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UN Specialist for Palestinian Rights Suspects Israel Committed War Crimes

An Interview with Richard Falk on the Crisis in Gaza

by KEN KLIPPENSTEIN

Richard Falk is an American professor Emeritus of International Law at Princeton University. He just completed a six-year term as United Nations Special Rapporteur on Palestinian human rights. He was appointed to this role by the UN Human Rights Council, in 2008.

Ken Klippenstein: Could you describe Sisi’s [Egypt’s new leader] relationship with Hamas?

Richard Falk: The [Sisi] government is determined to destroy the Muslim Brotherhood and they view Hamas as an extension of the Brotherhood. So they’re, in a certain way, on the same side as Israel on this particular confrontation.

KK: Has the aerial bombardment campaign adopted by Israel done anything to decrease the rocket fire coming from Gaza?

RF: There’s no evidence that it has. It certainly has caused some damage and some deaths to those involved in either making or deploying and firing the rockets. But there’s no discernable effect in stopping Hamas’ and other militias’—it’s not only Hamas, there are other militias, some of which Hamas doesn’t control—that have engaged in this kind of rocket fire. The only alternative to using these rockets for defenseless people like those living in Gaza is to absolutely do nothing—to be completely passive. They have no military capability to resist Israel on the ground or in the air or from the sea. So it’s a very one-sided war; and one-sided wars are, in my view, by their very nature unlawful and constitute crimes against humanity.

KK: Since Palestine lacks statehood, does that deny them recourse to the protections afforded by international law?

RF: The UN General Assembly on Nov. 29, 2012 passed a resolution recognizing the statehood of Palestine as a non-member observer state of the UN. That has been interpreted as giving Palestine the status of being a state in international society for most purposes. They have joined UNESCO, for instance, as a member state, and they’ve adhered to more than 15 international treaties open only to states. They’re recognized by, I think, 130 governments as a state. They could at this point seek redress at the International Criminal Court, a step that Israel and the United States have declared would be very provocative from their point of view and would lead to adverse consequences.

In effect, the United States and Israel are saying it’s not acceptable to use international criminal law to uphold your legal rights.

KK: What is the US role in the aerial bombardment campaign?

RF: The US is definitely complicit and legally accountable, at least in theory, in that this weaponry is not supposed to be used except in accordance with international law; and if the whole undertaking is a violation of international law, then the United States is responsible, and should diplomatically have been seeking to restrain and censure Israel, rather than to lend its support.

Beyond that, there is the sense that Congress itself—again at least theoretically—restricts military assistance to foreign countries in a way that is supposed to be compatible with international law and the UN Charter. So by the guidelines that are embedded in American law itself, this is an unlawful and unacceptable policy that the US government has been pursuing.

KK: Could you talk about the legality of the siege of Gaza?

RF: The siege of Gaza is clearly a form of collective punishment that is prohibited by Article 33 of the 4th Geneva Convention, which unconditionally prohibits any recourse to collective punishment. A blockade that has been maintained since the middle of 2007 is directed at the entire civilian population of Gaza. It includes many items that are needed for health, subsistence, and minimum requirements of a decent life. So in my view, Israel—as the occupying power (under international law) of Gaza—is supposed to protect the civilian population, rather than subject it to a punitive blockade of the sort that’s been in existence these past 7 years.

KK: Israel sometimes phones warnings ahead of time before bombing buildings. Do you believe that this constitutes a serious effort to minimize civilian deaths?

RF: One would have to look carefully at each context. My impression is that Gaza is a place where there’s no real opportunity to escape from impending attacks. There may have been some lives saved as a result of these warnings. My impression is they’re not given consistently and comprehensively; and furthermore, that in the wider context of Gaza, there’s no opportunity for people to become refugees or to even move from points of danger to points of relative safety. It’s unusual in a wartime situation where almost always there is an option of crossing borders during a period of combat and finding some sort of sanctuary. Israel again, as the occupying power, has an obligation to see to it that the civilian population [of Gaza] is protected. They deny any kind of exit right to Palestinians living in Gaza, except those holding foreign passports (there are about 800 Palestinians with dual passports who have been allowed to cross the border into Israel). 150 of those have American citizenship and the US consulate has been facilitating their departure if those people want to.

But in general, for the 1,700,000 Gazans, they are denied the option of becoming refugees or even of becoming internally displaced persons. And therefore they cannot escape from the fire zone that Israel has created. And even if they’re not direct casualties being killed or injured, they are living under the cloud of state terrorism maintained day and night over this period, in a way that psychiatrists and psychologists and mental health experts say is inducing mass trauma on the part of the Palestinian people, particularly among the children.

Even before this attack there exists a highly anxious atmosphere because there are Israeli planes flying over all the time; and it’s never clear when they will do something that is hostile. People of Gaza, as I’ve been saying, are completely vulnerable. They have no way of fighting back. They are at the mercy of the Israelis. And the Israelis show very little mercy.

KK: What is Israel’s legal rationale for denying Gazans the displaced persons status that you mentioned before?

RF: As far as I know, they haven’t articulated any justification for this policy. They just close the borders and the international community has by and large been scandalously silent; and has remained so up to this time.

KK: What is the US role in blocking a UN resolution condemning Israeli violence in Gaza?

