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Interview by Dr. Hanan Chehata
Prof. Richard Falk: "No matter what the facts are or the law is, the US will side with Israel"

In an exclusive and extensive interview with the Middle East Monitor Prof. Richard Falk, the UN Special Rapporteur for Human Rights in the Occupied Palestinian Territories, talks about the on-going intransigence of Israel and its continued failure to abide by international law.

31 October 2011

In his frank interview Prof. Falk openly points to the ineffectiveness of the UN in holding Israel to account saying that in the case of Israel "the UN is significant symbolically but paralysed or ineffective behaviourally." He points out that UN Secretary General Ban Ki Moon in particular "is giving primary attention to his role in the Quartet and that means deferring to the US considerably in relation to Israel’s conflict with the Palestinians. Hence, that part of the UN is very passive with respect to Israeli violations of international law."

With regard to the role played by the Quartet’s Special Envoy Tony Blair he says: "At best he has been ineffectual and at worst you can that he has been a badly-disguised spokesperson for the US-Israeli outlook. He cannot possibly be perceived as a sufficiently impartial observer of the conflict for anyone to have any confidence in his recommendations and point of view. He has invalidated himself in this role and the fact that the Quartet continues to keep him as its special envoy suggests how one-sided the Quartet itself has become."

Prof. Falk also points to America’s sycophantic support for Israel whereby "no matter what the facts are or the law is, the US will side with Israel." This is despite the fact that "the US policy towards Israel is carried out at the cost of its broader policies in the region and its reputation as a global leader. It’s a very dysfunctional set of commitments that can only be explained by this domestic disorientation that comes from the pro-Israel pressure groups."

Of Hamas Prof. Falk says "If there is any genuine interest in resolving the conflict, Hamas as the elected representative of the people of Gaza, following what was viewed at the time as a truly free election, should be regarded as political actor without having all these pre-conditions imposed on it which are not imposed on Israel as well. I mean, when you ask Hamas to renounce violence but Israel is not required to do anything different to what it’s been doing, it shows the lack of sincere intention to create a more normal relationship."


Interview with Professor Richard Falk

Hanan Chehata: Despite your role with the UN, the last time you tried to visit the OPTs so that you could carry out your work and investigate the human rights situation, you were detained by the Israeli authorities, held in a detention cell for over 15 hours, denied entry and expelled from the country. That was nearly three years ago. Have you been able to enter the country or is Israel still refusing to allow you, a UN representative, past immigration control?

Richard Falk: The Israelis continue to refuse to alter their posture of non-cooperation. The UN has put some slight pressure to have them reconsider but the UN itself, as it is part of the Quartet, is very weak in supporting someone in my kind of position and wants to stay in a positive relationship with Israel to the extent that it can.

HC: Doesn’t that compromise the UN position if it is trying to maintain that "positive relationship"? Doesn’t that affect the UN’s ability to be unbiased?

Richard Falk: Yes. The UN is a complicated entity in the different arenas within which it acts and one of the arenas is, of course, the Secretary General [Ban Ki Moon] and the Secretariat; he in particular is giving primary attention to his role in the Quartet and that means deferring to the US considerably in relation to Israel’s conflict with the Palestinians. Hence, that part of the UN is very passive with respect to Israeli violations of international law in various ways, including non-co-operation with designated UN representatives. The Secretary General also appointed the very pro-Israel representatives to judge the Flotilla incident of 2010; given who was appointed to head that enquiry it is not surprising that they came to those conclusions.

HC: Despite the 2004 International Court of Justice (ICJ) ruling that Israel’s separation wall is illegal and should be dismantled, Israel has refused to comply. It argues that the ICJ ruling was merely an "advisory opinion" and therefore not technically or legally binding. Does the fact that this was an advisory opinion mean that Israel does not need to implement its recommendations?

