[Prefatory Note: A slightly updated and modified interview on Gaza with Zeynep Busra Conkar, an Associate Producer of TRT World, published October 30, 2023, an important Turkish media platform. A link to a short audio excerpt: https://twitter.com/trtworld/status/1719078356577075573]
TRT: Israel’s bloodlust shows international law is ‘a manipulated series of norms.’ Renowned International Law Professor Richard Falk says Western leadership becomes “self-righteous” to enforce international law “when it’s in their interest” while in other cases, they remain silent. TRT Introduction to Q & A follows.
”Many objective observers have noted that how Israel is using force against Gaza constitutes an ongoing case of genocide, which is itself considered the most serious of international crimes and deserves to be stopped by a consensus of inter-governmental action at the UN to stop this kind of extreme violent abuse of state power,” Falk said.
As the ongoing Israel-Palestine conflict enters its 24th day, claiming the lives of over 9,800 people – 8306 Palestinians and 1538 Israelis – Tel Aviv refuses to de-escalate or even allow ‘a humanitarian pause’ in its military operations and instead resorts to massive disproportionate and indiscriminate violence on the besieged and defenseless people of densely populated Gaza, striking at targets such as hospitals, medical convoys, refugee camps, religious buildings, UN facilities, schools, and in the process ordering a cruel and impractical forced evacuation of 1.1 Palestinians in the northern part of Gaza, treating those unable or unwilling to leave as aligned with the ‘terrorists,’ that is, Hamas.
The scale of devastation caused by Israeli bombings in Gaza is horrifying. A small enclave of an estimated 2.3 million Palestinians navigating perilous waters over the past 16 years to survive in the face of a comprehensive and punitive economic and social blockade since 2007 proclaimed by Israeli officials as designed to keep Palestinians on ‘a subsistence diet,’ that is ‘a bare life.’ Gaza has in the last weeks once again been subjected to collective punishment on a gigantic scale– further aggravated by Israel’s scandalous targeting of prohibited sites and by through the alleged use of incendiary phosphorus bombs in densely populated civilian areas. Such practices consist of numerous war crimes.
In moments like this, when a staggering death toll of civilians, half of whom are children, isn’t significant enough even to lead the international community to use the same condemnatory language and criticism it has employed against Russia in the course of the Ukraine conflict in far less anguishing circumstances. Western leadership fails once again to convince the world that conformity to its recently much-touted “rules-based order” bears any relationship to either the UN Charter or international law. It exhibits a calculus of friends and enemies, with the former allowed to coerce as they wish, even in monstrous ways.
TRT WORLD: Will Tel Aviv ever be held accountable for the crimes it has committed in Gaza? Considering over 56 years of occupation, an apartheid regime, and countless human rights violations in Palestine, in what ways have the global powers, especially the US, colluded with the Israeli state and enabled near-genocidal violence against Palestinians?
RICHARD FALK: No effective legal remedies have been available to the Palestinians. The UN should take far more responsibility for implementing its own resolution passed in 1947, the so-called partition plan, while disregarding Palestinian their inalienable right of self-determination, at least promised the Palestinian people a state of their own in historic Palestine. The UN also failed to implement Security Council Res. 242 adopted unanimously after the 1967 War, which called for the withdrawal of the Israeli military presence established by military conquest. Since then, the UN has been blocked in the Security Council by US and sometimes European vetoes; the rest of the UN can authoritatively report on and identify legal and moral wrongdoing doing harm to the Palestinian people, but it lacks the capability to implement its findings without a Security Council decision. The General Assembly is limited to making recommendations based on 2/3s majority,support; even the International Court of Justice’s binding decision requiring Security Council action to compel enforcement. So, the remedies provided by the international legal community in this situation are ineffective if a major geopolitical actor, in this case, the United States, is determined not to shield Israel from accountability to international law. The Palestinians have had law on their side ever since 1948, and yet their subjugation to Israel’s patterns of lawlessness that have gone unchallenged for these many decades.
