Global order rests on double standards

RICHARD FALK, Professor Emeritus of International Law at Princeton University and currently Distinguished Visiting Professor at the University of California, Santa Barbara, was in New Delhi in February. He is on the board of directors of many civil society organisations and has given expert testimony on critical issues to the United States Congress and the United Nations. Falk has also served on many international commissions. He has been an outspoken critic of the double standards adopted by the West in international affairs, especially on human rights and war crimes. He had described the 2003 invasion of Iraq as a war of aggression.

Falk was recently in the news when Israeli authorities detained him when he arrived in Tel Aviv on an official U.N. assignment. He had been appointed a Special Rapporteur on the situation of human rights in the Palestinian territories under Israeli occupation by the United Nations Human Rights Commission (UNHRC) for a six-year term in March 2008. Israel did not allow Falk to set foot on the occupied territories after he took up his new assignment. He was first denied permission in the middle of last year. But as the humanitarian situation in Gaza worsened, Falk landed at the Ben Gurion airport with a team from the UNHRC on December 14 only to be sent back. He has described the Israeli strikes on Gaza as war crimes.

In this interview to Frontline, Falk spoke extensively on Gaza and related international issues. Excerpts:

Has the case to take Israel to the International Criminal Court (ICC) been strengthened after the events in Gaza?

In an ideal world, Israel should be taken to the International Criminal Court but the problem is that the legal framework of the court makes it very unlikely even if the political will existed because Israel is not a member of the court. The Palestinian Authority has just tried to become a member but whether it qualifies as a state has to be seen. It would be an ideal case for the court to consider, but as a practical possibility that is not a path that would lead anywhere.

There are other paths that would have a little bit more possibility. Spain, as you know, has indicted seven leading Israeli military and political persons. Under the theory of universal jurisdiction, any national court can treat those accused of war crimes in the way pirates were treated under the principle of piracy. It doesnt matter whether the crimes were not committed on Spanish territory or whether Spanish citizens were victims of the crime. It is enough that these crimes were committed. The Spanish criminal court is an agent of the world community in seeking to achieve some kind of accountability. Here, of course, they have to get personal jurisdiction over the accused individuals, which is unlikely to happen. And Israel and the U.S. have put a lot of pressure on the Spanish government to not follow through with this kind of proceedings.

There was an attempt to prosecute former U.S. Secretary of Defence Donald Rumsfeld in Germany for his role in approving the torture of detained people and there was lots of hard evidence of his involvement in the torture policy. The German prosecutor decided that, politically, he would not use his discretion. Initially, it was because the U.S. was supposed to have the first opportunity to prosecute. When the U.S. failed to prosecute, then it was thought that it was not politically appropriate. This universal jurisdiction is very difficult if the defendant is a powerful country or a friend of a powerful country, as Israel is.

The third path is the U.N. General Assembly. It has the authority, as does the Security Council, to create ad hoc criminal tribunals. This was done in the 1990s by the Security Council when it established the criminal tribunal at The Hague to dealt with former Yugoslavia and later to deal with the Rwanda massacres of 1994. There is a tribunal in Dar es Salaam in Tanzania. In the case of Israel, the Security Council is not available because of the veto of the U.S. The General Assembly could theoretically do this, but whether there is a political will to make such a controversial move is certainly not evident at the moment.

What are the options then?

The only thing that seems possible is a civil society tribunal. There was a world tribunal on Iraq, which was held in Istanbul in 2005 and had 54 witnesses, [a] very established documentary record that showed the degree to which the U.S. and Britain violated the U.N. Charter and the crimes that were committed during the occupation, and it named names, holding not only military and political leaders responsible but also people in the media, corporations and others. It was a symbolic use of international criminal responsibility.

This is important in the Palestinian context because the hope of the Palestinians is to create a political victory through what I call the second war the legitimacy war, which is the way the anti-apartheid movement isolated the South African government and did what no one expected. That is, creating a political climate that produced a largely peaceful transition and a transformation of the apartheid regime.

In some ways, the Iranian revolution was similar. You had a strong, militarised government under the Shah, which was considered one of the strongest governments in the Third World. It had a close relationship with the U.S. and several of its neighbours, and yet this movement from below overwhelmed it in the end. Often, those who win the military battles lose on the political battlefield. This happened to the Soviet Union in Afghanistan, to the U.S. in Vietnam, to the French in Algeria and in Indo-China. They won all the battles but lost the war. They had total military superiority but could not convert it into a political victory.

Is there light at the end of the tunnel for the Palestinians?

That is the hope of the Palestinians, and after Gaza there are boycotts, divestments and sanctions campaigns all over the world. The world has become a political battlefield for the Palestinian struggle. It is now the successor to the anti-apartheid movement and engages the moral imagination of the entire world community. It is not just a regional or country-specific issue. Of course, there are important differences between South Africa and Israel/Palestine. The Palestinians dont have the kind of leadership the ANC [African National Congress] provided under [Nelson] Mandela, Oliver Tambo, Walter Sisulu and others. Israel has interfered with their potential leaders. Marwan Barghouti is in jail. They isolated Arafat and killed the best advisers he had in Tunisia. It is a kind of deliberate policy of eliminating potentially effective leaders.

