[News] UN Specialist for Palestinian Rights Suspects Israel Committed War Crimes

[Anti-Imperialist News]

August 13, 2014
http://www.counterpunch.org/2014/08/13/an-interview-with-richard-falk-on-the-crisis-in-gaza/
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*UN Specialist for Palestinian Rights Suspects Israel Committed War Crimes*


  An Interview with Richard Falk on the Crisis in Gaza

by KEN KLIPPENSTEIN

Richard Falk is an American professor Emeritus of International Law at 
Princeton University. He just completed a six-year term as United 
Nations Special Rapporteur on Palestinian human rights. He was appointed 
to this role by the UN Human Rights Council, in 2008.

/Ken Klippenstein: Could you describe Sisi's [Egypt's new leader] 
relationship with Hamas?/

Richard Falk: The [Sisi] government is determined to destroy the Muslim 
Brotherhood and they view Hamas as an extension of the Brotherhood. So 
they're in a certain way on the same side as Israel on this particular 
confrontation.

KK: Has the aerial bombardment campaign adopted by Israel done anything 
to decrease the rocket fire coming from Gaza?

RF: There's no evidence that it has. It certainly has caused some damage 
and some deaths to those involved in either making and deploying and 
firing the rockets. But there's no discernable effect in stopping Hamas' 
and other militias'---its not only Hamas, there are other militias, some 
of which Hamas doesn't control---that have engaged in this kind of 
rocket fire. The only alternative to using these rockets for defenseless 
people like those living in Gaza is to absolutely do nothing---to be 
completely passive. They have no military capability to resist Israel on 
the ground or in the air or from the sea. So it's a very one-sided war; 
and one-sided wars are, in my view, by their very nature, unlawful and 
constitute crimes against humanity.

/KK: Since Palestine lacks statehood, does that deny them recourse to 
the protections afforded by international law?/

RF: The UN General Assembly on Nov. 29, 2012 passed a resolution 
recognizing the statehood of Palestine as a non-observer member state of 
the UN. That has been interpreted as giving Palestine the status of 
being a state in an international society for most purposes. They have 
joined UNESCO, for instance, as a member state, and they've adhered to 
more than 15 international treaties open only to states. They're 
recognized by I think 130 governments as a state. They could at this 
point seek redress at the International Criminal Court, a step that 
Israel and the United States have declared would be very provocative 
from their point of view and would lead to adverse consequences.

In effect, the United States and Israel are saying it's not acceptable 
to use international criminal law to uphold your legal rights.

/KK: What is the US role in the aerial bombardment campaign?/

RF: The US is definitely complicity and legally accountable, at least in 
theory, that this weaponry is not supposed to be used except in 
accordance with international law; and if the whole undertaking is a 
violation of international law, then the United States is a responsible, 
and should diplomatically, have been seeking to restrain and censure 
Israel rather than to lend its support.

Beyond that there is the sense that Congress itself, again at least 
theoretically, restricts military assistance to foreign countries in a 
way that is supposed to be compatible with international law and the UN 
Charter. So by the guidelines that are embedded in American law itself, 
this is an unlawful and unacceptable policy that the US government has 
been pursuing.

/KK: Could you talk about the legality of the siege of Gaza?/

RF: The siege of Gaza is clearly a form of collective punishment that is 
prohibited by Article 33 of the 4^th Geneva Convention that 
unconditionally prohibits any recourse to collective punishment. A 
blockade that has been maintained since the middle of 2007 is directed 
at the entire civilian population of Gaza. It includes many items that 
are needed for health, subsistence, and minimum requirements of a decent 
life. So in my view, Israel as the occupying power under international 
law of Gaza, is supposed to protect the civilian population rather than 
to subject it to a punitive blockade of the sort that's been existing 
these past 7 years.

