The War Crime

It is perhaps a measure of Israel’s distrust of legal scrutiny that a figure as benign as a law professor from a leading American university is barred from entering the country. Richard Falk, professor of international law at Princeton University, they claimed in December last year, just as the Gaza attacks were gathering momentum, was not welcome as the United Nation’s Special Rapporteur on Israel in the Occupied Territories because, as Foreign Ministry spokesman Yigal Palmor said, the Human Rights Council’s agenda was “distorted and flawed… and directed as a propaganda instrument against Israel”.

NOX: From what you have seen, do you feel that Israel has a case to answer when it comes to the accusations of breaking international law and committing war crimes?
Richard Falk: That would certainly seem to be the case. And at the very least, there are enough reports about the actions taken within Gaza to warrant a full, impartial investigation by an international tribunal. This is particularly in regard to the sheer number of civilian casualties and the appalling level of suffering inflicted on the entire population.

NOX: Israel would argue that it has the right to counter threats to its citizens, and that if Hamas conducts its military operations in civilian areas, Hamas itself is culpable. How much validity is there in that argument?
RF: It is an important question. But I think you have to answer another question first; can a large-scale military operation into civilian areas such as this, with such high-tech weaponry against a largely unarmed – or at least, poorly armed – population ever be a tactic that will conform to standards of international law? Israeli leaders must have known the likelihood of large numbers of civilian deaths and injury during such an operation, and if they didn’t, then they certainly should have done so. So, once you have answered the first question, about whether any such operation can conform to international law, only then can you come to the second, which is how Hamas acts in civilian population centres and whether they placed civilians in harms way.

NOX: So, would you argue that Israel can’t ever conduct such operations within the framework of international law?
RF: It would be a fair view that Israel can’t do so legally, although I am sure that would be contested. The weaponry involved has to mean that civilian deaths are not just likely but inevitable, and that is contrary to international law. But I think there is another point here: the psychological effect of such a war on those who survive. I firmly believe that in addition to the dead and physically injured, those with very real mental trauma associated with endless bombardment from the air for three weeks must also be counted with the casualties – certainly in a long-term sense. The mental
health of Gaza’s inhabitants remains a very grave concern.

NOX: Where do Hamas’ actions fit in to international law?
RF: Hamas does have the right to resist their occupiers, but they don’t have the right to fire rockets into areas that might endanger civilian lives. So, no, their right to resist doesn’t encompass what they have been doing in the build up to the war. But again, let’s look at the reality: the Hamas rockets aren’t particularly harmful. If you fire a gun at someone and miss, that is a very different crime to firing a gun at someone and killing them! Also, the causal sequence is wrong; we can’t look at Hamas rockets as the reason for the conflict. In November, before the end of the ceasefire, there was major Israeli provocation when it launched a strike that killed four Hamas members. We have to remember, too, the siege.

NOX: The oft-repeated argument from Israel is that no Western country would put up with such attacks on its citizens, but history shows that Britain never combated IRA terrorism with aerial strikes or tanks…
RF: I think the analogy certainly stands up. Could you imagine the horror that would have been felt if the British government reacted to the bombings in British cities by keeping one area of Belfast completely sealed and then flying over it with war planes and dropping missiles and bombs on it? There would be an absolute outrage. It would, rightly, be seen as an abomination – and not just in Ireland or the international community, but also in Britain as well.
NOX: Were Israel’s actions, in your view, really about combating the specific threat of Hamas rockets, or was it more to do with larger strategic goals of weakening its neighbours and underlining its regional dominance?
RF: They certainly seem to have an agenda that is well beyond stopping Hamas rockets. There is strong evidence that Israel planned this attack well in advance, and its actions were perhaps more to do with the elections in February.

NOX: From what you have seen, do you feel satisfied that Israel has used white phosphorous during this conflict and that its use is in breach of international law?
RF: I don’t know the circumstances sufficiently well to make a reasonable judgment on that. But at least there are enough witnesses and reports to call for a full, impartial investigation into the Israeli army’s activities. I wouldn’t rely on an Israeli investigation to uncover any truth or offer accountability.
NOX: We often hear from Israel that the occupation is legal because the territory was captured in a “defensive” action in 1967. Is there any legitimacy in that view?
RF: Well, it is absolutely true that every sovereign state has the right of self-defence in the face of an attack, but it does not have the right to permanently hold territory after the conflict. The wording of UN Resolution 242 from 1967 reaffirms the inadmissibility of acquiring territory through war. The non-implementation of that resolution is now into its 42nd year and has resulted in a belligerent occupation. International law is very clear on that.

NOX: Do you think repeated US use of the veto in the United Nations has created a sense of immunity from international law in Israel? Do they feel that international law is now something they can simply ignore?
RF: No, I don’t think it’s a repudiation of international law as much as a desire to completely rewrite it to suit their own purposes. It’s exactly how America under George W Bush saw existing laws when it came to Guantanamo Bay and the determination of POWs as “illegal combatants”. Since 2001, US actions have been despite the United Nations and the desires of the international community.

NOX: As an observer, where do you think the latest conflict leaves the peace process and the prospects of a lasting resolution – especially with Obama now in power?
RF: Well that depends on what kind of peace process we are talking about. We have, I think, reached a point where both solutions – the two state and the one state – have large obstacles to their implementation. The general consensus is the two-state solution, but that seems to be increasingly difficult now. Just look at Jerusalem and the expansion of the settlements there. There simply doesn’t seem to be any room for a second state for Palestine. In Israel, there doesn’t seem to be any political will or moral courage to take the steps to dismantle the settlements, and there isn’t wide support for it amongst the electorate. And then you have to ask, is any peace deal sustainable – this will be the challenge.

NOX: As a professor in international law, and someone who is a special investigator appointed by the United Nations to look into the legality of conflicts, how much damage has been done to established codes of conduct by the United States and Israel?
RF: On the contrary, I think their actions have had the opposite affect. Bush in America was basically creating policy to suit a narrow band of neo-cons, and the results of those actions in Iraq and Afghanistan has increased the importance of international law in the minds of many. It is much more in mainstream political considerations now. I think we have already seen that in the case of Barack Obama’s remarks in his first days in office, that he will govern with full respect for the law and engage fully with the United Nations in a much more constructive way. But it is very important that people of good conscience around the world always hold their elected officials accountable.

The full interview with professor Richard Falk appears in NOX 32