Prefatory Note: What follows is an interview conducted by Frank Barat, well known as editor and coordinator of the Russell Tribunal sessions devoted to Palestine. The interview took place in London on 13 December 2013, and addresses a range of issues bearing on the Palestinian struggle for rights and justice. 

Frank Barat for LMaDO : I wanted to ask you about this article that you recently wrote on your blog « Nelson Mandela’s inspiration ». You mentioned that you met him 15 years ago in South Africa. What impression did he leave on you and what does, in your opinion, his death means for South Africa and the rest of the world?” 

Richard Falk: I was fortunate to have the opportunity to meet Nelson Mandela. He was asked to greet a commission on the future of the oceans of which I was a member. The Vice Chair of this commission was Kader Asmal, who had been a member of Mandela’s first cabinet and was also one of the authors of the South Africa constitution and a close friend of mine. He asked me if I could prepare some remarks for Mandela to welcome this commission, which I did. Mandela used my text pretty much as I had written it. After the presentation, which was in the South Africa parliament, he came and talked to me and then to each of the members of the commission. I was very impressed by his ability and readiness to say something to each person from these 40 countries that was specific to their national situations. As I tried to express in my post he had this quality of moral radiance, a sense of authenticity and a spiritual grounding that gave him a particular presence that was strong and unforgettable. His death has been an opportunity to take some account on what his life has meant and how it bore on so many issues, including the Palestinians, a facet that I am particularly interested in. It is important to rescue the real Mandela from the one the liberal media has tried to project, which is one of reconciliation and nonviolence. Both of these characteristics were descriptive of his efforts to find a way to end South Africa apartheid without a bloody struggle but it should also be realized that he never renounced the idea of violence if it seemed a necessary instrument for achieving liberation from a structure of oppression. His main priority was what works in response to a particular condition of oppression. His release from prison was itself an effective demonstration that the global anti-apartheid campaign had forced the South African Afrikaner elite to re-calculate their interests and priorities. It was in that setting that he made this effort to find a solution to the conflict that would end political apartheid. It was to some extent a Faustian bargain because the situation of the mass of Africans has not improved economically or socially since the transformation of the constitutional system, so not surprisingly, there is some resentment about the way in which the conflict was ended, among portions of the South African population. The legacy is complicated by the fact that his successors as leaders did not really take on the job of creating a just society. There is no question that it is a post apartheid society in a political sense but it still represents a society in which the white minority and an emergent tiny black elite dominate the economy and the mass of the people are still enduring many of the deprivations that were associated with apartheid itself. 

FB: You talked about the role of violence in emancipatory struggles for freedom. What does International Law says about this? 

RF: As in many areas of International Law it can be interpreted from different perspectives. Still, there did emerge especially in the 1970s and 80s a general international law consensus that armed struggle in the course of national liberation from a colonial regime was a legitimate use of force. It did not mean that all types of violence were legitimate and legal. It had to be violence directed towards an appropriate target. International law never offered a way of sanitizing terrorist forms of actions directed at innocent civilians or protected targets such as hospitals or churches. Of course in many of the liberation struggles the violent instruments used did include random acts intending to disrupt colonial occupation and rule. “The Battle of Algiers”, the famous film, shows acts of resistance including throwing bombs in a crowded cafe in Algiers. In this historical process, those that sided with the anti-colonial struggle have accepted such indiscriminate violence as justified in some circumstances of oppressive rule. Defensive terrorism was also justified against the Nazi occupation of various European countries during WWII. Even those that uphold the legality of violence in wars of liberation do not go as far as to legitimize violence per se. Only violence against appropriate targets can claim the mantle of international law. 

FB: In 2001 you had to answer this question in the context of the palestinian struggle during your term as the United Nation High Commissioner for Human Rights. What was your answer, or your findings at that time? 

RF: Again, one has to acknowledge that International Law (I.L) is not clear on this subject. There is no authoritative treaty or customary rule of I.L or judicial determination that would resolve that question in a definitive way. What I suggested was in a way similar to what I have been saying about Mandela’s view of violence and the relation of violence to wars of national liberation. An oppressed and embattled people possess what amounts to a right to self-defense; it not only governments that can invoke such a right. When there is an oppressive set of circumstances there is an implicit right of self-defense or resistance on the part of a society. Such a right is limited to the use of violence against those who are associated with the oppressive structure. This right has not been codified or authoritatively endorsed as states control the lawmaking process. Nevertheless, it seems to me that such a right is expressive of the living law of international society in relation to the collective rights of people. 

