Richard Falk the UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. In 2001 Falk served on a United Nations High Commissioner for Human Rights (OHCHR) Inquiry Commission for the Palestinian territories with John Duggard. He is also an American Professor Emeritus of International Law at Princeton University with a long and distinguished career in academics, politics and law. He recently gave this exclusive and revealing interview to Intifada Palestine’s Elias F. Harb .
Navi Pillay, the UN Human Rights Chief described the Israeli blockade on Gaza as “illegal and must be lifted” and accused Israel of Violating International Humanitarian Law, Also the head of UNRWA operation in Gaza, John King, had called upon the UN itself to begin defying the blockade and deliver humanitarian assistance since the blockade is a flagrant direct violation of Article 33 of the Fourth Geneva Convention that prohibits collective punishment. The state of Israel has stated that the blockade of Gaza is for security purposes; although it is imposing Collective Punishment on 1.5 million, which is a breach of international law and a war crime – Editor Elias Harb
Richard Falk
EH: Professor Falk, what is the legality of the Israeli blockade in Gaza in accordance with the San Remo Manual on International Law applicable to armed conflicts at Sea?
RF: The San Remo Manual was drafted by a series of experts and former diplomats over a period between 1987 and 1994 to provide guidance as to the use of force on the oceans and other international waters. The Manual is not a legal document, but represents an informed opinion on the agreed content of customary international law applicable to combat situations, to some extent declaratory of existing international law and to a degree expressive of desirable developments to deal reasonably with activities not addressed by past practice. Because there is no treaty law on the subject the San Remo Manual has had a certain influence.
Although it is always possible for partisan legal experts to provide an opinion favouring one side, an impartial reading of the Manual makes it clear that the Israeli naval attack on the Freedom Flotilla was unlawful by its provisions. For instance, Article 47 (c)(3)(ii) of the Manual exempts vessels from attack if “engaged in humanitarian missions, including vessels carrying supplies indispensable for the survival of the civilian population.” In more general terms, the San Remo Manual, Articles 36-42 underscores the obligation of any attack at sea to be aimed solely at strictly military targets, and to take precautions to ensure that civilians are not harmed. In the instance of the May 31st naval attack it was widely known that these ships were on a humanitarian mission, that the civilian population of Gaza had long been deprived of food, medicine, and building materials necessary for their normal life.
The Manual somewhat controversially does authorize the establishment of a blockade under certain wartime conditions. It is controversial as the UN Charter prohibits all uses of force that cannot be associated with self-defence against a prior armed attack (Article 2(4), 51), and a blockade of Gaza would seem unlawful for this reason. Even if not, given Articles 93-101, this blockade would be unlawful under the Manual given Article 102(b), which prohibits a blockade if “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.” This blockade, established as of June 2007, has been designed mainly to keep food, medical supplies, and fuel from the civilian Gazan population, with severe adverse health consequences. The alleged military objective of preventing the importation of weaponry was adequately addressed by Israel border control. It was widely acknowledged by Israeli leaders over the period that the purpose of the blockade was punitive, either to punish the population for voting for Hamas in the 2006 elections or to cause the collapse of Hamas because the civilian population would rather have the blockade ended than suffer the hardships imposed in retaliation for Hamas governance. Neither justification provides a valid legal basis for establishing the blockade.
There are also a series of technical problems. Gaza according to the international community is occupied territory subjecting Israel to the duty to uphold the protection of the civilian population. A blockade can only be declared in relation to an enemy state, and thus Gaza cannot be lawfully blockaded in relation to other states or the United Nations.
Finally, even if the blockade were to be considered lawful from the perspective of armed conflict, it would be unlawful, even a crime against humanity, under Article 33 of the Fourth Geneva Convention, which unconditionally prohibits collective punishment. In short, Israel has no legal basis for claiming a right to establish a blockade of the Gaza Strip, and thus any attempt to enforce compliance is itself an act of aggression against the state whose flag is flying on the ship attacked. Here the criminality of the Israeli behavior is intensified by the use of excessive and disproportionate force, by the execution of several peace activists who were captured, by the terroristic nature of the boarding at night, firing live ammunition at peace activists, and coercively and abusively removing activists from the ships and holding them in detention, and confiscating their personal goods including records of the attacks.