Richard Falk: It is unfortunate, in my view, that this kind of assessment of international law is labelled "advisory". It was partly, I think, a concession when the ICJ was established to the idea that sovereign states shouldn’t be required to do things they haven’t given their consent to but in actuality an advisory opinion represents the best judgement of the highest judicial body in the international community. In this case the results were very clear, it was fourteen votes to one [saying that the wall was illegal and should be dismantled and compensation given, etc...]. The one against was the American member of the court, and even he went a long way towards supporting the condemnation of the construction of this separation wall. In his speech to the UN in September, [PA President] Mahmoud Abbas called it an "Annexation Wall" which is more appropriate language. This was an authoritative statement as to binding international law and corresponds with the view of experts on international law, so there is no reasonable basis for Israel not to comply with it. It is an example of Israel defying international law.

HC: So Israel should comply with the judgement in theory but there are no sanctions which can be imposed if it doesn’t?

Richard Falk: It’s a matter of political will. The General Assembly would have the authority to recommend sanctions and the Security Council would have the authority to impose sanctions; they have done that recently against Iran and to Libya before that, so it’s clearly an issue of geo-politics. The unfortunate reality is that geo-politics trumps international law in most conflict settings and it has particularly been the case in relation to the Palestine-Israel conflict. The excessively close support given by the US to Israel which really is domestically driven creates a situation where no matter what the facts are or the law is, the US will side with Israel.

HC: You ended your September report to the General Assembly with the following recommendation: "that the General Assembly request that the International Court of Justice to issue an advisory opinion on the legal status of prolonged occupation". While this may well be the right course of action, do you think it is likely that this will reach the ICJ and, if it does, given how readily Israel disregards all resolutions and rulings against it, that Israel would abide by a subsequent judgement against it?

Richard Falk: It is a long path to initiate an advisory opinion of this sort and there may be some reluctance given the failure to implement the findings of the earlier opinion. On the other hand it should be remembered that in relation to South Africa’s apartheid the opponents of the regime went to the International Court of Justice four times; one has to conceive of the use of international law as a process not an event that either succeeds or fails at a given moment. Also, even though the advisory opinion on the wall was rejected by Israel and the US it had a certain impact on world public opinion and was helpful in strengthening the global Palestinian solidarity movement.

One has to understand that the law has two separate objectives: one is to alter behaviour, the other is to change what one might call the "symbolic battlefield". It is very important to gain the high moral and legal ground in a conflict and if you look back at the big conflicts of the last sixty years the outcome has often been shaped not by the side that’s stronger militarily but by the side that occupied this high moral and legal ground and maintains that control, and is persisting in that control. I’ve sometimes given the illustration of the outcome of the Vietnam War where the US had complete dominance of raw power and yet lost the war. How did it lose? It was the combination of stubborn resistance and Vietnamese skill in mobilising global public opinion in support of their claims sufficiently to convince world leaders and media that justice was on their side. I think that the Palestinians have been successful in achieving greater understanding of their victimisation as a result of Israeli policies. Another ICJ ruling would reinforce that and have an educational impact because it would expose the ordeal of prolonged occupation.

HC. To the best of your knowledge what is the current status of the Goldstone Report?

Richard Falk: Its persistent importance is to reinforce civil society initiatives, especially the Boycott Divestment and Sanctions (BDS) efforts which are enjoying considerable success worldwide. Within the UN itself it is another example of where the UN is significant symbolically but paralysed or ineffective behaviourally. It is one thing to initiate the Goldstone Report, but it’s another thing to follow its recommendations. While the geopolitical leverage of the US was not able to prevent the formation of the Goldstone Report it has been able to prevent its implementation.

HC: While Goldstone’s recommendations have yet to be implemented, the same is true of the Human Rights Council fact-finding mission into the Israeli attack on the Freedom Flotilla in May 2010. This lack of any follow through on UN reports must be very frustrating for those who research and write them, as well as those victims for whom the reports should bring justice. Is there any point in the UN issuing reports like Goldstone if, ultimately, in practice they go nowhere?

