Palestine, Iran, and Populist Resistance: The Limits of Law, Morality, and the UN

TRANSCEND MEMBERS, 6 May 2024

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

3 May 2024 – An interview with the Qods News Agency (Qodsna), the first specialized news agency in Iran, focusing on issues related to the Palestinian cause. The interview was published a week ago in Iran, and is reprinted in modified form that seeks to take account of the Palestinian struggle as connected with wider regional and global conflict patterns, and is giving rise to worldwide student protests against genocide and complicity with genocide, as well as a tidal wave of global consciousness sweeping away the cobwebs of political and moral complacency.

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1. Given the fact that Israel has killed over 34,000 Palestinians in Gaza, mostly women and children, and prevented the entry of international humanitarian aid into the besieged strip, what is your opinion on nearly 200 days of onslaught in Gaza and its aftermath on Palestinians’ lives? How do you describe the genocidal onslaught and war crimes in Gaza?

What has taken place over the last 200 days in Gaza is the most transparent genocide in all of human history. It is the first time that the daily atrocities were broadcast and seen by the peoples of the world in real time. Past genocides have been known almost totally in retrospect through official reports, films and memoirs, which reconstruct horrifying events but after a passage of time. Those Palestinians who managed to survive physically such sustained violence of this extreme character are reported to be suffering from mental disabilities that could persist for their entire life. It is a tragic, dehumanizing ordeal, above all for children. It is further shocking that Israel should remain insulated from denunciation and accountability despite its continuing practice of such extreme criminality.

Genocide should be understood to exist from three quite distinct moral, political, and legal perspectives. The moral perspective is made clear in Gaza by the declared intentions, policies, and practices of Israel’s highest leaders, and carried out in a totally disproportionate, indiscriminate, and lawless manner, and aggravated by consistently sadistic and demeaning treatment of Palestinian civilians who fall under the control of the Israeli armed forces. The political perspective is established in Gaza by numerous trustworthy witnesses and victims, as well as by vivid visual evidence of genocide in line of justifications adopted by Israel and its supporters. Yet the political assurances about the commission of genocide is vulnerable, as here, to the be overridden by geopolitical considerations and strategic calculations. The legal perspective relies on the presentation of evidence and interpretations of international law, above all by the delineation of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide (1948). Provisional conclusions as to international law can be derived from the opinions of legal experts holding important professional positions. For instance, the current UN Human Rights Council Special Rapporteur for Occupied Palestine, Francesca Albanese issued an excellent report in March 25, 2024 entitled ‘Anatomy of a Genocide’ [A/HRC/55/73]that carefully analyzed the elements of the crime and concluded that the facts and law supported the allegation of genocide. And yet until a qualified national or international tribunal with jurisdictional authority to assess the charge of genocide examines the evidence and hears the arguments of the defendant government or political actor it is impossible to say with technical propriety that the behavior in question is genocide from a legal perspective.

2. How can the world public put pressure on governments to force Israel to stop atrocities in Gaza?

It has proven difficult to challenge Israel effectively at the UN and elsewhere. Powerful countries in the Global West are complicit in supporting Israel’s policies and practices, including Israel’s misleading claim that it possesses an unlimited right to defend itself in response to the Hamas attack of October 7. The liberal democracies of Western Europe and North America are prominent among governments lending varieties of support to Israel that extends to endorsing Israel’s gross distortions of facts and law, which has had a detrimental effect on the authority of international law and the UN. The US above all has been guilty of double standards, using international law as a policy instrument to attack its adversaries such as Russia and China and disregarding its relevance with respect to the behavior of allies and friends such as Israel, Saudi Arabia, and India.

It is important to also understand the more passive complicity of Israel’s main Sunni Arab neighbors that fear challenges from Hamas-type Islamic movements more than intrusions on their autocratic stability associated with the establishment of Israel or post-colonial intrusions by Western powers. It was a surprise to many in the West that the governments of Jordan and Saudi Arabia cooperated in defending Israel on April 13 against the Iranian retaliation for Israel’s April 1st attack on its Syrian consular facility, killing two of its top military advisors. This pattern of regime politics in the Arab world does not reflect the outlook of the population in these countries, which shares a strong affinity with the Palestinian struggle and is often oriented with Islamic leadership of populist, protest Arab politics as was evident during and after the Arab Spring.

South Africa has been applauded widely for taking the initiative to bring allegations of genocide to the International Court of Justice under Article XI of the Genocide Convention that legally empowers any party to the treaty to bring a dispute with another party before the ICJ. Although the ICJ rose above politics by rendering an historically important, near unanimous interim decision granting several of South Africa’s requests for Provisional Measures on January 26, 2024. Unfortunately, this preliminary ICJ order had little behavioral effect as Israel defied the interim obligatory adjustments in Gaza pending a subsequent decision on whether the allegation of genocide has been legally established after fully weighing pro and con arguments.

Israeli defiance and US dismissive attitude toward the authority of the ICJ given its view of Israeli violence in Gaza fully exposed ‘a UN crisis of implementation’ of great significance. Given Israel’s refusal to comply meant that any effort to enforce the ICJ Interim Orders would depend on action by the Security Council, which would almost certainly be vetoed by the United States. Additionally, an ICJ decision on the merits with respect to genocide must await comprehensive oral arguments and written pleadings, as well as the time needed by the judges to do their own inquiries, a legal process that would not be completed for several years, which would likely be after present emergency conditions in Gaza had been resolved for better or worse.

