Richard Falk, Emeritus Professor of international law at Princeton University and the United Nations Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967” from 2008 to 2013, is interviewed by Ahmed Abbes, Mathematician, director of research at CNRS in Paris [National Center for Scientific Research], on the occasion of the 13th Anniversary of the Boycott, Divestment and Sanctions (BDS) movement. This interview was also published today in French.

Ahmed Abbes: On 9 July 2004, the International Court of Justice issued an Advisory Opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.” What were the main points and what is the legal value and importance of this Opinion?

Richard Falk: This important Advisory Opinion of the International Court of Justice centered on the question of whether Israel under international law had the legal right to construct this security wall on occupied Palestinian territory. By a decisive 14-1 vote the Court concluded that the location of the wall was decisive from a legal point of view, and in view of the unlawfulness of the wall, it should be forthwith dismantled and Palestinians compensated for the harm done. Although labeled ‘Advisory’ the judgment rendered is an authoritative statement of the relevant international law, and even the one dissenting judge, not surprisingly the American member of the bench, largely shared the views of the majority, but dissented because it was technically possible that Israel could make a case for an exception based on extraordinary security justifications for disregarding the rule prohibiting encroachments on occupied territory, and such a possibility should have been investigated.

In some ways, more important even that this repudiation of the wall, with the implication that it was so located for permanent land-grabbing purposes, was the clear case of Israel’s defiant attitude toward international law and international institutions, in this instance, the World Court, the highest judicial body in the UN System. The 14-1 vote of judges drawn from a range of jurisprudential, civilizational, and ideological backgrounds is evidence of an unusually strong consensus on the legal issues, which is quite rare in the practice of this court, and the interaction between this consensus and Israel’s defiance sheds light on a much wider set of issues for which Israel acts in violation of Palestinian rights under international law and suffers no serious adverse consequences. Such a pattern has the general effect of weakening respect for international law, and indeed the UN overall.

AA: One year later, on 9 July 2005, Palestinian Civil Society called for Boycott, Divestment and Sanctions against Israel until it complies with International Law and Universal Principles of Human Rights. In your conference last September in La Fête de l’Humanité in Paris, you said that “BDS is not only an essential instrument in changing these power relations, it’s the only viable instrument for doing so at this time. And anyone who feels a sense of responsibility to liberate the Palestinian people from the ordeal that they are daily suffering has no excuse for not supporting BDS.” What is BDS and why do you think it so important in changing the power relations in the Israeli-Palestinian conflict?

RF: After more than 70 years of intergovernmental failure to produce a sustainable and just peace it is to acknowledge that governments and the UN lack the capabilities and political will to find a solution in the present climate of regional and global power relations. Israel is defiant and strong, and the Zionist agenda is expansionist in ways that undermine the possibility of a two-state solution even if the political will were now present. Decades of settlement growth, itself a violation of Article 49(6) of the 4th Geneva Convention governing belligerent occupation is sufficient on its own to make implausible a truly sovereign Palestine that alone would satisfy the right of self-determination of the Palestinian people even assuming their acceptance of the partition of their homeland. The only hope for the realization of Palestinian rights is for the climate to change in ways that exert enough pressure on Israel to lead its governing elites to recalculate their interests or to organize a future for both Israelis and Palestinians the basis of their respective rights under international law. Such a development would presuppose a repudiation of the maximalist goals of the Zionist Project that presently seeks a Jewish state coterminous with its conception of ‘the promised land,’ a grandiose vision that incorporates all of Jerusalem and the West Bank into a fantasy depiction of biblical Israel. Such a religiously grounded view of self-determination for the Jewish people, validated in Jewish tradition, is not acceptable in modern international law. The right of self-determination if properly implemented reflects the aspirations of the majority resident population, which in this instance was brutally and catastrophically dispossessed in 1948, the nakba, and ever since denied this most fundamental and encompassing of human rights. Making matters were for the Palestinian people the nakba became a process as well as an event resulting in the confinement of several million Palestinians in refugee camps for more than 70 years with no end in sight and for many others enduring conditions of involuntary exile that has accentuated the vulnerability of a homeless people.