Richard Falk: It does have a certain demoralising effect, partly because people generally don’t draw the distinction between behavioural and symbolic impact. I think people underestimate the weakening of Israel’s international reputation through these various steps.

In the case of the flotilla incident the issue is somewhat different because Israel in that instance is in conflict with a major sovereign state, Turkey, and therefore pays a big diplomatic price for not resolving this conflict in accordance with international law. So unlike these other situations where there is no countervailing power, in relation to the flotilla incident there is significant countervailing power and at some stage one would expect the Israelis to take some steps to heal the rift with Turkey, if that is possible.

HC: Do you think the BDS movement has a chance of helping the Palestinian cause in the same way that it helped to bring an end to apartheid in South Africa?

Richard Falk: I think it is very useful to consider the South African experience because there too it looked as if it would be very difficult to challenge the apartheid regime because both the US and Britain had very important strategic and economic interests in the established order there. It is an example of succeeding with what I call the "politics of impossibility" in that it didn’t look as though you could challenge the apartheid regime non-violently and it was only through this global anti-apartheid campaign that the climate changed sufficiently in South Africa until what appeared to be impossible suddenly happened.

You never know until it happens and then everyone comes with a learned explanation of why it happens. There is no guarantee that it will happen for Palestinians through BDS but it is the most hopeful path at the present time. It is not feasible to challenge the Israeli position by direct military resistance and so the indirect ways of mobilising opposition and raising challenges and applying pressure seems to be the best path to take; it has, I think, already had considerable success. There is no guarantee though. You have a situation of the sort that is represented by Tibet where they have, in effect, won the legitimacy war and yet they can’t mobilise sufficient countervailing power to dislodge China from its role as an occupier.

One needs also to look at the different examples of when a legitimacy war succeeds and when it fails. All of the decolonising struggles are examples of successful legitimacy wars where the weaker side won the war. That’s what is not very clearly understood, that if you look back at the last 60 years, most conflicts have been won, in the end, by the weaker side militarily.

HC: Since the revolution in Egypt and the toppling of Mubarak many people have reported, inaccurately, that the siege of Gaza is over. There is still no free movement of goods or people into or out of Gaza; while the siege may have been eased, it has not been lifted. What is your assessment of the status of the siege on Gaza?

Richard Falk: The siege is still imposed in a way that has had a cumulative and cruel impact on the population. They’re essentially locked into a set of very crowded, impoverished and unhealthy conditions. Just being confined is, in itself, a collective punishment of considerable intensity and this has been maintained for more than four years. Even the Conservative British Prime Minister called it an open prison and this opinion was reinforced more recently by David Milliband, ex-Foreign Minister, who is usually sympathetic towards Israel; he agreed with David Cameron.

The health situation in Gaza is very bad. Israel continues to stop medical equipment going into the Gaza Strip, while the water system is in a very poor condition and needs significant repairs. Much of the population doesn’t have access to healthy drinking water. There is huge unemployment, over 45%, and it is a dreadful example of sustained collective punishment which violates Article 33 of the Fourth Geneva Convention, by which collective punishment in any form is prohibited.

The siege may have been "eased" but it is still clearly a substantial closure as far as the Gazan population is concerned. It continues to be a flagrant violation of the prohibition against collective punishment. So from a legal and moral and political point of view the easing is perhaps of slight significance but it doesn’t change the status of the blockade or the way in which Israel has continued to try to punish the people of Gaza because they voted for Hamas back in 2006. Israeli leaders have made clear their punitive intentions. It’s not a secret and the security pretext is very thin indeed because they always would have monitored for weapons going through in any case.

HC: According to UNRWA Spokesman Chris Gunness, in Gaza "the abject poor living on just over one dollar a day has tripled to 300,000 since the blockade was imposed." At the same time, you state in your latest report to the UN General Assembly that "UNRWA itself is experiencing a funding crisis that already is impinging on its capacity to continue even at present levels to provide for the 80 per cent of the Gazan population that is currently dependent on international assistance for subsistence." What does this mean for Gaza?