EH: Do passengers have the legal right to sue the State of Israel for the Attack on the Flotilla?
RF: A civil suit by the passengers against the perpetrators or the responsible Israeli political and military officials associated with the attack or its authorization could certainly be initiated in several states, including New York. The United States has an old law, the Tort Claims Act that allows victims to sue for damages; it has been used to pursue a security officer alleged to have engaged in torture carried out in Paraguay. Other countries have similar laws, and it is necessary to examine what is possible in each place.
EH: Israel says that the blockade is for Security reasons, how do you respond to that?
RF: Israel as the occupying power can act to uphold it security in Gaza, but this was being done successfully in a variety of ways. The contention that these boats in the Flotilla were carrying weaponry was clearly known by the Israeli government to be false as the ships had been credibly inspected before departing from their various ports of embarkation. As indicated above, Israel cannot establish a blockade in circumstances where the civilian population is enduring hardships on a catastrophic scale. Also, there were almost no serious incidence of violence emanating from Gaza in the months preceding the attack.
EH: In terms of the people on board the Flotilla, Israel is saying that those on board the ships were violent activists not humanitarians and that they were armed with weapons and was not peaceful people? How would you respond to that?
RF: Israel’s narration of the facts seems flawed, an exercise in disinformation. Furthermore, given an attack at night from the air is bound to give rise to impulses among the passengers to do whatever was possible to protect themselves. If, as I believe, the attack was unlawful, then the passengers had a right of self-defence, and certainly not the other way around.
EH: In accordance with International Law could the Israeli attack on the Gaza Aid Flotilla be considered an act of War?
RF: It is certainly an act of aggression under the UN Charter, and an act of war by reference to customary international law. Whenever force is used in situations other than a proper claim of self-defence, the undertaking is unlawful, and if as here, it is flagrant, the attacker is engaged in criminal conduct and should be held personally accountable.
EH: Why hasn’t the UN moved using the framework of International law and Geneva?
RF: International law has the mechanisms to enforce international law against Israel, the law is on its side, but it lacks the political will within its institutional framework. The United States, has long protected Israel and its leadership from accountability in relation to international law, and continues to do so. It manages to do this effectively despite mounting pressures to end this regime of Israeli impunity. The UN can do no more or less than what its most powerful member states propose. The main challenge to Israeli capacity now comes from civil society. Israel has itself indicated its concerns about ‘the delegitimation project’ taking various forms, especially the BDS(Boycott, Divestment and Sanctions) Campaign. Such pressures from below have led governments to complain vigorously, and for the first time, about the Israeli blockade of Gaza, leading Israel to relent somewhat. Whether the amounts involved are pretty minor.
EH: It seems that the U.N. Security Council remains politically impotent and refuses to penalize Israel for the killings of nine pro-Palestinian civilians on a ship carrying humanitarian aid to Gaza, what is the next course of action? How do you respond to that?
RF: The initial response is the same as to the prior question. Turkey has already made public its grievances, including to the UNSC of which it is a member. It would be desirable, in the event that the UN cannot take action, that citizens around the world organize their own tribunal, document the facts on the basis of evidence, interpret the law in an impartial spirit, and urge compliance with the guidelines of the BDS campaign.
EH: Has Israel Violated Article 3 of the Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988?
RF: It depends on whether SUA is interpreted to extend to ‘state terrorism’ of the sort illustrated by the May 31st attacks. It was negotiated an adopted as a response to the Achille Lauro incident of non-state attack. The language of Article 3 certainly would seem to describe the unlawful conduct of the attackers except for the technical difficulty arising from their status deriving from acting as agents of the state of Israel. Article 3(1)(b) seems substantively relevant to establish criminality as it declares that “any person commits an offense if that person unlawfully and intentionally performs an act of violence against a person on board a ship is that act is likely to endanger the safe navigation of that ship.” Also Article 3(1)(g) and Article 3(2) reinforce this impression of unlawful conduct by the May 31st attackers. There is no good reason of law or policy as to why the SUA Convention, to which Israel is a party, should not also apply to state terrorism.