The UN has policy mechanisms available if a supportive political will exists to use them effectively. In the aftermath of the 1999 Kosovo War it agreed in the Security Council on UN responsibility in situations of precisely the kind present in Gaza, framed as a new norm known as Responsibility to Protect of R2P. It was partly discredited in its first major test in Libya when the NATO countries converted a limited R2P humanitarian mandate in 2011 into a regime-changing intervention that resulted in the execution of the longtime leader and left the country in a worse condition than the one it had undertaken to overcome. Without the political will asserted in manner consistent with the UN Charter ‘effective’ UN action can worsen the situation of a vulnerable and endangered civilian population.
In its decades long occupation, Israel has never hesitated to use excessive force, and the global powers have neither pressured Tel Aviv to withdraw from the occupied Palestinian territories due to its dismal record as the Occupying Power with a duty to protect civilians under its administrative control nor has Israel been warned to stop using violence in ways that violate international humanitarian law.
TRT: Shouldn’t the international community’s ‘Responsibility to Protect’ also apply to Palestine?
RAF: Well, of course. As previously suggested, I believe the international community should have taken R2P action to protect the Palestinians living under Israeli occupation long ago or at the very least debated its relevance. The genocidal onslaught since Oct 7 is so far past the point where it is rationally possible to treat the abuse of Palestinian rights as a matter of internal Israeli security and as somehow a reasonable response to the Hamas attack. The international community has failed miserably so far to offer vital protect an acutely vulnerable, abused, and endangered people. If geopolitics could be put aside, the extreme suffering of Gazans offer the UN an ideal situation where a robust international peace force established in accord with R2P could intervene in ways that might stop the Israeli onslaught, and even made capable of maintaining peace and protecting the Palestinians over time. R2P empowers the UNSC to protect a vulnerable population, and of all the vulnerable peoples in the world, the Palestinians are the ones now most in need of international forcible protection. It is an emergency that has already inflicted a humanitarian catastrophe on the entire population of Gaza, but the continuation of this devastating onslaught will compound the criminality of the attack and the suffering of the people.
But without the political will of all five permanent members of the Security Council, the UN cannot do anything, even rhetorically, that will effectively curtail Israeli violence. Operationalizing R2P is impossible given the arrogant insistence of the Israeli government that we are now witnessing, whose context is much broader than any claimed right of retaliation against the Hamas attack.
TRT: What about the international media? To what extent is it responsible for dehumanizing Palestinians and justifying Israeli human rights abuses, which many argue amount to war crimes?
RAF: Well, the international media is polarized on this cluster of issues; the Western media and especially in the US and UK, have been one-sided in their approach to the ongoing violence, basically vindicating Israel’s position that it is entitled to use whatever means at its disposal to destroy Hamas and hunt down and kill its leaders who perpetrated the Oct 7 attack. But the daily images on TV of Israeli violence against women, children, and injured people. and the extreme Palestinian suffering that has resulted has somewhat lifted the veil of state propaganda, what Noam Chomsky hears ago in the Cold War context delimited as ‘indoctrination in a liberal society.’
In my view, this grant of discretion to Israel is incompatible with the international humanitarian law arrangement by which Gaza was designated as an occupied territory, and Israel as the Occupying Power. The innocent civilian population of Gaza is estimated to be 2.3 million people, 76 percent of whom are refugees or descendants of refugees basically forced by Zionist forces to leave their homes in the villages of southern Gaza in 1948 and denied their international legal right of return, which they and their descendants have tried to challenge over the years by peaceful means without any success, and often with Israeli violent suppressive action. It’s one of the areas where international law is not implemented because of the regressive myth that legal rights created by geopolitical actors who prove unwilling to implement such rights as the Palestinian people enjoy. People thus victimized by Israel, which enjoys the extra-legal form of impunity, have law on their side but lack any remedy that might provide the protection that should be given.
TRT: If the UN can support Ukraine’s fight against Russia and the Western powers can wholeheartedly support the Ukrainian cause, why not the same response on Palestine? Are we facing a crisis of morality or the legality of human rights is being applied on a case-by-case basis, depending on the skin colour and religion of the oppressed?
