R2P and the Palestinian Ordeal

RICHARD FALK

At the UN World Summit in 2005 the norm of Responsibility to Protect (R2P) was formally endorsed by the participating governments with considerable fanfare. The gathering of diplomatic representatives of sovereign states also declared their intention to implement this assertion of collective responsibility on behalf of international society, as institutionally embodied in the UN. The following strong language was officially used in the final document: ‘In paragraphs 138 and 139 of the 2005 World Summit Outcome Document [A/RES/60/1] Heads of State and Government affirmed their responsibility to protect their own populations from genocide, war crimes, ethnic cleansing and crimes against humanity and accepted a collective responsibility to encourage and help each other uphold this commitment.’

The impetus, and even some of the language, of R2P derived from the analysis and recommendations of the International Commission on Intervention and State Sovereignty (ICISS) [See Report of the commission, ‘The Responsibility to Protect,’ International Development Research Centre, Ottawa, Canada, 2001; for updating and background on R2P practice and theory see website of Global Centre for Reponsibility to Protect] in response to widespread calls for creating a post-colonial normative framework to address situations such as existed in Kosovo prior to the NATO War of 1999. An international response to fears of crimes against humanity against the people of Kosovo rested on a humanitarian rationale but lacked any prospect of UN authorization given the assured prospect of a Russian veto. The central idea of R2P as set forth in the ICISS Report in 2001 was the rendering of protection to a people suffering severe harm due to ‘internal war, insurgency, repression or state failure.’ In this earlier formulation, R2P was not directly tied to the underlying presence of the four crimes listed in the later UN Outcome Document as apparently necessary to trigger a possible application of R2P.

Some conceptual confusion results from these two parallel framings associated with the R2P norm, as well as from the practice under the norm to date. The first framing relates to R2P as a response to the occurrence of the four specified crimes. The second framing is more general: it relates to severe civilian harm resulting from a breakdown and rupture of the internal social order, rather than to findings suggesting criminality of the specified kind. With respect to the invocation of R2P for coercive intervention, the prevailing UN understanding presently seems to require a Security Council decision as a prior condition, which means an R2P response is only available if the obstacle of the veto can be overcome. As is obvious, the right of veto engages both geopolitical factors and principled objections to overriding territorial sovereignty and the prohibition on UN intervention in matters within the ‘domestic jurisdiction’ of member states [Article 2(7), UN Charter].

Although most attention is given to a possible coercive application of R2P, which is quite natural in relation to the prolonged plight of the Palestinian people, Israel has consistently defied all ethical and legal appeals and has been effective in resisting pressures critical of its use of excessive force and collective punishment, especially evident in its approach to Gaza. In the broader understanding of the R2P norm, the underlying idea is an affirmation of the primary responsibility of the territorial state to refrain from behavior associated with the four crimes as well as to uphold minimum public order. What may be more existentially relevant to the Palestinian situation is a recommended future extension of R2P to the role of the General Assembly and as an encouragement, and even legitimation, of civil society activism in responding to severe internal instances of chaos, criminality, and repressive violence arising in various state/society contexts. [There is an analogy to what I have in the past called ‘the Nuremberg Obligation,’ deriving from the jurisprudence of the prosecution of German political and military leaders after World War II. I suggested that ordinary citizens enjoyed the right, and possibly had an obligation, to take nonviolent action to prevent war crimes by their own government, ranging from collecting evidence to engaging in resistance initiatives.]

Applicability of R2P to Palestinian National Struggle

Without doubt, it would seem that the Palestinian ordeal was a perfect fit for the application of the emergent international norm associated with R2P. It is well established by now that the Palestinian people as a whole have been victimized over many years by an apartheid regime imposed by Israel for the purpose of maintaining a Jewish State. Apartheid is one instance of a crime against humanity enumerated in Article 7 of the Rome Statute, which provides the constitutional framework governing the operations of the International Criminal Court. The  dispossession during the 1948 War of more than 700,000 resident Arabs whose families had been living in Palestine for generations, as combined with Israel’s denial of any right of return for Palestinians who fled or were forced out, possess all the elements of the crime of ethnic cleansing. Furthermore, the reliance on various forms of collective punishment imposed on the civilian population of Gaza not only flagrantly violates Article 33 of the Fourth Geneva Convention, but is also treated by international criminal law as either a crime against humanity or a war crime. In effect, it would seem that Israel has persistently and flagrantly committed three of the four crimes specified in the Outcome Document as triggers for the application of R2P.

