Richard Falk on International Law and Israel’s Illegal Occupation and Settlements

 

It recently dawned on me that when discussing the illegality of Israel’s 45-year-long military occupation of Palestine, some of you probably have no clue as to which binding resolutions are being referring to, or even that there are any legally binding resolutions on the books at all. Perhaps some of you thought that like-minded analysts of the matzvah are simply making it up.

This neverending, brutal, military occupation of apartheid is illegal as hell. Just the same as are the political assassinations, withholding of international aid, targeting of civilians and journalists, use of chemical weaponry, undeclared nuclear weapons of mass destruction, routine kidnapping, torture, and indefinite detention…all illegal. The very few Hamas or Hezbollah “terrorist” attacks, in comparison – or more accurately, in contrast – don’t hold a candle – neither in scope nor duration – to these heinous crimes which are standard operating procedure of the Israeli government. The last time i checked, occasionally striking back at a bully in retaliation, so long as it is not disproportionate to the crime, is not  illegal under international laws of war or occupation. As for the real  “terrorists”, we can always look to our own definition of the word (United States Code, ch. 18, sec. 2331):

 

(1) the term “international terrorism” means activities that—

(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;

(B) appear to be intended—

(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping

 

Two of the most well-known and flagrantly ignored articles that Israel is in flat and outright violation of – Geneva Convention Article 53, and UN Security Council Resolution 242. Commenting on Israel’s multiple policies of human rights infringement, former UN Special Rapporteur on Palestinian Human Rights and Princeton University’s Alfred G. Milbank Professor Emeritus of International Law and Practice, Richard Falk:

 

Jean Allain: Considering the plight of the Palestinians under Israeli occupation, you stated that Israel’s legal arguments fall short of “satisfying the test of persuasiveness” and that Israeli settlements are “flagrant violations” of applicable law. Could you maybe work through first of all what are the fundamental precepts of humanitarian law that would hold in Palestine?

Richard Falk: Essentially, the conditions governing belligerent occupation, for one thing, would require that Israel accept the Geneva Convention’s framework. One of the cardinal provisions in that framework, Article 53, does not allow for population transfers, and that’s very fundamental to the nature of a legitimate argument. Also, the underlying problem of the occupation is that it was carried out in defiance of UN Security Council Resolution 242, which calls for withdrawal. The persistence and the refusal to heed those resolutions created an underlying condition of illegality to the occupation.

But the establishment of the settlements and armed settlements in an occupied territory, combined with the imposition of collective punishment of the Palestinian inhabitants, demolition of houses, prolonged detention, and torture under conditions of detention, almost acknowledgement of torture as a practice for eliciting information, creates a long litany of flagrant violations, both of international humanitarian and human rights law, based on the fundamental protection of human rights.

 

From an introduction:

“Aware of the type of criticism that would be leveled against those who examined Israeli acts from the perspective of those that they affect, and not from the statist model, Falk has embarked upon a number of studies related to Israel’s illegal occupation of the West Bank and the Gaza Strip. In a 1988 symposium on Palestinian refugees, Falk pointed to the fact that Palestinians suffer a number of calamities, “most basic of all, of the hostile and brutally sustained occupation of their own homeland.” Falk considers in detail the extent of the violations in the occupied territories and concludes: “Israel is predominantly and flagrantly in violation of the most fundamental humanitarian standards of international law,” and that Israel’s legal arguments fall short of “satisfying tests of persuasiveness.” He argues that the number and prolonged nature of such violations goes beyond incurring the responsibility of the state for illegal acts and suggests “the appropriateness of supplementing the language of illegality with the language of criminality.” In this manner, he notes that those responsible for such policies in Gaza and the West Bank should be held criminally liable for their actions.

In a panel discussion held the same year, Falk turned his attention to Israeli settlements on the West Bank and concludes that they represent “a massive, continuing violation of the laws of war.” Falk considers briefly attempts by certain international lawyers to challenge the “overwhelming consensus of experts and governments” who support the view that the settlements “flagrantly” violate applicable international law. As he notes, such arguments “are so strained and artificial in character as to hardly be worth detailed refutation.” He then goes on to consider attempts by Israel to establish facts on the ground, disregarding the rights of the local inhabitants, and thus reinforcing “the impression of the impotence of international law.” Falk then considers the manner in which international law can play a role in the peace process. He notes that law may clarify the content of a “reasonable and fair solution” based on the right of the civilian population to “retain the social integrity of their territory once occupation is ended.” Further, he adds that international law requires the removal of the settlements, and thus “embodies an indispensable substantive precondition of an acceptable peace process.” He argues that while full compensation to the settlement activities may be used as a “bargaining chip” during negotiations, it should not stand in the way of the “most vital claim”: the end of the Israeli occupation.

Falk’s expertise on the occupied territories was recognized by the United Nations in 2000 when he was asked by the Commission on Human Rights to participate in an inquiry examining the violation of human rights law in the occupied territories as a result of the Al Asqa Intifada. In a section entitled “Clarifying the Context: Illusion and Reality,” the Commission pointed out that the “commitment to objectivity does not imply a posture of ‘neutrality’ with respect to addressing the merits of the controversies concerning alleged violations of human rights and international humanitarian law. Judgments can and must be made.” As such, the Commission, headed by John Dugard and comprising Falk and Kamal Hossain, concluded in March 2001 that it was “incontestable that the Israeli Security Forces (the Israeli Defense Forces and the Israeli Police Force) have used excessive and disproportionate force from the outset of the second intifada, whether their conduct is measured by: the standards of international humanitarian applicable to armed conflict, the codes of conduct applicable to policing in situations no amounting to armed conflict, or, by the open-fire regulations binding upon members of the Israeli Security Forces.” The report of the Commission highlights the Israeli policy of targeting specific individuals for political assassinations, the Israeli settlements in the occupied territories, and the deprivation of economic and social rights as a result of collective punishments.

When speaking in a personal capacity about the findings of the Commission, Falk said that “you only need to have a 20 percent open mind in order to reach these conclusions that are critical of Israel on the main issues of international law and human rights.” Falk notes that the frustration of the Palestinian people derives from two sources: the first is the oppression at the hands of the Israelis that permeates the totality of everyday life. The second is a response to a leadership that is perceived as having, for all intents and purposes, abandoned the Palestinian cause. While Israelis saw the 2000 Camp David Agreement as a major concession, the Palestinians, as Falk points out, saw it as “a bad bargain.” It failed in fundamental respects to deal with the creation of a viable sovereign Palestine, failed to deal with the refugee issue, failed to share rights to Jerusalem on an equal basis, failed to address the threat or irritant of persistent settlements.” At its most basic level, the first intifada appears to have been a manifestation of the popular will to fight oppression as well as a demand from its leadership that the struggle bear fruit.”

 

Richard Falk is the Albert G. Milbank Professor Emeritus of International Law and Practice at Princeton University. He is also a New York-raised (assimilationist) Jew.

 

Allain, J (ed.) (2003). Unlocking the Middle East: the writings of Richard Falk. New York; Olive Branch Press

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