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August 13, 2014<br>
<a class="moz-txt-link-freetext" href="http://www.counterpunch.org/2014/08/13/an-interview-with-richard-falk-on-the-crisis-in-gaza/">http://www.counterpunch.org/2014/08/13/an-interview-with-richard-falk-on-the-crisis-in-gaza/</a><br>
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<div class="subheadlinestyle"><b><big><big>UN Specialist for
Palestinian Rights Suspects Israel Committed War Crimes</big></big></b></div>
<h1 class="article-title">An Interview with Richard Falk on the
Crisis in Gaza</h1>
<div class="mainauthorstyle">by KEN KLIPPENSTEIN</div>
<div class="main-text">
<p style="text-align: left;" align="center">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.</p>
<p><em>Ken Klippenstein: Could you describe Sisi’s [Egypt’s new
leader] relationship with Hamas?</em></p>
<p>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.</p>
<p>KK: Has the aerial bombardment campaign adopted by Israel
done anything to decrease the rocket fire coming from Gaza?</p>
<p>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.</p>
<p><em>KK: Since Palestine lacks statehood, does that deny them
recourse to the protections afforded by international law?</em></p>
<p>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.</p>
<p>In effect, the United States and Israel are saying it’s not
acceptable to use international criminal law to uphold your
legal rights.</p>
<p><em>KK: What is the US role in the aerial bombardment
campaign?</em></p>
<p>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.</p>
<p>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.</p>
<p><em>KK: Could you talk about the legality of the siege of
Gaza?</em></p>
<p>RF: The siege of Gaza is clearly a form of collective
punishment that is prohibited by Article 33 of the 4<sup>th</sup>
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.</p>
<p><em>KK: Israel sometimes phones warnings ahead of time before
bombing buildings. Do you believe that this constitutes a
serious effort to minimize civilian deaths?</em></p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p><em>KK: What is Israel’s legal rationale for denying Gazans
the displaced persons status that you mentioned before?</em></p>
<p>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.</p>
<p><em>KK: What is the US role in blocking a UN resolution
condemning Israeli violence in Gaza?</em></p>
<p>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.</p>
<p><em>KK: Do you believe the Security Council should be
reformed in any way, given the US’ propensity for vetoing
otherwise unanimous Security Council resolutions?</em></p>
<p>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.</p>
<p><em>KK: Would you support a call for an arms embargo on
Israel?</em></p>
<p>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.</p>
<p>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.</p>
<p><em>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? </em></p>
<p>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.</p>
<p>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<sup>th</sup>
is part of the broader context in which this crime occurred.</p>
<p><em>KK: Are allegations of Hamas using human shields
credible?</em></p>
<p>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.</p>
<p><em>KK: Do you believe that Israel has been committing war
crimes in Gaza?</em></p>
<p>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.</p>
<p><em>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.</em></p>
<p>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.</p>
<p><em>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?</em></p>
<p>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.</p>
<p><em>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?</em></p>
<p>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.</p>
<p><i>NB: some of the questions in this interview were edited
for readability.</i></p>
<p><em><b>Ken Klippenstein </b>is a journalist based in
Madison, Wisconsin, USA. He can be reached via twitter
@kenklippenstein or email: <a
href="mailto:kenneth.klippenstein@gmail.com">kenneth.klippenstein@gmail.com</a></em></p>
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