Beyond this, however, it is made clear that the primary obligation imposed on member states of the UN is to prevent the commission of these crimes on their own sovereign territory. Other states are expected, according to the Outcome Document, to help states fulfill this ‘responsibility to protect their own populations.’ In other words, Israel is responsible as a state to prevent Palestinian victimization by adopting policies and practices that exhibit respect for prohibitions on crimes against humanity, ethnic cleansing, and war crimes. Not only did Israel fail to do this for prolonged periods, but they affirmed a continued willingness to rely on such international crimes to sustain their overriding commitment to impose at all costs a Jewish state on a predominantly non-Jewish society, at least if national identity is assessed demographically. Such intentions were recently boldly asserted by Israel itself in the Basic Law of the Jewish Nation-State (2018), which reserved the right of self-determination in historic Palestine exclusively to the Jewish people. It is this previously unacknowledged priority of the Zionist project that explains why such international crimes of fragmentation and control are a necessary and central feature of Israeli governance. These structural and ideological dimensions of Israeli criminality establish the basis for supporting a reliance on R2P as essential to overcome the suffering and victimization of the Palestinian people.

The logic of Israeli international crimes and the relevance of R2P is compelling from objective legal, moral, and political perspectives. It rests on the primacy of nationalism, as reflecting the preferences of the demographic majority, which is regarded as the foundational basis of the right of self-determination over the last century. In the case of Palestine, when the Balfour Declaration was issued in 1917, the Jewish population of Palestine was estimated to be between 6-8%, which increased as a result of Zionist promotion of Jewish immigration and historical factors until it reached 30% at the time of the partition resolution [GA Res. 181] in 1947.

In an era of decolonization, it was thought to be no longer acceptable to achieve minority control via a settler colonial strategy, and it only became practical in Israel’s case by relying on elaborate oppressive structures to control national resistance as reinforced by the solidarity initiatives of a decolonizing non-Western world. The Zionist movement also pledged its commitment to establish ‘democracy’ in Israel in addition to establishing a Jewish state, which meant that the Palestinian demographic presence must be kept permanently as small as possible, and certainly not allowed to threaten Jews as the majority population. Such a combination of ethnic and political goals led to a continuous process of ethnic cleansing, as supplemented by a refusal to repatriate Palestinian refugees and allow the return of exiles. To meet the challenge of Palestinian resistance, Israel was led to an almost inevitable reliance on the establishment of an apartheid regime as the essential means to maintain the security and achieve the expansionist ambitions of a Jewish state. [For clarification and amplification see UN ESCWA Report, ‘Israeli Practices Toward the Palestinian People and the Question of Apartheid,’ March 15, 2017.] Israel’s reliance on such racially delimited structures of control had the same objective as South African apartheid, that of keeping one ethnicity or race in control of territorial sovereignty by subjugating another race, although the nature of the apartheid structures and the socio-economic and demographic realities of the two countries was very different. Also, of course, South Africa was forthright about its apartheid regime while Israel officially condemns the suggestion that it is an apartheid state as slanderous anti-Semitism.

It seems self-evident that, from legalistic and ethical perspectives, R2P should have been invoked and applied to alleviate and terminate Palestinian victimization resulting from Israeli reliance on policies and practices that seem guilty of the precise crimes that are supposed to engage this international responsibility to accord international protection in situations where the sovereign government is unwilling or unable. This assessment of the applicability of R2P is bolstered by this Israeli refusal to take measures on their own to govern the country in a manner consistent with international criminal law. How, then, do we interpret the silence surrounding R2P when it comes to its application with respect to Israel?  Even the formal suggestion to consider the application of R2P is considered taboo within the formal confines of the UN Security Council.

The Primacy of Geopolitics at the UN: Legalistically and Politically

The primary explanation for this silence is political and geopolitical. From a political perspective, the international consensus underlying the endorsement of R2P never anticipated that the norm would be applied in its coercive modes without the approval, or at least the acquiescence, of the five permanent members of the Security Council. In effect, the norm was made subject to a geopolitical veto, which was a crucial self-limitation, at least if conceived as an extension of UN responsibility to internal state/society issues. Less abstractly, it was apparent that any attempt to invoke R2P with respect to Israel would be blocked by the United States, which would in all likelihood be supported by France and the United Kingdom, and even possibly by China and Russia. The Western powers would block R2P because of their ‘special relationships’ with Israel, while China and Russia would be wary of any attempt to create a precedent validating forcible intervention by the UN in the internal affairs of sovereign states.