EH: Israel states that Maritime blockades are a legitimate and recognized measure under International law and may be implemented as part of an armed conflict at Sea, what are your thoughts?
RF: For reasons given above, this blockade is neither legitimate nor legal. Its principal overriding purpose was to harm the civilian population. Whatever security concerns were present did not require a blockade to address, and the blockade is not an acceptable means, in any event, of achieving security, especially under conditions of occupation.
EH: According to Israeli sources, Israel will conduct an investigation on the Gaza flotilla incident and it is not necessary for an International Inquiry. How do you respond to that?
RF: Such an investigation lacks credibility for several reasons. Past investigations, for instance, of criminal allegations arising from the Israeli attacks of Dec 27 2008 to Jan 18 2009 produced an investigation that was a complete whitewash, and failed to address analysis and conclusions of the international inspection as contained in the Goldstone Report. Here the prospects of impartiality and credibility are no better. The Israeli leadership has already pronounced on the legality of the attacks, and has tasked the inquiry commission to validate those claims; furthermore, according to the Israeli mandate, evidence cannot be obtained by questioning the soldiers involved in the attacks, making it impossible to obtain a convincing account of the events. Finally, the vicious personal attacks launched against Richard Goldstone, a lifelong Zionist, would intimidate anyone who in this instance might reach conclusions critical of Israel on legal, moral, and political grounds.
EH: Do you believe in a global civil society campaign to de-legitimize Israel?
RF: Yes, I think the shock resulting from the May 31st attacks have reinforced the campaign to de-legitimize Israel. The aftermath of these attacks demonstrates the effectiveness of the tactics of delivery of humanitarian goods by sea of the Freedom Flotilla, and before it of the Free Gaza Movement. All along the organizers declared their intention to breach the blockade symbolically, mainly to call attention to the criminality of the blockade and the suffering it was causing. Since May 31st as a result of the outpouring of censure and grassroots anger, pressures are leading Israel to take steps to abandon the blockade, or at least to modify it so that humanitarian goods can enter Gaza unimpeded. In effect, civil society achieved what governments and the UN was unable or unwilling to do. The global Palestine solidarity movement is now threatening Israel’s legitimacy, especially in relation to the occupation, in a manner that has not existed since 1967.
EH: Many believe that the US has lost its influence as an honest broker in the Middle East Peace process. How do you respond to that?
RF: It was always a sign of Palestinian weakness to accept the US as the intermediary. The USG makes no secret of its unconditional support for Israel, and Israel in any event has the bargaining advantages associated with their policies of ‘creeping annexation’ (settlements, residence requirements, house demolitions, ethnic cleansing) that has allowed it to exclude issues of Palestinian rights under international law to be excluded from the diplomatic interactions encompassed by ‘the peace process’ (better understood as an ‘annexation process.’). This reliance on the US is comparable to a husband insisting that his law partner determine the terms of a divorce settlement with his estranged and impoverished wife.
EH: Lastly, It has been one year since President Obama’s Speech to the Muslim World, what are your reflections on the aftermath of that speech as far as accomplishments in narrowing the gap between the U.S. and the Muslim World?
R.F: I think the speech, with its lofty rhetoric, has completely failed to improve the situation. As said, ‘actions speak louder than words.’ Here there was no backbone evident, but only some Obama sentiments that dissolved as soon as challenged. Actually, Obama did not offer much tangibly to the Palestinians, but what he did propose (a freeze on all settlement construction) was challenged by Tel Aviv, and dropped by Washington. The correct impression is essential continuity with the Bush presidency, with ‘special operations’ forces operating unlawfully throughout the Islamic world, and a gruesome escalation of warfare in Afghanistan bringing much suffering. The USG during the Obama presidency has not abandoned its imperial ambitions or approach with respect to the Middle East, and offers no hope to the Palestinian people in their ongoing struggle for self-determination. Only the de-legitimation movement creates some hope that the Palestinian struggle is beginning to resemble the anti-apartheid struggle during its last stages. Whether this civil society success can produce a political outcome that brings peace with justice remains to be seen.
