‘Global order rests on double standards’ JOHN CHERIAN

Interview: Richard Falk, U.N. Special Rapporteur “on the situation of human rights” in Israeli-occupied Palestinian territories.

Richard Falk. He has described the Israeli strikes on Gaza as “war crimes”.

RICHARD FALK, Professor Emeritus of International Law at Princeton University and currently Distinguished Visiting Professor at the University of California, Santa Barbara, was in New Delhi in February. He is on the board of directors of many civil society organisations and has given expert testimony on critical issues to the United States Congress and the United Nations. Falk has also served on many international commissions. He has been an outspoken critic of the double standards adopted by the West in international affairs, especially on human rights and war crimes. He had described the 2003 invasion of Iraq as “a war of aggression”.

Falk was recently in the news when Israeli authorities detained him when he arrived in Tel Aviv on an official U.N. assignment. He had been appointed a Special Rapporteur on “the situation of human rights” in the Palestinian territories under Israeli occupation by the United Nations Human Rights Commission (UNHRC) for a six-year term in March 2008. Israel did not allow Falk to set foot on the occupied territories after he took up his new assignment. He was first denied permission in the middle of last year. But as the humanitarian situation in Gaza worsened, Falk landed at the Ben Gurion airport with a team from the UNHRC on December 14 only to be sent back. He has described the Israeli strikes on Gaza as “war crimes”.

In this interview to Frontline, Falk spoke extensively on Gaza and related international issues. Excerpts:

Has the case to take Israel to the International Criminal Court (ICC) been strengthened after the events in Gaza?

In an ideal world, Israel should be taken to the International Criminal Court but the problem is that the legal framework of the court makes it very unlikely even if the political will existed because Israel is not a member of the court. The Palestinian Authority has just tried to become a member but whether it qualifies as a state has to be seen. It would be an ideal case for the court to consider, but as a practical possibility that is not a path that would lead anywhere.
There are other paths that would have a little bit more possibility. Spain, as you know, has indicted seven leading Israeli military and political persons. Under the theory of universal jurisdiction, any national court can treat those accused of war crimes in the way pirates were treated under the principle of piracy. It doesn’t matter whether the crimes were not committed on Spanish territory or whether Spanish citizens were victims of the crime. It is enough that these crimes were committed. The Spanish criminal court is an agent of the world community in seeking to achieve some kind of accountability. Here, of course, they have to get personal jurisdiction over the accused individuals, which is unlikely to happen. And Israel and the U.S. have put a lot of pressure on the Spanish government to not follow through with this kind of proceedings.

There was an attempt to prosecute former U.S. Secretary of Defence Donald Rumsfeld in Germany for his role in approving the torture of detained people and there was lots of hard evidence of his involvement in the torture policy. The German prosecutor decided that, politically, he would not use his discretion. Initially, it was because the U.S. was supposed to have the first opportunity to prosecute. When the U.S. failed to prosecute, then it was thought that it was not politically appropriate. This universal jurisdiction is very difficult if the defendant is a powerful country or a friend of a powerful country, as Israel is.

The third path is the U.N. General Assembly. It has the authority, as does the Security Council, to create ad hoc criminal tribunals. This was done in the 1990s by the Security Council when it established the criminal tribunal at The Hague to dealt with former Yugoslavia and later to deal with the Rwanda massacres of 1994. There is a tribunal in Dar es Salaam in Tanzania. In the case of Israel, the Security Council is not available because of the veto of the U.S. The General Assembly could theoretically do this, but whether there is a political will to make such a controversial move is certainly not evident at the moment.

What are the options then?

The only thing that seems possible is a civil society tribunal. There was a world tribunal on Iraq, which was held in Istanbul in 2005 and had 54 witnesses, [a] very established documentary record that showed the degree to which the U.S. and Britain violated the U.N. Charter and the crimes that were committed during the occupation, and it named names, holding not only military and political leaders responsible but also people in the media, corporations and others. It was a symbolic use of international criminal responsibility.
This is important in the Palestinian context because the hope of the Palestinians is to create a political victory through what I call the second war – the legitimacy war, which is the way the anti-apartheid movement isolated the South African government and did what no one expected. That is, creating a political climate that produced a largely peaceful transition and a transformation of the apartheid regime.
In some ways, the Iranian revolution was similar. You had a strong, militarised government under the Shah, which was considered one of the strongest governments in the Third World. It had a close relationship with the U.S. and several of its neighbours, and yet this movement from below overwhelmed it in the end. Often, those who win the military battles lose on the political battlefield. This happened to the Soviet Union in Afghanistan, to the U.S. in Vietnam, to the French in Algeria and in Indo-China. They won all the battles but lost the war. They had total military superiority but could not convert it into a political victory.

Is there light at the end of the tunnel for the Palestinians?

That is the hope of the Palestinians, and after Gaza there are boycotts, divestments and sanctions campaigns all over the world. The world has become a political battlefield for the Palestinian struggle. It is now the successor to the anti-apartheid movement and engages the moral imagination of the entire world community. It is not just a regional or country-specific issue. Of course, there are important differences between South Africa and Israel/Palestine. The Palestinians don’t have the kind of leadership the ANC [African National Congress] provided under [Nelson] Mandela, Oliver Tambo, Walter Sisulu and others. Israel has interfered with their potential leaders. Marwan Barghouti is in jail. They isolated Arafat and killed the best advisers he had in Tunisia. It is a kind of deliberate policy of eliminating potentially effective leaders.

Is the Israeli leadership capable of ever acceding to a two-state solution?

It is hard to imagine, in the Israeli situation, to get from where we are to a viable solution even if the Israeli leadership is willing. Because the settlement movement has gone so far on the West Bank that it would probably generate a war in Israel if a leader there tried to eliminate the settlements. If you think of a single, unified confederal Israeli-Palestinian state, that would mean giving up the Zionist project. And that too would produce an Israeli civil war. It is very hard to see how the Palestinians reach that level of self-determination.

There have been attempts to de-legitimise Hamas. Have they been successful?

It has been much more successful than it was expected to be. If you look at the record, Hamas, when it was elected in Gaza in January 2006, immediately established a unilateral ceasefire and offered to deal with Israel politically. It maintained the ceasefire for almost a year despite the fact that Israel continued with its policy of assassinations from time to time, killing quite a few Palestinian civilians. Basically, Israel was instrumental in starting the violence. It was only then that the rockets came in retaliation. Firing rockets at civilians is not accepted legally or morally, but these rockets were not effective. They have done very little damage. Then, under Hamas’ pressure the militants observed a temporary ceasefire from July 2008. Cross-border violence almost totally disappeared, and it was again Israel that broke the truce by the November 4 attacks in Gaza, which killed six or seven Palestinians and led to a resumption of rocket fire and retaliation. But not a single Israeli was killed in the entire year.

At East Jebaliya in northern Gaza, which was devastated in the Israeli offensive in February, a Palestinian boy carries bread on his bicycle on March 2.

Israel, it seems, prefers to wage war against civilians these days.

Is the West adopting double standards? The Sudanese President is about to be issued a warrant by the ICC for war crimes in Darfur. The situation there pales in comparison to what has happened recently in Gaza.