Richard Falk on Israeli Crimes Against Humanity in Gaza

Michael Slate: What are the duties of a Special Rapporteur for the United Nations?

Richard Falk: A Special Rapporteur is a post created by the Human Rights Council in Geneva, which is the main organ of the UN that is supposed to address human rights. There are two kinds of special rapporteurs. My kind deals with a particular country or situation that calls for special attention. The other country special rapporteurs are for Myanmar, Somalia, and North Korea. The other kind are thematic special rapporteurs that deal with human rights issues such as summary executions, child soldiers, disappearances, religious suppression, food, health, and the like. All in all, there are 29 special rapporteurs, and each of us is supposed to report once a year to the General Assembly in New York, and once a year to the Human Rights Council in Geneva.

My particular job is to monitor what’s going on in the occupied Palestinian territories, which means really Gaza, the West Bank and East Jerusalem, and to assess the situation as it exists in relation to international humanitarian law, UN Charter, human rights law, and international criminal law. That’s what I’ve been trying to do since selected in May 2008.

Slate: In that role, you are supposed to have access to any country that’s a signatory of the UN?

Falk: Yes, that’s right. And in fact it’s a legal obligation of a member of the UN to cooperate with the UN in discharging its official responsibilities. And so my exclusion from Israel a couple of weeks ago is in direct violation of Israel’s obligations to cooperate with the UN. It should be understood that this is part of a wider Israeli policy that was being pursued at the time to exclude journalists and to keep informed observers who live within Gaza from leaving. So it was part of a politics of diversion to prevent people from seeing and reporting upon what was happening on the ground, and I suppose this was an aspect of Israel’s preparation for the kind of events that have been taking place in Gaza since December 27th.

Slate: Israel has a history of refusing entry to people investigating the situation in the occupied territories – there’s Bishop Tutu, Norman Finkelstein and you. In your case there seems to have been a lot of forces marshaled against you from the very beginning. Both Israel and the U.S. opposed your appointment as Special Rapporteur last Spring. In your case, they accused you of being “biased.” Can you speak to that?

Falk: I think that Israel’s expulsion approach, which has been applied to other people as well as to myself, is to do all that it can to shift the focus to the observer rather than what’s being observed, it distracts the attention of the wider public from the ugly reality on the ground in Gaza. They’ve been quite successful in persuading much of the mainstream media to follow that track. So often when I’m interviewed, for instance, it’s all about whether I’m biased or not, not about whether my reporting is accurate, and whether or not I am truthful and objective in relation to the realities of the occupation. I always say that the real test of my qualifications is whether I’m accurate and truthful, and that is a test that I welcome. You can’t treat an unequal reality as if both sides have an equal claim to be persuasive. So I think that this emphasis on bias should be challenged by looking at the actual reports and assess whether they’re accurate or not. I would stand by the truthfulness of what I’ve been trying to say and the reasonableness of my legal interpretations of what the Israeli policies imply in terms of violations of the rights of the Palestinian people, and criminal accountability for the Israeli military and political leaders that have put these policies in place and kept them in force, and have magnified their character during their post-December 27th military campaign in Gaza.

Slate: It’s so enraging to read the lies that roll off, and the misrepresentations that roll through the newspapers in particular in this country. People are kept ignorant of the truth of what’s going on in Israel and Palestine, what’s going on in the occupied territories. For instance, one of the biggest lies out there about this massacre is that Israel is simply responding to a breach of the peace by Hamas; that they are just protecting the safety and security of their people.

Falk: I think that again this is a reflection of the willingness of much of the world’s media, particularly here in the US, to go along with assertions that are just not concerned at all by the true nature of the relevant reality. The reality was that for the year before Israel attacked Gaza at the end of 2008, not a single Israeli death had occurred as a result of the few rockets that had been fired. Further, Hamas had all along indicated its willingness to enter a long term truce with Israel up to ten years. Beyond that, the temporary truce that had been negotiated under Egyptian auspices last June, had held pretty well until Israel broke it on November 4, by attacking some alleged Palestinian militants within Gaza and killing six people. After that the interaction becomes confusing, with some rockets fired, but it’s not clear whether these rockets were fired under the authority of Hamas, or by quite independent groups in Gaza. There are other militias, some of which are tied to Fatah, the adversary of Hamas, and they may try to embarrass Hamas or cause it difficulties. I should say at the same time that in my role as special rapporteur, I have consistently said that if these rockets are aimed at civilian targets they are unlawful, immoral, and also represent politically imprudent ways of demonstrating the persistence of Palestinian resistance to an unlawful occupation.

Slate: You’ve written about the difference between what Israel is doing to Gaza and what Hamas is doing to Israel. You’ve described the Palestinian rockets, for example, as a crime of survival. What did you mean by that?