Against this background, the decades of failure by the UN and more traditional diplomacy, dramatized by the more than 25 years of highly visible futility as peace was pursued within the Oslo Framework in ways that favored Israeli expansionism and continuously diminished Palestinian prospects for a just peace, it should be obvious to any fair minded observer that only a militant global solidarity movement that exerts substantial pressure on Israel can have any realistic hope of changing the balance of forces sufficiently to produce a peaceful outcome for both peoples. The launch of the BDS movement as a collective initiative of the Palestinian NGO community gave its blessings some years ago to such an approach, and through its efforts there exists mounting pressure on Israel and activism in support of the Palestinian struggle throughout global civil society, including in the U.S. and Europe. Israel’s frantic efforts to brand BDS and its supporters as ‘anti-Semitic’ is a sign of desperation, and an expression of how successful BDS has been and could be. Seeking to criminalize support for BDS and deny entry to Israel of its active supporters is a step that even racist South Africa never took in opposing a similar transnationally organized solidarity movement, which although nonviolent was unconditional in its demands for fundamental transformation of state/society relations based on the decriminalization of the oppressive structures of its racist apartheid regime. If BDS continues to gain momentum around the world, and especially in the West, it will strengthen the will of governments to do the right thing, and gain sufficient momentum to shake the foundations of the Zionist insistence on a Jewish state in what is still essentially a non-Jewish society.

It is important on this 13th anniversary of the BDS Campaign to appreciate several of its most notable achievements even in the face of an early period of mainstream neglect and a more recent experience of frenzied opposition: (1) BDS originated in 2005 on the basis of a call made by a large coalition of Palestinian civil society actors, thereby joining a resistance undertaking to a vital role for the global solidarity movement; (2) Unlike many other sincere solidarity initiatives, BDS has not only persisted over many years, but has grown significantly, as acknowledged by the more intense effort in recent years to take seemingly desperate measures to suppress support and even blacklist activists; (3) Legislative and administrative attempt to punish BDS organizers and activists for participation in a nonviolent activity that seeks as its major goal the rights of the Palestinian people under international law violates democratic values and discourages peaceful pursuit of rights; (4) It seems significant both that South Africa endorses BDS, and that the reaction of liberal democracies in the North to the BDS anti-apartheid campaign never engaged in such punitive pushback despite the strategic ties of the United States and the United Kingdom to the apartheid regime governing South Africa; (5) Looking forward, the continuing pressure exerted by BDS offers the best hope for the attainment of peace and justice for both Palestinians and Jews, and deserves added support given the failures of intergovernmental diplomacy and the UN to succeed in their efforts to find a sustainable peace, or to offer any hope of ending the Palestinian daily ordeal.

AA: On 15 March 2017, you published with Virginia Tilley a report « Israeli Practices towards the Palestinian People and the Question of Apartheid ». What was the purpose of this report commissioned by the United Nations Economic and Social Commission for Western Asia (ESCWA)? What are its main conclusions ?

RF: The ESCWA Report responded to various suggestions by leading political figures and concerned persons in the Middle East that it was important to arrange a comprehensive academic investigation of the allegations that Israel had become an apartheid state, and as such violated the 1973 International Convention on the Crime of Apartheid. I was invited to prepare such a report, and I solicited Virginia Tilley to join me in the effort as she was known and respected worldwide as a specialist on apartheid in South Africa, and the kind of racism involved in establishing and maintaining such structures. We investigated the evidence as objectively as possible, realizing that we were not a judicial body empowered to reach a legally binding outcome, and that our analysis was ours alone, and not necessarily reflective of UN views, or even of those of ESCWA. The report contained a disclaimer to this effect. At the same time, this was the first serious exploration of the apartheid allegations that had been loosely asserted by Palestinian activists in recent years, but never really assessed in terms of the evidence of Israeli intentionality as embodied in the policies and practices by which the Palestinians were repressed and the challenges of their resistance harshly suppressed.