Is the Israeli leadership capable of ever acceding to a two-state solution?

It is hard to imagine, in the Israeli situation, to get from where we are to a viable solution even if the Israeli leadership is willing. Because the settlement movement has gone so far on the West Bank that it would probably generate a war in Israel if a leader there tried to eliminate the settlements. If you think of a single, unified confederal Israeli-Palestinian state, that would mean giving up the Zionist project. And that too would produce an Israeli civil war. It is very hard to see how the Palestinians reach that level of self-determination.

There have been attempts to de-legitimise Hamas. Have they been successful?

It has been much more successful than it was expected to be. If you look at the record, Hamas, when it was elected in Gaza in January 2006, immediately established a unilateral ceasefire and offered to deal with Israel politically. It maintained the ceasefire for almost a year despite the fact that Israel continued with its policy of assassinations from time to time, killing quite a few Palestinian civilians. Basically, Israel was instrumental in starting the violence. It was only then that the rockets came in retaliation. Firing rockets at civilians is not accepted legally or morally, but these rockets were not effective. They have done very little damage. Then, under Hamas pressure the militants observed a temporary ceasefire from July 2008. Cross-border violence almost totally disappeared, and it was again Israel that broke the truce by the November 4 attacks in Gaza, which killed six or seven Palestinians and led to a resumption of rocket fire and retaliation. But not a single Israeli was killed in the entire year.

Was Israel looking for a pretext?

It is clear that Israel wanted to find a pretext for launching the December 27 attacks on an essentially defenceless society that had been subject to 18 months of severe blockade. Food, fuel and medicine were kept at a sub-subsistence level. The populations mental and physical health was deteriorating. Israel was attacking a highly weakened society. And it did something that no modern war belligerent has done. It walked the civilian population into the war zone. It did not allow Palestinian civilians including women, children and the old, the ill and disabled people to leave Gaza. It only allowed the foreign wives [of Gazans] to get out of Gaza. Most of the 5,000 wounded and more than 1,300 killed were civilians. It was a war waged against children and the civilian population.

Israel, it seems, prefers to wage war against civilians these days.

If you notice, ever since the 1982 Lebanon war, Israel has been fighting against people rather than governments. The 1982 war ended with the massacres in the Sabra and Shatila refugee camps. Then you had the Lebanon war of 2006, where essentially the Israeli military was trying to destroy a movement, not to fight an army or a normal state opponent. As in Gaza, it is clear that you cannot use modern weaponry against a political movement that has no weapons to fight you with.

This shift from war against neighbouring states to war against popular movements is blurring the line between war and crime. Because if you fight this kind of war, you inevitably engage in violence against people. In these kinds of battlefield situations, people dont even use the word war; they use the word massacre or atrocity. It does not seem like a war as there is only one side in the military encounter. The enemy is the people rather than another state. This is the first time a civilian population was disallowed the option of being refugees. Even in Fallujah, when the Americans attacked they tried to get the civilians to leave. Israel did not allow even terminally ill people to leave.

Many Arab states themselves seem keen to see that the Hamas administration in Gaza is undermined.

The truth is that many Arab states have a very strong connection with the anti-Iran policy. They think Hamas has some connection with Iran. They are worried about the strength of their own Islamic parties, particularly the Muslim Brotherhood in Egypt. Demonstrations against the Israeli actions in Gaza have been stopped not only in Egypt but also on the West Bank by the Palestinian Authority. But if you ask who won this phase of the war, it is far from clear. Hamas may have been beaten but has emerged politically stronger both in the West Bank and Gaza.

On the world scale, Israel suffered a great setback in terms of its reputation. Many countries have terminated business contracts with it. There is a big $3 billion broken contract with Sweden. A French firm that was building a railway network between the settlements and Jerusalem has opted out. In South Africa, dock workers have refused to unload cargo from Israel. A soccer game between Israel and Turkey could not take place because there was so much opposition.

But Israel still has a lot of clout in the U.S.

Yes. At the governmental level there is no change. But the public mood is changing. Views such as mine are much more acceptable now even among the Jewish audience. Its a big change. It had started a little earlier. Jewish groups in the U.S. and the U.K. support a much more balanced position and they protested the 60th anniversary of Israels founding and talked about the naqba the expulsion of Palestinians for the first time. You heard for the first time that people should not celebrate an occasion when other people were displaced and dispossessed. Then, after the recent Gaza experience, there is a real change in the discourse within American society, but the Israeli lobby still controls Congress, the mainstream media and the White House. President Obama has appointed pro-Israeli people to most of the key positions.

The academic communities in the U.S. are also much more divided than they used to be. There are many events organised on the Palestinian issue, often organised by Jews and well attended by students. Ninety per cent of the audience is pro-Palestinian. Young people are definitely serious about the Palestinian struggle.

Why did Israel attack Gaza at this particular time?

