The Failures of
International law
and Responsible
Statecraft
Slaughter in Gaza:
The Failures of
International law
and Responsible
Statecraft
Richard Falk
Global Justice in the 21st Century
November 5, 2023
Prefatory Note: A slightly updated
and modified interview on Gaza
with Zeynep Busra Conkar,
an Associate Producer of TRT World,
an important Turkish media platform.
published October 30, 2023,
A link to a short audio excerpt:
https://twitter.com/trtworld/status/1719078356577075573
TRT: Israel’s bloodlust shows international law is ‘a manipulated series of norms.’ Renowned International Law Professor Richard Falk says Western leadership becomes “self-righteous” to enforce international law “when it’s in their interest” while in other cases, they remain silent. TRT Introduction to Q & A follows.
”Many objective observers have noted that how Israel is using force against Gaza constitutes an ongoing case of genocide, which is itself considered the most serious of international crimes and deserves to be stopped by a consensus of inter-governmental action at the UN to stop this kind of extreme violent abuse of state power,” Falk said.
As the ongoing Israel-Palestine conflict enters its 24th day, claiming the lives of over 9,800 people – 8306 Palestinians and 1538 Israelis – Tel Aviv refuses to de-escalate or even allow ‘a humanitarian pause’ in its military operations and instead resorts to massive disproportionate and indiscriminate violence on the besieged and defenseless people of densely populated Gaza, striking at targets such as hospitals, medical convoys, refugee camps, religious buildings, UN facilities, schools, and in the process ordering a cruel and impractical forced evacuation of 1.1 Palestinians in the northern part of Gaza, treating those unable or unwilling to leave as aligned with the ‘terrorists,’ that is, Hamas.
The scale of devastation caused by Israeli bombings in Gaza is horrifying. A small enclave of an estimated 2.3 million Palestinians navigating perilous waters over the past 16 years to survive in the face of a comprehensive and punitive economic and social blockade since 2007 proclaimed by Israeli officials as designed to keep Palestinians on ‘a subsistence diet,’ that is ‘a bare life.’ Gaza has in the last weeks once again been subjected to collective punishment on a gigantic scale– further aggravated by Israel’s scandalous targeting of prohibited sites and by through the alleged use of incendiary phosphorus bombs in densely populated civilian areas. Such practices consist of numerous war crimes.
In moments like this, when a staggering death toll of civilians, half of whom are children, isn’t significant enough even to lead the international community to use the same condemnatory language and criticism it has employed against Russia in the course of the Ukraine conflict in far less anguishing circumstances. Western leadership fails once again to convince the world that conformity to its recently much-touted “rules-based order” bears any relationship to either the UN Charter or international law. It exhibits a calculus of friends and enemies, with the former allowed to coerce as they wish, even in monstrous ways.
TRT WORLD: Will Tel Aviv ever be held accountable for the crimes it has committed in Gaza? Considering over 56 years of occupation, an apartheid regime, and countless human rights violations in Palestine, in what ways have the global powers, especially the US, colluded with the Israeli state and enabled near-genocidal violence against Palestinians?
RICHARD FALK: No effective legal remedies have been available to the Palestinians. The UN should take far more responsibility for implementing its own resolution passed in 1947, the so-called partition plan, while disregarding Palestinian their inalienable right of self-determination, at least promised the Palestinian people a state of their own in historic Palestine. The UN also failed to implement Security Council Res. 242 adopted unanimously after the 1967 War, which called for the withdrawal of the Israeli military presence established by military conquest. Since then, the UN has been blocked in the Security Council by US and sometimes European vetoes; the rest of the UN can authoritatively report on and identify legal and moral wrongdoing doing harm to the Palestinian people, but it lacks the capability to implement its findings without a Security Council decision. The General Assembly is limited to making recommendations based on 2/3s majority,support; even the International Court of Justice’s binding decision requiring Security Council action to compel enforcement. So, the remedies provided by the international legal community in this situation are ineffective if a major geopolitical actor, in this case, the United States, is determined not to shield Israel from accountability to international law. The Palestinians have had law on their side ever since 1948, and yet their subjugation to Israel’s patterns of lawlessness that have gone unchallenged for these many decades.
The UN has policy mechanisms available if a supportive political will exists to use them effectively. In the aftermath of the 1999 Kosovo War it agreed in the Security Council on UN responsibility in situations of precisely the kind present in Gaza, framed as a new norm known as Responsibility to Protect of R2P. It was partly discredited in its first major test in Libya when the NATO countries converted a limited R2P humanitarian mandate in 2011 into a regime-changing intervention that resulted in the execution of the longtime leader and left the country in a worse condition than the one it had undertaken to overcome. Without the political will asserted in manner consistent with the UN Charter ‘effective’ UN action can worsen the situation of a vulnerable and endangered civilian population.
