By Victor Kattan – London
Richard Falk is the Albert G. Milbank Professor of International Law and Practice, Emeritus, Princeton University and a member of the New York Bar. He is currently Visiting Distinguished Professor of Global and International Studies at the University of California, Santa Barbara. He has, since March 2008, been the UN Special Rapporteur for Human Rights in the Occupied Palestinian Territories. Falk is the author of over 20 books on international law and served on the MacBride Commission of Inquiry to investigate the atrocities in the Sabra and Shatila refugee camps in Beirut in 1982, as well as a UN Commission of Inquiry to investigate human rights violations at the onset of the second Palestinian intifada in September 2001. His latest book Achieving Human Rights was published by Routledge in October 2008.
Victor Kattan: You were recently deported by the government of Israel when you landed at Ben-Gurion airport in your role as UN Special Rapporteur for Human Rights even though the two assistants traveling with you had been given visas to enter the country, and despite the fact that Israel’s foreign ministry had advance notification of your travel itinerary, which included a meeting with Palestinian Authority President Mahmoud Abbas. Why do you think you were detained for 20 hours and then deported?
Richard Falk: Of course I can only speculate on the Israeli motivations. The representative of the Ministry of Interior at the airport insisted that she was merely implementing an instruction from the foreign ministry to deny me entry. Yet, this fails to explain why there was no effort to inform the Office of the High Commissioner for Human Rights in advance of the visit. My best guess is that Israel was eager to teach me a lesson for my prior outspoken criticism, and more importantly, to send the UN a message that Israel was not willing to cooperate with a UN representative who was unacceptable to the government. Of course, the real significance of my experience involves asserting the authority of a member state to claim authority to determine who can represent the UN in evaluating contested behavior. If Israel succeeds it would be an unfortunate precedent, and for this reason I will resist the temptation to resign, and will work hard to be an effective Special Rapporteur despite my unfortunate inability to visit the Palestinian territories under occupation.
VK: In June 2007, you wrote an article entitled "Slouching Towards a Palestinian Holocaust." In the article, you posed the following question: "Is it an irresponsible overstatement to associate the treatment of Palestinians with [the] criminalized Nazi record of collective atrocity?" You answered by saying:
"I think not. The recent developments in Gaza are especially disturbing because they express so vividly a deliberate intention on the part of Israel and its allies to subject an entire human community to life-endangering conditions of utmost cruelty. The suggestion that this pattern of conduct is a holocaust-in-the-making represents a rather desperate appeal to the governments of the world and to international public opinion to act urgently to prevent these current genocidal tendencies from culminating in a collective tragedy. If ever the ethos of ‘a responsibility to protect,’ recently adopted by the UN Security Council as the basis of ‘humanitarian intervention’ is applicable, it would be to act now to start protecting the people of Gaza from further pain and suffering."
Do you regret writing these words? If not, why not?
RF: This is a complicated question for me. I wrote those quoted words before I was appointed as Special Rapporteur, as an engaged citizen deeply concerned because the desperate plight of the 1.5 million Palestinians in Gaza was being ignored in international circles. I felt at the time that it was both an unfolding humanitarian catastrophe, and that it could at any moment morph into a tragedy of massive proportions resulting from famine and disease. In retrospect, I think it was unfortunate to link explicitly these concerns, which remain as acute as before, with the historical experience of Jews in the Holocaust. Pragmatically, it played into the hands of apologists for the Israeli occupation tactics by shifting the debate from the Palestinian ordeal to the inflammatory implications of the linkage to the events of the Nazi era. This is consistent with a wider Israeli pattern of shifting debate from the realities of the occupation to the alleged bias of those who are reporting on these realities. I insist that the test of bias should be based on the truth or falsity of what is observed, and that is a debate I would welcome. On the level of principle I also regret my connecting the Gaza situation with the Nazi memories as it is hurtful to many people, and facilitates distraction from my objective of calling attention to the situation in Gaza. I have tried to avoid using this kind of rhetoric in my subsequent observations on the Palestinian reality, but I would stress that the underlying condition of massive collective punishment of the entire Palestinian civilian population is an ongoing reality that is both immoral and unlawful.