There were several factors. One was the internal Israeli elections that were held in February. The government in power wanted to show that it is tough on security issues. The Israeli public wanted such a demonstration. Then the IDF [Israeli Defence Forces] wanted an opportunity to show that it could defeat a movement of this kind after its failure in Lebanon in 2006. Some people had the idea that a show of force of this kind sends a signal to Iran that Israel is prepared to use any kind of tactic to defend its interests. There is an Israeli preoccupation with Iran. They are scared of Iran. In one way, the Palestinians were victimised for the sake of Israels Iran policy.

Is it correct to characterise what Israel did in Gaza as genocide?

As a legal conclusion, it certainly has a genocidal character. The World Court made it very difficult to establish genocide in the Bosnian case because it said you need written proof of criminal intent. But it is certainly a crime against humanity and a war crime. It is a war of aggression and a crime against peace. This was regarded in the Nuremberg war crime tribunal as a supreme crime.

Can Israeli officials be brought to book under the principle of universal jurisdiction?

Gen. Pinochet is a good example of universal jurisdiction in action. The British detained him and decided that he could be extradited for the crime of torture. The Foreign Secretary, at the last moment, said he was unfit to stand trial. Some people, like Rumsfeld and Henry Kissinger, are now very reluctant to travel. They never know what could happen. There is an effect. Israel has warned some of its officials not to travel to certain countries.

States such as the U.S. and Israel have been using economic blockade as a weapon to subdue states. The blockade on Cuba is five decades old.

To some extent Cuba is a little different. Cuba had a powerful friend in the Soviet Union. Cuba was also a country that was sufficiently big. It had agricultural land and had enough outside contact. The U.S. was not effective in persuading anybody to join the blockade.

The blockade kept Cuba poor and it made socialism look like an unsuccessful strategy for development although Cuba developed the best health care system in the hemisphere. It has a lot of other achievements.

There is a joint learning relationship between Israel and the U.S. It is hard to know who learns what from whom. A lot of the tactics the U.S. has used since 9/11 have been borrowed from the Israelis.

Israel has struck lucrative arms deals with many countries, including India and China. Is it in a way subsidising the Israeli war machine as it goes about crushing the Palestinian resistance and other popular movements in the region.

It is a sad fact that the Palestinians suffer from a lack of solidarity. My experience in India is that the people here are sympathetic with the Palestinian cause, but it is different with the elite and the government.

Is the West adopting double standards? The Sudanese President is about to be issued a warrant by the ICC for war crimes in Darfur. The situation there pales in comparison to what has happened recently in Gaza.

That is the whole thing about the issue of criminal responsibility. It is the weak, the leaders of the Third World countries, who are subject to this legal framework, but the strong are exempt. And that goes back to the end of the Second World War. U.S. military people were not prosecuted for using the atomic bomb in Hiroshima and Nagasaki, while the Japanese and the Germans were held responsible for war crimes. They obviously committed terrible war crimes but so did the victorious powers. Recently, you had the trials of [Slobodan] Milosevic and Saddam Hussein, but no one would talk about prosecuting George W. Bush or Tony Blair. They are certainly as indictable as the others.

If you look throughout international life, you see that it is characterised by pervasive double standards. It goes back to the U.N. Charter itself, which gives the five permanent members of the Security Council a veto. And that veto, in effect, is saying that the U.N. Charter and international law do not apply to the powerful. The charter is a regulatory framework for the weak the secondary states.

The entire international order rests on double standards. You never see humanitarian intervention by the South in the North. You see it in relation to nuclear proliferation and you see it in relation to restrictions on the use of force and in the war crimes area. The strong have impunity and exemption and the weak are subject to a regulatory framework.

Does the Obama administration differ from the previous one on issues relating to torture and rendition?

This is one of the significant differences. The Obama administration wants to show that it will pursue a humane policy, especially on the torture issue. It wants to give torture suspects a fair trial and constitutional rights. Thats a genuine difference. But it is not going to go too far. The new administration basically subscribes to the same counter-terrorist approach of the previous administration. It thinks that it can eliminate the terrorist threat without dealing with the legitimate grievances.

Are the continuing U.S. sanctions on Iran justified?

As far as I know, the Iranians have the right to fully develop the nuclear fuel cycle, to have unrestricted use of peaceful nuclear technology, which is all they claim to be interested in.

Of course, a lot of this technology is dual-use. Its hard to be sure what their intentions are. The Iranians have just as good a security argument as many other states that are nuclear-weapon states. Their case is certainly as good as Israels. They need these weapons to deter attacks on themselves. If they were to acquire nuclear weapons, it wouldnt be to use them or to threaten to use them.

It would be to deter others from using them. Iran has long favoured a nuclear-free West Asia. That would involve Israel giving up its nuclear weapons.

You had a bad experience on your last visit to Israel.

They kept me in a detention cell at the airport for 20 hours, with five others, on December 14 when I landed in Tel Aviv. It was a perverse adventure for a man who was the U.N. Special Rapporteur. They were trying to send a signal to the U.N. It was less about me than to say that if you send representatives who are likely to be critical of Israeli policies then this is the treatment they can expect. Then they expelled me and led me on to the plane like a terrorist.