RF: As I understand it, the US did indicate its readiness to veto any resolution that blamed Israel, and there was support for such a resolution on the part of the majority of the members of the Security Council. What the UN ended up doing was issuing a statement that called for a ceasefire but it is a statement that has no binding legal effect and did not in any way censure Israel for its role.

KK: Do you believe the Security Council should be reformed in any way, given the US’ propensity for vetoing otherwise unanimous Security Council resolutions?

RF: I think it would be a helpful move from the perspective of global justice and the implementation of international law; but as matters now stand, it’s a very impractical step because no amendment to the UN charter can be made without the consensus of the 5 permanent members of the Security Council, each of whom has a veto. The United States and probably Russia and maybe China would veto any effort to deprive them of their veto rights. So it’s more or less gridlocked with respect to reform.

KK: Would you support a call for an arms embargo on Israel?

RF: Yes I would. I think it would be an appropriate move at this point. Israel has consistently defied international law in many different ways. It shows no sign of respecting the wishes of the international community, at this time, for an immediate ceasefire. So I think that the only way the world can show that it’s at all serious about protecting vulnerable peoples—in this case the Palestinians—would be to impose an arms embargo.

Of course Israel has a very robust arms industry itself. It’s one of the ten leading exporters of arms. And it’s of course inconceivable that, at this stage, the US and several of the West European countries would respect such an embargo. Nevertheless, it would be an important symbolic step in the direction of delegitimizing the kind of behavior that Israel has been engaged in.

KK: In the case of Israeli kidnappings and murder of Palestinians in Palestinian territory, can the perpetrators be brought before a Palestinian court or must Palestinians simply accept an Israeli court? 

RF: At this point they would have to accept the formal authority of the Israeli courts because the crime was committed in an area under Israeli legal administration. And the accused are in the possession of the Israelis and therefore they have the authority under international law to prosecute.

If there’s not a serious assessment of the crime, it could be questioned as an evasion of the obligation to prosecute; and if found guilty, punish those that engage in this kind of behavior. Remembering that, as far as we know, this was purely private criminal activity. It was not something that the government can be shown to have authorized—although the background of incitement after the kidnapping of the 3 Israeli teenagers on Jun 12th is part of the broader context in which this crime occurred.

KK: Are allegations of Hamas using human shields credible?

RF: There hasn’t been, as far as I know, serious evidence that this has taken place. In fact there is evidence that the Israelis used Palestinians as human shields when they mounted the ground offensive back in 2008-2009. And even if the Palestinians did do this, it would still not vindicate Israelis shooting directly at civilians, unless there was some kind of argument of absolute military necessity, which is pretty remote from this situation.

KK: Do you believe that Israel has been committing war crimes in Gaza?

RF: Yeah. I think certainly there’s the basis for alleging war crimes. It requires a formal legal judgment to reach the conclusion that there have been war crimes committed. There is a presumption of innocence until proven guilty—that’s important to maintain. But certainly the evidence that I’m aware of suggests the commission of serious crimes against humanity and war crimes in the course of this operation.

KK: Could you discuss the background of the crisis? Western media’s accounts usually begin with the kidnapping and murder of the three Israeli boys, omitting important contexts: the siege of Gaza, for instance.

RF: The timeline for these justifications that are made by Israel is very self-serving and not very convincing. Of course, you have a complex pattern of interaction. On the other hand, Israel is the occupying power, and has the international responsibility to protect the civilian population [of Gaza]. And in the case of the kidnapping on Jun 12, they had the opportunity to limit the response to an enforcement action that was done in a reasonable way. Instead they used it as a pretext for seeking to destroy Hamas as a political actor present in the West Bank; and then extending that anti-Hamas policy to the attack on Gaza. So it was clearly a way of using this initial criminal act as a means to pursue a much wider political agenda that focuses on Israel’s national ambition to control the West Bank—at least most of the West Bank, where the settlements are—and to eliminate from that reality the only viable Palestinian opposition force (because the Palestinian Authority that is nominally in control on behalf of the Palestinians of the West Bank, is in a semi-collaborationist relationship with Israel). So the attempt to get rid of Hamas as a political influence on the West Bank particularly, and to punish it severely in Gaza where it’s in control of the governing process, is a crime.

KK: Why did Netanyahu not take Abbas up on his offer to cooperate with the investigation into the kidnapping and killing of the three Israeli boys?

RF: I think it’s part of Netanyahu’s political escalation of the Israeli approach at this point. They repudiated the direct negotiations—which didn’t make much sense in the first place—but they repudiated them as a way of stating that they would no longer seriously engage in diplomacy but would impose their own solution on the conflict. And that solution involves consolidating control over the whole of Jerusalem and taking all or the most valuable parts of the West Bank and in effect annexing them to Israel.

KK: Under the Arms Control Act of 1976, governments that receive weapons from the US are required to use them for legitimate self-defense. Does the US’ arms aid to Israel violate that law?

RF: Yes, definitely. From everything I’ve been saying, there’s no legal, political or moral argument that would uphold the claim that Israel is acting in legitimate self-defense. There’s been no armed attack by Hamas or Gaza; in any event, Gaza from an international law point of view, is not a foreign state but an occupied territory. It’s not clear that you can exercise self-defense in relation to a territory that you are responsible for administering in accordance with international humanitarian law.

NB: some of the questions in this interview were edited for readability.

Ken Klippenstein is a journalist based in Madison, Wisconsin, USA. He can be reached via twitter @kenklippenstein or email: kenneth.klippenstein@gmail.com