By Richard Falk
GAZA, PALESTINIAN RIGHTS, AND DAMASCUS ATTACK
[Prefatory Note: Questions Posed to Richard Falk by The Qods News Agency in Iran, April 23, 2024—on Gaza, Palestinian Rights, Damascus Lethal Attack on Israeli Consular Building]
1. Given the fact that Israel has killed over 34,000 Palestinians in Gaza, mostly women and children, and prevented the entry of international humanitarian aid into the besieged strip, what is your opinion on nearly 200 days of onslaught in Gaza and its aftermath on Palestinians’ lives? How do you describe the genocidal onslaught and war crimes in Gaza?
What has taken place over the last 200 days in Gaza is the most transparent genocide in all of human history. It is the first time that the daily atrocities were broadcast and seen by the peoples of the world in real time. Past genocides have been known almost totally in retrospect through official reports, films and memoirs, which reconstruct horrifying events but after a passage of time. Those Palestinians who managed to survive physically such sustained violence of this extreme character are reported to bel suffering from mental disabilities that could persist for their entire life. It is a tragic, dehumanizing ordeal, above all for children. It is further shocking that Israel should remain insulated from denunciation and accountability despite its continuing practice of such extreme criminality.
Genocide should be understood to exist from three quite distinct moral, political, and legal perspectives. The moral perspective is made clear in Gaza by the declared intentions, policies, and practices of Israel’s highest leaders, and carried out in a totally disproportionate, indiscriminate, and lawless manner, and aggravated by consistently sadistic and demeaning treatment of Palestinian civilians who fall under the control of the Israeli armed forces. The political perspective is established in Gaza by numerous trustworthy witnesses and victims, as well as by vivid visual evidence of genocide line of justifications adopted by Israel and its supporters. The legal perspective relies on the presentation of evidence and interpretations of international law, above all by the delineation of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide (1948). Provisional conclusions as to international law can be derived from the opinions of legal experts holding important professional positions. For instance, the current UN Human Rights Council Special Rapporteur for Occupied Palestine issued an excellent report entitled ‘The Anatomy of a Genocide’ that carefully analyzed the elements of the crime and concluded that the facts and law supported the allegation of genocide. And yet until a qualified national or international tribunal with jurisdictional authority to assess the charge of genocide examines the evidence and hears the arguments of the defendant government or political actor it is impossible to say with technical propriety that the behavior in question is genocide from a legal perspective.
2. How can the world public put pressure on governments to force Israel to stop atrocities in Gaza?
It has proven difficult to challenge Israel effectively at the UN and elsewhere. Powerful countries are complicit in supporting Israel’s policies and practices in Israel, including Israel’s claim that it possesses an unlimited right to defend itself in response to the Hamas attack of October 7. The liberal democracies of Western Europe and North America are prominent among governments lending varieties of support to Israel that extends to endorsing Israel’s distortions of facts and law, which has had a detrimental effect on the authority of international law and the UN. The US above all has been guilty of double standards, using international law as a policy instrument to attack its adversaries such as Russia and China and disregarding its relevance with respect to the behavior of allies and friends such as Israel.
South Africa has been applauded widely for taking the initiative to bring allegations of genocide to the International Court of Justice under Article XI of the Genocide Convention that legally empowers any party to the treaty to bring a dispute with another party before the ICJ. Although the ICJ rose above politics to give a historically important, near unanimous, decision granting several of South Africa’s requests for Provisional Measures on January 26, 2024. Unfortunately, this preliminary ICJ order has little effect as Israel defied its interim obligatory adjustments in behavior pending a subsequent decision on whether the allegation of genocide has been established. There was exposed ‘a crisis of implementation’ as any effort to enforce the ICJ Interim Orders would depend on action by the Security Council, which would almost certainly be vetoed by the United States. Additionally, an ICJ decision following oral arguments and written pleadings would not be forthcoming for several years while the crisis in Gaza persisted.