The report has several sets of conclusions that we believe are significant: (1) it makes the claim that the Israeli structure of apartheid applies to the Palestinian people as a whole and not just to those Palestinians living under occupation in the West Bank, Gaza, and Jerusalem. This inclusive view of apartheid extended the scope of inquiry to include Palestinian refugees in neighboring countries, the Palestinian minority in pre-1967 Israel, and those Palestinian living in involuntary exile with no right of return. (2) the report concludes that the policies and practices of Israel toward the Palestinian people support allegations of apartheid, indicating an oppressive regime based on race that deliberately and systematically subjugates the Palestinian people so as to satisfy the ideological and territorial ambitions of Israel as reflecting the governmental outcome of the Zionist Project. (3) the report makes clear that international criminal law does not base a finding of Israeli apartheid on its resemblance to the historic origins of apartheid in the South African experience that gave rise to the formulation of the international crime, but does not purport to control variations in its enactment. As the Statute of the International Criminal Court makes clear in Article 7, apartheid is one variety of ‘crimes against humanity.’ The essence of the crime is domination of one race by another maintained by ‘inhuman acts’ without further specification of its form. (4) The report concludes that international law empowers and obligates the UN, governments, private sector corporations and banks, as well as civil society as a whole to do all that can be done nonviolently to end the crime of apartheid as a matter of urgency, and specifically affirms the BDS campaign is currently the most effective way to pursue peace and justice in the present apartheid context. (5) The report concludes that a just and sustainable peace will not be possible without the prior dismantling of the Israeli apartheid regime. Although the South Africa form of apartheid reflected very different internal and external circumstances, the anti-apartheid campaign conducted against South Africa contains various lessons that could be useful in moving forward with BDS and other forms of activism directed at achieving such drastic changes in the Israeli relationship to the Palestinian people.

AA: The release of this report was a tumultuous political occurrence. What happened ?

RF: As is typical in recent years, Israel, with the U.S. trailing closely behind, denounced the report and me as its author on the day it was released by ESCWA. The U.S. Ambassador, often more Israeli than the Israelis, demanded that the newly elected Secretary General of the UN, Antonio Guterres, repudiate the report or suffer a cutback of funding by the United States. Guterres disappointed many by caving in to this unseemly pressure, first ordering the director of ESCWA, Rima Khalaf, to remove the report from its website, and when she refused, accepting without objection her principled resignation.

It was obvious that no one had bothered to read the report or take notice of the disclaimer that this was not a UN report, but the work under contract of independent university researchers with a background in the subject. The word ‘apartheid’ in the title of the report was enough to trigger this firestorm of protest, which is itself extremely hypocritical as leading Israeli personalities, including even Ben Gurion and Rabin, have themselves referred many years ago to the danger of Israel becoming an apartheid state if it fails to solve ‘the Palestinian problem.’ The use of the terminology of apartheid throughout the years has been common in internal Israeli official discourse carried on in Hebrew, while at the same time treating similar references to apartheid in international venues as racist slander of the democratic state of Israel. Even the former American president, Jimmy Carter, was denounced as an anti-Semite because he dared put the choice for Israel as being between ‘peace’ and ‘apartheid’ in the title of his very moderate book really supportive of Israeli statehood.

There is no doubt that the pushback against our report was welcomed by Zionist militants who caused a stir in Britain where I was scheduled shortly after the release of the report to give some lectures at several London universities on my newly released book on Palestine with the title, Palestine’s Horizon: Towards a Just Peace. For the first time in my academic life, my scheduled lectures were cancelled, The lectures were to be at the University of East London and University of Middlesex. The cancellations were explained as resulting from the feeling on the part of the respective college administrators that they were not confident of their ability to provide sufficient security in view of threatened disruptions. I did give a talk in this period at LSE, which went ahead without incident, although disrupted by known Zionist agitators during the discussion period who were made to leave the hall. Apparently, LSE afterwards tightened its rules relating to ‘controversial’ speakers that seem to erode traditions of academic freedom at this august institution. In this same period my three lectures at Scottish universities went ahead without any trouble. In fairness, I should acknowledge that both universities in London renewed their invitations for the following year, but it was neither convenient for me nor especially appealing to help such universities refurbish their tarnished reputations as institutions committed to academic freedom except when it mattered, that is, when under threat by hostile elements that seek to stifle discussion of a controversial subject-matter such as Israeli criminality or BDS activism.