Richard Falk: It’s a highly unfortunate situation and the internal political pressures in countries like Canada and the United States make it unlikely that adequate funding will come from those sources, so unless countries in the region increase their funding the situation is likely to go from very bad to even worse, though that’s hard to imagine! It doesn’t seem as though the Arab Spring has yet translated itself into tangible changes in the relationship between the Arab countries and the Palestinian struggle, including Gaza.

There is no indication that there will be any improvement. The ongoing justification is that Hamas as a terrorist organisation is not a legitimate administrative, governing body; that is used in a kind of general political way to block objections to the way in which the policies are being administered.

HC: You’ve said before that you think Hamas should be engaged with as a legitimate political player in the region and that the movement should be involved in peace talks and so on. Do you stand by that?

Richard Falk: Yes. If there is any genuine interest in resolving the conflict, Hamas as the elected representative of the people of Gaza, following what was viewed at the time as a truly free election, should be regarded as political actor without having all these pre-conditions imposed on it which are not imposed on Israel as well. I mean, when you ask Hamas to renounce violence but Israel is not required to do anything different to what it’s been doing, it shows the lack of sincere intention to create a more normal relationship.

HC: What is your take on the Palestinian bid for statehood?

Richard Falk: On one level, I think it is a legally permissible and understandable initiative. Palestine is recognised by over a hundred countries as a state already. It has tried to negotiate a solution but nothing has happened for twenty years since the so-called Oslo process was initiated. So it represents an effort to say we have to pursue Palestinian self-determination by a means other than these phony negotiations presided over by the US which is a partisan ally of the stronger party in the negotiations, which makes no sense at all.

On the other hand it has a problematic side to the extent that it conveys the impression that the conflict is between the Palestinian Authority (PA) and Israel rather than between the Palestinian people and Israel. Even though Abbas in representing the PA as its president also spoke as the chairman of the PLO, the sense given is that this is a dispute about territory and if Israel ends the occupation of the bulk of the land taken in 1967 then it’s possible to have a peaceful solution, a so-called "two state consensus". This, in effect, undermines greatly the importance of the right of return aspects of the conflict and also possibly creates an atmosphere in which Palestinian rights in Jerusalem are also to some extent sacrificed. And then, of course, it leaves out of the equation altogether the circumstances of the Palestinian minority within Israel and so on.

HC: Tony Blair has been the Quartet Middle East envoy since 2007. What do you make of his role so far?

Richard Falk: At best he has been ineffectual and at worst you can say that he has been a badly-disguised spokesperson for the US-Israeli outlook. He cannot possibly be perceived as a sufficiently impartial observer of the conflict for anyone to have any confidence in his recommendations and point of view. He has invalidated himself in this role and the fact that the Quartet continues to keep him as its special envoy suggests how one-sided the Quartet itself has become.

HC: The Hamas-Israel prisoner exchange deal which just took place saw soldier Gilad Shalit swapped for over a thousand Palestinians (although more than half of those are still in Israeli jails). You said of that agreement, "I found it disturbing that the single Israel soldier released received virtually all the attention in the Western press whereas the Palestinians released remained nameless except to call attention to the crimes that had led to their imprisonment. It is a rather vivid example of humanizing the suffering of the occupier while treating the far greater ordeal of the occupied population as a statistic." That is a very sound observation but what did you make of the exchange more generally?

Richard Falk: I think that Hamas regained some of the political momentum that was lost due to the attention given the statehood bid, so you can interpret it from a Hamas perspective as a plus point in the rivalry with the Palestinian Authority.

From Israel’s side it also represented a desirable distraction from the Palestinian statehood issues and Tel Aviv’s embattled position in the UN and with Turkey, the Arab Spring and so on. As such, it gave the domestic audience a certain sense that the government was able to deliver this single individual whose captivity had been made such a big issue within Israel during the Gaza attacks of 2008-9. Commanders often told the Israeli soldiers that their real purpose was to liberate Shalit; this is confirmed by those soldiers who oppose the attacks and spoke out in the documents released by "Breaking the Silence". They often said they were told that the real purpose of the mission was to create enough pressure for Shalit to be released.

