by Stuart Littlewood
With obvious relish Richard Falk, former professor of international law at Princeton and UN Special Rapporteur on human rights in Occupied Palestine, has issued a well deserved slap on the wrist to UN Secretary General Ban Ki-Moon for his naivety. It follows Israel’s furious reaction to Ban’s remark to the Security Council that “Palestinian frustration is growing under the weight of a half-century of occupation and the paralysis of the peace process”.
The usually timid Ban, suddenly emboldened, also called Israel’s illegal settlement building “an affront to the Palestinian people and to the international community”. He added: “Security measures alone will not stop the violence. They cannot address the profound sense of alienation and despair driving some Palestinians – especially young people.” Whereupon Israel’s prime minister Netanyahu, fresh from approving another 150 squatter homes on stolen Palestinian land, accused the Secretary General of giving a “tailwind to terror”.
Falk penned an open letter to Ban reminding him of his earlier attempts to get Falk dismissed from his UN job for speaking the same truths. “Having read of the vicious attacks on you for venturing some moderate, incontestable criticisms of Israel’s behaviour, I understand well the discomfort you clearly feel. What intrigues and appals me is that while I was Special Rapporteur for Occupied Palestine during the period 2008-2014, you chose to attack me personally in public on several occasions, joining with US and Israel diplomats calling for my dismissal and doing the utmost to undermine my credibility while discharging this unpaid UN job under difficult conditions.
“At the time, I was doing my best to bear witness to some of the same truths about Israel’s unlawful and immoral behavior that recently got you in similar hot water. My UN mandate was to report upon the reality of Israeli violations of international law while sustaining their apartheid regime of oppressive control over the Palestinian people.”
Referring to Ban’s concern that we are reaching “a point of no return” for the two-state solution and his reminder to the Security Council that the UN will “continue to uphold the right of Palestinians to self-determination”, Falk warns that, given present realities, self-determination must be understood as something more than just “another delusionary embrace of a diplomatically negotiated two-state solution”.
He points out that Israel’s leaders want the idea of a Palestinian state abandoned altogether and that reliance on such a discredited diplomatic path [a two-state solution] has resulted over and over again in severe encroachments on occupied Palestine and intense suffering for its people. “Clinging to the two-state mantra is not neutral. Delay benefits Israel, harms Palestine. There is every reason to believe that this pattern will continue as long as Israel is not seriously challenged diplomatically and by the sorts of growing pressures mounted by the international solidarity movement and the BDS campaign.”
Israeli and American ‘hard power’ rides rough-shod over ‘the Nuremberg Promise’ and international law
When Richard Falk visited the UK two years ago, I jumped at the opportunity to interview him and relayed his words in an article titled ‘Stealing Palestine’ (December 2013). Some of the things he said then are well worth repeating now, especially as political leaders in the West are urging resumption of bogus ‘peace negotiations’ and still harping on about the ‘two-state solution’. And because Falk’s precision language is a master-class.
I began by asking if the Palestinians should walk away from so-called peace talks.
Richard Falk – It should be evident 20 years after Oslo that the peace talks serve Israel’s interest in ‘creeping annexation’ of the West Bank and ethnic cleansing in East Jerusalem, while diminishing Palestinian prospects, and even harming the Palestinian image by disinformation that blames the Palestinian side for the breakdown of the process when and however it occurs. It would be a welcome sign of PA independence if they come forth and denounce this peace process for what it is.
SL – How acceptable is it for a weak, demoralised and captive people like the Palestinians to be forced to the negotiation table with their brutal occupier under the auspices of a US administration seen by many people as too dishonest to play the part of peace broker?
Richard Falk – Even if the United States was acting in good faith, for which there is no evidence, its dual role as Israel’s unconditional ally and as intermediary would subvert the credibility of a negotiating process. In fact, the US Government signals its partisanship by White House appointments of individuals overtly associated with the AIPAC lobbying group as Special Envoys to oversee the negotiations.
SL – There can be no peace without justice, so is it right for final status ‘negotiations’ to be held before competing claims are tested in the courts and the many outstanding rulings under international law and UN resolutions are implemented? Shouldn’t a neutral UN peace commission be supervising the final settlement of this long struggle, rather than the US or the Quartet?
Richard Falk – Yes, if the priority were to attain a just and sustainable peace, a framework would be developed that had two characteristics: neutral as between the two sides and sensitive to the relevance of rights under international law. Such sensitivity would favour the Palestinians as their main grievances are all reinforced by an objective interpretation of international law, including in relation to settlements, Jerusalem, refugees, borders, water.
SL – Do you believe a two-state solution is still feasible?
Richard Falk – No. I think Oslo has been dead for some years, primarily due to Israeli policies designed to encroach upon the remnant of Palestinian territorial and symbolic rights, especially by the continuously expanding settlement archipelago, the unlawful separation wall built on occupied territory, and the demographic manipulations in East Jerusalem.
The pretence that Oslo plus the Roadmap point the only way to peace serves American and Israeli purposes in quieting growing complaints about the persistence of the conflict. It represents a diplomatic attempt to deflect criticism, and to divert attention from Palestinian grievances and a growing global solidarity movement.
SL – Shouldn’t the whole territory (of historic Palestine) be returned to the melting pot and shared out more sensibly? Shouldn’t Jerusalem and Bethlehem become an international city, or ‘corpus separatum’, as the UN originally intended?