AA: To achieve a lasting peace between the two peoples, you believe that we must shift interest from “ending the occupation” to “ending apartheid.” Could you explain what is the difference ?

RF: This is an important question whose significance is not grasped by many active in promoting justice for the Palestinians. In effect, ‘ending the occupation’ refers to an Israeli withdrawal to the 1967 borders, treating the conflict as about territory at its core as in the slogan ‘land for peace.’ There are two main flaws in this territorial approach: first, it marginalizes the claims of 7 million or so Palestinian refugees, as well as the situation of the non-Jewish minority within Israel, approximately 20 percent, of the total population; secondly, it overlook the reality that for both sides the struggle is more about people than territory. It is helpful to understand that the essence of apartheid is the domination of one people by another on the basis of race, both the subjugation of the dominated race, the Palestinians, and oppressive machinery relied upon by the dominant race, the Israelis. Race is understood in international criminal law as the same as ‘ethnicity,’ which here means that Jews and Palestinians are distinct races for purposes of interpreting the applicability of the apartheid label.

On a practical level, ending the occupation does not create the basis of a sustainable peace as it does not address the range of basic Palestinian grievances, and especially leaves the refugees, diaspora, and the minority within Israel in limbo. As with South Africa, it was only possible to establish racial peace after the decision to renounce apartheid was clearly signaled by the release of Nelson Mandela from prison. If only the occupation is ended Israel would still face Palestinian resistance if it insisted on maintaining a Jewish state with no right of return by those dispossessed in 1948 and various other times, as well as their descendants. To end apartheid would end racism as the basis of Israeli security, and would enable genuine democratic governance to be established according to a fairly negotiated agreement on co-existence and human rights for all who lived within historic Palestine, that is, the territory managed between the two world wars by the United Kingdom as a mandate on behalf of the League of Nations, yet de facto as a British colony.

AA: How could we end apartheid?

RF: As earlier suggested, the ending of apartheid will not occur without a shift in the positions of the governments of Israel and the United States, and this shift will not likely occur without a perception that Palestinian resistance and the BDS campaign and other solidarity initiatives exact such a high cost that it became preferable to give up the Zionist Project of a Jewish state and seek a democratic formula for allowing the two peoples to share the land in accord with principles of equality along with the recognition of their distinct and separate rights of self-determination. If the political will to reach peace is genuine and based on the willingness to end apartheid, then ways can be found to make this happen within a stable political framework. In contrast, if Israel remains determined to retain a Jewish state with no right of return for Palestinians, any diplomacy that is presented as part of a peace process will turn out to be nothing more, than at best, a ceasefire. In the 21st century it is not realistic to expect one ethnicity to accept the hegemony of another, and will resist, which will occasion efforts to crush the resistance, generating a cycle of violence that caused massive suffering for the Palestinian people ever since the Zionist Project began relying on violence during the mandate period to advance their goals, and undertake to establish a Jewish state in a non-Jewish society. It is instructive to remember that when the Balfour Declaration was issued in 1917, the Jewish population amounted to less than 6 percent of the total, and even by 1947 when the UN Partition Proposal was put forward, the Jewish proportion of the total population of Palestine had not risen above 30 percent despite strenuous Zionist efforts to encourage emigration to Palestine, abetted by Nazi lethal anti-Semitism and British colonial policy that long encouraged Jewish immigration to Palestine to create an ethnic balance inside of Palestine for the sake of its own traditional colonial approach of ‘divide and rule.’

AA: Wars have raged in Middle East for decades and injustices have lasted too long. Public opinion no longer believes in International Law. In fact, it has never really believed since the colonial period. What’s the point of International Law for this region?

