Our Obligations to Palestinians: Part II – Scholarly Zealots
Our Obligations to Palestinians: Part II – Scholarly Zealots
David Grossman is a saintly Israeli dove who may be critical of the violence Israel is inflicting on Gaza, whose reasoning about that violence may be very flawed rather than informed by logic and a solid grounding in international studies. He is an extraordinary literary light but I do not believe he is of any value in offering guidance on what to do about Gaza. But he is harmless.
Nothing of the same can be said about the next document I was sent entitled, “Global Justice in the Twenty-First Century” and subtitled, “The International Community Must End Israel’s Collective Punishment of the Civilian Population in the Gaza Strip”. The document was composed by at least two international law authorities who have, for at least fifteen years, used their academic credentials and reputations to launch one vicious attack after another on Israel and its activities with respect to Palestinians. This document is endorsed by a number of other scholars so that it is then advertised as a “Joint Declaration by International Law Experts on Israel’s Gaza Offensive”.
Many of those scholars continue to enjoy and deserve their academic reputations, but they have shown very poor judgment in signing such a document. The same cannot be said of John Dugard and Richard Falk. I intend to indicate why this is the case. I write this because I am concerned that friends, colleagues and others may be taken in by this flagrant misuse of credentialism to offer credibility to a series of calumnies launched against Israel concerning its actions in Gaza.
Let me begin with the international law authors who initially drafted the document. The style, tone and substance of the charges levelled against Israel suggest the fingerprints of John Dugard and Richard Falk. Sure enough they appear as the first two signatures on the document. Who are these international law experts and what has been their record in writing academic articles and reports on this type of subject?
John Dugard was the former UN Special Rapporteur on human rights in the Occupied Palestinian Territory from 2000-2006 and employed by what was by then the widely almost universally discredited UN Commission on Human Rights. Richard Falk was his successor for the subsequent UN Human Rights Council and, I would also argue, helped make that supposedly reformed international human rights body almost as discreditable as its predecessor as Canada came to attest when it served for the first three years on the Council. The fact that each of them was hired for those positions was but one element in undermining the ability of either body to offer, as the mandate indicated, fairness, objectivity and impartiality.
John Duggan was a South African international legal scholar who made his academic reputation by publishing books and articles on the South African apartheid regime in relationship to international law. Since 1990, however, he seems to have given up his scholarly standards and has devoted his energies to attacking Israel in general and, in particular, identifying Israel with the South African apartheid regime. He has insisted that Israel has been an occupying power even after it withdrew its settlements and troops from Gaza without considering and weighing all the evidence and arguments against such a contention. He has repeatedly been upbraided for his one-sided reports on Israeli human rights abuses in the occupied territories and his ignoring any human rights abuses by Palestinians, but that can be explained in part because the UN Commission on Human Rights and its successor Council established that only Israel would be reviewed annually for its human rights records.
However, Dugard has added his own biases by parading his opinions as given facts and interpretations of facts, situations and even international law as settled rather than issues of contention where evidence must weighed and competing principles examined. He has gone even further, vigorously urging the UN and states to take action against Israel, even finding many states, such as the Quartet when they were guiding the peace process, complicit in Israeli alleged criminality. On the other side, in the very few statements he has made on Palestinian abuses of human rights, he has served as an apologist to some degree expressing hope, for example, that Palestinian executions without a fair trial of other Palestinians were “aberrations” and trusting that they would refrain from such actions in the future. .
One would not believe that the UN could hire anyone worse than Dugard but it did when it appointed Richard Falk to the successor UN Human Rights Council for the next six years. Richard Falk was a major reason that Council betrayed the very high expectations that many had developed about the international legal reforms to the UN Human Rights body, but the Council managed to develop almost the same discreditable reputation as its predecessor and never was able to follow the principle proposed at its formation that that all “members elected to the Council shall uphold the highest standards in the promotion and protection of human rights.” Cuba and Saudi Arabia were council members.
Further, from its beginning it too adopted the stance of making Israel a target of every session in spite of the warnings of Human Rights Watch that this selectivity would discredit the Council as it had the preceding Commission. Canada consistently reiterated its disapproval of singling out only one human rights situation in the world for permanent scrutiny at the same time as special procedures applicable to other countries of concern were eliminated. Since it replaced the UN Commission, the Council has passed as many critical resolutions against Israel as all other states combined and Israel is the only country that has actually been condemned by the UN Council. For others, like Sudan, North Korea or Myammar, the Council has only expressed “deep concern”. For many observers, the Council is even worse than its predecessor. Of 55 resolutions and 7 decisions made with recorded votes while Canada was on the Council for the first three years, we could only support 7 of those resolutions and 1 decision. It is no surprise that Professor Harrington in her review of the Council’s first three years modestly concluded “that the goal to create a new, reinvigorated and objectively-principled body distinct from the former Commission remains unmet.”
