Slaughter in Gaza: The Failures of International Law and Responsible Statecraft
PALESTINE - ISRAEL, 6 Nov 2023
2 Nov 2023 – A slightly updated and modified interview on Gaza with Zeynep Busra Conkar, an Associate Producer of TRT World, published on 30 Oct 2023. A link to a short audio excerpt: https://twitter.com/trtworld/status/1719078356577075573
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.
“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 and instead imposes massive disproportionate and indiscriminate violence on the besieged people of Gaza, striking at targets such as hospitals, religious buildings, UN facilities, schools and ordering a cruel and impractical forced evacuation of 1.1M Palestinians in the norther part of Gaza, treating those unable or unwilling to leave as aligned with the ‘terrorists.’
The scale of devastation caused by Israeli bombings in Gaza is horrifying. A small enclave of over two million Palestinians navigating back-breaking economic and social blockade since 2007, Gaza has once again been subjected to collective punishment on an enormous scale– Israel’s reported use of incendiary phosphorus bombs on densely populated civilian areas amounts to 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 language of condemnation and criticism it has employed against Russia in the course of the Ukraine conflict. Western leadership fails once again to convince the world about the conformity of its once much-touted “rules-based order” to either the UN Charter or international law.
Will Tel Aviv ever be held accountable for the crimes it has committed in Gaza?
TRT WORLD: 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 has the responsibility for implementing its own resolution passed in 1947, the so-called partition plan, which at least guaranteed the Palestinian people a state of their own in historic Palestine. It 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 legal and moral wrongdoing concerning 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 on the basis of a 2/3s majority; 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 there subjugation by lawlessness has gone uncorrected for these many decades.
TRT: In its decades long occupation, Israel has never hesitated in using force, and the global powers have neither pressured Tel Aviv to withdraw from the occupied Palestinian territories nor warned it against using brute force. Shouldn’t the international community’s ‘Responsibility to Protect’ also apply to Palestine?
RF: Well, of course. I think the international community should have taken R2P action long ago or at the very least debated its relevance. It’s past the point where one can treat the abuse of Palestinian rights as a matter of internal Israeli security and currently, a reasonable response to the Hamas attack. So, the international community has failed up to this point to protect a vulnerable and abused people. It would be, politics aside, an ideal situation where a peace force under the norm of Responsibility to Protect (R2P) was established and 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 most in need of international forcible protection.
But without the political will of the permanent members of the Security Council, the UN cannot do anything that will effectively curtail Israeli violence, including R2P even given the excesses we are now witnessing, whose context is much broader than its 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?
RF: Well, the international media is polarized on this cluster of issues; the Western media and especially 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 until it perpetrates its leaders. But the daily images on TV of Israeli violence and extreme Palestinian suffering have lifted the veil of propaganda and what Noam Chomsky dubbed as ‘liberal indoctrination’ a long time ago.
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 around 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’ve 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 myth of legal rights created by geopolitical actors who are unwilling to implement such rights as the Palestinian people enjoy because they are victimized by Israel, which enjoys the extra-legal form of impunity..
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?
RF: Well, there’s no question about the difference in the treatment of the Russian attack on Ukraine and the Israeli attack on the people of Gaza. It 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, but it is a manipulated series of norms that serve the purposes and often contradictory ambitions 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 violation of international law, then they will either be silent or, in this case, lend unconditional if mostly indirect support to the government and country that is violating international law in a most extreme fashion. Such a dualistic approach to international law as both a weapon of aggressive lawfare and a policy instrument of legalistic evasion undermines international law as authoritative. Enemies are punished when it is violated. Friends 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?
RF: 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 effective war prevention institution when the UN was established, despite the language of the UN Charter and its preamble and public expectations.
TRT: Israel has always misused the term self-defense for more bloodletting, but does bombing towns and neighbourhoods into smithereens qualify as self-defense in the face of a few hundred gun-toting militants?
RF: 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 against the civilian population. Israel has been guilty over the years, but spectacularly in Gaza in the last three weeks, in using indiscriminate and disproportionate force that under any conditions, whether justified and rationalized, the self-defense or not, constitute a war crime.
Israel is the Occupying Power; it can’t 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?
RF: The answer is the absence of political will to prosecute Israel and the relative passivity of the International Criminal Court when it comes to holding major Western states legally accountable makes it a remote possibility, although one that would make sense if law regulated behavior without deferring to power. It is true that neither Israel nor the United States are parties to the Rome Statute and are, therefore, not part 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 court is empowered to investigate, indict and prosecute.
And one supposes that some effort will be made in the aftermath of the present outbreak of unrestrained violence. It would be naive to become be optimistic about achieving any sort of accountability by Israel’s leaders even in the face of what appears to be 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?
RF: This is a crisis moment for the world, for the peoples of the world, and for the UN and 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, again, deserves a consensus of government and action by the UN to stop this kind of violent abuse of state power. 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.
Richard Falk is a member of the TRANSCEND Network, Albert G. Milbank Professor Emeritus of International Law at Princeton University, Chair of Global Law, Faculty of Law, at Queen Mary University London, Research Associate the Orfalea Center of Global Studies at the University of California, Santa Barbara, and Fellow of the Tellus Institute. He directed the project on Global Climate Change, Human Security, and Democracy at UCSB and formerly served as director the North American group in the World Order Models Project. Between 2008 and 2014, Falk served as UN Special Rapporteur on Human Rights in Occupied Palestine. His book, (Re)Imagining Humane Global Governance (2014), proposes a value-oriented assessment of world order and future trends. His most recent books are Power Shift (2016); Revisiting the Vietnam War (2017); On Nuclear Weapons: Denuclearization, Demilitarization and Disarmament (2019); and On Public Imagination: A Political & Ethical Imperative, ed. with Victor Faessel & Michael Curtin (2019). He is the author or coauthor of other books, including Religion and Humane Global Governance (2001), Explorations at the Edge of Time (1993), Revolutionaries and Functionaries (1988), The Promise of World Order (1988), Indefensible Weapons (with Robert Jay Lifton, 1983), A Study of Future Worlds (1975), and This Endangered Planet (1972). His memoir, Public Intellectual: The Life of a Citizen Pilgrim was published in March 2021 and received an award from Global Policy Institute at Loyala Marymount University as ‘the best book of 2021.’ He has been nominated frequently for the Nobel Peace Prize since 2009.
Tags: Ethnic Cleansing, Gaza, Genocide, International Law, Israel, Massacre, Palestine, Richard Falk
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