/KK: Israel sometimes phones warnings ahead of time before bombing 
buildings. Do you believe that this constitutes a serious effort to 
minimize civilian deaths?/

RF: One would have to look carefully at each context. My impression is 
that Gaza is a place where there's no real opportunity to escape from 
impending attacks. There may have been some lives saved as a result of 
these warnings. My impression is they're not given consistently and 
comprehensively; and furthermore, that in the wider context of Gaza 
there's no opportunity for people to become refugees or to even move 
from points of danger to points of relative safety. It's unusual in a 
wartime situation where almost always there is an option of crossing 
borders during a period of combat and finding some sort of sanctuary. 
Israel again as the occupying power has an obligation to see to it that 
the civilian population is protected. To deny any kind of exit right to 
any Palestinian living in Gaza except those holding foreign passports 
--there are about 800 Palestinians with dual passports---and they have 
been allowed to cross the border into Israel. 150 of those have American 
citizenship and the US consulate has been facilitating their departure 
if those people want to.

But in general, the 1,700,000 Gazans, they are denied the option of 
becoming refugees or even of becoming internally displaced persons. And 
therefore they cannot escape from the fire zone that Israel has created. 
And even if they're not direct casualties being killed or injured, they 
are living under the cloud of state terrorism maintained day and night 
over this period in a way that psychiatrists and psychologists and 
mental health experts say is inducing mass trauma on the part of the 
Palestinian people, particularly among the children.

Even before this attack it always a highly anxious atmosphere because 
there are Israeli planes flying over all the time it's never clear when 
they will do something that is hostile. People of Gaza as I've been 
saying are completely vulnerable. They have no way of fighting back. 
They are at the mercy of the Israelis. And the Israelis show very little 
mercy.

/KK: What is Israel's legal rationale for denying Gazans the displaced 
persons status that you mentioned before?/

RF: As far as I know they haven't articulated any justification for this 
policy. They just close the borders and the international community has 
by and large been scandalously silent and has remained so up to this time.

/KK: What is the US role in blocking a UN resolution condemning Israeli 
violence in Gaza?/

RF: As I understand it, the US did indicate its readiness to veto any 
resolution that blamed Israel, and there was support for such a 
resolution on the part of the majority of the members of the Security 
Council. What the UN ended up doing was issuing a statement that called 
for a ceasefire but it is a statement that has no binding legal effect 
and did not in any way censure Israel for its role.

/KK: Do you believe the Security Council should be reformed in any way, 
given the US' propensity for vetoing otherwise unanimous Security 
Council resolutions?/

RF: I think it would be a helpful move from the perspective of global 
justice and the implementation of international law; but as matters now 
stand it's a very impractical step because no amendment to the UN 
charter can be made without the consensus of the 5 permanent members of 
the Security Council, each of whom has a veto. The United States and 
probably Russia and maybe China would veto any effort to deprive them of 
their veto rights. So it's more or less gridlocked with respect to 
reform in these respects.

/KK: Would you support a call for an arms embargo on Israel?/

RF: Yes I would. I think it would be an appropriate move at this point. 
Israel has consistently defied international law in many different ways. 
It shows no sign of respecting the wishes of the international community 
at this time for an immediate ceasefire. So I think that the only way 
the world can show that it's at all serious about protecting vulnerable 
peoples---in this case the Palestinians---would be to impose an arms 
embargo.

Of course Israel has a very robust arms industry itself. It's one of the 
ten leading exporters of arms. And it's of course inconceivable that at 
this stage the US and several of the West European countries would 
respect such an embargo. Nevertheless, it would be an important symbolic 
step in the direction of delegitimizing the kind of behavior that Israel 
has been engaged in.

/KK: In the case of Israeli kidnappings and murder of Palestinians in 
Palestinian territory, can the perpetrators be brought before a 
Palestinian court or must Palestinians simply accept an Israeli court? /

RF: At this point they would have to accept the formal authority of the 
Israeli courts because the crime was committed in an area under Israeli 
legal administration. And the accused are in the possession of the 
Israelis and therefore they have the authority under international law 
to prosecute.