RAF: Well, there’s no question about the existence of big differences in the treatment by the Global West of the Russian attack on Ukraine and the Israeli attack on the people of Gaza. These NATO exhibits double standards and moral and legal hypocrisy; in other words, Russia is held accountable, and Israel is given impunity. This suggests that international law isn’t a framework for regulating states on some basis of equality as integral to the rule of law, but it is a manipulated series of norms that serve the purposes and often the contradictory and clashing strategic interests of geopolitical actors. When it is in their interest to enforce international law, these states become very self-righteous about their behavior in condemning the violators. But if it’s in their interest to support the violations of international law, then they will either be silent or, in this case, lend unconditional and mostly, but not totally, indirect support to the government and country that is violating international law in a most extreme fashion. Such a dualistic approach to international law functions both a weapon of aggressive lawfare to be useful against adversaries and a policy instrument of legalistic evasion to be deployed on behalf of strategic partners and ‘friends’ further undermining any claim of international law to be authoritative, and deserving of respect, especially in the domain of peace and security. Enemies are sought to be punished when international law is violated, while strategic allies are inoculated with an impunity serum.
TRT: The UN was originally established to promote peace and security, protect human rights, and uphold international law. Have the founding states of the UN undermined the institution because of power politics, or was the UN always meant to be an institution that serves the best interests of a select few members of the Security Council?
RAF: That is a very important and often overlooked question. The UN was designed to be weak in this regard; otherwise, the veto power given to the five most powerful countries in the world makes no sense who happened to be the winners in World War II and later were the first five country to develop nuclear weapons. The effectiveness and the importance of the veto is to confer on these most dangerous and powerful states an unrestricted option to ignore the UN Charter and ignore other international legal obligations whenever the proposed Security Council action clashes with its strategic interests. There was no willingness on the part of leading governments to create a strong, independent, and suitably empowered war prevention global institution when the UN was established, despite the aspirational language of the UN Charter and especially its preamble as expressive of public expectations that governments will try their best to establish an organization that is entrusted with enough capabilities to secure peace for the peoples of the world.
TRT: Israel has always misused the term self-defense to validate its bloodletting approach to security, but does bombing towns and neighborhood’s into smithereens qualify as self-defense in the face of a few hundred gun-toting militants?
RAF: The scope of self-defense is very contested in international law, so you can find legal authorities to support different interpretations of what is allowed. But it’s not allowed to use high levels of force to target a hostile civilian population. Israel has been guilty over the years, but spectacularly in Gaza in the last weeks, of using military force in a variety of ways that under any conditions, whether or not justified and rationalized, would not be permissible as exercises of self-defense, and thus would constitute war crimes. Beyond this it is questionable whether Israel can even validly rely on self-defense in Gaza, which is an Occupied Territory subject to the constraints of Geneva IV.
Israel as the Occupying Power; cannot rightfully claim to be defending itself against itself. It’s a real puzzle how the international discourse has accepted this misapplication of the idea of self-defense, which makes no sense in the setting of belligerent occupation of an adversary society in whole or part.
TRT: Should Israel be put on trial for war crimes in the International Criminal Court? If yes, what steps need to be taken? If not, why not?
RAF: The answer is the absence of political will to prosecute Israel and the relative passivity and political weakness of the International Criminal Court when it comes to holding major Western states legally accountable. This makes effective use of the ICC a remote possibility in relation to Israel, although it would have made sense if international law was capable of regulating lawless state behavior without deferring to the preferences of geopolitical actors. It is true that neither Israel nor the United States are parties to the Rome Statute and are, therefore, not active in the affairs of the International Criminal Court. But the court’s authority is such that if Palestine, which is a party to the statute, has credibly alleged that it is the victim of crimes committed on its territory, then the ICC is empowered to investigate, indict and prosecute.
And I fervently hope that some effort will be made in the aftermath of the present outbreak of unrestrained violence to strengthen the ICC in relation to geopolitics. It would be naive to become optimistic about achieving any sort of accountability by Israel’s leaders even in the face of what continues to unfold as a textbook case of genocide. That doesn’t mean that it wouldn’t be desirable to submit to the ICC evidence and allegations of Israeli criminality, which by their nature would be convincing to many organs of public opinion and civil society activists. Mere submission plays this important role in what I identify as the domain of symbolic politics, where establishing or challenging the legitimacy of certain claims produces significant political effects.