Nevertheless, the ICJ Interim Order was an impressive vindication of international law and a legitimating demonstration of the legal professionalism of the Court. It has an authenticating impact on the governments of the Global South and even more worldwide in relation to civil society, including even in the United States and other complicit countries. Whether this pressure will result in coercive actions by way of boycotts and sanctions, and pariah status, remains to be seen, but at minimum it suggests that even in this unfavorable setting international law and populist activism offer some hope that genocide can be stopped and its perpetrators held accountable, if not formally, then by the action of peoples around the world.
3. What do you think about Palestinian resistance fighters’ right to initiate the October 7 operation against Israel?
The right of resistance on the part of a people long occupied and abused is well established. Prior to October 7, the crime of apartheid had been documented in detailed reports by the most respect human rights NGOs, Human Rights Watch and Amnesty International, as well as by the Israeli NGO, B’tselem, and by the UN ESCWA.
While the right to resist is certainly justified by the conditions imposed over the long period of occupation, which ignored the Israeli duty to protect Palestinian civilians under its control, it does not confer unlimited rights. Resistance fighters, as other armed groups, are obliged to comply with international criminal law, and not abuse or target civilians, or commit atrocities. Yet unlike the allegations against Israel, there is no authoritative account of what happened on October 7. There were wildly exaggerated claims of barbarous behavior by Israel, but later retractions and much skepticism about Israel’s depiction of events on that day. Until an international factfinding commission is established and given full cooperation there will be doubt about the extent to which the criminality of the Hamas attack tainted its resistance claims.
4. How can the Palestinian people achieve their rights and overcome the ongoing occupation?
The Palestinian people are winning the struggle for public support in civil society and among many governments in the Global South. The rise of popular support for Palestinian rights even in complicit governments may erode somewhat their willingness to continue their support of Israel. Whether this is enough at this stage to make a difference with regard to ending the occupation is not clear at present. Prior anti-colonial struggles have been eventually won by the colonized people if they survive the genocidal assault on their existence. The breakaway British colonies in North America, Australia, and New Zealand managed through genocidal tactics to marginalize or eliminate the resistance of native peoples and complete their settler colonial projects; South Africa failed, and the project collapsed. Israel is in that space where it will either join the settler colonial ‘success’ stories or it will succumb to national resistance, with Jews either giving up the Jewish supremacy claims of
Zionism or finding to coexist with Palestinians on the basis of true equality.
5. As you know, Israel attacked Iran’s consulate, killing its military advisors in Syria which is considered contrary to international conventions, which prompted a military response by the country. What is your take on Iran’s punitive response to Israel, especially in terms of international laws?
The Iranian retaliatory strike against Israel caused neither deaths nor damage, although had its array of missiles and large number of drones not been destroyed, it might have had a war-generating disproportionate effect. The interpretation of Iran’s retaliation remains ambiguous. Did it intend to display its capabilities without inflicting major damage or was it an operational failure in the sense that the intention was to be as destructive as possible. Without clarity on this question, it is impossible to make an intelligent assessment of the relevance of international law.
The legal status of retaliatory violence is a gray area of conflicting opinions. On the one side are legalists who suggest that all retaliations violate the UN Charter and international law by validating uses of international force only in situations of a sustained armed attack across an international border. By this reading even a modest retaliation against the Damascus attack was not lawful.
As with other issues, this strict reading of international law is not descriptive of practice with respect to acts of retaliation, which in practice over the years validate retaliations so long as proportionate in relation to the provocation. Israel’s second attack on Iran, however, would seem to be unlawful, ignoring the reality that it initiating the cycle of violence on April 1st by their lethal attack on Iran’s consular facility in Damascus, which killed high ranking it national military advisors.
