One of the most-discussed terms in the context of the Israeli occupation of Palestine is “international law.” It is almost always present, whether discussing the Israeli wars and siege on Gaza, the expansion of illegal settlements in the West Bank or the encroaching apartheid throughout Israel and the Occupied Territories.

Despite the importance and relevance of the term, however, it rarely, if ever, translates into anything tangible. The Israeli siege on Gaza, for example, has continued unabated for more than 13 years without international law protecting Palestinian civilians against Israeli human rights violations. Then there is the fact that the Israeli government last month approved 1,000 illegal settlement units in the West Bank. That, too, is done in stark violation of international law, but Israel will most likely go through with it anyway.

When it comes to violating international law, Israel is in a unique category all on its own, for its behavior is always governed by its military strength and the backing of its Western allies.

To gain more insight into the relationship between international law and conflict resolution and accountability, I spoke with Prof. Richard Falk, one of the world’s leading experts on international law and a former UN special rapporteur on Palestinian human rights. Particularly relevant to our discussion were the ongoing Palestinian efforts to hold alleged Israeli war criminals accountable at the International Criminal Court (ICC). The fact that the court has agreed to investigate the accusations of war crimes in Palestine has generated an angry response from Israel and unprecedented sanctions from the US, which target ICC judges and staff, including Chief Prosecutor Fatou Bensouda.

I asked Falk about the limited scope of the ICC investigation, as the court will only be looking into Israeli war crimes, meaning it excludes crimes against humanity, among other practices that should be applicable in the case of Israel. “The scope of the investigation is something that is ill-defined, so it is a matter of political discretion,” Falk said. “The court takes a position that needs to be cautious about delimiting its jurisdiction and therefore it tries to narrow the scope of what it is prepared to investigate.”
He added: “I don’t agree with this view… but it does represent the fact that the ICC, like the UN itself, is subject to immense geopolitical pressure.” Still, the seasoned international law expert described the ICC investigation as a “breakthrough.” He said: “Israel has denounced the court as if it is improper to examine any state that claims the matter of geopolitical impunity. So you have a core denial of the rule of law.”

There can be no denial that this breakthrough and the positions of international institutions regarding the illegitimacy of the Israeli occupation are due to the hard work of Falk and other champions of international law over the years. In fact, the relentless attempts to silence Falk and others like him were carried out in the hope that their criticisms of Israel’s violations would not ultimately lead to dreaded investigations such as the ICC’s.

“There are very militant Zionist-oriented NGOs, like UN Watch, that engage in defamatory kinds of activities and use all their resources and their energy to persuade people, including the UN secretary-general, to criticize me and urge my dismissal or some type of sanctions,” Falk said of the challenges he faced during his time at the UN between 2008 and 14. Luckily, but also tellingly, “in the end, the role of special rapporteur was respected… and there was so much support for my activity, including foreign ministries, including outside the Islamic world. I felt that it was an important kind of presence to maintain.

“The Zionist groups were of course very frustrated and they didn’t try to respond to my reports on the violations of human rights in the Occupied Territories; rather they concentrated on defaming and smearing the messenger rather than addressing the message,” Falk said, identifying the very essence of the strategy used by pro-Israel groups, whether at the UN or elsewhere.

I also asked Falk about the term “occupation,” which, in my limited understanding, was defined by the Geneva Conventions and other international statutes to describe a transitional period, during which an occupying power is in charge of the welfare and well-being of a civilian population in an occupied territory. “International law is quite ambiguous about the duration of a military occupation and Israel has made a kind of specious argument that the Geneva Conventions and the normal law governing belligerent occupation doesn’t apply here because this is disputed sovereignty rather than a case where another country has been occupied,” Falk said.

Israel has historically exploited legal ambiguity to entrench, instead of end, its occupation of Palestine.

Ramzy Baroud

Coupled with US-Western support and vetoes at the UN Security Council, Israel has historically exploited this ambiguity to entrench, instead of end, its occupation of Palestine.

According to Falk, since international law “doesn’t provide an endpoint to the occupation, the most effective way of challenging it from an international law point of view is that Israel has committed so many fundamental breaches of the obligations of an occupying power — the establishment of the settlements, the incremental annexation, the integration of Jerusalem into the sovereign state of Israel… They are all fundamental violations of the Fourth Geneva Convention and they represent an effort to make the end of occupation not possible in the sense that it was meant: Turning the society back to the civilian population that is occupied.” He described this situation as a “serious flaw legally and politically.”

But is there reason for optimism? Falk believes so. “As colonialism and oppression lost their acceptance as forms of legitimate political behavior, the political balance shifted and the perseverance of national struggles turned out to be more formidable than the weaponry at the disposal of the colonial powers,” he said.

According to Falk, history is clearly on the side of Palestinians, who are already “winning the legitimacy war.”

• Ramzy Baroud is a journalist and the Editor of The Palestine Chronicle. He is the author of five books. His latest is “These Chains Will Be Broken: Palestinian Stories of Struggle and Defiance in Israeli Prisons” (Clarity Press, Atlanta). Twitter: @RamzyBaroud

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