TRT: Would you like to add anything else on this topic?
This is a crisis moment for the world, for the peoples of the world, and for the UN as well as for the governments that have the responsibility and capability to oppose international crimes at this level of severity. Many objective observers have contended that Israel is using force against Gaza in ways that constitute an ongoing genocide, which is itself considered the most serious of international crimes and should produce a consensus among government and a call for action by the UN to stop this kind of extreme abuse of state power that is generating one of the most flagrant instances of genocide since 1945.. We should become aware that genocide prevention is a legal and moral obligation of all government and a collective responsibility. Until such time as international institutions can provide effective international law the peoples of the world have a valuable opportunity to contribute to a law-governed world by way of constituting a Peoples Tribunal on Genocide Prevention in Gaza or on Israel’s War Against the People of Gaza. It should be recalled that the treaty addressing genocide widely ratified, including by the antagonists in the Gaza violence and its diplomatic encounters, is titled Convention on the Prevention and Punishment of the Crime of Genocide (1951).
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The future of statehood: Israel & Palestine
3 Feb[Prefatory Note: Interview Questions of a Brazilian journalist Rodrigo Craveiro on behalf of Correio Braziliense: (Jan. 30, 2019) on current prospects of Palestinian national movement.]
Fatah, Hamas, the Future of Statehood and Peace Prospects
1. With the dissolution of government do you see any risk for unity among all Palestinian factions? Why?
It is difficult at this stage to interpret the significance of the recent dissolution of the Palestinian Legislative Council (PLC), which serves as the Parliament of the Palestinian Authority that governs the West Bank and enjoys formal recognition as the representive of the Palestinian people internationally. The PLO continues to exist as an umbrella framework to facilitate coordination among Palestinian political factions aside from Hamas and Islamic Jihad, which have never been associated with the PLO. It seems that dissolution of the PLC is related to the prospect of new leadership of the Palestinian Authority, especially the speculation that the Palestinian president, Mahmoud Abbas will soon retire, and be replaced. It is also possible that this move is an attempt by the PA to create a stronger basis for creating an actual Palestinian state in an atmosphere in which the Oslo diplomatic framework has been superseded.
Without the prospect of a diplomatic resolution of the conflict by negotiation between the parties, the Abbas leadership is trying to establish for Palestine the status of an international state by way of its own unilateral moves. Israel on its side it trying by its unilateral initiatives to create its own expanded state that extends Israeli sovereignty over all or most of the West Bank, which remains legally ‘occupied’ despite a variety of fundamental encroachments on Palestinian autonomy. In other words we are witnessing contradictory moves by both Israel and Palestine to achieve their goals by unilateral political moves rather than through international diplomacy under U.S. auspices based on a negotiated agreement reflecting compromise. In the process both the PA and Israel are in the process abandoning earlier pretensions of democratic governance. This move by Abbas to dissolve the PLC is most accurately interpreted as the further de-democratization of Palestine, and the establishment of a more robust autocratic governing structure that does not inspire trust among many Palestinians and their supporters throughout the world. The failure, for instance, of the PA to back BDS is indicative of the gap between global solidarity initiatives and the timid leaders provided the Palestinian national movements by Abbas leadership in Ramallah.
2. How do you analyze the role of Hamas inside the political life of Palestinian people?
It is again difficult to be too definite about the role of Hamas at this time. This is partly because Hamas is likely affected by the changes in the tactics and leadership of the Palestinian Authority, which continues to be internationally regarded as the sole representative of Palestinian interests while being subject to criticism and rejection by large segments of the Palestinian people, especially those spread about the world by being refugees, exiles, and displaced persons., For some time, Hamas has indicated its willingness to agree to a long-term truce (or hudna)with Israel lasting up to 50 years, but only on condition that Israel withdraws from the West Bank and East Jerusalem as well as Gaza, and ends the blockade that has been used to deny the entry and exit of goods and people to Gaza ever since 2007. It is possible that a different leadership in Israel as a result of the April elections will produce a new Israeli approach to Gaza, which could include some kind of grant of autonomy or even independence as one type of alternative policy or intensified coercion that sought to destroy Hamas and its military capabilities as another.