VK: Some international lawyers consider academic scholarship and human rights advocacy to be mutually incompatible: they say one cannot be a serious scholar and an activist. As an eminent American international lawyer with a long and distinguished track record of academic scholarship and human rights advocacy for almost half a century, which has included, among other things, opposition to the Vietnam war, apartheid in Southern Africa, the nuclear weapons industry, Israel’s invasion of Lebanon and its military occupation of the West Bank and Gaza, as well as NATO’s intervention in Kosovo, and the invasion of Iraq in 2003, do you think that international lawyers should speak out more often? Is it possible to be a serious scholar of international law and a human rights activist?
RF: This is an important question that I have pondered throughout my career. As mentioned earlier, the true test of either scholarship and advocacy is truthfulness and accuracy, and I have always endeavored to be objective in this fundamental sense. I believe we all have multiple identities, and that it is perfectly consistent to be a scholar writing and speaking for academic audiences and an engaged citizen doing the same for the general public. In some respects, it is a matter of translating one form of communication to the other. I believe it is an important contribution to the vitality of democratic society to have the benefit of the views of academic specialists. At the same time I believe that in a classroom it is essential for a professor to be receptive to viewpoints that contradict his or her own, and I have always tried to do this. I have jokingly pointed out that among my Princeton students were Richard Perle and David Petraeus, which proves that I do not indoctrinate my students, but happily I think, they didn’t manage to convert me to their viewpoints either. What counts in the end is a belief in the importance of informed deliberation on the important policy issues of the day whether dealing with students, with scholars, or with the citizenry.
VK: John Dugard, your predecessor as UN Special Rapporteur compared the situation in the Occupied Palestinian Territories with Apartheid. You served on the legal team in the South-West Africa (Namibia) cases for Ethiopia before the International Court of Justice in the 1960s. Although the court in a controversial decision ruled that Ethiopia and Liberia did not have "any legal right or interest appertaining to them" as regards the illegality of South Africa’s occupation of Namibia do you see any similarities between Pretoria’s policy of Grand Apartheid in southern Africa and what is happening in the Palestinian territories today? If so, what lessons can the Palestinians learn from the anti-Apartheid movement in highlighting the injustices of Israel’s four decade’s long occupation of East Jerusalem, the West Bank and Gaza? Is there a role for international law?
RF: Yes, my background includes a rather intimate set of encounters with the realities of South African Apartheid. Not long after my role in the World Court case I went to South Africa in 1968 as an official observer on behalf of the International Commission of Jurists of a major political trial held in Pretoria. While in the country for several weeks I had the opportunity to visit (unlawfully) the dismal African townships, coincidentally in the company of John Dugard. It helped me appreciate some aspects of extreme political realities that are relevant to an understanding of the Palestinian struggle. I was struck at the time by the sincere failure of "decent" white South Africans to realize the misery and humiliation of the apartheid system although it was part of their immediate surrounding. The politics of denial meant that an outsider like myself could "see" this reality more clearly than could many insiders. It reminds me of a saying of Israeli peace activists: "The West Bank is further from Israel than Thailand." In my experience, Gaza is even further away. I have been hesitant to draw the analogy between Apartheid South Africa and the Israeli occupation of the Palestinian territories because I did not want a second controversy about my provocative language. At the same time there are some instructive aspects of the successful South African struggle that might be relevant for the Palestinians.
