March 17, 2009
Richard Falk is the United Nations Special Rapporteur for Human Rights in the
Occupied Palestinian Territories. He is world-renowned as an authority on
international law and has authored and co-authored 20 books. Recently,
Professor Falk has focused much of his attention on the Israeli massacres in
Gaza, alleging that Israel's actions are constitutive of both violations of the
laws of war and indicative of crimes against humanity. This is the transcript
of a phone interview with him from his home in Santa Barbara, California.
Can you begin
by explaining the reasons why you believe that Israel is guilty of war crimes
and crimes against humanity?
Well that's a big
question of course. I think that the attack on Gaza initiated on December 27th
of last year was a violation of a fundamental norm of the UN Charter, which
prohibits non-defensive uses of force. At the Nuremburg trials after World War
II, that was treated as a crime against the peace, which was viewed as the most
serious of all international crimes.
Following from the
attack itself, which was not a justifiable use of force, is the whole question
of whether the use of modern weapons in a setting where the civilian population
is exposed to the ravages of war can ever be reconciled with the international
law of war. I believe it cannot be. That conclusion is somewhat controversial,
it hasn't been formally tested in an international tribunal, but I think the
inability to prevent civilian casualties has clearly been established by the
results of the attacks on Gaza.
Beyond the actual
physical death and injury endured by Palestinians, including many women and
children, is the wider reality that being trapped in a war zone of that sort
almost certainly imposes severe and maybe incurable mental damage to the entire
population. So it is a matter of waging war against a whole civilian population. That is, it seems to me, the essence of the
most serious violation of the law of war. And it was aggravated in this
situation because the civilians in Gaza were not even given the option to
become refugees. They were locked in the war zone and therefore deliberately trapped
in this combat area, which was so densely populated and being attacked from the
sea and the air and by land.
Finally is the issue
of the tactics and weapons that were used. There is a lot of eye-witness
evidence that prohibited targets were struck, including several UN buildings;
that civilians were deliberately targeted in an act of vengeance, apparently;
and that legally dubious weapons were used in contexts where civilians were
exposed to them, such as phosphorous bombs and a weapon called DIME, which
involves a very intense explosive power that makes surgical and medical
treatment impossible. So there's a whole bunch of issues that together create
quite an inventory of violations of the law of war as well as violations of the
geopolitical realities today, do you think there's a chance that Israeli
leaders will be brought to justice in any way, shape or form?
I am skeptical at
this point as to whether the intergovernmental framework of world politics has
the capacity to impose legal responsibility on Israel or on its civilian and
political leaders. And I don't think the UN is likely to do anything
significant although they have called for investigations of these allegations
of war crimes and will give, I think, some further documentation to those
allegations. But I am not very optimistic about implementing those reports by
taking steps to impose accountability.
There are two areas
where there is some prospect of a development that would move in this
direction. One is indicated by the national court system in Spain that has
encouraged the prosecution of thirteen leading Israeli political and military
officials. That at least establishes a legal claim by a governmental
institution giving added credibility to the allegations. It's doubtful whether
it can be operationalized in terms of real prosecution, but it probably will
prevent prominent Israelis at any rate from visiting Spain, and it will inhibit
their travel plans.
The other possibility
that I think is quite likely to take some form is the organization by civil
society of citizen tribunals that will investigate these allegations and reach
a judgment that can't be enforced in a typical way but has a considerable
symbolic weight. This will be influential for activists around the world who
are already pursuing efforts to impose boycotts, encourage divestment from
companies doing business in Israel, and encouraging their governments to
consider sanctions. So I think one shouldn't overlook the civil society impact
of this dimension of concern about the criminality of what Israel did in its
attacks on Gaza, and that that criminality has contributed to the mobilization
of people around the world in solidarity with the Palestinian struggle. One
needs to remember that that is eventually what turned the tide in South Africa
and led to the victory of the anti-apartheid movement. It wasn't a victory that
was one by force of arms. It was a victory in what I call the second war, the
legitimacy war, which eventually isolated South Africa in such a way that it
internally transformed its constitutional and political system in a way that
met the demands of international society.
As you may be
aware, a couple weeks ago over 40 cities in the world took part in the series
of events called Israeli Apartheid Week. What's your sense of the use of the
term "apartheid" to depict what is going on in Israel/Palestine? Would you say
that Israel is also guilty of the international crime of apartheid?
Well I think that
first of all, that event involving 40 cities is itself an illustration of the
degree to which the Palestinians are winning the legitimacy war. That would not
have happened a year ago much less five years ago. So symbolically, again, this
is a very important development, independent of how literally that analogy
should be pursued. I think that there is some mobilizing effect of using that
analogy but there's also some alienating effects, so it's very hard to know
whether that's a tactically useful language to use. Each situation has its originality.
There are certainly resemblances that South African victims of apartheid have
noted and there are dissimilarities. This is a military occupation that has its
own characteristics that shouldn't be overlooked such as the imposition of the
settlements on the West Bank or the continuing blockade of Gaza. So I think
that it is not inappropriate to use the analogy between the situation
confronting the Palestinians and the anti-apartheid struggle in South Africa.
But I find it less useful than to focus directly on the realities of the
occupation as it affects the daily lives of the Palestinian people.
As you were
mentioning, the settlements have become a major problem. There are now about a
half million settlers living in the occupied West Bank, not to mention the
recently unveiled plans to double that number. Meanwhile, the international
community remains steadfast on pushing for a two-state solution despite the
seemingly irreversible physical realities on the ground. Given this, in which
direction do you suppose supporters of a just solution should proceed at this
It's a difficult
question because both obvious paths of solution, two-state or one-state, seem
very difficult to understand in regards to how one proceeds from the present
reality to that solution. There's no doubt that the further expansion of the
settlements, if it actually takes place, represents the death of the two-state
solution. Even without the expansion, it seems very difficult to implement a
two-state solution without dismantling a substantial portion of the existing
settlements. At the same time, many people feel that no Israeli leadership
would have the political will or capacity to implement such an approach, even
if it was itself desirous of moving in that direction. But to expand the
settlements, especially so massively, not only exhibits defiance of the
international will on such a question, but it also is a repudiation of the Quartet
peace process that had rested in part on a settlement freeze, which Israel
consistently has ignored.
So I think if this expansion is not opposed
effectively by the United States and by the Quartet, it represents the end of
the Quartet peace process. This would introduce a new phase in the diplomatic
approach to some sort of solution and would bring the one-state alternative
into sharper focus. But there, one would have to think about whether there is a
way to achieve a one-state solution that doesn't involve the abandonment of
Zionism by the Israeli leadership, because that would seem again to be beyond
the realm of feasible politics. No foreseeable Israeli leadership would consent
to renouncing Zionism as the basis of their governing process. If any leader
were to do so, it is unlikely that he or she could survive politically and
possibly even physically.
appointed UN Special Rapporteur you've been refused entry into Israel. Will you
try again with the new government once it is formed?
I will certainly
explore the possibility. I would like to be able to carry out my role in a responsible
way, which would involve visiting the West Bank and Gaza and meeting with
people and their leaders there. I'm not very optimistic that a change of
government in Israel will result in a change in policy toward my admissibility,
but I will certainly do my best to carry out this job as well as I can.