Netanyahu Failed in Gaza, Tries to Widen War

TRANSCEND MEMBERS, 29 Apr 2024

Richard Falk | Global Justice in the 21st Century – TRANSCEND Media Service

20 Apr 2024 – Interview by Mohammad Ali Haqshenas, published today by International Quran News Agency. In light of the relative mildness of the Israeli response, I would revise somewhat my responses below. It now seems either that the US reaction to the Damascus attack or the concerns of the Netanyahu war cabinet rejected, at least for now, the temptations of a wider war. Iran as well seemed to accept an outcome of its retaliation directed at Israel, resulting in neither death nor damage was nevertheless sufficient for its purposes. The overall situation remains unstable, and hence uncertain, but Netanyahu’s escaping accountability for failures in Gaza seems for the present to rule out the option of a wider war against Iran, with US active involvement.

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QNA – Israeli prime minister Benjamin Netanyahu has failed to achieve goals in the “inhumane” war on Gaza and seeks to widen the conflict, a former UN special rapporteur says.

“Netanyahu has failed to achieve the goals of Israel’s massively destructive and inhumane response to October 7, leaving his last best option, the widening of the war in ways that make Iran the main antagonist of Western interests,” Richard Anderson Falk, a professor emeritus of international law at Princeton University, told IQNA.

The comments come amid boiling tensions in the region after the Israeli regime targeted the consular section of the Iranian embassy in Damascus, Syria, on April 1.

The attack claimed lives of high-profile Iranian military personnel that were in Damascus on advisory mission.

Faced with the international organizations’ inaction, Tehran decided to respond to the attack. Iranian armed forces launched Operation True Promise with dozens of drones and missiles against military targets in Israeli-occupied territories on April 14.

What follows is the full text of the interview with Professor Falk about the issue: 

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IQNA: What do international laws and conventions say when it comes to targeting a country’s diplomatic mission?

Falk: The immunity of consular facilities from international attack is one of the most widely respected and uncontroversial commitments of international law as formalized by the Vienna Convention on Consular Immunity. Even without this Convention Israel would be bound by a similar body of constraints that are considered part of “customary international law” or enjoying the status of “jus cogens” norms, binding on all sovereign states whether or not a treaty exists, and in the event that a treaty exists, being a non-party does not relieve a government of a sovereign state to comply with the legal framework.

In this instance such arguments are unnecessary as both Israel and Iran are parties to the Vienna Convention as are another 191 states.

IQNA: Following the Israeli strike against the Iranian consulate in Damascus, Tehran urged the United Nations Security Council to condemn the strike but the Council failed to do that due to the US support for Israel. What does this inaction mean when we take into account the responsibilities of the UN to maintain international peace?

Falk: Such action in the UNSC by the USA to insulate Israel from its obligation to comply with international law with regard to consular and embassy immunity is a reminder that when it comes to enforcing international law, the UN was designed to be weak, giving a right of veto to the five countries victorious in World War II, which arguably is the UN’s greatest deficiency when it comes to achieving the paramount war prevention goals of the UN.

In effect, the 1945 architects of the UN subordinated upholding international law to according primacy to these five geopolitical actors in relation to enforcement or even interpretation of relevant legal obligations. Although only five countries are accorded a right of veto in the UN Charter, it has been used, especially by the US to thwart the will of the majority of states and of members of the UN by being extended to shield “friends” and allies from accountability.

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Some years ago the Turkish leader, Recep Tayyip Erdogan, complained about this situation by the pithy phrase “the world is greater than five.” The world may be greater, but the UN is not. There are many situations of this kind concerned with securing compliance with international law by UN members who cannot veto a proposed UN decision but enjoy a sufficient special relationship with one of the five that suffices to block any UN enforcement initiative taken against it.

IQNA: What are the long-term implications for international law if such attacks go unchecked?

Falk: The implications for international law are what they have always been in modern times. When the obligations of law clash with the strategic interests of powerful states, geopolitical policies prevail, and the core obligation of the rule of law (treating equals, equally) is ignored. This generalization applies to the pre-UN history of international relations.

A good example is the war crimes trials conducted at Nuremberg and Tokyo in 1945 where the crimes of the victors were exempted from legal scrutiny while the crimes of the losers were the subject of indictment, prosecution, and punishment. More concretely, the atomic bombings of Japanese cities and the strategic bombing of German cities were accorded impunity. A double standard highlighted by being described as “victors’ justice.”

It is a mistake to conclude that international law is useless because of this subordination to geopolitics. For one thing, an effective international legal order is essential to sustain the stability of relations in most areas of interaction among sovereign states. Trade, investment, finance, communications, travel and tourism, diplomacy are among the areas of international life that depend on mutuality of interests and the practice of equality when it comes to enforcement and implementation.

Many would insist that the US has weakened the UN by its “irresponsible statecraft.”

Beyond this, “responsible statecraft” by dominant states (‘dominance’ does not refer to the same political actors that possess veto rights at the UN) can unilaterally exercise restraint in the use of the veto or in pursuing conflictual behavior. Many would insist that the US has weakened the UN by its “irresponsible statecraft.” The extent to which the US has managed relations between the UN and Israel in an excessive manner is illustrative.  It is as much a reflection of domestic political considerations as it is of the international conflictual context.