Falk during his mandate had compared Israel’s treatment of the Palestinians to that of Hitler’s treatment of the Jews, posted a truly vicious ant-Semitic cartoon on his website for which he later apologized and admitted that it was anti-Semitic. Not only has the US and even Europe found his postures to be reprehensible and outrageous, but even the Palestinian Authority condemned Falk for siding with Hamas and demanded that he resign. Canada was the leading voice critical of Falk. The EU merely regretted the unbalanced work of the Rapporteur and urged future reports be based on more factual and legal analysis,
Before I go into Falk’s comments on Israel in general and the position put forth in the document under consideration, a brief glance at Richard Falk’s determinations on other matters than Israel is helpful for, unlike Dugard, Falk has been far more wide-ranging. For example, in an opinion piece on the Boston Marathon bombers, he rationalized their activities as understandable responses to the American quest for global hegemony. But observers should not have been so surprised for Falk defended the actions of Karleton Armstrong in the seventies. Armstrong had bombed the University of Wisconsin Mathematics Research Center, killing either a caretaker or a researcher – I cannot recall. I only know that although we shared the same peace activism, I have not been able to take any of his opinions or interpretations seriously since that time though I grant both his oral and written eloquence.
Perhaps the most revealing deviation was his relatively recent considered opinion rendered on the effort of France to condemn Syria in the Security Council and to refer the allegation of crimes against humanity to the International Criminal Court (ICC). (www.aljazeera.com/indepth/opinion/2014/06/syria-icc-war-crimes) The motion was vetoed by both China and Russia to override the majority of Council representatives. Falk defended the use of that veto arguing that bringing alleged human rights abuses before the Security Council would complicate efforts to use diplomacy to settle the civil war. He further argued that it was difficult to determine criminal activity during the hostilities, and that such an effort might bring disrepute to the International Criminal Court. Though Falk wrote that the initiation of violence to overthrow Assad released the “criminal fury of the Damascus regime,” he argued that it was necessary that we put the conflict in context and ensure one mastered the specifics as well as the dynamic of a conflict to avoid knee jerk reactions in favour of accumulating relevant knowledge, all strictures he has consistently avoided with respect to the Israeli-Palestinian conflict. Further, he argued that, “no matter how expert, core uncertainties will persist” especially when the “huge weight of responsibility if the policy risks and alternatives are carefully weighed.”
Falk, a world federalist, opposed the nation-state system, became a strong proponent of Palestinian self-determination. Early in his career, he moved from Ohio University to Princeton where he was given a prestigious chair. He came from an assimilated Jewish family which he credits with giving him his great sensitivity to injustices in the world. Though I do not believe he has played any significant role in the divestment and boycott camp against Israel, he has urged colleagues to carefully weigh any cooperation with Israeli academics and institutions lest they feed the Israeli war effort but has had no such compunction in urging a boycott of firms that locate in Israel. His allegations of crimes against humanity have been totally one-sided. Falk has not only not denounced Hamas and Palestinian militant strategies of rockets and tunnels, but insisted that they are explicable as understandable mechanisms of self-defence against external oppression. Even suicide bombings were justified as valid forms of struggle.
His themes have been repeated and repeated over the years and the conclusions seem indifferent to any real findings of facts or legal arguments.
• Israel is in occupation of Gaza
• Israel deliberately targets civilians
• Israel’s military doctrine is founded on collective punishment of Palestinian civilians
• Though Hamas rocket attacks against Israeli civilian targets are illegal, they are an understandable response to Israeli aggression
• Israel has been the main culprit in preventing any cease fire
• Israeli political and military leaders are guilty of criminal crimes against humanity and war crimes
• Falk has cited the Goldstone Report, the UN Fact Finding Mission on the Gaza Conflict which Goldstone himself subsequently retracted his endorsement, a fact which Falk conveniently omits to mention; it is notable that Richard Goldstone has not himself endorsed the current petition
• Since who did not sign is probably more important than who did, it is notable that Joanna Harrington’s signature is also not included; Joanna is a professor of international law at the University of Alberta. Her PhD thesis was co-supervised by John Dugard. She also worked for the Human Rights Council under Richard Falk and wrote the superb analysis of its first three years of work entitled “Human Rights Council: dissent and division”.
