By Richard Falk
Can international law provide justice for Palestinians?
The death toll in Gaza has exceeded 600 people [EPA]
What has been happening in Gaza cannot usefully be described as “warfare”. The daily reports of atrocities situate this latest Israeli assault on common humanity within the domain of what the great Catholic thinker and poet, Thomas Merton, caIled “the unspeakable”. Its horror exceeds our capacity to render the events through language.
The events in Gaza are essentially a repetition of prior Israeli incursions with heavy sophisticated weaponry in which the people of Gaza are the helpless victims of Israeli firepower, with no place to hide, and increasingly without even such necessities of life as water and electricity, whose facilities have been targeted by Israel’s precision weaponry.
By now we should all understand that one-sided violence whether in the form of torture or state terror is criminal behaviour. When it leads to many civilian deaths on one side and few civilian casualties on the other side, then such state terror is best characterised as a massacre, epitomised by the high civilian death toll on July 20 in the Gaza City neighbourhood of Shujayea where a crowded residential district was repeatedly shelled by heavy IDF artillery. The latest casualty figures on the Palestinian side are more than 600 killed, over 3,000 injured, 75 percent of whom are estimated to be civilians. On the Israeli side, 29 killed, all but two were soldiers.
As with earlier massive Israeli military operations carried out against the people of Gaza 2008-2009, and 2012, the defenceless Gazan population is again being cruelly victimised. If an adversary of the West was behaving as Israel has since July 8, it would be branded an aggressor whose leaders would likely be held accountable before the International Criminal Court (ICC) or some other tribunal with the authority to prosecute persons accused of international crimes which have distressed the US government and its allies.
Was this not the response to Slobodan Milosevic, Saddam Hussein, and Muammar Qaddafi whose criminality stood in the path, blocking Western interests? But what of George W Bush, Tony Blair, and Barack Obama whose crimes are shrouded in a thick cloud of impunity?
This contrast manifests the geopolitical logic of world order for all who have eyes that want to see “the real” as opposed to heeding the “reigning hegemonic myths”. It is this geopolitical logic that is shaping the application of international criminal law: accountability for enemies of the West, impunity for the West and its friends. Such double standards highlight the tensions between law and justice. There is currently no greater beneficiary of this deformed political culture of impunity than the political leadership and military command structure of Israel.
And yet there does exist an international criminal law and procedures for its application, and although so far successfully manipulated by the geopoliticians, the endgame of criminal accountability has yet to be played. Those who are victimised should not ignore its unrealised potential for justice, and the challenge posed to all who consider themselves “citizen pilgrims” – on a life journey of human solidarity and faith in a better future: Law from above, justice from below. This is the populist equation that can guide us towards thought, feelings, and actions on the “right side of history”.
‘Sign or leave!’
In this connection, I was moved by reports of the young activists in Ramallah and other cities in the West Bank putting forth the demand that Mahmoud Abbas “sign or leave!” That is, sign the Rome Treaty on behalf of Palestine, and thereby join the International Criminal Court, or give up the presidency of the Palestinian Authority, because not fit to lead.
Such an impassioned call for criminal accountability expresses a populist demand that justice must finally be rendered by a court of law, and Palestinian victimisation authoritatively confirmed and vindicated by overwhelming evidence of Israel’s multi-dimensional criminality. It is the faith of those who believe that the ICC is a tribunal of justice and not an instrument used as a moralising convenience by power-wielders shielding their own greater criminality.
In practice, even if Palestine is accepted as a party to the ICC, and should the prosecutor, as seems unlikely, proceed to investigate, indict, and issue arrest warrants, the prospects of adjudication, conviction, and punishment are near zero. And yet the demand “sign or leave!” makes political sense. Legal literalism misses the point.
For one thing, since Israel so intensely opposes Palestine’s adherence to membership in the ICC, such an initiative should be presumed helpful for Palestinians. For another, mere recourse to the ICC would make a significant contribution to the struggle between Israel and Palestine for the high moral and political ground, generating commentary and dialogue.
We need to keep in mind that it is the outcome of this legitimacy struggle that will, in the end, likely decide this long conflict in favour of the Palestinians, as it has determined the outcome of every prior anti-colonial struggle of the last 70 years.
The BDS movement
And finally, such moves towards Palestinian control over the legitimacy discourse would help mobilise global support for the BDS (boycott, divestment and sanctions) campaign and an arms embargo on Israel. It will also push governments and the United Nations finally to support the Palestinian call for pressure on Israel, use leverage and non-violent coercion to obtain a sustainable peace that realises Palestinian rights under international law, especially, the right of self-determination and the right of return.
Palestinians have suffered for nearly a century as a result of what the international community decided on their behalf without seeking their approval, or even their consent. It is time that all of us, including those who act in solidarity, to be sure that it is the Palestinian national movement that decides what self-determination means for Palestinians.
At this stage, the most authentic expression of Palestinian views on a just peace is contained in the declaration of 2005 by a coalition of 171 Palestinian civil society organisations (NGOs and labour unions) that initiated the worldwide BDS campaign. BDS made three demands from the outset of its campaign:
- “Ending its occupation and colonization of all Arab lands and dismantling the Wall;
- Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and
- Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN Resolution 194.”
It is an illuminating commentary on the confusing political situation that it is the BDS leadership that is presently best able to serve as a more authentic and legitimate voice of the Palestinian people than either the Palestinian Authority or Hamas.
Palestinians may suffer from what has been widely identified as a leadership deficit, but this is being offset by an innovative surge of democracy from below, and how this might yet produce the first global intifada that will be the next, and hopefully, emancipatory stage in the Palestinian struggle.
Richard Falk is Albert G Milbank Professor Emeritus of International Law at Princeton University and Research Fellow, Orfalea Center of Global Studies. He is also Former UN Special Rapporteur on Palestinian human rights.