The subjugation of international law to the overruling notions of realpolitik is increasingly discussed in both legal and non-legal circles. To break down this issue’s manifestations in Israel’s genocidal assault on Gaza, the Cairo Review’s Omar Auf spoke with Richard Falk, the former UN Special Rapporteur for human rights in the Occupied Palestinian Territories from 2008 to 2014.

Currently Professor Emeritus of International Law at Princeton University, Falk is the author and editor of many books on international law, justice, and the international system.

This Q&A is an abridged version of an episode of Podcast Palestine: the War on Gaza published on May 20, 2024.

Cairo Review: How do we begin to make sense of the situation on the ground in the language of international humanitarian law in terms of accountability and responsibilities?

Richard Falk: To begin with, Israel, from an international law perspective, is the occupying power of Gaza, and as such has an unconditional obligation to protect the civilian society and the population. Explicitly by the Fourth Geneva Convention governing belligerent occupation, it is obliged to make sure that the civilian population has the humanitarian assistance that is required for its physical and mental health, and that includes food and medical supplies, water, electricity, and so forth.

Israel has done two things. It has responded to the October 7 attack with an onslaught that recognizes no obligations to comply with international humanitarian law, or with the status it possesses of being the occupying power of an occupied people. In addition to that, it has been supported consistently by the liberal democracies of Europe and North America.

So, you have a situation where the law is on one side, and morality is on that same side, but the political balance has not been sufficiently strong in favor of granting the rights that the Palestinian people deserve. And so, we have this lawlessness of Israel dominating the situation.

And with the extremity of the genocide that has occurred, there has been some effort by Israel’s main supporters, including the United States, to try to suggest that Israel is obliged to allow humanitarian assistance to get to a starving and devastated Palestinian people. But Israel has, in one way, seemed to accept that pressure, but at the same time, it’s resisted and continued to do things that make it hazardous and, in some sense, impossible to provide the Palestinians who are under great stress, not only from the dangers of famine and starvation, but also disease and general living conditions—which have become non-viable.

The reality has emerged that you have a kind of half-hearted humanitarian undertaking and, at the same time, you have the Israeli military operation continuing under this false banner of the right to defend itself, which is almost totally irrelevant to the kind of motivations and seeming objectives of Israel in carrying out this response to this degree.

You’ve frequently spoken about a politics of diversion or politics of deflection exercised by Israel. Today, this politics is directed in large part at UNRWA. So what is the effect of this politics of diversion as it played out with UNRWA, both in terms of immediate disaster and lives lost, as well as the long-term political ramifications of it?

Yes, that’s a very important issue that Israel has exploited in various ways. And as you suggest, the UNRWA allegations came the day after the ICJ reached its findings in favor of the request for provisional measures that were basically accepting the allegations that South Africa was making. And what was enabled by doing that is to shift the focus from the outcome in the International Court of Justice to the impact and the rationale for this UNRWA deflection from the existential reality of the suffering of the Palestinian people and the threat to their physical and mental survival.

Since October 7, alarm bells of analysts and policymakers have been sounding in terms of the possibility of drawing other parties in and regionalizing the conflict. The United States and its Arab allies have done a fair amount of work to ensure that this does not happen.

Given the importance of the Palestinian cause to the people of the region, do you think the focus on the possibility of conflict or instability spreading is justified? And if so, then between whom is this conflict going to take place?

There’s so much uncertainty at the present time. Netanyahu and his coalition government are cornered in a sense. They face failure on several grounds. They have not succeeded in destroying Hamas. They have not succeeded in getting the hostages released. And they have alienated world public opinion to a degree that they’ve become a pariah country and likely one that is the target of violence in the future, whatever happens in Gaza in the weeks to come. So you have a cornered leader that has very few options left.

The West and particularly the United States are allied with Israel partly for the civilizational and political reasons and partly an expression of the domestic politics in these countries, which exhibit very strong Zionist networks of pressure and funding that exert an influence on the political behavior of the government.

In my own country, the United States, it’s very evident that politicians have come to the conclusion that they have very little to gain by taking a balanced view on Israel-Palestine and a lot to lose because they will then become the targets of AIPAC and other strong, well-funded Zionist lobbying groups. And that is happening in an election year in the United States with the targeting of those few people in the U.S. Congress who have attempted to take a more humanitarian view or have been critical of the way in which Israel responded to October 7.

With those background realities, in addition to the uncertainty about access to the energy resources, and as you pointed out, the tension between the governments in the region and the publics, creates a great deal of uncertainty and instability, and exerts pressure on these governments, the Arab governments in the region, to be very autocratic in their methods of governing. They feel very vulnerable to a population that doesn’t share either their views on the rights of peoples, or is equitable when it comes to economic and political questions of the sort that Palestine poses.