FB: Why do you think is this question about violence always asked to the oppressed, them being African Americans, Indian Americans, Palestinians when actually most of the violence is perpetrated by the oppressor, being the US or Israel in this case? 

RF: I think it goes back to the notion of the modern state. The modern State, by many conventional definitions enjoys a monopoly over legitimate use of violence. Therefore, those that are not state actors and that resort to violence have to overcome a presumption of immorality and illegality attached to their behavior. The state has the obligation to maintain social order, establishing a political environment in which violence is used only to maintain the established order. I think that distinction is very important in explaining popular media presentations of these conflicts. The terminology of terrorism is used usually only with reference to anti-state violence. State violence is usually sanitized in various ways. Those of us that are not happy with this kind of discriminatory use of language speak about state terrorism. But it’s a relatively unusual discourse about the nature of permissible and impermissible violence. Therefore it is important not to fall into that kind of statist trap by regarding state violence as presumptively legitimate and anti-state violence as presumptively illegitimate. 

FB: What role can International Law (I.L) really play to bring peace and justice around the world? Some Palestinians tend to laugh when you say that I.L is on their side because for them I.L is responsible to what has happened to them? 

RF: Well, an adequate answer is more complicated than can be given here. There is no doubt in my mind that on the main unresolved issues, whether it is the settlements, the status of Jerusalem, the borders, the right to resources and land or the right of the refugees, I.L properly understood and applied is unambiguously on the Palestinian side. Such an interpretation of the relevance of IL has been repeatedly endorsed and upheld by the main organs of the U.N, especially the General Assembly. It also was reinforced in large measure by the ICJ in its advisory opinion dealing with the separation wall back that was issued in 2004. At the same time it is understandable that the Palestinians feel disillusioned. I.L and the U.N authorities are on their side but their situation is getting worse and worse. Israelis enjoy impunity for their crimes. So it would appear that I.L and the U.N authorities being on their side has provided a kind of cover that has enabled the behavioral unlawfulness to actually work against them. That disparity accounts for the perception. What I think is forgotten and has been the burden of my own recent thinking is that in the current phase of the Palestinian struggle and national movement, there has been a shift of tactics away from a primary reliance on armed struggle, in the direction of waging a world wide campaign to discredit the Israeli occupation and general approach to the conflict. In other words an effective social mobilization of global civil society has taken place in recent years, including the sessions of the Russell tribunal. It’s all part of a process that I call ‘waging a legitimacy war.’ Such an outlook makes I.L very important because where it is persuasive and does affect behavior over time is on the level of people and societies. The perception helps mobilizes people around the idea that the Palestinians have been acutely victimized by unjust policies and unjust structures. If you look at the historical trend since the end of WWII, the side in a conflict that wins the legitimacy war, has generally prevailed politically. Although not without a high cost paid in lives lost and the scale of destruction. But in war after war and struggles between regimes and societies, it’s not the stronger side militarily that has prevailed but rather the side that has the superior soft power instruments of conflict resolution at its disposal. All the anti-colonial wars, the liberation of the East European societies from the regimes that they were under Soviet hegemonic control, the South African anti-apartheid campaign are exemplary of such a trend, as is the Indian liberation from British power, all these conflicts were won by the side that was decisively weaker from a realist hard power perspective. This was also dramatically the case in the Vietnam war in which the U.S won every battle yet lost the war. One has to ask, what happens to make that happen. One of the things that happens is that the side that is weaker militarily can prevail if it can gain the heights of legal and moral discourse, changes the balance of forces in a way that is very effective at the end of the conflict and produces results that are unexpected and difficult to explain. The Afghans have a saying: “You have the watches, we have the time”. That distinction between the technology and the people with unlimited time at their disposal is explanatory. That people have the ability to liberate their own country represents a decisive feature of the decolonizing and post-colonial political atmosphere. Such a reality was not true during the colonial period where a small quantum of militarily superiority could be transformed into political control. The national mobilization of societies and the sense of people power really altered this sense of the balance of forces. Further, I am claiming that part of what mobilizes people power is having I.L, U.N authority, international moral persuasion as sources of an equalizing soft power. 