RF: The status of international law as a source of peace and justice has waxed and waned over the last hundred years. Public opinion has generally failed to realize that international law emerged to preserve and promote the material interests of major sovereign states, and long served as the normative handmaiden of colonialism. With the rise of liberalism in the West, and the accompanying emergence of an architecture of human rights supported by a network of NGO, there emerged the sense that international law could help the weak to uphold or even attain their sovereign rights in relation to the strong. Also, international law seemed on the side of the angels in the global moves against colonialism, and South African apartheid. But it was always naïve to expect too much from international law so long as geopolitics based on hard power shaped events without regard to international law. Power and geopolitical ambition for economic and political gain has always taken precedence over international law whenever the normative and the geopolitical clashed.

At the same time weaker states and oppressed peoples began discovering in the 20th century that with creative diplomacy they could make effective tactical use of international law, especially to protect sovereign rights in relation to foreign investment. The Latin American countries pioneered this use of international law as a weapon of resistance against predatory geopolitics. With the rise of liberalism, there was a concerted effort by the West to regain the upper hand in world politics with respect to moral and legal position, a concern with legitimacy that gave international law a symbolic power at the UN, which it continues to possess in certain contexts, including the Israel/Palestine struggle, especially its PR dimensions. It is the importance of this dimension of international relations that drives the Israel -bashing discourse designed to discredit the authority of the UN. In other words, international law matters, especially as a foundation for civil society activism and some governmental initiatives, including BDS, but it remains subordinate to geopolitics in the world of diplomacy and behavioral impact.

AA: In your presentation at the annual “International Crime Initiative (IICE) Conference” on March 22, 2018 in London, you suggested a new concept of State Crime namely “Geopolitical Crime.” Could you briefly explain it? Is it relevant to Middle East?

RF: My basic idea is that much of human suffering of our time flows directly from deliberate diplomatic undertakings, especially those associated with peace diplomacy after major wars. In these settings diplomats of the winning side deliberately or with gross negligence often impose conditions on the losers that produce oppression, social hardship, exploitation, punitive measures, and violent conflict while exempting the wrongdoing of their own actions from legal accountability. In my view, these kinds of wrongdoing deserve to be treated as crimes, and seem best identified as ‘geopolitical crimes.’ At this stage of advocacy this is a proposal, and an appeal to civil society and world public opinion, and indirectly to governments. Just as genocide and apartheid became international crimes in response to forms of behavior that shocked the conscience of humanity, so should geopolitical crimes. In the present context, such ‘crimes’ should be depicted as such to influence world public opinion and stimulate civil society initiatives of various kinds. Israeli apartheid is such a crime, although it is also a violation of existing international criminal law as a result of the Apartheid Convention.

I became interested in this idea of establishing a new category of criminality associated with wrongful geopolitical behavior in my effort to grasp the deep roots of the conflicts and turmoil currently afflicting the Middle East. It made be aware that the cause of this tragedy for the region can be traced back to the Sykes-Picot Agreement and the Balfour Declaration. Sykes-Picot was an exercise in secret diplomacy designed to reward the European colonial powers, Britain and France, with the Arab societies previously governed by the collapse Ottoman Empire. This colonial ambition was implemented by carving up the region in the manner of European territorial states, disruptive of the organic communities existing during the Ottoman period, and establishing conditions in which political order could only be established in accord with colonial goals and maintained by coercive means as the territorial entities lacked legitimacy from the perspective of many segments of the population. When colonialism collapsed strong leaders took over, oppressing minorities and dissident tribal and ethnic communities causing alienation. This dynamic was further aggravated by the global strategic significance of oil and gas reserves in the Arab world, prompting efforts by political actors external to the Middle East to ensure that friendly governments remain in power and included the readiness to intervene to defend what were deemed vital interests. After the Cold War, the stability imposed by geopolitical discipline eroded, eventually exploding in the form of the popular uprisings in a series of Arab countries at the end of 2010 and early 2011, generating a variety of counterrevolutionary responses as well as a site of struggle by various Western forces seeking to control the post-Cold War political environment in the region.

