Dennis Bernstein: We don’t have a lot of detail, but Israel itself is clearly admitting they carried out this raid. … Based on what you know and what you’ve seen, what can we say about what happened here in terms of human rights violations and international law?
Richard Falk: I think the fundamental reality is fairly clear at this point, namely that these were ships that were carrying humanitarian supplies for blockaded Gaza, that the passengers were unarmed and were situated at the time of the Israeli attacks on the high seas, that these attacks, therefore, were unlawful and by most interpretations would be regarded as criminal.
The statement of the Turkish Prime Minister, that the attacks constituted state terrorism, seem to me at least to correspond with the tragic reality that we’ve been witnessing over the past twenty-four hours.
DB: The Israelis say that these commandos who they say were armed with hand guns and paint guns were only defending themselves from armed and dangerous attacks by people on the boat. Your response to that?
RF: There are two lines of response, and this is an area where the facts are contested and difficult to disentangle at this stage. The witnesses on the boats themselves, particularly the Turkish boats where most of the violence took place, claim that the commandos landed shooting, and that it was only after the initiation of that violence that there was some attempt at defense on the basis of very contrived and primitive weapons, as opposed to the kind of weaponry that the Israeli commandos were carrying.
Beyond that, it’s fairly clear if unlawful attack of a vessel on the high seas is occurring, the passengers on that ship have some sort of right to self defense. So that’s one aspect of it. The second aspect is that even if there was some kind of defensive violence on the ship, that’s no excuse for an unprovoked attack carried out in this manner.
If Israel didn’t want the ships to go to Gaza, they could have diverted them, and if they did what the other boats did in the Freedom Flotilla, except for the larger Turkish one, it seems pretty clear that this was a deliberate attack designed, I suppose, to punish the effort to carry out this humanitarian mission, which would obviously have disclosed the brutality of the blockade of the Gaza Strip, which has gone on now for almost three years.
The Israeli arguments are not really seriously plausible. Given the overall circumstances it’s very difficult to give them any kind of serious credibility, and this seems to me to be as clear a violation of international humanitarian law, international law of the seas, and international criminal law, as we’re likely to see in the early part of the twenty-first century. …
DB: In terms of the responsibility, you are the UN Special Rapporteur for the Palestinian territories. What is your responsibility now? What is the United Nations responsibility? What should happen in terms of an investigation?
RF: My responsibility is to report to the Human Rights Council and the UN General Assembly on the Israeli violations of the human rights of the occupied Palestinian people. This incident is sort of at the edge of my responsibility because it didn’t occur within the occupied territories, but it so directly affects the people within that I treat it as part of my responsibilities.
In my judgment, the Security Council, if one takes the UN Charter seriously and avoids double standards, should really do three things: One, it should condemn the attack as a violation of international law; secondly, it should demand a lifting immediately of the blockade, of the people of the Gaza Strip, allowing food, medicine, reconstruction materials and fuel to enter freely; and thirdly it should refer the allegations of criminality associated with the attack to the International Criminal Court for investigation and action.
Given the geopolitics that exist within the Security Council, it is highly unlikely that this appropriate course of action will actually be followed. Technically the General Assembly could try and do these kinds of things if the Security Council fails to act, and it remains to be seen whether there’s the political will in the General Assembly to do this.
If the UN is stymied in this way, it does shift the responsibility and, in a way, the opportunity to civil society to augment the ongoing Boycott, Divestment and Sanctions campaign, that in any event has been gaining momentum, and presumably this latest incident will create a great deal more strength for that campaign, which has been so effective in opposing the Apartheid regime in South Africa in the early 1990s and late 1980s.
DB: Is there any kind of special protection for the people who risked their lives—and now we see that they really did risk their lives—going into a situation where the world knows that there are terrible things happening, that people are being treated in terrible ways, that they are dying because of that treatment, and because they are being warred against and having bombs dropped on them where they cannot even flee. Is there some sort of role for legal action within the constraints of international law?
RF: Yes, there is, as you very well expressed. There is a great opportunity to provide protection to people who are courageous and morally motivated, and at the same time are vulnerable to this kind of violence and brutal treatment, but the political will is lacking at the governmental level and at the international institutional level to provide that kind of protection.
One has the norms, has the responsibility to protect concept which has been endorsed by the Security Council and has the support of international lawyers, but it can’t be implemented without the requisite political will, and that’s what’s missing.
Of course our government is the lynch-pin of what makes effective or futile international initiatives of this sort. If we had indicated a firm desire to establish some kind of protective capability for missions of this sort, individuals like this would be protected.
I thought that however little Israel respects international law, they wouldn’t do something as crudely violent and alienating as what they did do with these commando attacks on the freedom flotilla.
It was not in my political imagination that they would seek by such means to prevent the delivery of these humanitarian necessities that pose no security threat whatsoever to Israel — it only posed a public relations threat in the sense that it would have revealed the inability of governments to break the blockade and place pressure on them to do something in the future, and at the same time would have added to the willingness of activists around the world to push harder against the Israeli occupation policy so that what was at stake from Israel’s point of view was the de-legitimation of their policies, and they apparently, and I think wrongly, calculated that they would lose less from this kind of violent disruption of this humanitarian mission that it would have by allowing it to quietly deliver the humanitarian materials that the ships were carrying.
DB: They certainly could have surprised a lot of people and gained a lot of supporters if they had shifted their policy and let the aid arrive.
A final question: Just before you got on the air we spoke with Shakeed Saed, he’s the Executive Director of the Islamic Shura Council in Southern California, there’s a thousand people gathering in front of the Israeli consulate in LA and there are protests around the world; but he was saying that it’s not only a spiritual thing, but a legal matter because the United States is supplying a good deal of the equipment that Israel uses and that these commandos may have been using.
Does that make the US responsible?
RF: We are certainly morally and politically implicit and responsible in these kinds of Israeli tactics and undertakings. Whether we are legally responsible is a trickier question. There are American laws that forbid the equipment that we do provide from being used except in defensive roles.
We’ve never taken that legislative restriction seriously in the context of Israel, but it is a definite legal concern, and it could be pursued by those that were eager to test the degree of legal responsibility that the United States government possesses.
I personally believe such a test would be beneficial for the American people because it would allow the public to express more of its changing view of the conflict, and send a message to Washington that it has yet to hear that the American people would rather see our government pursue a genuinely balanced law-oriented approach to the conflict than this unconditional partisanship with the kind of criminal tactics that Israel has just employed against the Freedom Flotilla.
Dennis Bernstein and Jesse Strauss produced this interview for Flashpoints on the Pacifica network, which was broadcast on May 31 from the KPFA studio in Berkeley, California. You can access the audio archive of that entire show on their website, http://www.flashpoints.net. From our website you can also sign up to the Flashpoints mailing list, and also follow Flashpoints on twitter at twitter.com/FlashpointsNews.
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