China and Russia learned a cautionary lesson when they allowed the application of R2P in Libya in 2011 by abstaining from the Security Council initiative (SC Res. 1973). The Western countries sought UNSC authority allegedly to undertake a limited emergency humanitarian operation to establish a no-fly zone to protect the civilian population of Benghazi against approaching Libyan armies. The military operation mounted by NATO supposedly to implement the UN resolution almost immediately became a regime-changing intervention of greatly expanded scope. The intervention reached finality with the brutal execution of the head of the Libyan state, Muammar Qaddafi. It was a disillusioning breakdown of trust in a process by which the limits imposed on the NATO operation in the UN authorization to use force were ignored, which particularly disturbed Russia and China. These two veto powers had been persuaded to abstain rather than veto SC Res. 1973 only because of these limits.

The two sides of R2P diplomacy become evident by comparing the cases of Palestine and Libya. With respect to Palestine, invocation of the norm is precluded by geopolitics, while with respect to Libya the use of force was legitimized by a R2P justification that won approval in the Security Council. The terms of this approval were ignored by NATO’s ultra virus expansion of the scope of UNSC authorization, enabling the attainment of Western geopolitical goals that were neither authorized nor even acknowledged. In both these instances of underperforming and overperforming, the hypothesis of the primacy of geopolitics with respect to the implementation of R2P is sustained.

Can the General Assembly Circumvent the Geopolitical Veto?

As suggested, the geopolitical veto blocks any foreseeable application of the R2P mechanism by the Security Council to alleviate the Palestinian ordeal, but that should not be the end of the story. There can be a variety of non-coercive measures adopted by a two-thirds vote in the General Assembly. It is arguable that the General Assembly has a residual responsibility to act coercively even when the Security Council is blocked, and although its resolutions are constitutionally restricted to making ‘recommendations’, they exhibit the assumption of responsibility by the international institution most representative of humanity as a whole. There is also conceptual support arising from the Uniting for Peace Resolution that in 1950 affirmed such a residual role for the General Assembly if the Security Council cannot act in relation to a peace and security challenge. [See General Assembly Resolution 337A, adopted by a vote of 52-5 (the Soviet bloc) in the Cold War context of the Korean War, but subsequently avoided by the West worried about the empowerment of the UN in ways likely to challenge their interests.]

Of course, there are reasons to be cautious. In the background are general worries about the rise of ‘a tyranny of the majority.’ In light of the failures to address the victimization of the Palestinian people over the past 70 years or more, consideration should be given to a General Assembly R2P initiative. A possible first step would be a General Assembly resolution claiming this residual competence and responsibility, and asserting authority in appropriate circumstances. The pronounced and prolonged failure of the Security Council to uphold the core mission of R2P with respect to Palestine in the face of the failure or refusal of the territorial government to act seems to qualify as ‘appropriate circumstances.’

Civil Society Reliance on R2P

In reference to Palestine, at this stage, it seems obvious that neither the inter-governmental diplomacy within an Oslo-type framework nor the UN can fulfill the expectations of a robust implementation of R2P. At least, the UN can give some attention to Israeli criminality as it has done with respect to the fact-finding report of 2019 on excessive violence in addressing the Great March of Return at the Gaza fence. [See Report of the UN Commission of Inquiry on the 2018 Protests in the OPT, UN  Human Rights Council, A/HRC/40/74, 28 February 2019] Such attention both highlights the impotence of the UN at the level of action and legitimizes civil society initiatives that exert a variety of pressures of a delegitimizing and even material character. In this spirit, invoking R2P would give an extra layer of legitimacy to the BDS Campaign (Boycott, Divestment and Sanctions) and other nonviolent initiatives, for instance, the Humboldt 3 case in Germany, to ground such actions of transnational solidarity. In effect, the argument here is analogous to the previous affirmation of a General Assembly role in the implementation of R2P. It is the residual authority of civil society to implement R2P when neither the territorial state possessing primary responsibility nor the international community acting by way of the UN possessing secondary responsibility is able or willing to act.