In its decades long occupation, Israel has never hesitated to use excessive force, and the global powers have neither pressured Tel Aviv to withdraw from the occupied Palestinian territories due to its dismal record as the Occupying Power with a duty to protect civilians under its administrative control nor has Israel been warned to stop using violence in ways that violate international humanitarian law.
TRT: Shouldn’t the international community’s ‘Responsibility to Protect’ also apply to Palestine?
RAF: Well, of course. As previously suggested, I believe the international community should have taken R2P action to protect the Palestinians living under Israeli occupation long ago or at the very least debated its relevance. The genocidal onslaught since Oct 7 is so far past the point where it is rationally possible to treat the abuse of Palestinian rights as a matter of internal Israeli security and as somehow a reasonable response to the Hamas attack. The international community has failed miserably so far to offer vital protect an acutely vulnerable, abused, and endangered people. If geopolitics could be put aside, the extreme suffering of Gazans offer the UN an ideal situation where a robust international peace force established in accord with R2P could intervene in ways that might stop the Israeli onslaught, and even made capable of maintaining peace and protecting the Palestinians over time. R2P empowers the UNSC to protect a vulnerable population, and of all the vulnerable peoples in the world, the Palestinians are the ones now most in need of international forcible protection. It is an emergency that has already inflicted a humanitarian catastrophe on the entire population of Gaza, but the continuation of this devastating onslaught will compound the criminality of the attack and the suffering of the people.
But without the political will of all five permanent members of the Security Council, the UN cannot do anything, even rhetorically, that will effectively curtail Israeli violence. Operationalizing R2P is impossible given the arrogant insistence of the Israeli government that we are now witnessing, whose context is much broader than any claimed right of retaliation against the Hamas attack.
TRT: What about the international media? To what extent is it responsible for dehumanizing Palestinians and justifying Israeli human rights abuses, which many argue amount to war crimes?
RAF: Well, the international media is polarized on this cluster of issues; the Western media and especially in the US and UK, have been one-sided in their approach to the ongoing violence, basically vindicating Israel’s position that it is entitled to use whatever means at its disposal to destroy Hamas and hunt down and kill its leaders who perpetrated the Oct 7 attack. But the daily images on TV of Israeli violence against women, children, and injured people. and the extreme Palestinian suffering that has resulted has somewhat lifted the veil of state propaganda, what Noam Chomsky hears ago in the Cold War context delimited as ‘indoctrination in a liberal society.’
In my view, this grant of discretion to Israel is incompatible with the international humanitarian law arrangement by which Gaza was designated as an occupied territory, and Israel as the Occupying Power. The innocent civilian population of Gaza is estimated to be 2.3 million people, 76 percent of whom are refugees or descendants of refugees basically forced by Zionist forces to leave their homes in the villages of southern Gaza in 1948 and denied their international legal right of return, which they and their descendants have tried to challenge over the years by peaceful means without any success, and often with Israeli violent suppressive action. It’s one of the areas where international law is not implemented because of the regressive myth that legal rights created by geopolitical actors who prove unwilling to implement such rights as the Palestinian people enjoy. People thus victimized by Israel, which enjoys the extra-legal form of impunity, have law on their side but lack any remedy that might provide the protection that should be given.
TRT: If the UN can support Ukraine’s fight against Russia and the Western powers can wholeheartedly support the Ukrainian cause, why not the same response on Palestine? Are we facing a crisis of morality or the legality of human rights is being applied on a case-by-case basis, depending on the skin colour and religion of the oppressed?
RAF: Well, there’s no question about the existence of big differences in the treatment by the Global West of the Russian attack on Ukraine and the Israeli attack on the people of Gaza. These NATO exhibits double standards and moral and legal hypocrisy; in other words, Russia is held accountable, and Israel is given impunity. This suggests that international law isn’t a framework for regulating states on some basis of equality as integral to the rule of law, but it is a manipulated series of norms that serve the purposes and often the contradictory and clashing strategic interests of geopolitical actors. When it is in their interest to enforce international law, these states become very self-righteous about their behavior in condemning the violators. But if it’s in their interest to support the violations of international law, then they will either be silent or, in this case, lend unconditional and mostly, but not totally, indirect support to the government and country that is violating international law in a most extreme fashion. Such a dualistic approach to international law functions both a weapon of aggressive lawfare to be useful against adversaries and a policy instrument of legalistic evasion to be deployed on behalf of strategic partners and ‘friends’ further undermining any claim of international law to be authoritative, and deserving of respect, especially in the domain of peace and security. Enemies are sought to be punished when international law is violated, while strategic allies are inoculated with an impunity serum.