ISRAEL/IRAN TENSIONS: PROVOCATION, RETALIATIONS, WIDER WAR
OPTION/DANGERS
[Prefatory Note: Questions posed by Mohammad Ali Haqshenas on
behalf of International Quran News Agency and responses of
Richard Falk, April 19, 2024; this text is slightly modified. The
focus is on the Israeli April I attack on Iran’s Damascus consular, and the
international law implications of Iran’s retaliation against Israeli targets on April 13, followed a week later a by Israel’s second drone attack on a military base not far from Isfahan, which both countries somewhat
downplayed. Israel seemed to have given up the wider war option
at least for the present in response to diplomatic pressures from allies to
deescalate regional tensions. The future remains uncertain, especially,
if Israel goes ahead with the threat of a major military operation in
Rafah].
1. What do international laws and conventions say when it comes to targeting a country’s diplomatic mission?
The immunity of consular facilities from international attack is one of the most widely respected, useful, uncontroversial commitments of international law since its inception. It was formalized and details specified in the Vienna Convention on Consular Immunity. Even without this Convention Israel would be bound by a similar body of constraints that are considered part of ‘customary international law’ that enjoy the status of ‘jus cogens’ norms, that is, standards of behavior binding on all sovereign states whether or not a treaty exists. When as here a widely ratified treaty does exist, then disputes about obligatory behavior are decides by reference to the treaty, with an optional Protocol conferring compulsory jurisdiction on International Court of Justice to adjudicate. From the above it follows that being a non-party does not relieve a government of a sovereign state from the obligation to comply with the legal framework.
In this instance such arguments are superfluous as both Israel and Iran are parties to the Vienna Convention as are another 180 states.
Although Israel is widely assumed to have launched the attack on the Damascus concular facility located within the larger Iran embassy compound in Syria. In a strange twist the US State Department spokesperson refuses as if April 24 to confirm that targeted facility was indeed a consular facility entitled to immunity from hostile action. It is strange as the build struck has been uniformly assumed to deserve treatment as Iran’s consular facility. The US continues to contend three week after the attack that the location and identity the building in question is still ‘under investigation.’
2. Following the Israeli strike against the Iranian consulate in Damascus, Tehran urged the UN Security Council to condemn the strike but the Council failed to do that due to the US support for Israel. What does this inaction mean when we take into account the responsibilities of the UN to maintain international peace?
Such action in the UNSC by the USA to insulate Israel from its obligation to comply with international law with regard to consular and embassy immunity is a reminder that when it comes to enforcing international law, the UN was designed to be weak, unmistakably intended to allow the P5 in the Security Council to by giving an unrestricted right of veto to the five countries victorious in World War II. The veto is arguably the UN’s greatest deficiency when it comes to achieving the paramount war prevention goals of the UN. In effect, the 1945 architects of the UN subordinated upholding international law to strategic primacy for these five geopolitical actors in relation to enforcement or even interpretation of relevant legal obligations. Although only five countries are accorded a right of veto in the UN Charter, it has been used, especially by the US to thwart the will of overwhelming majorities among Member governments by being extended to shield ‘friends’ and allies from accountability.
Some years ago the Turkish president, Recep Tayyip Erdogan, called critical attention to this situation with the pithy phrase ‘the world is greater than five.’ The world is certainly greater, but regretably the UN is not. There are many situations of this kind concerned with securing compliance with international law by UN members who cannot veto a proposed UN decision but enjoy a sufficient special relationship with one of the five that suffices to block any UN enforcement initiative taken against it. In the 1999 Kosovo War, for instance, NATO avoided seeking authorization from the UNSC because it anticipated a Russian veto.
3. What are the long-term implications for international law if such attacks go unchecked?
The implications for international law are what they have always been in modern times. When the obligations of law clash with the strategic interests of powerful states, geopolitical policies prevail, and the core obligation of the rule of law (treating equals, equally) is ignored. This generalization applies to the pre-UN history of international relations. A good example is the war crimes trials conducted at Nuremberg and Tokyo in 1945 where the crimes of the victors were exempted from legal scrutiny while the crimes of the losers were the subject of indictment, prosecution, and punishment. More concretely, the atomic bombings of Japanese cities and the strategic bombing of German cities were accorded impunity. A double standard highlighted by being described as ‘victors’ justice,’ but an ideological defeat for advocates of law-governed behavior as shaping behavior among sovereign states and in the relation of states to the rights of peoples.