Nevertheless, the ICJ Interim Order was an impressive vindication of international law and a legitimating demonstration of the legal professionalism and political independence of the Court. It has also had an authenticating impact on the governments of the Global South and even more worldwide in relation to civil society, including even in the United States and other complicit countries where the surge of student pro-Palestinian protest activism cannot be wholly disconnected from the authoritative findings of the ICJ disregard in policy by Washington almost as much as by Tel Aviv. Whether this pressure will remain robust enough to result in coercive actions by way of boycotts and sanctions, and pariah status, remains to be seen, but at minimum it suggests that even in this unfavorable political setting international law and populist activism offer some hope that genocide can be stopped and its perpetrators held accountable, if not formally, then by the action of peoples around the world.

3. What do you think about Palestinian resistance fighters’ right to initiate the October 7 operation against Israel?

The right of resistance on the part of a people long occupied and abused is well established. Prior to October 7, Israel’s commission of the crime of apartheid in its manner of governing the Occupied Territories and the Palestinian minority in Israel had been documented in detailed reports by several of the most respected human rights NGOs including Human Rights Watch and Amnesty International, as well as by the Israeli NGO, B’tselem, and by UN’s ESCWA.

While the right to resist is certainly justified by the conditions imposed over the long period of occupation, which featured Israeli failure to uphold its duty as Occupying Power to protect Palestinian civilians under its control, it does not confer unlimited rights of resistance. Tactics of resistance, as for other armed groups including those operating under the authority of a sovereign state, are obliged to comply with international criminal law, and not abuse or target civilians, impose collective punishment, and commit atrocities. Yet unlike the apartheid and genocide allegations against Israel, there is as yet no authoritative account of what happened on October 7. There were, at first, luridly exaggerated claims of barbarous behavior reported to the world by Israel, but later modified by retractions and much skepticism about Israel’s depiction of events on that day. Until an international factfinding commission is established and given full cooperation there will be doubt about the extent to which the criminality of the Hamas attack tainted its resistance claims, and the degree to which Israel itself was negligent about heeding warnings and otherwise responsible for the lapse of border security.

4. How can the Palestinian people achieve their rights and overcome the ongoing occupation?

The Palestinian people are winning the struggle for public support in civil society and among many governments in the Global South. The rise of popular support for Palestinian rights even in complicit governments may erode somewhat their willingness to continue normal relations with Israel. Whether this political post-Gaza reappraisal is enough at this stage to make a difference with regard to ending Israeli occupation is not clear at present. Prior anti-settler colonial struggles have been eventually won by a colonized people if they manage to survive the almost inevitable genocidal assault by settlers to their existence. The breakaway British colonies in North America, Australia, and New Zealand managed through genocidal tactics to marginalize or eliminate the resistance of native and indigenous peoples and complete their settler colonial projects; South Africa failed, and the project collapsed. Israel is in that space where it will either join the settler colonial ‘success’ stories or it will succumb to national resistance, with Jews either giving up the Jewish supremacy claims of Zionism or finding a means to coexist with Palestinians on the basis of true equality and mutual respect, presupposing a honest accounting of the past as with some sort of truth and reconciliation process that has smoothed a transition from repressiveness to constitutionalism. The best example of managing such a transition was South Africa, benefitting from the leadership of Nelson Mandela and Archbishop Desmond Tutu, yet also experiencing bumps in the road along the way. Its pro-Palestinian ICJ initiative was a symbolically important way of honoring the enduring legacy of Mandela’s anti-apartheid struggle.

5. As you know, Israel attacked Iran’s consulate, killing its military advisors in Syria which is considered contrary to international conventions, which prompted a military response by the country. What is your take on Iran’s punitive response to Israel, especially in terms of international laws?

The Iranian retaliatory strike against Israel caused neither deaths nor damage, although had its array of missiles and large number of drones not been destroyed, it might have had a war-generating disproportionate effect. The interpretation of Iran’s retaliation remains ambiguous. Did it intend to display its military capabilities to attack Israel directly without inflicting major damage or was it an operational failure in the sense that the intention was to be as destructive as possible. Without clarity on this question, it is impossible to make an intelligent assessment of the relevance of international law to the events of April 13^th.

The legal status of retaliatory violence is a gray area of conflicting opinions among law experts, often colored by political identities and jurisprudential orientations. On the one side are legalists who suggest that all retaliations violate the UN Charter and international law by validating uses of international force only in situations of a sustained armed attack across an international border. By this reading even a modest retaliation against the Damascus attack was not lawful.

As with other issues, this strict reading of international law is not descriptive of international practice with respect to acts of retaliation, which in practice over the years validate ‘reasonable’ retaliations so long as proportionate in relation to the provocation. Israel’s second attack on Iran, however, would seem to be unlawful as it ignored the reality that it initiating the cycle of violence on April 1^st by its lethal attack on Iran’s consular facility in Damascus, and to regard it as entitled by any standard of law or reasonableness would tend to continue the cycle of interactive violence indefinitely.

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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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