Falk: What I meant by such a comment is that the Palestinians basically have no weapons and they have a strong incentive to try to demonstrate that they’re not going to surrender, that they’re not going to allow this kind of occupation to go unchallenged, and their situation of subjugation gives them few alternatives. They seem to lack the imagination or the capabilities to do anything that might be more effective, and at the same time being less helpful than the rockets to Israel in its search for legal and moral pretexts for the continuous violence directed at Gaza. The difficult question to pose is where there exist feasible forms of resistance that are less susceptible to allegations of unlawfulness. There’s no question that the Geneva Conventions that spell out the requirements of international humanitarian law prohibit aiming military weapons at civilians. It is true that these rockets are incredibly inaccurate and have done surprisingly little damage. But they are aimed at civilians and therefore they do violate international humanitarian law, and I think Israel has effectively brought attention to the rockets as providing a political cover and pretext for mounting outrageously disproportionate responses, and diverting attention from their policies of targeted assassination of Hamas leaders that have killed far more Gazan civilians than the rockets. Israel has been orchestrating the rocket narrative to make its violence appear to be “defensive” and “reasonable,” neither of which it is.

The November 4 Israeli attack on Gaza certainly seemed to be an Israeli provocation that was designed to activate a set of forces that the IDF [Israeli Defense Forces] had been planning to put in play for months, and was connected with the domestic elections that are forthcoming in Israel in February. The Israeli leadership and public seemingly wanted a non-diplomatic confrontation in Gaza. They didn’t pursue the numerous diplomatic openings that Hamas had provided by offering repeatedly a truce and even suggesting that if Israel would leave the occupied territories, as long required to do by a unanimous UN Security Council Resolution, peaceful coexistence would be acceptable to Hamas for the indefinite future. Recall that Gaza has been unlawfully and harshly occupied since 1967, all along in violation of international humanitarian law,

Slate: Why do you think that Israel rejected that?

Falk: Israel seeks a one-sided solution that takes account of their superior military and diplomatic bargaining power, and retains the extensive illegal settlement network that it has been establishing in violation of the Geneva Conventions for more than 40 years. Besides its territorial objectives, I think that Israel relies on two contradictory ideas about the Arab sensibility that are relevant to its approach to security. One is that the only language that their Arab or Palestinian adversaries understand is the language of violence, leading to the view that the more disproportionate the violence the more likely is it that the Palestinian recipient will get the message, and submit to the Israeli will. I would regard this outlook as embodying a quasi-racist mentality. It has driven Israeli security policy for a very long time, and is expressed by viewing an Israeli life as worth far more than a Palestinian life. The other Israeli belief, which seems completely contradictory, is that the Islamic elements in the Hamas movement, for instance, are practitioners of a death cult that make death a desired end if achieved while pursuing a just cause. It is this death cult that explains the earlier Hamas reliance on suicide bombing as a tactic of resistance. Thus the high Palestinian casualties are not the fault of Israel, but the impact of a worldview that embraces martyrdom as the ultimate form of heroism. There is some small grain of truth here for those who are extremists in the Hamas ranks, but it is completely misleading with respect to the overwhelming majority of Palestinians who crave the joys of life and satisfactions of family love as much as do Israelis.

These two ideas are contradictory. Both of them in my view as deployed for propaganda purposes are highly misleading. The evidence suggests a much more moderate and accommodating reality, including on the part of Hamas. The Palestinians as a totality seem overwhelmingly ready to accept as a fair solution that would give Israel 78% of the original Palestine mandate that was administered by the British until the end of World War II, and the Hamas leadership seems ready to go along with that model of a peaceful solution, but only if Israel dismantles most of its West Bank settlements. There are also the problems as you know between the Palestinian Authority that has been generally cooperating with Israel and the US, and Hamas that is characterized as a “terrorist” organization, even though it participated in the Gaza elections in January of 2006, won those elections in what was described as one of the freest elections ever held in the Arab world, and to demonstrate its good faith unilaterally declared a ceasefire that Israel failed to respect, engaging in a series of targeted assassinations and other provocations. Nevertheless, Hamas maintained the ceasefire for almost a year. One interpretation of all that’s been happening is that it is punishing the people of Gaza for having the temerity to select Hamas to be their leaders, against the background where the alternative being offered by the Palestinian Authority and Fatah, their political movement, which had turned out to be both corrupt on an administrative level, and impotent in terms of politically delivering some kind of prospect of a fair outcome that would end the conflict and finally give the Palestinians their right of self-determination and a state of their own. The other side of the coin from punishing the Palestinian people in Gaza for supporting Hamas is to use the label of ‘terrorist organization’ (also endorsed by the United States and the European Union) as granting permission to Israel to do whatever is necessary to destroy Hamas as a political actor, which produces a very different role for anti-Gaza violence than providing protection to the Israeli population.