EH: Thank you Professor Falk.
Navi Pillay, the UN Human Rights Chief described the Israeli blockade on Gaza as “illegal and must be lifted” and accused Israel of Violating International Humanitarian Law, Also the head of UNRWA operation in Gaza, John King, had called upon the UN itself to begin defying the blockade and deliver humanitarian assistance since the blockade is a flagrant direct violation of Article 33 of the Fourth Geneva Convention that prohibits collective punishment. The state of Israel has stated that the blockade of Gaza is for security purposes; although it is imposing Collective Punishment on 1.5 million, which is a breach of international law and a war crime – Editor Elias Harb
Richard Falk
EXCLUSIVE INTERVIEW – With Prof. Richard Falk
by Elias Harb – Editor Intifada Palestine
EH: Professor Falk, what is the legality of the Israeli blockade in Gaza in accordance with the San Remo Manual on International Law applicable to armed conflicts at Sea?
RF: The San Remo Manual was drafted by a series of experts and former diplomats over a period between 1987 and 1994 to provide guidance as to the use of force on the oceans and other international waters. The Manual is not a legal document, but represents an informed opinion on the agreed content of customary international law applicable to combat situations, to some extent declaratory of existing international law and to a degree expressive of desirable developments to deal reasonably with activities not addressed by past practice. Because there is no treaty law on the subject the San Remo Manual has had a certain influence.
Although it is always possible for partisan legal experts to provide an opinion favouring one side, an impartial reading of the Manual makes it clear that the Israeli naval attack on the Freedom Flotilla was unlawful by its provisions. For instance, Article 47 (c)(3)(ii) of the Manual exempts vessels from attack if “engaged in humanitarian missions, including vessels carrying supplies indispensable for the survival of the civilian population.” In more general terms, the San Remo Manual, Articles 36-42 underscores the obligation of any attack at sea to be aimed solely at strictly military targets, and to take precautions to ensure that civilians are not harmed. In the instance of the May 31st naval attack it was widely known that these ships were on a humanitarian mission, that the civilian population of Gaza had long been deprived of food, medicine, and building materials necessary for their normal life.
The Manual somewhat controversially does authorize the establishment of a blockade under certain wartime conditions. It is controversial as the UN Charter prohibits all uses of force that cannot be associated with self-defence against a prior armed attack (Article 2(4), 51), and a blockade of Gaza would seem unlawful for this reason. Even if not, given Articles 93-101, this blockade would be unlawful under the Manual given Article 102(b), which prohibits a blockade if “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.” This blockade, established as of June 2007, has been designed mainly to keep food, medical supplies, and fuel from the civilian Gazan population, with severe adverse health consequences. The alleged military objective of preventing the importation of weaponry was adequately addressed by Israel border control. It was widely acknowledged by Israeli leaders over the period that the purpose of the blockade was punitive, either to punish the population for voting for Hamas in the 2006 elections or to cause the collapse of Hamas because the civilian population would rather have the blockade ended than suffer the hardships imposed in retaliation for Hamas governance. Neither justification provides a valid legal basis for establishing the blockade.
There are also a series of technical problems. Gaza according to the international community is occupied territory subjecting Israel to the duty to uphold the protection of the civilian population. A blockade can only be declared in relation to an enemy state, and thus Gaza cannot be lawfully blockaded in relation to other states or the United Nations.
Finally, even if the blockade were to be considered lawful from the perspective of armed conflict, it would be unlawful, even a crime against humanity, under Article 33 of the Fourth Geneva Convention, which unconditionally prohibits collective punishment. In short, Israel has no legal basis for claiming a right to establish a blockade of the Gaza Strip, and thus any attempt to enforce compliance is itself an act of aggression against the state whose flag is flying on the ship attacked. Here the criminality of the Israeli behavior is intensified by the use of excessive and disproportionate force, by the execution of several peace activists who were captured, by the terroristic nature of the boarding at night, firing live ammunition at peace activists, and coercively and abusively removing activists from the ships and holding them in detention, and confiscating their personal goods including records of the attacks.
