifada in the early 2000s. "We'd joke, every era, I can't really remember the years but I can tell you what the checkpoints were, whether we had to go through this road or that road."

Shamas comes from a family deeply committed to activism. Her mother, Maha Abu Dayyeh, a prominent Palestinian feminist, established the Women's Centre for Legal Aid and Counselling. Her father, Charles Shamas, co-founded Al-Haq, the Palestinian human rights organization. Though neither were lawyers, it was a family that understood the role and the limits of the law in protecting Palestinians.

After graduating from Yale, Shamas worked with the Israeli human rights group B'Tselem in distributing video cameras to Palestinians to document the military's abuses and settler violence. But she soon returned to Yale for law school.

She has worked at the Center for Constitutional Rights for the past seven years, defending clients caught up in Trump's Muslim ban, representing plaintiffs surveilled by the New York police department and working to incubate the organization Palestine Legal, a non-profit that offers support to Palestinians in America who face discrimination and government pressure, and has accelerated its efforts over the past year as well.

The center's suit to stop the Biden administration's arms transfers to Israel is one of a number of landmark cases tied to the war.

In the international court of justice case brought by South Africa that accuses Israel of genocide, an interim ruling from January ordered Israel to "take all measures within its power" to stop acts falling under the genocide convention. But a final decision will take years.

"We don't have time for the normal pace here of legal cases to proceed," Shamas says. "The harms are happening at a speed that is way too fast, and the harms are way too severe and irreversible, so we need judicial action now pending the determination on the merits."

Then in July, the international court of justice separately delivered an advisory opinion that called on Israel to end its occupation of the Palestinian territories and said that all countries had a duty not to cooperate in perpetuating the illegality of that occupation. The challenge, however, is implementation, which depends on other countries changing how they deal with Israel. "That's where the work is now," Shamas explains.

Meanwhile, the international criminal court is operating on an entirely separate track, building on years of Palestinians calling on the court to hold Israel to account. In May, prosecutor Karim Khan issued a request for arrest warrants for Hamas officials and Israeli leaders for war crimes and crimes against humanity. It was the first time that an international criminal court prosecutor had requested indictments for a western ally. Neither Israel nor the US are members of the international criminal court, and both countries have sought to undermine the prosecutor.

But Reed Brody, a veteran war crimes prosecutor, is optimistic about the power of these efforts. "This last year has been devastating for the people of Gaza but it's also marked a historic turning point in the use of the law in efforts to hold the Israeli government and its leaders accountable ... All of a sudden, to people around the world, international law has become relevant."

The last year has seen cases in other jurisdictions, such as Germany , the Netherlands and the United Kingdom , which have restricted some arms sales to Israel. "Lawyers are going domestic and saying, 'You can't do this, because you are becoming complicit in genocide or crimes against humanity," Brody said. "I think we're going to see that everywhere."

But as muscular as these mechanisms have appeared, they have not stopped the violence.

With the US genocide case hitting a wall, Shamas plans to continue seeking other avenues for accountability, pressing the US government directly and supporting grassroots international accountability efforts where she can.

"We have not been able to stop or even slow down a pace of genocide," Shamas acknowledges. "We've always known that the law is one terrain among many where struggles for freedom and justice are contested."