What remains clear is that Hamas, as opposed to the PA, has been a consistent source of resistance to Israeli occupation and expansionism, although evidently willing to pursue its goals by political tactics rather than armed struggle. It is Israel that has insisted that Hamas is a terrorist organization, refusing even to consider establishing a ceasefire regime of indefinite length. It is also the case that Hamas is rooted in Islamic beliefs and practices, which are resented by secularized Muslims and non-Muslim Palestinians. This tension has erupted at various times in the course of the decade of Hamas governance in Gaza. Nevertheless, Hamas has popular support throughout occupied Palestine, and one explanation for the failure of the PA to hold elections is the anticipation that Hamas would likely be the winner, or at least make a strong showing.
3. Do you consider Hamas a danger for peace efforts building by Palestinian factions with Israel in future? Why?
There is no doubt that if the Palestinian Authority persists in excluding Hamas from participation in shaping the future of the national movement that the friction of recent years will continue, if not intensify. It is also possible that any new, post-Abbas PA leadership will try with increased motivation to find an embracing political framework that brings together the secular factions with those of religious persuasion, and especially Hamas. If the Trump ‘deal of the century’ is made public in coming months, and is treated as a serious proposal that is accepted as a basis of negotiation by the Palestinian Authority, then it would test whether the Palestinian people will be represented in a manner that joins in a single political actor secular and religious forces. The people of Gaza have suffered for many years, the conditions of poverty and environmental hazards are becoming more severe, with shortages of medical supplies, health hazards from polluted drinking water, astronomical levels of unemployment, and the absence of nutritious food creating emergency conditions for the entire civilian population of Gaza of about two million. Given these realities it is almost certain that Hamas will seek to pursue a more viable future for Gaza, but as the Great March of Return has demonstrated in recent months, the population, despite years of demoralization, retains a strong will to resist oppressive conditions of Israel domination.
4-Until now all efforts to overcome the division between Hamas and Fatah didn’t work. Why? Why is it difficult to achieve a common sense?
I believe the principal reasons that all attempts to achieve a sustainable accommodation tween Hamas and Fatah have failed relate to both ideology and questions of trust. This failure has also been a consequence of Israel’s overt and covert feverish efforts to promote Palestinian disunity and fragmentation. Israel’s emphasis on a politics of fragmentation in addressing the Palestinian challenge is expressed in many ways, including establishing separate governance regimes for the West Bank, Gaza, and Jerusalem, as well as for the Palestinian minority living in Israel and the refugees in neighboring countries.
On ideology there are two main sources of division between Fatah and Hamas—the secular/religious divide, and the greater readiness of Fatah to accept and legitimate the permanence of the Israeli state than is Hamas. For Hamas Israel remains a usurper of Palestine, and such a illegitimate state that can never be formally accommodated, although as suggested, Hamas is prepared to accept a truce of long duration without altering its underlying claims to exercise sovereignty over the whole of historic Palestine. If such a truce was to be agreed upon by Israel it would amount to a de facto acceptance of Israel, and vice versa. If the truce held, it could lead to some kind of indefinite extension that would allow both governing leaderships to feel that they achieved their primary goals, in other words, a win/win outcome.
Fatah, at least since 1988, as well as the PLO, has been willing to normalize relations with Israel and to agree to a territorial division of Palestine along the 1967 boundaries, provided that the arrangement provided for the retention of East Jerusalem as the capital of a Palestinian state. As matters now stand, it is almost unimaginable that Israel would accept the Hamas approach to a future relationship, and given the continuing expansion of the settlements it seems unlikely that Israel would agree to the emergence of a sovereign Palestinian state under any conditions, that is, even if Hamas did not exist.
It is quite likely that Israel would seek to impose a one-state solution by annexing the West Bank in a manner similar to their annexation of the city of Jerusalem. The unresolved tensions between Fatah and Hamas are in my judgment less fundamental than is Israel’s increasing clarity about rejecting any negotiated compromise on such core issues as territory, refugees, and Jerusalem. Israel seems to regard the present situation as one in which it feels almost no pressure to compromise, and instead that it is possible for Tel Aviv to push forward toward an end of the conflict by claiming victory, a view endorsed by Zionist extremists and seemingly supported by the Trump diplomacy to date. I find these perspectives to be shortsighted and unsustainable. Even should the Palestinian leadership is forced given present realities to accept a political surrender, such an induced outcome will produce a ceasefire not a lasting peace. In this post-colonial age denying the Palestinian people their fundamental right of self-determination is almost certain to be unable to withstand the tests of time.