Slate: You’ve called out the situation in Gaza, independent of the situation that exists there today, as a crime against humanity, a violation of Article 43 of the Fourth Geneva Convention. Can you explain that?

Falk: Yes. What I really have in mind preceded what the world is so focused on at the moment. In other words it was the impact of the eighteen-month blockade that had restricted supplies of food, medicine and fuel to such a degree that the mental and physical health of the Palestinian people had steadily deteriorated and was nearing a point of collapse, according to NGO observers and UN officials that were trying to administer relief programs in Gaza. This was a form of collective punishment being imposed on all the 1.5 million Gazans, and violated Article 43 of the Fourth Geneva Convention, which governs the duties of the occupying power toward a people that is living under occupation. So my view was that the severity, the massiveness, the continuation of that violation amounts to a criminal offense that is best understood in terms that we used initially at Nuremberg, as a crime against humanity.

I should add one further thing, that in the discussion of what’s happened since December 27, when the air attacks began on Gaza, almost no account has been taken of the fact that prior to those attacks, Israel was pursuing this blatantly unlawful policy of blockading an entire population. There’s one unique feature here, that in most wartime situations of this sort, you will have many refugees generated, and it’s a tragedy that is associated with a modern war in which there is no battlefield separate from the civilian society. But in this conflict, the Gazans were not allowed to leave the war zone. The Gazans were not allowed to become refugees. This is almost unprecedented. No matter how horrible past wars have been, and on one level you can’t call this even a war, because it’s such an asymmetrical situation where Israel has modern weaponry, complete control of the land, air, and the sea, and the Gazan society is essentially defenseless. So people have been reacting in language to the extremity of the one-sided violence by refusing to attach the label “war,” but resorting to terms that seem more appropriate such as atrocity and massacre to describe what was happening in Gaza in the period between December 27 and ceasefire.

But this massacre that has taken place, and that’s what I’m trying to highlight as vividly as I can, is that it came on top of this sustained collective punishment inflicted on Gaza that was itself a massive violation of international humanitarian law that put the entire population of Gaza already in a circumstance of acute humanitarian crisis.

Slate: A very important point. There were a couple of other violations that you raised: targeting of civilians, and a disproportionate military response. In the wake of December 27, these stand out very clearly. Can you talk about these other two violations?

Falk: The targeting of civilians: of course, in the last analysis does depend on some kind of evidence that a civilian target was intentionally chosen, and not an accident. Israel purports to defend itself additionally by saying that a supposedly civilian target (a mosque or school) was really not a prohibited target, but was a legitimate military target because it was being used by Hamas fighters or was a weapons depot. It is necessary to get at the facts as well as possible, and to assess the legal arguments being made. But it seems pretty clear at this point that Israel deliberately targeted UN schools that were not being used by Hamas fighters, and this is also true of the Islamic University that was completely destroyed. Israel has also targeted some medical facilities. All of these are themselves separate, severe violations of international humanitarian law, and arguably war crimes. Though to qualify as war crimes it is necessary to establish criminal intent as well as the acts themselves.

Israeli reliance on disproportioned force seems so clear as to not really require very much explanation. Even if one accepts the Israeli view that a lot of rockets have been fired and have had an effect, posed a kind of threat to the people particularly of Sderot, and to a lesser extent, Ashqelon, two southern Israelis communities, that clearly doesn’t justify attacking the entire society of Gaza, or attacking police stations and government buildings. Even on Israel’s own terms, there’s no relationship of proportionality between the kind of violence they’ve deployed, and the sort of provocation that they insisted provided the basis for that violence. The absence of either offensive or defensive weaponry relevant to Israeli firepower under the control of Hamas also both undermines the Israeli argument that they were severely threatened, and secondly, reinforces the impression that the Israeli response was grossly disproportionate.

Slate: You have also spoken about the collective punishment of the people in Gaza as a war crime. When you think of Gaza, it’s 360 square miles, a relatively narrow, small strip of land. When you’re having these kinds of airplanes flying over and dropping the bombs, the rockets coming in, whatever’s being done there, the shelling of Gaza, you combine that with what is arguably one of the densest places in the world, and certainly in the Middle East, and it really gives you a sense of what that means. It helps you understand the nature of this being a war crime.

Falk: You put your finger on it, on why this is generating so much rage and frustration around the world, because it is such an unequal kind of slaughter that is taking place. It’s reminiscent of the worst statistics of the colonial era, where the colonial powers killed on the ratio of a hundred to one or more, because of this technological difference in the kind of weaponry that is deployed, and the degree to which the Israelis control the air and sea, and are really able to shoot from a distance at will virtually without risk. That’s why this military operation doesn’t really have the quality of a war, which is supposed to be a contest between political actors that have more or less relied on comparable technology.