HC: Some people think that Shalit’s release makes Gaza more vulnerable now because Israel will no longer be concerned that Shalit could become collateral damage in its assaults on Gaza.

Richard Falk: I don’t know how inhibited Israel was by Shalit’s captivity. Certainly the attacks on Gaza did not suggest that Israel was very inhibited. Of course, he has been used by Israel for propaganda and of course they’ve pointed to some of the Hamas statements that they need to get another Shalit in order to get the rest of the more than 5,000 Palestinians still held by Israel. But when people look at that 1,000 or so Palestinians released they think that Hamas got the best part of the deal; they don’t know that there are more than 5,000 more Palestinians still being held under very bad conditions from an international standards point of view.

There is fairly strong evidence of systematic torture and abuse against the Palestinian prisoners; this also needs to be included in the interpretation of this exchange deal. The same goes for the deportation to third countries of some of the Palestinians released by Israel. That in itself is considered to be a violation of the laws of war and conflict, although apparently the Palestinian prisoners consented to this deportation; of course, they were put under pressure to do so.

HC: You also said in relation to the prisoner exchange deal: "Furthermore, the soldier captured [Gilad Shalit] is treated as a hero of war, while the acts of Palestinian resistance are derided as crimes, or worse, as terrorism." In terms of International law, do Palestinians have a right to resist the Israeli military occupation of their land?

Richard Falk: I’ve always taken the position that there is a right of resistance particularly in relation to an unlawful prolonged occupation, though there is also a duty to respect the innocence of civilian lives. Of course, this puts the Palestinians in a difficult position because they don’t have the kind of weaponry that would allow them to resist effectively against the military dimensions of occupation. Hence, while there is definitely a legitimate right of resistance the question is what is the scope of that right and how tactically is it best to exercise that right under prevailing conditions.

HC: With regards to the thousands of prisoners still being held in Israel you argue that many of those captives should be afforded prisoner of war status as some of them belong to groups "fighting alien occupation in the exercise of their right of self-determination", in which case they would be afforded, in theory at least, protection not currently offered to any of them...

Richard Falk: Yes, I think it would acknowledge the reality of this conflict in a way that does not privilege the occupier and the main abuser of international humanitarian law. It’s a political decision to withhold that status because it allows Israel to maintain the view that it’s enforcing its legal rights and its security interests and that those who resist its occupation are either criminals or terrorists. That is their effort to gain the moral high ground.

HC: In your report to the General Assembly you focus on some of the negative effects on Palestinian children caused by the prolonged Israeli occupation including extreme trauma resulting from, among other things, the night raids by Israeli occupation forces; house demolitions; settler violence; arrests; trials for children in the military court system; and so on. Many children’s rights groups have condemned Israel’s treatment of Palestinian children but not enough is being done to save them from abuse and suffering at the hands of the Israeli authorities. What needs to be done by the international community to help protect Palestinian children in the future?

Richard Falk: If people can publicise these patterns of abuse and raise awareness it could have an inhibiting effect because Israel does care about how it is perceived, especially when some of this criticism comes from Israeli NGOs. The most damaging report is in fact by B’Tselem, an Israeli human rights group, a sort of middle of the road NGO. I think that even though the Israeli authorities will deny the allegations it’s possible that this raised awareness will have some effect.

On the other hand Israel seems to be pursuing a deliberate policy of intimidating younger people to stop them demonstrating in opposition. One of the ways that that Israel thinks is effective is by abusing those who are detained and using abusive methods to detain them. That is probably a policy that is adopted to further the aims of the occupation. Raising awareness of these issues is vital.