It is a mistake to conclude that international law is useless because of this subordination to geopolitics. For one thing, an effective international legal order is essential to sustain the stability of relations in most areas of interaction among sovereign states. Trade, investment, finance, communications, travel and tourism, diplomacy are among the areas of international life that depend on mutuality of interests and the practice of equality when it comes to enforcement and implementation. Beyond this, ‘responsible statecraft’ by dominant states (‘dominance’ does not necessarily refer to the same political actors that possess veto rights at the UN) can unilaterally exercise restraint in the use of the veto or in pursuing conflictual behavior. Many would insist that the US has weakened the UN by its ‘irresponsible statecraft.’ The extent to which the US has managed relations between the UN and Israel in an excessively indulgent manner, illustrated by its complicity with genocide is illustrative. Unconditional support for Israel is also as much of a reflection of domestic political considerations in the US and Western Europe as it is of the international conflictual context.
Even when international law is flagrantly violated as it was in the Damascus attack, and Israel is protected against a punitive response at the UN, the impact on world opinion, global solidarity initiatives, and the clarification of legitimacy ensure that international law plays a role in the behavior of states and the outlook of global public opinion. Populist action often influences the policies and behavior of leading geopolitical actors. In the post-1945 anti-colonial wars the weaker side militarily generally prevailed politically, in part because international law and the flow of history seemed to everywhere on their side. Transnational activism in the form of boycotts and sanctions often is vindicated by assessments that the targeted country is violating international law in serious and obvious ways. In short, international law, even if not implemented by the inter-governmental order of states or by the UN, is helpful in mobilizing civil society to take a variety of nonviolent coercive actions. This dynamic contributed to the collapse of the apartheid regime in South Africa 30 years ago and it is mounting ever stronger pressure on Israel in light of its Gaza genocide, further justified by its defiance of international law.
4. Iran said it used its legitimate right to self-defense by launching strikes against Israel. What do international laws say about this?
There are several issues present. Does a single attack of this nature, however unlawful, engage the right of self-defense as specified in Article 51 of the UN Charter. This Charter definition is linked to “a prior armed attack” as distinct from an act of aggression, but given the paralysis in the UN, it might be deemed reasonable in view of the frequency of past lethal violations of Iran’s sovereign rights and the failure by the UN to take any punitive action, or even a resolution of censure, against Israel’s defiant attitude in shaping national policy in the security domain.
A further international law issue concerns matters of proportionality and discrimination. Estimates vary as to the scale of the Iranian attack involving 170 or more drones, 120 ballistic missiles, and 30 cruise missiles seems both disproportionate and indiscriminate, and yet little damage resulted, and no one killed. As Iran gave some notice of its planned retaliation to the US and other governments, it may have intended, as some commentators have suggested, that its retaliation for Israel’s responsibility in relation to the Damascus attack, to be symbolic and performative, rather than a full-scale attack as suggested by the array of drones and missiles.
To some extent, because of enforceability issues, what a state does in retaliation for such one-off violations of its sovereignty is assessed and judged in relation to precedents reflecting past practice. If deemed to be consistent with such practice it is legitimized and widely viewed as acceptable, whereas if not, it is regarded as unacceptably provocative. Israel has reacted to the Iranian attack of April 13 as an unacceptable provocation, despite its own prior attack causing high-profile Iranian deaths and the paucity of damage inflicted by Iran’s retaliation. Israel is proposing a retaliation to Iran’s retaliation. If Israel has carried out its threat in a way that causes death and destruction in Iran it is almost certain to have escalated the conflict in dangerous ways. When acting in these grey sectors of law, such as is the law governing international retaliation, the criterion of reasonableness offers some guidance to both actor and responder, and affects public discourse and media treatment. Of course, perceptions of reasonableness may vary greatly, and often make assessments based on alignments rather than. the characteristics of behavior.