FB: Israel has now been occupying part of Palestine for more than 65 years. Can we still call this today, legally, an occupation, and if we can’t, what name should we give it? 

RF: It’s an important question. I’ve argued in my role as UN Special Rapporteur that any occupation that lasts longer than 5 years enters a different phase of relationship between the occupying power and the occupied people and that we need a different kind of legal framework to address such a reality. The Geneva Conventions were implicityly designed for temporary occupations, circumstances lasting 5 years or less. In the specifics of the Israeli occupation it has become increasingly misleading to use language of occupation. It is definitely more descriptive to talk about creeping annexation or a policy of permanent occupation. Such altered language signals the unwillingness of Israel to withdraw from the territory or to show respect for the character of the society as it existed when it was initially occupied. The whole settlement phenomenon is dramatically inconsistent with any idea that this is temporary situation or that Israel contemplates ever fully withdrawing and complying with U.N resolution 242 that was passed in 1967 and called for complete withdrawal and reminded Israel and the world that one of the underlying principle upon which the U.N Charter rests is the non-acquisition of territorial rights by conquest or by the use of force. So the failure to implement resolution 242 is a sign of the failure of the U.N to be able to impose the kind of obligations that it had itself expressed as a core element of a just and peaceful world. 

FB: John Dugard, your predecessor, was part of a team that wrote a report in 2009, in which he called what was happening in the West Bank, apartheid. What do you make about this concept, that is used more and more in various campaigns around the world? 

RF: I think ‘apartheid’ is more descriptive than any other way of talking about the current situation. Each context of subjugation of a people has its own originality. There is a kind of temptation on the part of critics of those who invoke the idea of apartheid to say that it’s not like what existed in South Africa (S.A), it’s not based on race, there are differences. But if you look more closely you see that in certain respects its worse than South African apartheid. For instance South Africa never constructed settler only roads. They did not ever create such a pervasive structure of discrimination as the one that exists in the West Bank. The dual legal structure is very expressive of an ethnically based form of domination that deprives the Palestinians of rights while it endows the unlawful Israeli settlers with the full panoply of civic rights as inscribed in Israeli law as applicable to Jewish nationals. The Palestinians don’t even have the right to have rights on one side and the Israeli that are present in the Occupied territories in a manner that the International Court of Justice almost by a unanimous opinion said was unlawful having this full legal protection under the rule of law that prevails in Israel for Jewish Israelis. 

FB: On 27^th of October a campaign called “Free Marwan Barghouti and all political prisoners” was launched in Cape Town, South Africa. How important are the political prisoners and their releases in the context of Israel/Palestine? 

RF: Barghouti’s importance cannot be exaggerated. As I said in the Mandela post on my blog that if the Israeli leadership decides at some point that they want a just and peaceful future for both peoples they might signal such a change of heart that by releasing Barghouti from prison. In that sense the importance of the release of Mandela was not so much that he was suddenly and unexpectedly given his political freedom, but rather that he was given freedom because the Afrikaners changed their mind radically as to how they wanted to pursue their own security. The whole thrust of what I call a legitimacy war is to make the Israelis change their mind as to what would bring them security and fulfill their own aspirations. Therefore a campaign to free Barghouti will at least help concentrate the Israeli mind on what is at stake by keeping him in prison. Whether he should be considered a political prisoner or not is itself a question I do not have enough knowledge to answer. He certainly has acted like one. The charges brought against him are charges associated with violent crimes, on the other hand his actual role seems to have been as the main architect of the second intifada, not as someone who perpetrated particular acts of violence that were the basis of his indictment and conviction. So whether he should reasonably be treated as a political prisoner is something that needs to be explored in greater detail and if that is the basis of the campaign for his release, then the argument should be made in the strongest way as possible. 

FB: You were appointed in 2008 as UN special rapporteur to Israel/Palestine. If you had to sum it up, what would you say about this role of yours during this period?  

