Q&A: Israel’s bloodlust shows international law is ‘a manipulated series of norms’

As the ongoing Israel-Palestine conflict enters its 24th day, claiming the lives of over 9,800 people – 8306 Palestinians and 1538 Israelis – Tel Aviv refuses to de-escalate and instead imposes disproportionate and indiscriminate violence on the besieged people of Gaza.

The scale of devastation caused by Israeli bombings in Gaza is horrifying. A small enclave of over two million Palestinians navigating back-breaking economic and social blockade for decades, Gaza has once again been subjected to collective punishment – Israel’s use of incendiary bombs on densely populated civilian areas amounts to war crimes.

In moments like these, when a staggering death toll of civilians isn’t significant enough to move the international community to use the same language of condemnation and criticism it has employed against Russia in light of the Ukraine conflict, Western leadership fails to convince the world about the uniformity of its much-touted "rules-based order".

Will Tel Aviv ever be held accountable for the crimes it has committed in Gaza?

In search of an answer, TRT World spoke to Richard Falk, Professor of International Law Emeritus at Princeton University and former UN Special Rapporteur on Israeli Violations of Palestinian human rights.

TRT WORLD: Considering over 56 years of occupation, an apartheid regime, and countless human rights violations in Palestine, in what ways have the global powers, especially the US, colluded with the Israeli state and enabled near-genocidal violence against Palestinians?

RICHARD FALK: No effective legal remedies have been available to the Palestinians. The UN should have the responsibility for implementing its own resolution passed in 1947, the so-called partition plan, which at least guaranteed the Palestinian people a state of their own in historic Palestine. Since then, the UN has been blocked in the Security Council by US and sometimes European vetoes; the rest of the UN can report on legal and moral wrongdoing concerning the Palestinian people, but it has no authority to implement its findings without a Security Council decision. The General Assembly is limited to making recommendations; even the International Court of Justice can only come to a decision requiring certain Security Council action to implement that decision to enforce it. So, the remedies provided by the international legal community in this situation are ineffective if a major actor, like the United States, is determined not to make Israel accountable to international law. And that's where we have been for all these years.

In its decades long occupation, Israel has never hesitated in using force, and the global powers have neither pressured Tel Aviv to withdraw from the occupied Palestinian territories nor warned it against using brute force. Shouldn't the international community's 'Responsibility to Protect' also apply to Palestine?

RF: Well, of course. I think the international community should have taken action already. It's past the point where one can treat this as a matter of internal Israeli security and reasonable response to the Hamas attack. So, the international community has failed up to this point to protect vulnerable people. It would be, politics aside, an ideal situation where a peace force under the norm of Responsibility to Protect (R2P) was established and made capable of maintaining peace and protecting the Palestinians over time. R2P empowers the UNSC to protect a vulnerable population, and of all the vulnerable people in the world, the Palestinians are, in many ways, foremost.

But again, without the political will of the permanent members of the Security Council, the UN cannot do anything that will effectively curtail Israeli violence, even at the limits of what we're now witnessing in its retaliation against the Hamas attack.

What about the international media? To what extent is it responsible for dehumanising Palestinians and justifying Israeli human rights abuses, which many argue amount to war crimes?

RF: Well, the international media is polarised in terms of this issue; the Western media and especially the US and UK, have been very one-sided in their approach to the ongoing violence, basically vindicating Israel's position that it is entitled to use whatever means or added disposal to destroy Hamas and until it perpetrates its leaders.

In my view, this is incompatible with the arrangement by which Gaza is an occupied territory, and Israel is the occupying power. The innocent civilian population of Gaza is around 2.3 million people, 76 percent of whom are refugees or descendants of refugees basically forced to leave their homes in the villages of southern Gaza in 1948 and denied their international legal right of return, which they've tried to challenge over the years by peaceful means without any success. It's one of the areas where international law is not implemented because of the abstraction created by geopolitical actors unwilling to implement the rights of the Palestinian people.

If the UN can support Ukraine's fight against Russia and the Western powers can wholeheartedly support the Ukrainian cause, why not the same response on Palestine? Are we facing a crisis of morality or the legality of human rights is being applied on a case-by-case basis, depending on the skin colour and religion of the oppressed?

RF: Well, there's no question about the difference in the treatment of the Russian attack on Ukraine and the Israeli attack on the people of Gaza. It exhibits double standards and moral and legal hypocrisy; in other words, Russia is held accountable, and Israel is given impunity. This suggests that international law isn't a framework for regulating states on some basis of equality, but it is a manipulated series of norms that serve the purposes of geopolitical actors. And when it's in their interest to enforce international law, they will be very self-righteous about their behaviour in condemning the violators. But if it's in their interest to support the violation of international law, then they will either be silent or, in this case, lend unconditional support to the government and country that is violating international law in the most extreme fashion.

The UN was originally established to promote peace and security, protect human rights, and uphold international law. Have the founding states of the UN undermined the institution because of power politics, or was the UN always meant to be an institution that serves the best interests of a select few members of the Security Council?

RF: Well, that's a very important and often overlooked question. The UN was designed to be weak in this regard; otherwise, the veto power given to the five most powerful countries in the world makes no sense. The effectiveness and the importance of the veto is to confer on these most dangerous and powerful states – the winners in World War 2, an unrestricted option of ignoring the UN Charter and ignoring international legal obligations whenever they clash with its strategic interests. So, there was no willingness to create a strong and effective war prevention institution when the UN was established, despite the language of the UN Charter and its preamble and public expectations.

Israel has always misused the term self-defence for more bloodletting, but does bombing towns and neighbourhoods into smithereens qualify as self-defence in the face of a few hundred gun-toting militants?

RF: The scope of self-defence is very contested in international law, so you can find legal authorities to support different interpretations of what is allowed. But it's not allowed to use high levels of force against the civilian population. Israel has been guilty over the years, but spectacularly in Gaza in the last three weeks, in using indiscriminate and disproportionate force that under any conditions, whether justified and rationalised, the self-defence or not, constitute a war crime.

Israel is the occupying power; it can't defend itself against itself. It's a real puzzle how the international discourse has accepted this misapplication of the idea of self-defence, which makes no sense, as I suggest in the occupation condition.

Should Israel be put on trial for war crimes in the International Criminal Court? If yes, what steps need to be taken? If not, why not?

RF: The answer is the absence of political will to prosecute Israel and the relative passivity of the International Criminal Court when it comes to holding major Western states legally accountable. It is true that neither Israel nor the United States are parties to the Rome Statute and are, therefore, not part of the International Criminal Court. But the court's authority is such that if Palestine, which is a party to the statute, has alleged that it is the victim of crimes committed on its territory, then the court is empowered to investigate, indict and prosecute.

And one supposes that an effort will be made in the aftermath of the present context. But one can't be too optimistic about achieving important results. That doesn't mean that it wouldn't be desirable to submit to the court's allegations, which by their nature would be convincing to organs of public opinion and civil society activists and play this important role in what I call symbolic politics, where the legitimacy of certain claims produces political effect.

Would you like to add anything else on this topic?

RF: This is a crisis moment for the world, for the peoples of the world, and for the government that does have the responsibility to stop behaviour of this kind. And just the word beyond this would be to say that many objective observers have noted that how Israel is using force against Gaza constitutes an ongoing genocide, which is itself considered the most serious of international crimes and, again, deserves a consensus of government and action by the UN to stop this kind of violent abuse of state power.