EH: Do passengers have the legal right to sue the State of Israel for the Attack on the Flotilla?
RF: A civil suit by the passengers against the perpetrators or the responsible Israeli political and military officials associated with the attack or its authorization could certainly be initiated in several states, including New York. The United States has an old law, the Tort Claims Act that allows victims to sue for damages; it has been used to pursue a security officer alleged to have engaged in torture carried out in Paraguay. Other countries have similar laws, and it is necessary to examine what is possible in each place.
EH: Israel says that the blockade is for Security reasons, how do you respond to that?
RF: Israel as the occupying power can act to uphold it security in Gaza, but this was being done successfully in a variety of ways. The contention that these boats in the Flotilla were carrying weaponry was clearly known by the Israeli government to be false as the ships had been credibly inspected before departing from their various ports of embarkation. As indicated above, Israel cannot establish a blockade in circumstances where the civilian population is enduring hardships on a catastrophic scale. Also, there were almost no serious incidence of violence emanating from Gaza in the months preceding the attack.
EH: In terms of the people on board the Flotilla, Israel is saying that those on board the ships were violent activists not humanitarians and that they were armed with weapons and was not peaceful people? How would you respond to that?
RF: Israel’s narration of the facts seems flawed, an exercise in disinformation. Furthermore, given an attack at night from the air is bound to give rise to impulses among the passengers to do whatever was possible to protect themselves. If, as I believe, the attack was unlawful, then the passengers had a right of self-defence, and certainly not the other way around.
EH: In accordance with International Law could the Israeli attack on the Gaza Aid Flotilla be considered an act of War?
RF: It is certainly an act of aggression under the UN Charter, and an act of war by reference to customary international law. Whenever force is used in situations other than a proper claim of self-defence, the undertaking is unlawful, and if as here, it is flagrant, the attacker is engaged in criminal conduct and should be held personally accountable.
EH: Why hasn’t the UN moved using the framework of International law and Geneva?
RF: International law has the mechanisms to enforce international law against Israel, the law is on its side, but it lacks the political will within its institutional framework. The United States, has long protected Israel and its leadership from accountability in relation to international law, and continues to do so. It manages to do this effectively despite mounting pressures to end this regime of Israeli impunity. The UN can do no more or less than what its most powerful member states propose. The main challenge to Israeli capacity now comes from civil society. Israel has itself indicated its concerns about ‘the delegitimation project’ taking various forms, especially the BDS(Boycott, Divestment and Sanctions) Campaign. Such pressures from below have led governments to complain vigorously, and for the first time, about the Israeli blockade of Gaza, leading Israel to relent somewhat. Whether the amounts involved are pretty minor.
EH: It seems that the U.N. Security Council remains politically impotent and refuses to penalize Israel for the killings of nine pro-Palestinian civilians on a ship carrying humanitarian aid to Gaza, what is the next course of action? How do you respond to that?
RF: The initial response is the same as to the prior question. Turkey has already made public its grievances, including to the UNSC of which it is a member. It would be desirable, in the event that the UN cannot take action, that citizens around the world organize their own tribunal, document the facts on the basis of evidence, interpret the law in an impartial spirit, and urge compliance with the guidelines of the BDS campaign.
EH: Has Israel Violated Article 3 of the Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988?
RF: It depends on whether SUA is interpreted to extend to ‘state terrorism’ of the sort illustrated by the May 31st attacks. It was negotiated an adopted as a response to the Achille Lauro incident of non-state attack. The language of Article 3 certainly would seem to describe the unlawful conduct of the attackers except for the technical difficulty arising from their status deriving from acting as agents of the state of Israel. Article 3(1)(b) seems substantively relevant to establish criminality as it declares that “any person commits an offense if that person unlawfully and intentionally performs an act of violence against a person on board a ship is that act is likely to endanger the safe navigation of that ship.” Also Article 3(1)(g) and Article 3(2) reinforce this impression of unlawful conduct by the May 31st attackers. There is no good reason of law or policy as to why the SUA Convention, to which Israel is a party, should not also apply to state terrorism.