RF: What I have been saying when I have been ask this question recently is to say that I am very happy that I was given the opportunity to do this for the past 6 years despite all the problems involved but I am also happy for selfish and personal reasons that my term is coming to an end and I will be able to resume a more normal life. Of course, I will remain engaged with the Palestinian movement to the extent of my abilities and in light of opportunities to contribute to the goal of a just peace. I think I learned a lot about both the complexities of the Palestinian struggle and the difficulties of working within a politically contested terrain. I also learned about the strengths and weaknesses of the U.N as a political bureaucracy. There is great unevenness in the ability and motivation of the personnel. One of my problems was to be burdened with inadequate staff backup that made my own performance problematic. There are some advantages in this position being  unpaid and undertaken in a voluntary spirit. The great benefit of such a status is to be politically independent. I discovered that even the U.N Secretary General is of course free to criticize, even irresponsibly and in a hurtful manner, but still he lacks the authority on his own initiative to dismiss or punish me in any way. Only the Human Rights Council itself could do this. The burden of the work and doing the job in an effective and responsible way does require competent and loyal staff support. When that’s not forthcoming it is very difficult and frustrating to try to do the job. In the last years this problem has happily disappeared and I have been fortunate to have excellent staff back up and I think this has led to the position have a greater impact and is reflected in the quality of the reports and the utility of their recommendations. The job calls not only for semi-annual reports but also involves dealing with specific and frequent challenges that arise. At present the emergency in Gaza that has been generated by the change in political atmosphere in Egypt, which has put unbearable pressure on the people living in Gaza, is illustrative. It has been difficult for years for the people entrapped in Gaza, but now you can only describe Gaza as a place of habitation fit only for the wretched of the earth. The International community fails terribly inby being silent in the face of a situation. Only the Turkish government has made a financial contribution of $80,000 million to ease some of the problems but it is very minor input if compared to the scale of the problem. You may recall the very self-righteous invocation of the so called responsibility to protect norm in relation to Libya back in 2011 which was manipulated geopolitically at the time to create the basis for a military intervention that was not only humanitarian, but clearly was intended to change the political structure of Libya in a way that misled the governments who states in the Security Council that were opposed such a policy. In Gaza there exists a situation in which the humanitarian case for some kind of international emergency relief seems overwhelming and yet there is complete silence on the relevance on the R2P (Right to Protect) diplomacy. It suggests two things. One is the primacy of geopolitics in the way in which the U.N crafts responses to various claims for assistance based on humanitarian necessity. There are pervasive double standards in the practice of the U.N and a great deal of moral hypocrisy on the part of the liberal democracies that talk one way when their foreign policy pushes them towards an interventionist posture and talk a very different way when they do not want to do anything. This is true even when the underlying circumstances are more or less similar. The other is that the extent of humanitarian necessity is not very relevant in explaining the pattern of geopolitical action and inaction. 

FB: What does normal life means for Richard Falk? What’s next? 

RF: We will see! I think I will try to take more time to do some writing and will hopefully be able to reflect on these experiences. I hope that my successor as Special Rapporteur has less trials and tribulations than I had but also does a better job than I did because I do think this is such an important position. It is sadly only truly independent voice that the Palestinians have within the U.N system. This position of Special Rapporteur, partly because it is an unpaid and not subject to the discipline imposed on UN civil servants, has gained in iinfluence and stature during the last decade. It offers an individual the opportunity to help the Palestinians in their struggle merely by being truthful. It also allows one to promote a just outcome for this conflict that has lasted far too long and has victimized the Palestinian people living under occupation, as refugees, and in exile, dispersed around the world for far too long. This Palestinian ordeal represents a great failure of the international community and it should be remembered that unlike all the other liberation struggles against various types of colonial rule the U.N has more unfulfilled responsibility for this one that any other one. The issue was dumped in the U.N’s lap by the League of Nations and then by the British in the form of abandoning their role as the mandatory power. It was the U.N that decreed in 1947 a partition plan that was adopted by a commission that never consulted the wishes of the Palestinian people or the residents of historic Palestine. In recent years the road map and U.S political leaders continues to claim the prerogative to tell the world what was good for the Palestinians and in all these contexts the actual experience has been a downhill one for peace and justice. Against such a background, the international community bears a huge responsibility for tto overcome this record of failure, however belatedly. When people complain as they very frequently do that the U.N and the Human Rights Council spend too much time on the Palestinian issues compared to other issues around the world, my response is that it does not spend enough time, that it has failed to follow through in a way that is effective in bringing peace and justice to the peoples of Palestine, and until it does, it has no ethical or basis for not trying its utmost to do so.

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