But again, even before December 27, Israel was flying at will its military aircraft over Gaza, causing sonic booms that have resulted in the malignant spread of deafness among children. One of the things that the Free Gaza Movement ships from Cyprus were trying to do was to bring hearing aids to these children that had been so traumatized and injured by Israeli vindictive terrorizing behavior that had been going on for many, many months.

Slate: Can you give people a sense of what life was like for the people in Gaza before December 27th?

Falk: It’s very difficult to imagine how terrible conditions were there, because it was a daily ordeal affecting every man, woman and child in Gaza. It meant that often most of the civilian population had no electricity much of the time. They often had no adequate access to food and safe drinking water. There was not enough medicine to deal with their health needs. People who had serious diseases, cancer, kidney problems, couldn’t get the treatment that was required. Israel wasn’t allowing most people to leave even to receive urgent care. So the blockade was a cumulative process that was causing extreme suffering for the whole population, whether individuals were politically engaged or not, and directly contrary to the basic obligation of an occupying power to protect the wellbeing of the occupied civilian population.

That’s the essence of collective punishment. Collective punishment is a matter of imposing on a targeted group, in this case the 1.5 million Gazans, a coercive policy that is punitive in its character, unrelated to anything that particular individuals may do, or that pose security threats to the occupying power, and therefore constitute efforts to punish those who are merely civilians living in this geographic space. That’s what hasn’t been adequately appreciated in most of the discussion that has followed from the recent focus on Gaza since the December 27 attacks which proceeds as if a condition of normalcy had prevailed prior to the attacks.

Slate: I know you’ve been really dedicated in trying to get the Israeli government to answer to international courts and to international law. What about the countries and governments that have promoted and protected and facilitated Israel in carrying this out. I’m thinking specifically about things like the US, where its F-16s are flying over, the billions of dollars Israel gets for its military. The whole intense relationship, and it’s a dependent relationship, but Israel has served in a lot of ways as a sort of advance man for US interests in the Middle East, including in relation to the Palestinian people. Are these forces also responsible in terms of these war crimes?

Falk: I think this is a set of issues that falls outside of my UN responsibilities, of reporting on the conditions in the occupied territories. I think that again, the facts would suggest a rather high level of complicity on the part, particularly, of the United States government, but also on the part of the European Union, and some Arab neighbors that have basically been cooperating with Israel, including Egypt, and to some extent Jordan, and to a greater extent Saudi Arabia. There’s a lot of responsibility on the part of governments and the international community, potentially. This should be fully investigated if we are to learn from this experience and try to foster a more law-governed world situation in the Middle East and more generally.

Slate: In addition to fighting to bring the people who are responsible in Gaza to the international criminal courts and to answer to international law, you’ve also argued for some more immediate protective measures for the people who are in danger right now. What’s the likelihood of that happening?

Falk: It’s a fair and important question. The short answer is that the UN can’t really fulfill its own Charter unless the political will of its most powerful members wish it to do so. And in the context of Israel, the UN has been rendered relatively impotent, except to a certain extent on the level of language, because the US and to some extent Europe, has prevented any kind of protective action from being taken, and would obstruct of course, any effort to impose criminal accountability. So you have a big gap between what international criminal law calls for and what seems to be politically feasible given the way the UN is structured.

Slate: Why do you think it’s so important to bring Israel to international courts and held accountable to international law. I read that you compared it to the struggle against South African apartheid and came to the conclusion that’s its very important in terms of discrediting these regimes. Can you speak to that?

Falk: I think one of the roles that the UN, and the International Court of Justice, the so-called World Court in The Hague, can play, is to legitimate struggles for justice and self-determination, and undermine any claims to legitimacy and respect for those that are engaged in oppressive politics and denying a people the right of self-determination. So I think it’s of great importance, particularly because of the way the geopolitical map is configured, that one uses whatever opportunities exist to create legitimacy for the Palestinian struggle. I think it would receive that legitimacy from a genuinely impartial assessment of the policies of occupation that Israel has been relying upon ever since 1967.

Slate: You’ve said that in the face of all that is lined up against you, and the refusal of Israel to allow you to do your job, that you’re not going to resign, you’re going to continue to fight to carry out your mandate and demand that international law be followed. I think it’s a really courageous stand that you’re taking, and the world needs more of this, it’s a very heroic role. Why are you deciding that you’re going to continue?

Falk: I think that my life’s work in a sense has been associated with helping or identifying with those who are victims of injustice. If we look at the world today, there are many victims of injustice. But I think the Palestinians stand out as the most victimized people in the world. And symbolically, their struggle is one that engages people of conscience everywhere in the world in a manner that resembles the way the anti-apartheid movement worked effectively to undermine South Africa’s claims of sovereignty and legitimacy. And I hope that this small role that I play contributes to that kind of process on behalf of the Palestinians.

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