There could be a---if there's not a serious assessment of the crime---it 
could be questioned as an evasion of the obligation to prosecute and if 
found guilty to punish those that engage in this kind of behavior. 
Remembering that as far as we know this was purely private criminal 
activity, it was not something that the government can be shown to have 
authorized---although the background of incitement after the kidnapping 
of the 3 Israeli teenagers on Jun 12^th is part of the broader context 
in which this crime occurred.

/KK: Are allegations of Hamas using human shields credible?/

RF: There hasn't been as far as I know serious evidence that this has 
taken place. In fact there is evidence that the Israelis used 
Palestinians as human shields when they mounted the ground offensive 
back in 2008-2009. And even if the Palestinians did do this, it would 
still not vindicate Israelis shooting directly at civilians unless there 
was some kind of argument of absolute military necessity, which is 
pretty remote from this situation.

/KK: Do you believe that Israel has been committing war crimes in Gaza?/

RF: Yeah. I think certainly there's the basis for alleging war crimes. 
It requires a formal legal judgment to reach the conclusion that there 
have been war crimes committed. There is a presumption of innocence 
until proven guilty---that's important to maintain. But certainly the 
evidence that I'm aware of suggests the commission of serious crimes 
against humanity and war crimes in the course of this operation.

/KK: Could you discuss the background of the crisis? Western media's 
accounts usually begin with the kidnapping and murder of the three 
Israeli boys, omitting important contexts: the siege of Gaza, for instance./

RF: The timeline for these justifications that are made by Israel is 
very self-serving and not very convincing. Of course you have a complex 
pattern of interaction. On the other hand, Israel is the occupying 
power, has the international responsibilities to protect the civilian 
population. And in the case of the kidnapping on Jun 12, they had the 
opportunity to limit the response to an enforcement action that was done 
in a reasonable way. Instead they used it as a pretext for seeking to 
destroy Hamas as a political actor present in the west bank and then 
extending that anti-Hamas policy to the attack on Gaza. So it was 
clearly a way of using this initial criminal act as a means to pursue a 
much wider political agenda that focuses on Israel's national ambition 
to control the West Bank---at least most of the west bank, where the 
settlements are---and to eliminate from that reality the only viable 
Palestinian opposition force because the Palestinian Authority that is 
nominally in control on behalf of the Palestinians of the West Bank, is 
in a semi-collaborationist relationship with Israel. So the incentive to 
get rid of Hamas as a political influence on the West Bank particularly 
and to punish it severely in Gaza where it's in control of the governing 
process is a crime.

/KK: Why did Netanyahu not take Abbas up on his offer to cooperate with 
the investigation into the kidnapping and killing of the three Israeli 
boys?/

RF: I think it's part of Netanyahu's political escalation of the Israeli 
approach at this point. They repudiated the direct negotiations---which 
didn't make much sense in the first place---but they repudiated them as 
a way of stating that they would no longer seriously engage in diplomacy 
but would impose their own solution on the conflict. And that solution 
involves consolidating control over the whole of Jerusalem and taking 
all or the most valuable parts of the West Bank and in effect annexing 
them to Israel.

/KK: Under the Arms Control Act of 1976, governments that receive 
weapons from the US are required to use them for legitimate 
self-defense. Does the US' arms aid to Israel violate that law?/

RF: Yes, definitely. From everything I've been saying, there's no legal, 
political or moral argument that would uphold the claim that Israel is 
acting in legitimate self-defense. There's been no armed attack by Hamas 
or Gaza; in any event, Gaza from an international law point of view, is 
not a foreign state but an occupied territory. It's not clear that you 
can exercise self-defense in relation to a territory that you are 
responsible for administer in accordance with international humanitarian 
law.

/NB: some of the questions in this interview were edited for readability./

/*Ken Klippenstein *is a journalist based in Madison, Wisconsin, USA. He 
can be reached via twitter @kenklippenstein or email: 
kenneth.klippenstein at gmail.com <mailto:kenneth.klippenstein at gmail.com>/

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