Harrington’s advice to the UN Human Rights Council is very appropriate reminding us that international law is based on rules that demand rigour in their application and the need to distinguish between legal obligations and policy commitments. She has urged that complex situations be approached with caution and analysis consistent with customary international law, none of which is embodied in self-referencing circular citations and declaratory texts. Most of all, customary international law requires carefully weighed evidence. So when the Duggard-Falk petition suggests that it is an “important expression of professional judgment” I hope I can be excused for strongly begging to differ.
An examination of the principles sighted in the petition of the principles of law of armed conflict provides the evidence. Impartiality in methodology is an important first step. The petition states that, “We also condemn the launch of rockets from the Gaza Strip, as every indiscriminate attack against civilians, regardless of the identity of the perpetrators, is not only illegal under international law but also morally intolerable.” However, the petition goes on to state that, “the two parties to the conflict cannot be considered equal, and their actions appear to be of incomparable magnitude”. It is certainly true that Israel has by far the more powerful and, even more importantly, more effective military force. But such a plea is akin to arguing that an individual criminal actor need not be assessed and judged because the police force pursuing that individual is much more powerful. And so the petition says not one other word about the thousands of rockets Hamas aimed at civilian targets in Israel or the plethora of tunnels built into Israel using hard to acquire concrete and steel and intended to launch surprise attacks against civilian and military targets.
The petition takes it as a given that Israel is in occupation of Gaza according to international legal norms, a conclusion they know would be greatly disputed by scholars. The petition refers to Israel as initiating “provocative actions”, not Hamas. The petition cites as fact, verified by unnamed independent sources, that only 15% of the deaths have been combatants. That would mean that of over 1800 deaths, only 270 were militants, just over 1% of the armed militants in Gaza. The conclusion re 15% of militant deaths ignores the fact that many militants who are killed are counted as civilians because they do not wear uniforms. This military death toll would be an extraordinary accomplishment given the superior armor and lethal means available to the IDF. However, it is a possibility, but the conclusion requires solid evidence. Moreover, it is put forth as a propaganda point rather than to assess whether the principles of discrimination and proportionality were observed or abused by the IDF.
The numbers of civilian deaths would then total over 1500 – the petition cites lower totals but only because the numbers were cited in a draft written much earlier. There is no consideration that boys aged 12-17 are often used as part of the Palestinian fighting force. The IDF operation unquestionably demolished a large number of houses but the petition makes that charge without stating that houses are legitimate military targets when they are used to store munitions, house military combatants or provide entrances to tunnels used for military purposes, especially when civilians are warned to vacate before the houses are hit. Just imagine that without such warnings, demolishing 6,000 to 8,000 homes over the period of the operation, with an average of only 8 inhabitants per home, the toll would have been well over 50,000 when I suspect it was well under 1,000, horrendous enough but a far cry from a situation of 50,000 civilian deaths.
The last point directly challenges the claim of the petition that Israel has deliberately and intentionally launched a war against the civilian population of Gaza as a whole with the intent of punishing those civilians. Even the evidence cited in the petition if taken to be valid belies such a conclusion. Is a ratio of 1 civilian death for every militant killed a case of disproportionality? Certainly not a prima facie case! It would depend on the military target, its importance to the military objectives, the difficulty of discriminating between civilians and militants in close urban fighting, the practice of Hamas placing munitions and rockets in homes, schools and mosques, the fact that most militants do not have uniforms, as well as a plethora of other factors. But none of this is taken into consideration in the petition. And there is no rule that “maximum restraint the must be exercised to avoid civilian casualties”. The usual guideline is reasonable or prudent restraint. Though a repetition of the annual reports authored by both individuals that Israel intentionally delivers collective punishment on the Palestinian population, such a conclusion could only be drawn if, as Syria has witnessed, there were twenty times the number of casualties as those that actually took place.
I recognize that the petition is a propaganda document of partisan activist and not the detached conclusions of people using the principles and weighing evidence impartially and with great judiciousness. But such an approach undercuts rather than reinforces respect for international law, inhibits the investigation and application of norms of military combat, especially when the military is criminally negligent rather than diligent in its use of force.
The pity is if anyone pays serious attention to such a deformed petition. Because the greatest suffering will not be on Israelis but on the Palestinians of the Gaza Strip.