Richard Falk – For me the fundamental flaw with the partition proposals contained in GA Resolution 181 was the failure to consult the people resident in Palestine at the time. A secondary flaw was the unfairness of awarding 55% of the territory to the Jewish presence as represented by the Zionist movement, which in 1947 accounted for only one-third of the population owning around 6% of the land. This idea of determining the future of Palestine by outsiders, even if well intentioned, which seems not to have ever been the case, is incompatible with the historical trend toward resolving the future of peoples by way of the dynamics of self-determination.
SL –Why doesn’t the ICC (International Criminal Court) initiate its own prosecution of Israeli crimes based on UN reports and the mountain of evidence available to it?
Richard Falk – There is no authoritative explanation of ICC passivity in face of the Israeli criminal violation of fundamental Palestinian rights… It is plausible to assume an absence of political will on the part of the prosecutor’s office to initiate an investigation that would be deeply opposed by Israel and the United States. The ICC has been recently criticized for its Western bias, and its failure for instance to consider whether the United Kingdom and the United States violated the Rome Statute’s enumeration of international crimes by initiating and conducting the Iraq War.
SL – What is the UN doing to protect Palestine’ s precious aquifers and offshore gas field from being plundered by the Israelis?
Richard Falk – The UN has no independent capability, or ever will, to challenge Israel or to protect Palestinian rights. It is a case of geopolitical manipulation and Palestinian victimization. The wrongful appropriation by Israel of Palestine’s water, land, and energy resources has been a massive crime against the Palestinian people that has been continuous with the occupation that commenced in 1967.
SL – Why is the requirement, often repeated, to allow Palestinians free and unfettered movement in and out of Gaza not implemented? Why are Gazan fishermen still restricted to a mere fraction of their territorial waters, despite agreements to the contrary, and regularly fired on? And why is Israel not prosecuted for acts of piracy in international waters against humanitarian traffic to Gaza?
Richard Falk – The hard power realities of Israeli military dominance, as politically reinforced by American geopolitical muscle, overrides all of these Palestinian claims of right. In this respect, such injustice and suffering can only be challenged by Palestinian resistance and international solidarity…
It is pointless to expect the UN to do more than its capabilities allow. The whole structure of the Organization, combined with the method of funding, gives geopolitical pressures great leverage in relation to specific situations. The veto power given to the permanent members of the Security Council is a major expression of this weakness that was built into the constitutional structure of the UN from the moment of its establishment.
SL – At Nuremburg our legal institutions were strong enough to bring Nazi era criminals to book, but present-day war criminals walk free and thumb their noses. What hope is there for mankind and our brave new world if this is allowed to continue?
Richard Falk – There was a promise made at Nuremberg that in the future the rules by which the Germans were judged would be applicable to all who committed state crimes in the future. This Nuremberg Promise has not been kept. The political and military leaders of the main states enjoy impunity while the leaders of defeated countries (e.g. Saddam Hussein, Slobodan Milosevic) or sub-Saharan African countries are prosecuted by international tribunals. Double standards prevail, and it is questionable whether an international criminal law that punishes the weak and exempts the strong is to be treated as legitimate…
The bottom line is that we live in a world in which the primacy of hard power prevails in the relationship among states. Geopolitical leverage enables Israel to defy the most basic principles of international law, and yet their leaders are not held accountable. There are only two paths available that challenge this result. National courts can be empowered by what is called ‘universal jurisdiction’ to investigate, indict, prosecute, convict, and punish anyone accused of state crime that can be personally delivered to the relevant court.
The other possibility is by convening a peoples tribunal of the sort constituted in the past by the Bertrand Russell Foundation in Brussels and the Lelio Basso Foundation in Rome. The Russell Foundation sponsored four sessions devoted to various allegations of criminality attributed to the government of Israel. It produced convincing documentation of the charges, and issued judgements that called for civil society initiatives…. Such outcomes may influence public opinion, and help change the balance of political forces by undermining the legitimacy of an established order of oppression…
SL – Your robust defense of Palestinian rights has ruffled many feathers and led to demands from ‘the usual suspects’ for your dismissal. Should the people you speak up for be concerned about this?
Richard Falk – The attacks on me, and others who have tried to bear witness to the directives of international law and political justice, are part of a deliberate campaign by Israel, and its cadres in civil society, to deflect attention from the substantive grievances of the Palestinian people. It is what I have described as ‘the politics of deflection’, go after the messenger so as to deflect attention from the message. The media has been largely compliant as have Israel’s powerful governmental friends, including the United Kingdom, US, and Canadian governments.
Nothing has changed for the better since our ‘conversation’. Richard Falk’s successor as UN Special Rapporteur, Makarim Wibisono, has already resigned due to Israel’s refusal to grant him access to the areas he is tasked with monitoring. In a UN press release he says: “My efforts to help improve the lives of Palestinian victims of violations under the Israeli occupation have been frustrated every step of the way. I took up this mandate with the understanding that Israel would grant me access, as an impartial and objective observer.” However, repeated requests for access to the Occupied Palestinian Territory, both written and oral, had been unsuccessful.
It is against this background that the Palestine Solidarity Campaign (PSC) in the UK has, for the second year running, rejected a proposal from members calling on the British Government to press for Israel’s expulsion from the UN. Yes, it would have been futile in some respects but symbolically crucial in its wider impact. After several requests for an explanation PSC president Hugh Lanning has so far declined to comment. Perhaps his organization should reflect on Falk’s remarks about the role of international civil society in challenging ‘hard power’.