HC: You refer to reports of child abuse at the hands of Israeli authorities including one which states that "one three-year-old girl was reportedly taken outside her home at 3 am and threatened at gunpoint. She was told she would be shot and her family home destroyed unless she reported on the whereabouts of her brother. Now, her mother explained, she can’t sleep through the night and is bedwetting." This is being done by one of the closest allies of the UK and the USA; shouldn’t the British and American governments be doing more to ensure that their ally acts in accordance with international law?

Richard Falk: They most certainly should but they seem to have very little leverage over Israel. The level of Congressional support for Israel means that even a president like Obama who is more or less 100% behind Israel is deemed not to have gone far enough to support Israel and to fulfil some of the Congressional demands. They want 150 or 200% support; they want to go even beyond what Israel itself wants! It is an extraordinary situation, politically. I know of no other example where a powerful country has, in the pursuit of its own policies and interests, been so subordinate to a smaller country in this way.

There is no question that US policy towards Israel is carried out at the cost of its broader policies in the region and its reputation as a global leader. It’s a very dysfunctional set of commitments that can only be explained by this domestic disorientation that comes from the pro-Israel pressure groups.

Even in Israel itself I think they are not really adapting to their longer term security interests and the leadership there seems to have lost the capacity to understand their own interests. That is very scary, when a government cannot get hold of its own wellbeing and carries out these self-destructive policies at great expense to other people.

HC: Are you saying it is the power of the pro-Israel Lobby in politics and the media that is the driving force behind American foreign policy?

Richard Falk: I think the Lobby has created an atmosphere where it has seemed to politicians to be expedient to support Israel. They may not be directly under pressure but they have interpreted the situation in such a way that you require self-destructive courage to challenge these policies. Their careers, funding and the whole distortion of American political life through this single pressure group is a real failure of constitutional democracy. There are many influential lobbying initiatives that have a distorting effect on policy but none that I know of that is as consistently influential and is not neutralised by countervailing forces. One of the realities in the American political scene is that there is no Palestinian or Arab countervailing initiatives that make it possible for the politicians to feel there is political space to manoeuvre.

You have a similar situation in the US in relation to gun control where there is some countervailing pressure from some civil liberties groups and others but basically there is no real opposition and therefore pro-hunting and pro-gun pressure groups are very effective.

HC: At the beginning of your latest report to the UN General Assembly you begin by making the point that a word count restriction prevented you from going into all of the serious human rights concerns which are associated with the current conduct of Israel. Surely that alone expresses just how many major issues of concern there are to you. What issues remain major concerns for you but did not make it into your report?

Richard Falk: I couldn’t put enough stress on the internal realities of the occupation and the blockade of Gaza. It’s mentioned in general but there’s a lot more that could be said. The settlements were discussed in a general way but again the specifics of interfering with mobility in the West Bank, the house demolitions, all of these associated incidents of violence that are connected to the occupation need further explanation and detail. And the way that the Nakba anniversary protests were suppressed by violence; all of that seems to me to be important to give more attention to than was possible.

HC: You use the term "ethnic cleansing" in your report in the context of the efforts by "religiously motivated settlers" encouraging the Government of Israeli to support a policy of ethnic cleansing. How does the term ethnic cleansing apply to the current situation in Palestine?

Richard Falk: I think it applies particularly to East Jerusalem and the attempts to change the demographics therein. Another issue that is sort of connected is the separation between Gaza and the West Bank so that they can never be joined together in a politically sustainable way; I think that is a deliberate policy of Israeli colonialism whereby you divide and rule. On the one side you have the ethnic cleaning in Jerusalem and you have a different type of ethnic cleansing in the West Bank and Gaza whereby the Israelis try to make life so miserable for people there that they want to leave; the occasional deportations do this as well.

Another thing we did not touch on, which is really quite central, is that the failure to establish a just and sustainable peace is not a neutral reality because Israel uses this failure to encroach continuously upon the remnant of Palestinian land ownership and presence. Whether the two-state solution was ever viable or not is one question but one way of thinking about this all now is that this is the twilight of the two-state solution.

Interview by Dr. Hanan Chehata
29 October 2011