The other kind of geopolitical wrongdoing involving the region can be traced back to the Balfour Declaration of 1917, also a disastrous colonial move, in which the British Foreign Office pledged its support for the establishment of a Jewish Homeland in Palestine at a time when, as earlier mentioned, the Jewish population was under 6 percent. The unfolding narrative of Palestine is complex but it can be depicted in its essential form as the geopolitical undertaking to form a Jewish state in a non-Jewish society, allowing the Zionist Project to unfold by stages until the present when its goal to establish sovereign control over the whole of ‘the promised land’ is close to realization. Here again, as with Sykes-Picot, British colonial motivations linked in this case to the Zionist movement, sought to impose an artificial political community that could only be maintained by subjugating the majority native population. Such behavior should not escape moral and legal accountability as is now the case. Classifying such behavior as a geopolitical crime would help close the existing wide ‘accountability gap.’

Another type of geopolitical crime is associated with the sort of ‘victors’ justice’ imposed after World War II. While holding German and Japanese surviving leaders criminally responsible for their wrongdoing, the crimes of the victors were ignored. This meant that the use of atomic bombs against Japanese cities was never criminalized, which it would have been if such weapons of mass destruction had been used by the losers in the war against civilian targets. Such a failure to criminalize these acts has led to the nuclear age, making civilizational and even species survival precarious. Such weapons should be criminalized, and would be even today, but for the strength and leverage of geopolitical actors that exert an informal veto power over attempts at normative progress.

It is obvious that geopolitical crimes are not currently part of international criminal law, but their informal criminalization by public sentiment would be a constructive initiative helpful for progressive struggles. It would encourage political awareness of the relevance of diplomatic wrongdoing to human suffering. It would influence civil society to take initiatives, such as civil society tribunals that mobilized public opinion in the context of the Vietnam War (Russell Tribunal 1967) and the Iraq War (Iraq War Tribunal, Istanbul 2005). And it might even exert a deterrent influence on future exercises of diplomatic initiatives by learning some lessons from past failures of statecraft. It would create a clearer historical awareness of how past wrongs link to present suffering and political chaos.

Against this background we can interpret the BDS Campaign as an expression of resistance to a massive ongoing geopolitical crime being carried out at the expense of the Palestinian people as a whole. Whether that crime is viewed as a type of crime against humanity or as a geopolitical crime is not so important. What is most useful at this stage is to create a floor of legitimacy beneath the tactics of boycott, divestment, and sanctions in ways that mobilize persons of good will and governments responsive to human wellbeing. The underlying idea of proposing geopolitical criminality is strengthen the social and political forces throughout the world dedicated to peace with justice.

AA: What do you think of the evolution of Tunisia since the 2011 revolution?

RF: I do not feel competent to comment on the ups and downs of Tunisian evolution since 2011. My impression, for what it is worth, is that the political evolution in Tunisia maintained more continuity with the pre-2011 political and economic realities than was hoped and expected when the old order was overthrown by a popular uprising at the end of 2010. At the same time, compared to Egypt the results in Tunisia remain encouraging. Dictatorial rule has not been reestablished. Some economic and political reforms have been undertaken. A constitutional order persists that has been inclusive and pluralistic enough to allow Islamists to coexist with remnants of the former secular order and to survive disruptive incidents that have threatened chaos or Egyptian style regression. These are just my impressions from afar, and an overriding sense that Egypt has definitely spoiled the promises and hope of 2011, while Tunisia without yet achieving a sustainable transition to a more just society, has at least not fallen back to the dark realities that preceded what was always too superficially christened by the world media as ‘the Arab Spring.’ The crystal ball that discloses the future is too darkly clouded to discern whether a further historical challenge to regressive politics will be forthcoming in Tunisia, and elsewhere in the region, or whether the counterrevolution currents of regional and global reaction will hold firm, bolstered by post-colonial forms of covert imperial support in furtherance of geopolitical priorities, including control of energy resources, establishment of military bases, containment of political Islam, and Israeli-Saudi designs for regional hegemony.