[Prefatory Note: Questions Posed to Richard Falk by The Qods News Agency in Iran, April 23, 2024—on Gaza, Palestinian Rights, Damascus Lethal Attack on Israeli Consular Building]

1. Given the fact that Israel has killed over 34,000 Palestinians in Gaza, mostly women and children, and prevented the entry of international humanitarian aid into the besieged strip, what is your opinion on nearly 200 days of onslaught in Gaza and its aftermath on Palestinians’ lives? How do you describe the genocidal onslaught and war crimes in Gaza?

What has taken place over the last 200 days in Gaza is the most transparent genocide in all of human history. It is the first time that the daily atrocities were broadcast and seen by the peoples of the world in real time. Past genocides have been known almost totally in retrospect through official reports, films and memoirs, which reconstruct horrifying events but after a passage of time. Those Palestinians who managed to survive physically such sustained violence of this extreme character are reported to be suffering from mental disabilities that could persist for their entire life. It is a tragic, dehumanizing ordeal, above all for children. It is further shocking that Israel should remain insulated from denunciation and accountability despite its continuing practice of such extreme criminality.

Genocide should be understood to exist from three quite distinct moral, political, and legal perspectives. The moral perspective is made clear in Gaza by the declared intentions, policies, and practices of Israel’s highest leaders, and carried out in a totally disproportionate, indiscriminate, and lawless manner, and aggravated by consistently sadistic and demeaning treatment of Palestinian civilians who fall under the control of the Israeli armed forces. The political perspective is established in Gaza by numerous trustworthy witnesses and victims, as well as by vivid visual evidence of genocide line of justifications adopted by Israel and its supporters. The legal perspective relies on the presentation of evidence and interpretations of international law, above all by the delineation of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide (1948). Provisional conclusions as to international law can be derived from the opinions of legal experts holding important professional positions. For instance, the current UN Human Rights Council Special Rapporteur for Occupied Palestine issued an excellent report entitled ‘The Anatomy of a Genocide’ that carefully analyzed the elements of the crime and concluded that the facts and law supported the allegation of genocide. And yet until a qualified national or international tribunal with jurisdictional authority to assess the charge of genocide examines the evidence and hears the arguments of the defendant government or political actor it is impossible to say with technical propriety that the behavior in question is genocide from a legal perspective.

2. How can the world public put pressure on governments to force Israel to stop atrocities in Gaza?

It has proven difficult to challenge Israel effectively at the UN and elsewhere. Powerful countries are complicit in supporting Israel’s policies and practices in Israel, including Israel’s claim that it possesses an unlimited right to defend itself in response to the Hamas attack of October 7. The liberal democracies of Western Europe and North America are prominent among governments lending varieties of support to Israel that extends to endorsing Israel’s distortions of facts and law, which has had a detrimental effect on the authority of international law and the UN. The US above all has been guilty of double standards, using international law as a policy instrument to attack its adversaries such as Russia and China and disregarding its relevance with respect to the behavior of allies and friends such as Israel.

South Africa has been applauded widely for taking the initiative to bring allegations of genocide to the International Court of Justice under Article XI of the Genocide Convention that legally empowers any party to the treaty to bring a dispute with another party before the ICJ. Although the ICJ rose above politics to give a historically important, near unanimous, decision granting several of South Africa’s requests for Provisional Measures on January 26, 2024. Unfortunately, this preliminary ICJ order has little effect as Israel defied its interim obligatory adjustments in behavior pending a subsequent decision on whether the allegation of genocide has been established. There was exposed ‘a crisis of implementation’ as any effort to enforce the ICJ Interim Orders would depend on action by the Security Council, which would almost certainly be vetoed by the United States. Additionally, an ICJ decision following oral arguments and written pleadings would not be forthcoming for several years while the crisis in Gaza persisted.

Nevertheless, the ICJ Interim Order was an impressive vindication of international law and a legitimating demonstration of the legal professionalism of the Court. It has an authenticating impact on the governments of the Global South and even more worldwide in relation to civil society, including even in the United States and other complicit countries. Whether this pressure will result in coercive actions by way of boycotts and sanctions, and pariah status, remains to be seen, but at minimum it suggests that even in this unfavorable setting international law and populist activism offer some hope that genocide can be stopped and its perpetrators held accountable, if not formally, then by the action of peoples around the world.

3. What do you think about Palestinian resistance fighters’ right to initiate the October 7 operation against Israel?

The right of resistance on the part of a people long occupied and abused is well established. Prior to October 7, the crime of apartheid had been documented in detailed reports by the most respect human rights NGOs, Human Rights Watch and Amnesty International, as well as by the Israeli NGO, B’tselem, and by the UN ESCWA.

While the right to resist is certainly justified by the conditions imposed over the long period of occupation, which ignored the Israeli duty to protect Palestinian civilians under its control, it does not confer unlimited rights. Resistance fighters, as other armed groups, are obliged to comply with international criminal law, and not abuse or target civilians, or commit atrocities. Yet unlike the allegations against Israel, there is no authoritative account of what happened on October 7. There were wildly exaggerated claims of barbarous behavior by Israel, but later retractions and much skepticism about Israel’s depiction of events on that day. Until an international fact-finding commission is established and given full cooperation there will be doubt about the extent to which the criminality of the Hamas attack tainted its resistance claims.

4. How can the Palestinian people achieve their rights and overcome the ongoing occupation?

The Palestinian people are winning the struggle for public support in civil society and among many governments in the Global South. The rise of popular support for Palestinian rights even in complicit governments may erode somewhat their willingness to continue their support of Israel. Whether this is enough at this stage to make a difference with regard to ending the occupation is not clear at present. Prior anti-colonial struggles have been eventually won by the colonized people if they survive the genocidal assault on their existence. The breakaway British colonies in North America, Australia, and New Zealand managed through genocidal tactics to marginalize or eliminate the resistance of native peoples and complete their settler colonial projects; South Africa failed, and the project collapsed. Israel is in that space where it will either join the settler colonial ‘success’ stories or it will succumb to national resistance, with Jews either giving up the Jewish supremacy claims of Zionism or finding to coexist with Palestinians on the basis of true equality.

5. As you know, Israel attacked Iran’s consulate, killing its military advisors in Syria which is considered contrary to international conventions, which prompted a military response by the country. What is your take on Iran’s punitive response to Israel, especially in terms of international laws?

The Iranian retaliatory strike against Israel caused neither deaths nor damage, although had its array of missiles and large number of drones not been destroyed, it might have had a war-generating disproportionate effect. The interpretation of Iran’s retaliation remains ambiguous. Did it intend to display its capabilities without inflicting major damage or was it an operational failure in the sense that the intention was to be as destructive as possible. Without clarity on this question, it is impossible to make an intelligent assessment of the relevance of international law.

The legal status of retaliatory violence is a gray area of conflicting opinions. On the one side are legalists who suggest that all retaliations violate the UN Charter and international law by validating uses of international force only in situations of a sustained armed attack across an international border. By this reading even a modest retaliation against the Damascus attack was not lawful.

As with other issues, this strict reading of international law is not descriptive of practice with respect to acts of retaliation, which in practice over the years validate retaliations so long as proportionate in relation to the provocation. Israel’s second attack on Iran, however, would seem to be unlawful, ignoring the reality that it initiating the cycle of violence on April 1st by their lethal attack on Iran’s consular facility in Damascus, which killed high ranking it national military advisors.