EH: Israel states that Maritime blockades are a legitimate and recognized measure under International law and may be implemented as part of an armed conflict at Sea, what are your thoughts?
RF: For reasons given above, this blockade is neither legitimate nor legal. Its principal overriding purpose was to harm the civilian population. Whatever security concerns were present did not require a blockade to address, and the blockade is not an acceptable means, in any event, of achieving security, especially under conditions of occupation.
EH: According to Israeli sources, Israel will conduct an investigation on the Gaza flotilla incident and it is not necessary for an International Inquiry. How do you respond to that?
RF: Such an investigation lacks credibility for several reasons. Past investigations, for instance, of criminal allegations arising from the Israeli attacks of Dec 27 2008 to Jan 18 2009 produced an investigation that was a complete whitewash, and failed to address analysis and conclusions of the international inspection as contained in the Goldstone Report. Here the prospects of impartiality and credibility are no better. The Israeli leadership has already pronounced on the legality of the attacks, and has tasked the inquiry commission to validate those claims; furthermore, according to the Israeli mandate, evidence cannot be obtained by questioning the soldiers involved in the attacks, making it impossible to obtain a convincing account of the events. Finally, the vicious personal attacks launched against Richard Goldstone, a lifelong Zionist, would intimidate anyone who in this instance might reach conclusions critical of Israel on legal, moral, and political grounds.
EH: Do you believe in a global civil society campaign to de-legitimize Israel?
RF: Yes, I think the shock resulting from the May 31st attacks have reinforced the campaign to de-legitimize Israel. The aftermath of these attacks demonstrates the effectiveness of the tactics of delivery of humanitarian goods by sea of the Freedom Flotilla, and before it of the Free Gaza Movement. All along the organizers declared their intention to breach the blockade symbolically, mainly to call attention to the criminality of the blockade and the suffering it was causing. Since May 31st as a result of the outpouring of censure and grassroots anger, pressures are leading Israel to take steps to abandon the blockade, or at least to modify it so that humanitarian goods can enter Gaza unimpeded. In effect, civil society achieved what governments and the UN was unable or unwilling to do. The global Palestine solidarity movement is now threatening Israel’s legitimacy, especially in relation to the occupation, in a manner that has not existed since 1967.
EH: Many believe that the US has lost its influence as an honest broker in the Middle East Peace process. How do you respond to that?
RF: It was always a sign of Palestinian weakness to accept the US as the intermediary. The USG makes no secret of its unconditional support for Israel, and Israel in any event has the bargaining advantages associated with their policies of ‘creeping annexation’ (settlements, residence requirements, house demolitions, ethnic cleansing) that has allowed it to exclude issues of Palestinian rights under international law to be excluded from the diplomatic interactions encompassed by ‘the peace process’ (better understood as an ‘annexation process.’). This reliance on the US is comparable to a husband insisting that his law partner determine the terms of a divorce settlement with his estranged and impoverished wife.
EH: Lastly, It has been one year since President Obama’s Speech to the Muslim World, what are your reflections on the aftermath of that speech as far as accomplishments in narrowing the gap between the U.S. and the Muslim World?
R.F: I think the speech, with its lofty rhetoric, has completely failed to improve the situation. As said, ‘actions speak louder than words.’ Here there was no backbone evident, but only some Obama sentiments that dissolved as soon as challenged. Actually, Obama did not offer much tangibly to the Palestinians, but what he did propose (a freeze on all settlement construction) was challenged by Tel Aviv, and dropped by Washington. The correct impression is essential continuity with the Bush presidency, with ‘special operations’ forces operating unlawfully throughout the Islamic world, and a gruesome escalation of warfare in Afghanistan bringing much suffering. The USG during the Obama presidency has not abandoned its imperial ambitions or approach with respect to the Middle East, and offers no hope to the Palestinian people in their ongoing struggle for self-determination. Only the de-legitimation movement creates some hope that the Palestinian struggle is beginning to resemble the anti-apartheid struggle during its last stages. Whether this civil society success can produce a political outcome that brings peace with justice remains to be seen.
EH: Thank you Professor Falk.
Uprooted Palestinian
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