In my judgment the sequence of events is revealing, a highly provocative attack on Iran’s diplomatic facilities in Syria, killing seven Revolutionary Guards, including a leading general with command responsibility for Iran’s role in Lebanon and Syria, followed by Iran’s ambiguous retaliation that could be viewed as a failure to inflict major damage in Israel or a successful symbolic display of capabilities programmed to avoid substantive damage, and a similarly ambiguous second Israeli retaliation, this time against an Air Base near Isfahan that was not highly provocative. Overall, Netanyahu in the Damascus attack was exploring the wider war option, backed off after the US and other regional and supporting governments insisted upon not elevating the tensions with Iran to overt combat, and possibly a regional war.
5. Some analysts believe that the Israeli regime targeted the consulate to escalate tensions with Iran and use this as a cover to continue its massacre of Palestinians in Gaza. What is your take on this and how can Tel Aviv be held accountable for its crimes in Gaza?
As suggested above, Netanyahu has failed to achieve the goals of Israel’s massively destructive and inhumane response to October 7, seeming to leave his last best option, the widening of the war in ways that make Iran the main antagonist of Western interests in the Middle East. The backgrounding of the Ukraine War in light of the events in Gaza lend plausibility to this kind of ‘politics of deflection.’ Israel is a master of shifting public attention from its crimes to its critics or to quite different objects of concern that better suit its national interests..
Achieving accountability in a legal sense is almost impossible so long as the Global West, especially the US, supports Israel. Any attempt to impose accountability through the UN would almost certainly be blocked by casting a veto in the Security Council, which the US has not been reluctant to do. Accountability in its political dimensions could be achieved if Israel is treated by many governments in the Global South and civil society activism as ‘a pariah state’ as was the experience of apartheid South Africa; solidarity initiatives rooted in civil society activism combined with resistance to apartheid seemed to explain the radical moves of the Pretorria regime, releasing Nelson Mandela from prison and negotiating a peaceful transition to constitutional democracy and racial equality. Accountability in a moral sense is exhibited by public expressions of outrage on the part of peoples the world over as well as by the frustrations caused by unenforceability of ICJ decisions and General Assembly activism in reaction to the unlawfulness of apartheid.
6. What do you think about the efforts of the ICJ to hold Israel accountable for its genocide in Gaza, especially given that the regime is planning an attack on Rafah where more than 1.5 million displaced have taken refuge?
This question raises complicated issues. The initiative in the ICJ has been greatly important for passing judgment on Israel’s moral and political wrongdoing with respect to the Gaza genocide yet limited in effectiveness as to behavior. The ICJ has been unable to implement the persuasive legal pronouncements of its Interim Orders of January and March instructing Israel to take actions to mitigate further suffering of the Palestinian people while the Court ponders the allegations of genocide. Israel has refused compliance with the Provisional Measures requested in the South African ICJ initiative. Israe backed by the US, and seems poised to go ahead with its threatened attack on grossly overcrowded Rafah, despite expectations of shockingly high casualties.
The ICJ and the UN generally are neutralized by ‘a crisis of implementation.’ In the face of stubborn geopolitical resistance it lacks the mandate, will, and capabilities to enforce international law, let alone promote global justice. If the UN became more robustly endowed, an obvious undertaking would be to form an International Protection Force that would give meaning to the UN Responsibility to Protect norm adopted with much fanfare by the Security Council 20 years ago, and then deceptively invoked a little over a decade ago to justify a regime-changing intervention in Libya. As things presently are, a justifiable coercive and punitive response to genocide in Gaza is unthinkable, which tells us a lot about why so many people are disappointed by or frustrated with the UN, not realizing that it was structurally designed to vest control over international security issues, broadly defined, in the P5, the winners in World War II, and the last stand of a world order based on a dying European colonialism and an ascendant America.