5- In your opinion what is the recipe or formula to make all Palestinians join together in pursuing common goal, which is the establishment of Palestine State?
I have partially given my answer to this question in earlier responses to your questions. In essence, I am arguing that given the present outlook in Israel, as well as regional and global considerations,
It is not possible to envision the establishment of a Palestinian state even if Palestinians were able to achieve unity and went on to accept the 1967 boundaries excluding the Israeli settlement blocs along the border. Israel no longer hides its intention to expand its state boundaries to encompass the whole of ‘the promised land,’ considered a biblical entitlement within the dominant view of the Zionist project.
As earlier suggested, Israel will do its best to disrupt Palestinian efforts to overcome the cleavages in their movement so as to keep the Palestinian movement as fragmented as possible. As long as the United States continues its unconditional support Israel seems able to ignore the adverse character of international public opinion, as exhibited at the UN and elsewhere. Israel makes little secret of the absence of any pressure to seek a political compromise. Ever since the 1990s a political compromised has been assumed to mean an independent Palestinian state. Only recently, as Israel’s expansionism has made a Palestinian state a diplomatic non-starter and even a political impossibility has the idea of a single state embracing both peoples gained traction.
This shift to a one-state approach has taken to two forms: a single democratic secular state in which the expansionist goals of Zionism are renounced, and no longer would a Jewish state as such exist. Jews would have to accept equality of treatment within such a non-ethnic state, although the establishment of a Jewish homeland might be possible. The alternative single statehood model would be to absorb all Palestinians into a single Jewish state of Israel, perhaps conferring full or more likely partial citizenship rights to Palestinians. Both of these statehood models are post-diplomatic, as is the PA effort to establish a state of its own while enduring a prolonged occupation.
The Israeli version of a single state outcome of the struggle is more in keeping with present realities than is the Palestinian version. Such as assessment also gains strength by noting that the main Arab neighbors of Israel, in particular Egypt and Saudi Arabia, have withdrawn support for Palestinian national aspirations, and are actively cooperating with Israel, giving an Arab priority to the containment of extremist threats to their governments and to their sectarian rivalry with Iran. All in all, the regional and global geopolitical trends of late remove almost all incentives on the Israeli side to do anything other than to manage the favorable status quo until the moment arrives when it seems right to declare and claim that the boundaries of New Israel encompass of the entire territory managed between the two world wars as the British Mandate of Palestine.
As matters now stand it is utopian to anticipate a Palestinian state or a single secular democratic state, but these conditions that seem currently so favorable to Israel are unstable and deceptive, and unlikely to last. There are signs that a position of balanced support as between Israel and Palestine is gaining strength in the West, especially among the American public. Account should also be taken of a growing global solidarity movement that has become more militant, and exerts greater pressure on Israel, especially by way of the Boycott, Divestment, and Sanctions Campaign (BDS). In this respect, conditions could change rapidly as happened in South Africa in the early 1990s against all expectations and expert opinion at the time. Israel is increasing regarded as an apartheid state, which the Knesset itself virtually acknowledged by enacting in 2018 the Basic Law of the Nation-State of the Jewish People. Finally, it should be appreciated that by virtue of Article 7 of the Rome Statute of the International Criminal Court, apartheid is classified as a crime against humanity. The experience of South Africa, although very different in its particular, is instructive with respect to the untenability over time of apartheid structures of control over a resisting ethnicity. Whatever the governance arrangement, Palestinian resistance will produce a cycle of insurgent and repressive violence, and this can provide stability for Israel only so long as its apartheid regime remains in place. If the apartheid regime is dismantled it would be accompanied by the end of any claim to impose a Jewish state on the Palestinian people.
Tags: apartheid, BDS, Democracy, diplomacy, Fatah, Hamas, PA, post-diplomatic alternatives