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Even when international law is flagrantly violated as it was in the Damascus attack, and Israel is protected against a punitive response at the UN, the impact on world opinion, global solidarity initiatives, and the clarification of legitimacy ensure that international law plays a role in the behavior of states. Populist action often influences the actions of leading geopolitical actors.

In the post-1945 anti-colonial wars the weaker side militarily generally prevailed politically, in part because international law and the flow of history was on their side. Transnational activism in the form of boycotts and sanctions often is vindicated by assessments that the targeted country is violating international law in serious ways.

International law, even if not implemented by the inter-governmental order of states or by the UN, is helpful in mobilizing civil society to take a variety of nonviolent coercive actions.

In short, international law, even if not implemented by the inter-governmental order of states or by the UN, is helpful in mobilizing civil society to take a variety of nonviolent coercive actions. This dynamic contributed to the collapse of the apartheid regime in South Africa 30 years ago and it is mounting ever stronger pressure on Israel in light of its Gaza genocide, further justified by its defiance of international law.

IQNA: Iran said it used its legitimate right to self-defense by launching strikes against Israel. What do international laws say about this?

Falk: There are several issues present. Does a single attack of this nature, however unlawful, engage the right of self-defense as specified in Article 51 of the UN Charter. This Charter definition is linked to “a prior armed attack” as distinct from an act of aggression, but given the paralysis in the UN, it might be deemed reasonable in view of the frequency of past lethal violations of Iran’s sovereign rights and the failure to take any punitive action against Israel’s defiant attitude in shaping national policy in the security domain.

A further international law issue concerns matters of proportionality and discrimination. Estimates vary as to the scale of the Iranian attack involving 170 or more drones, 120 ballistic missiles, and 30 cruise missiles, and yet little damage resulted, and no one killed. As Iran gave some notice of its planned retaliation to the US and other governments, it may have intended, as some commentators have suggested, that its retaliation for Israel’s responsibility in relation to the Damascus attack, its retaliation to be symbolic and performative, rather than a full-scale attack as suggested by the array of drones and missiles.

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To some extent, because of enforceability issues, what a state does in retaliation for such one-off violation of its sovereignty is assessed and judged in relation to precedents reflecting past practice. If deemed to be consistent with such practice it is legitimized and widely viewed as reasonable, whereas if not, it is regarded as unacceptably provocative. Israel has reacted to the Iranian attack of April 14 as an unacceptable provocation, despite its own prior attack causing high-profile Iranian deaths and the paucity of damage inflicted by Iran’s retaliation. Israel is proposing a retaliation to Iran’s retaliation. If Israel carries out its threat in a way that causes death and destruction in Iran it is almost certain to escalate the conflict in dangerous ways. When acting in these grey sectors of law, such as the law governing international retaliation, the criterion of reasonableness offers some guidance to both actor and responder. Of course, perceptions of reasonableness may vary greatly.

IQNA: Some analysts believe that the Israeli regime targeted the consulate to escalate tensions with Iran and use this as a cover to continue its massacre of Palestinians in Gaza. What is your take on this and how can Tel Aviv be held accountable for its crimes in Gaza?

Falk: As suggested above, Netanyahu has failed to achieve the goals of Israel’s massively destructive and inhumane response to October 7, leaving his last best option, the widening of the war in ways that make Iran the main antagonist of Western interests. The backgrounding of the Ukraine War in light of the events in Gaza lend plausibility to this kind of ‘politics of deflection.’ Israel is a master of shifting public attention from its crimes to its critics or to lesser objects of concern.

Achieving accountability in a legal sense is almost impossible so long as the Global West, especially the US, supports Israel. Any sort of attempt at imposing accountability through the UN can be blocked by casting a veto in the Security Council, which the US has not been reluctant to do. Accountability in its political sense could be achieved if Israel is treated by many governments in the Global South as a “pariah state” as was the experience of apartheid South Africa; also important are solidarity initiatives rooted in civil society activism. Accountability in a moral sense is exhibited by public expressions of outrage on the part of peoples the world over as well as by the frustrations caused by unenforceability of ICJ decisions.

IQNA: What do you think about the efforts of the ICJ to hold Israel accountable for its genocide in Gaza, especially given that the regime is planning an attack on Rafah where more than 1.5 million displaced have taken refuge?

Falk: This question raises complicated issues. The initiative in the ICJ has been greatly important for passing judgment on Israel’s moral and political wrongdoing with respect to the Gaza genocide yet limited in effectiveness. The ICJ has been unable to implement the persuasive legal pronouncements of its Interim Orders of January and March instructing Israel to take actions to mitigate further suffering of the Palestinian people. Israel has refused compliance, backed by the US, and seems poised to go ahead with its threatened attack on grossly overcrowded Rafah, with expectations of shockingly high casualties.

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The ICJ and the UN generally are neutralized by “a crisis of implementation.” In the face of stubborn geopolitical resistance, it lacks the mandate, will, and capabilities to enforce international law, let alone promote global justice. If the UN became more robustly endowed, an obvious undertaking would be to form an International Protection Force that would give meaning to the Responsibility to Protect norm. As things are, such a justifiable response to genocide is unthinkable, which conveys a lot about why so many people are disappointed by or frustrated with the UN.

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Prof. 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.

Go to Original – richardfalk.org

 

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