Civil society is a central force in the mobilization of soft power in conflict resolution situations. Transnational solidarity is more relevant to the achievement of basic Palestinian rights at this stage than either traditional diplomacy and statecraft or the UN. With these considerations in mind, the extension of the R2P ethos to civil society activism seems responsive to the Palestinian situation.

A Concluding Comment

It should be evident that despite the universalist language, the application of R2P was deliberately limited to those extremely rare instances where a geopolitical consensus existed, and additionally, to situations in which the capabilities needed to address the challenge of effective protection were available to the UN. If the intention was to find a way to address the kind of challenge that led NATO to act outside the UN framework to protect the people of Kosovo in 1999, the R2P approach is little short of delusional. Russia, and likely China, would certainly have vetoed the invocation of R2P under any set of circumstances that contained the political implications of Kosovo even if there had been no Libyan disillusioning experience with respect to authorizing humanitarian claims to apply R2P. The primacy of geopolitics poses three sets of obstacles to the use of R2P as a means of protecting people from the four categories of specified criminality in the Summit Outcome Document: (1) the legalistic right of veto available to the five permanent members of the Security Council; (2) the politically amorphous pattern of alignments that are given precedence over impulses to apply and enforce international criminal law; (3) the world order reluctance by several leading states to encroach upon the internal territorial supremacy of sovereign states no matter what.

For these reasons, it is evident that short of unforeseeable changes in the global setting, R2P is unlikely to be invoked at the UN, and if invoked, it would almost certainly be blocked in application with respect to the criminal victimization of the Palestinian people. This is a sad demonstration of the unwillingness and inability of the UN to accept existential responsibility for the protection of peoples being severely victimized by the specified crimes in situations of prolonged suffering where the territorial sovereign government is itself the culprit or supportive of the alleged criminality. As international experience since 2005 shows, R2P as a UN innovation functions primarily as a geopolitical instrument, and does not in any way overcome the kind of Kosovo challenge that it was designed to address. It has also failed to create an operative normative alternative to ‘humanitarian intervention’ in the post-colonial world.

If there is a lesson for the Palestinian struggle, it is this. Do not look for relief to any future application of R2P, or for that matter, to inter-governmental diplomacy or the UN. The only path to ending current patterns of criminal victimization is by a combination of Palestinian national resistance and global solidarity initiatives, which as suggested above could benefit from an invocation of the R2P ethos. The most prominent current initiative is the BDS Campaign that could reach a tipping point if and when geopolitical factors and Israeli national self-interest are recalculated due to pressures from within and without Israel/Palestine. At such a point, substituting a democratic form of peaceful coexistence for current apartheid structures might then be perceived as a matter of Israeli self-interest as became the case in South Africa after the Afrikaaner governing elite concluded that the white population would be better off in a constitutional multi-racial democracy than by living with sanctions and illegitimacy as an apartheid state.                                                                                                                         

Richard Falk is Albert G. Milbank Professor of International Law and Practice Emeritus, Princeton University and currently Distinguished Research Fellow, Orfalea Center of Global Studies, UCSB. He was UN Special Rapporteur for Occupied Palestine, 2008- 2014. In 2017, he co-authored a UN report entitled ‘Israeli Practices towards the Palestinian People and Question of Apartheid’ that generated controversy and widespread discussion. He is Senior Vice President of the Nuclear Age Peace Foundation. He writes a blog on issues of world peace and global justice <richardfalk.wordpress.com> During 2018 he gave talks in Germany, Italy, Turkey, Britain, and Lebanon, as well as the United States. In 2018 he was Distinguished Visiting Fellow, Institute of State Crime, Queen Mary’s University London, UK and Visiting Professor at International College, Torino, Italy.

In 1972 he published This Endangered Planet: Prospects and Proposals for Human Survival (1972). His most recent book is Revisiting the Vietnam War: The Selected Writing of Richard Falk, ed. Stefan Andersson (2017). Other recent books are Humanitarian Intervention and Legitimacy Wars (2014), Palestine: The Legitimacy of Hope (2015), Chaos & Counterrevolution: After the Arab Spring (2015), Power Shift: On the New Global Order (2016); Waiting for Rainbows (poetry) (2016); Palestine’s Horizon: Towards a Just Peace (2017).

In recognition of his work in the area of human rights, Euro Med Monitor has created an annual ‘Falk Award’ given to young refugees that overcome the challenges of their status. Falk has been annually nominated for the Nobel Peace Prize since 2009.

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