First, it is a crucial domain of struggle to establish the unlawful, and even criminal, nature of the prevailing set of arrangements, and thereby wage a battle for the hearts and minds of the peoples of the world. The US and Europe are particularly vital arenas in this struggle. The International Court of Justice (ICJ) in The Hague can be helpful in establishing the legitimacy of claims for change. It is helpful to recall that on four occasions the ICJ was called upon to pronounce upon South African Apartheid, and although these judicial events did not achieve immediate results, they contributed to the discrediting of the Apartheid regime. Secondly, the site of struggle is outside as well as inside, and the possibilities of gaining the upper hand in relation to the legitimacy of demands is likely to be determined outside of the West Bank and Gaza, with the most important battlegrounds being pre-1967 Israel and the US. Thirdly, do not assess prospects of a successful outcome for the oppressed side by the current apparent relation of forces. An oppressive order is likely to appear all-powerful until it is on the verge of collapse. It is important to continue the struggle despite frustrations and disappointment based on an ultimate faith in the triumph of justice.
VK: Many international lawyers are afraid to openly criticize the government of Israel for its human rights violations because they believe it will affect their future job prospects through fear of being labeled anti-Semitic or a "self-hating Jew." As an American Jew, what has given you the strength to stand by your convictions for so many years despite the attacks upon your character? Do you have any regrets? And if you could go back in time, would you do it all again? What advice would you give to others subjected to similar attacks upon their character?
RF: It is an unfortunate aspect of this debate about Israeli policy toward the Palestinians that smear tactics have been used. I have been increasingly the target of such attacks, which I console myself into believing, is a sign of a certain influence and effectiveness. Alan Dershowitz, the notorious Harvard law professor, has written a defamatory journalistic piece on my recent travails, that begins by comparing me to David Duke of Ku Klux Klan fame and [Iranian president Mahmoud] Ahmedinejad, suggesting that I am a comparable hate-monger. Such irresponsible hostility is an unpleasant part of my controversial role and outspoken views, and unfortunately is given undue weight by a media culture that often treats anger and vicious character attacks as more convincing, and certainly more newsworthy than evidence and reasoning. Yet I have no regrets. My integrity and self-esteem are intimately tied to my lifelong identification with the oppressed, and my belief that if humanity is to flourish in the future it is essential for the strong to respect the global rule of law as much as the weak. At present, we have a global law that does not treat equals equally; the weak are held accountable, while the strong enjoy impunity. This represents law without justice, inviting charges of hypocrisy and double standards. My work as a scholar and engaged citizen has been dedicated to advancing the cause of global justice based on a legal order that learns to treat equals equally whether states or individuals.
As far as being a Jew is concerned, it informs my identity. I believe this commitment to justice is best articulated by the Old Testament prophets, and is the most timeless contribution of the Jewish tradition to human understanding and ethical practice. I had the privilege as an undergraduate of studying Martin Buber, the great Jewish philosopher, and hearing him deliver a series of lectures at Haverford College. His message stayed with me and reverberates to this day. Against this background I can hardly comprehend the accusations of "self-hating Jew" or of somehow being "anti-Semitic." I respond to such attacks on my credibility by pointing out that I never feel anti-American when I criticize the foreign policy of the US government. It is an unfortunate tactic of many Zionists to treat any criticism of the state of Israel or its policies as tantamount to anti-Semitism. In my view, this is a profoundly anti-democratic attitude that tries to turn the "citizen" into a "subject." I believe that the test of good citizenship is conscience not obedience. For these various reasons, I have no regrets, and although it might not have been prudent from a careerist perspective, I would do it all over again without the slightest hesitation. In essence, I could do no other!
-Victor Kattan is a tutor at the Centre for International Studies and Diplomacy at the School of Oriental and African Studies, University of London where he teaches international law to postgraduate students. His book From Coexistence to Conquest: International Law and the Origins of the Arab-Israeli Conflict 1891-1949 will be published by Pluto Books in June 2009. Victor is the editor of The Palestine Question in International Law which was published by British Institute of International and Comparative Law in May 2008 and which features a collection of articles by leading scholars of international law on the Israel-Palestine conflict. He contributed this article to PalestineChronicle.com. (This article was also published in the ElectronicIntifada.net)