TRT: The UN was originally established to promote peace and security, protect human rights, and uphold international law. Have the founding states of the UN undermined the institution because of power politics, or was the UN always meant to be an institution that serves the best interests of a select few members of the Security Council?
RAF: That is a very important and often overlooked question. The UN was designed to be weak in this regard; otherwise, the veto power given to the five most powerful countries in the world makes no sense who happened to be the winners in World War II and later were the first five country to develop nuclear weapons. The effectiveness and the importance of the veto is to confer on these most dangerous and powerful states an unrestricted option to ignore the UN Charter and ignore other international legal obligations whenever the proposed Security Council action clashes with its strategic interests. There was no willingness on the part of leading governments to create a strong, independent, and suitably empowered war prevention global institution when the UN was established, despite the aspirational language of the UN Charter and especially its preamble as expressive of public expectations that governments will try their best to establish an organization that is entrusted with enough capabilities to secure peace for the peoples of the world.
TRT: Israel has always misused the term self-defense to validate its bloodletting approach to security, but does bombing towns and neighborhood’s into smithereens qualify as self-defense in the face of a few hundred gun-toting militants?
RAF: The scope of self-defense is very contested in international law, so you can find legal authorities to support different interpretations of what is allowed. But it’s not allowed to use high levels of force to target a hostile civilian population. Israel has been guilty over the years, but spectacularly in Gaza in the last weeks, of using military force in a variety of ways that under any conditions, whether or not justified and rationalized, would not be permissible as exercises of self-defense, and thus would constitute war crimes. Beyond this it is questionable whether Israel can even validly rely on self-defense in Gaza, which is an Occupied Territory subject to the constraints of Geneva IV.
Israel as the Occupying Power; cannot rightfully claim to be defending itself against itself. It’s a real puzzle how the international discourse has accepted this misapplication of the idea of self-defense, which makes no sense in the setting of belligerent occupation of an adversary society in whole or part.
TRT: Should Israel be put on trial for war crimes in the International Criminal Court? If yes, what steps need to be taken? If not, why not?
RAF: The answer is the absence of political will to prosecute Israel and the relative passivity and political weakness of the International Criminal Court when it comes to holding major Western states legally accountable. This makes effective use of the ICC a remote possibility in relation to Israel, although it would have made sense if international law was capable of regulating lawless state behavior without deferring to the preferences of geopolitical actors. It is true that neither Israel nor the United States are parties to the Rome Statute and are, therefore, not active in the affairs of the International Criminal Court. But the court’s authority is such that if Palestine, which is a party to the statute, has credibly alleged that it is the victim of crimes committed on its territory, then the ICC is empowered to investigate, indict and prosecute.
And I fervently hope that some effort will be made in the aftermath of the present outbreak of unrestrained violence to strengthen the ICC in relation to geopolitics. It would be naive to become optimistic about achieving any sort of accountability by Israel’s leaders even in the face of what continues to unfold as a textbook case of genocide. That doesn’t mean that it wouldn’t be desirable to submit to the ICC evidence and allegations of Israeli criminality, which by their nature would be convincing to many organs of public opinion and civil society activists. Mere submission plays this important role in what I identify as the domain of symbolic politics, where establishing or challenging the legitimacy of certain claims produces significant political effects.
TRT: Would you like to add anything else on this topic?
This is a crisis moment for the world, for the peoples of the world, and for the UN as well as for the governments that have the responsibility and capability to oppose international crimes at this level of severity. Many objective observers have contended that Israel is using force against Gaza in ways that constitute an ongoing genocide, which is itself considered the most serious of international crimes and should produce a consensus among government and a call for action by the UN to stop this kind of extreme abuse of state power that is generating one of the most flagrant instances of genocide since 1945.. We should become aware that genocide prevention is a legal and moral obligation of all government and a collective responsibility. Until such time as international institutions can provide effective international law the peoples of the world have a valuable opportunity to contribute to a law-governed world by way of constituting a Peoples Tribunal on Genocide Prevention in Gaza or on Israel’s War Against the People of Gaza. It should be recalled that the treaty addressing genocide widely ratified, including by the antagonists in the Gaza violence and its diplomatic encounters, is titled Convention on the Prevention and Punishment of the Crime of Genocide (1951).
Richard Falk (born November 13, 1930) is an American professor emeritus of international law at Princeton University, and Euro-Mediterranean Human Rights Monitor’s Chairman of the Board of Trustees. In 2004, he was listed as the author or coauthor of 20 books and the editor or coeditor of another 20 volumes. Falk has published extensively with multiple books written about international law and the United Nations. In 2008, the United Nations Human Rights Council (UNHRC) appointed Falk to a six-year term as a United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967.
Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies and since 2005 chaired the Board of the Nuclear Age Peace Foundation. He initiated this blog partly in celebration of his 80th birthday.
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