So Palestine is, from an academic point of view, a textbook example where governments are following one line of policy that is at odds with the overwhelming majority views of their own population. And to make that work requires intimidation and, to some extent, continuous repression. So it’s a very consequential set of challenges for the peoples and the elites of the region.

You’ve expressed the view that the Nakba is and should be seen not as a single event that occurred in 1948, but as an ongoing process of displacement and dispossession that continues today. Within this framework, the violence and indeed the genocide that has taken place since October 7, does it present itself as an escalation of a continuing Israeli policy? 

In general, I would say that the Nakba process culminates in this genocidal phase, that the earlier reliance on a variety of tactics designed to complement the Nakba of 1948, including the imposition of apartheid—another very fundamental crime of an international character—that those intermediate steps didn’t satisfy the maximal Zionist agenda of extending Israeli sovereignty to the West Bank, and more recently to the Gaza Strip.

And so this pattern, which is characteristic of settler colonial projects, you find it in all the breakaway British colonies, of which the United States is the most important, but the Canada, Australia, New Zealand, they went through a phase of eliminating, or at least radically marginalizing, the indigenous native people. And that was an invariable feature of successful settler colonialism.

The tactics that are used to achieve the goals of maximal Zionism have to be more drastic. And where the native population is not marginalized successfully, as in South Africa or in Algeria, the settler project fails. Either it is completely defeated, as in Algeria, or there’s a transition to constitutional democracy, as in South Africa.

Israel has confronted this resistance with ever more drastic measures of repression and exploitation and domination, culminating in genocide.

So one has to think back before October 7 and accept the idea that was widely discussed at the time that this new coalition government headed by Netanyahu that had taken power at the beginning of 2023 was the most extreme government in the history of Israel. And what made it extreme was that it was pledged to implement more consistently and more violently the agenda of maximal Zionism and the idea of a greater Israel that absorbed the occupied territory. And indeed, that is what partly provoked a higher level of resistance on the Palestinian side.

And it was focused in most people’s minds, including my own, on the struggle over the West Bank, which was seen as the site of the settlement and also the more valuable agriculturally in terms of water resources and even security that is viewed in a larger sense. The Israeli tactics seem to be designed to have a pretext for some sort of accelerated pressure brought to bear on the Palestinians. So they would have received the message in effect of leave or die.

That’s the bottom line message of this sort of genocidal effort of marginalization and forcible evacuation. And from the very first days of the Netanyahu coalition in January of 2023, the settlers were given a green light to engage in violence on the West Bank. They burned villages and they did a number of things that looked like they were creating a situation that would make the West Bank unlivable for the great majority of Palestinians.

The settlers actually pinned this message to cars on the West Bank after their own demonstration. Just those three words, leave or die.

With regards to the United Nations, the UN’s flaws are very clear, as well as a lot of its benefits. At the end of the day, it’s an intergovernmental organization and the way it’s designed, it makes it so if any of the superpowers disagree, the subject of disagreement probably won’t take place. 

The UN probably wouldn’t have come into being if it wasn’t designed like this specifically, but at the same time, there is some leeway, some democracy in the General Assembly, in the Human Rights Council, and there’s a sort of moral authority that comes with the UN.

What are the channels that could be used to transform the UN into something more aligned with the idealism it stands for but was not entirely designed with?

I finished a book in collaboration with a former high official of the UN Secretariat, former Assistant Secretary-General Hans von Sponeck of Germany, that will be published very shortly by Stanford University Press. And the essence of the argument is that the UN to be effective needs to be reformed in certain fundamental ways, including restricting the veto and empowering the General Assembly, making it more democratic.

Of course, the basic bargain at the UN, which is sort of disguised by the preamble to the UN Charter, is that it holds accountable ordinary members but grants a privileged status to the winners of World War II, or the five countries that are made permanent members of the Security Council with an unrestricted right of veto—in effect a signal that geopolitics has primacy over respect for international law or the UN Charter.

That tension between geopolitics and law that is built into the core of this bargain. A Mexican delegate to the original UN founding meeting described it as saying: we’ve created an organization which holds the mice accountable while the tigers run free. It’s that peculiar notion of making the organization more effective in relation to the weak states that don’t need so much constraining as it is to the strong states that they make no real effort to constrain.

And that reflects in part the experience of the League of Nations that was established after World War I, which was seen as faithfully weak because it didn’t include the participation of important geopolitical actors like the United States.

This sort of Faustian bargain was affirmed by Franklin Roosevelt, among others, who felt that the cooperation that existed during World War II against fascism would be sufficient to uphold the peace after the defeat of Germany, Italy, and Japan, which was a very naive idea about the nature of international conflict. And so we’re stuck with this dilemma of an impotent or marginally relevant UN and a popular desire for a UN that fulfills the promise of war prevention in the preamble to the UN Charter.

There is a summit on the future of the UN scheduled for September in New York, but I’m very skeptical about whether any meaningful progress will occur.