Why a Civil Society Tribunal on Gaza Genocide Is Necessary

TRANSCEND MEMBERS, 23 Dec 2024

Richard Falk | Global Justice in the 21st Century – TRANSCEND Media Service

15 Dec 2024 – The questions and responses were made a month ago and now presented in a modified form. The original intention was to cooperate with Aida Naouel Kara Mohammed of The Interviews Office of aljazeera.net based in Doha, Qatar, which was gathering information for a report about the newly formed Gaza Tribunal.

1- How and when the idea of making “Gaza Tribunal” came?

The idea of a peoples or civil society tribunal on the persisting genocidal assault on the entrapped and blockaded Palestinian civilian population has long been conceived of as a valuable initiative. Yet a specific proposal with adequate funding only came to our attention when my wife, Hilal Elver, and I were approached in Turkey during May of 2024 by a group of concerned Turkish citizens associated with the Islamic Cooperation Youth Forum inviting  and encouraging us to embark on such a project and asked me to serve as president, and Hilal to act as chief coordinator. We carefully deliberated upon whether we should accept such a proposal given the time-consuming complexities of organizing and carrying out such a project, and considering the political complexities of dealing with an undertaking of this magnitude.

During negotiations we insisted upon a strict pledge of political independence from interference by sponsors and funders, and above all, and by the Turkish Government. As well as independence from all governments. We also made clear that we would only proceed if assured about the exclusion of active politicians or diplomats. Such assurances were given in a persuasive form, and in August 2024, as the genocide intensified and the UN and US seemed in the first case unable and in the second case unwilling to even establish a ceasefire, we accepted this invitation and have been planning the organization, structure, and activities ever since. A successful launch meeting of the Gaza Tribunal Project was held in London on October 31-November 1^st with many prominent scholars and activists taking part, including giving great attention to the work of Palestinian civil society grassroots organizations working under harsh conditions prevailing throughout Occupied Palestine.

2- Many nongovernmental organizations participate in this initiative; how do they coordinate and cooperate with each or other?

As a civil society initiative oriented toward lending support to the Palestinian struggle for self-determination and other basic rights, we have sought participation from a wide range of Palestinian NGOs, and have been encouraged by their strongly positive response as evidenced by their participation. We have established a Palestinian Civil Society Working Group as well as Global Civil Society Advisory Council to ensure that there are clear channels for participation and influence. To date there has been excellent cooperation among participating Palestinian organizations and in relation to the global CSOs, and of course we hope this will continue and be reflected in the final judgment of the Gaza Tribunal. The identity of the Gaza Tribunal is global in its orientation, aiming to mobilize support throughout the world for global solidarity initiatives.

3- What are some of the prominent active organizations?

To varying degrees representatives of many organizations are active and or influential in the work of the GT, including notable Palestinian civil society actors: Al Haq, Palestinian Center of Human Rights,  Addameer, and Al Mezan Center of Human Rights. We have a special working group in the project composed of representatives of Palestinian grassroots and solidarity organizations. We on the Steering Committee of the GTP will turn to them for guidance throughout the entire GT process. We also are responsive to the valuable contributions of such global civic society organizations Amnesty International, Human Rights Watch, Doctors Without Borders, and other civil society organizations and activists wherever situated, including in Israel. We also intend to involve journalists, observers, and experts with a clear knowledge and experience of the violence that has been directed both toward the people of Gaza, but also toward international health and humanitarian aid workers, and indeed any individual of conscience, including poets, novelists, and artists.

4- What are the main goals that the Gaza Tribunal aspires to achieve?

I think a consensus exists among the conveners and sponsors of the Gaza Tribunal Project that we hope to organize the tribunal in such a manner that its final judgment gives primary emphasis to the particulars of the crime of genocide as perpetrated in Gaza by Israel delimited by international law and the Genocide Convention. It also seeks to complement the International Court of Justice (ICJ) by acting more quickly and by producing texts that are technically competent yet readable by any concerned person without the obstructions of the sort of obscure legalism and boundaries that tend to be characteristic of ICJ judgments. The GT will operate without the guard rails of normal national and international courts, especially those affecting jurisdiction to decide, the scope of criminality that is to be pronounced upon, and especially the professional discipline of giving equal opportunity to complainants and defendants. A peoples tribunal is activated only by a sense of widespread injustice that is not being adequately addressed by the intergovernmental structures of world and their institutional policy tools for implementation (as center in the UN System).

Additional to the text itself and wider than any proceeding before the tribunal is the overall goal of producing an accurate and comprehensive record of what has transpired in Gaza (and spillover combat regionally) since the Hamas attack of October 7, 2023, which itself should be contextualized in terms of prior Israeli provocations over the decades, intensified from the time the Netanyahu took control of Israeli governance at the start of 2023. It is a documentation of the criminal course of action free from jurisdictional restrictions on scope of inquire and from legalistic proceedings that impose boundaries on what kind of evidence and arguments are acceptable.

A further objective is to create a civil society template for a critical understanding and treatment of international law, including the world order significance of the GT experience for the development of an alternative pedagogical paradigm for the teaching and apprehension of international law that seeks to be critical of standard approaches and more dedicated to forging linkages between law and justice. As matters currently stand, the ICJ despite ‘justice’ being in its name veers sharply toward a strictly legalistic and positivist framing of issues it is called upon to resolve. Of course, in extreme circumstance such as Gaza legalistic and populist approaches to international law tend to converge, and the professionalism of the judges at the ICJ gives legitimacy and legal prestige to their rulings even if, as here, the obligatory features of their rulings are neither respected, nor observed, by Israel.

A further goal is to explain and justify a ‘judicial’ proceeding that does not accord due process to the defendant or adversary. Such partisan jurisprudence fills the gap created by the shortcomings of intergovernmental judicial processes even if operating free from geopolitical interference.  Again, if competently and objectively done, this mode of populist adjudication deserves respect, and implementation by private sector solidarity initiatives. For instance, BDS or cultural, sporting, and academic steps responsive to calls for populist modes of ‘enforcement.’ The effective of implementation depends on the degree to which a civil society undertaking has a mobilizing effect on people. The struggle against South African apartheid contains many reasons to believe that global expressions of solidarity strengthens the will and prospects on a national struggle for basic rights.

5- Do you think that your efforts will exert a meaningful influence?

Yes, if the quality of performance at various stages of the GT live up to its diverse aspirations and potential. A civil society tribunal lacks any direct enforcement capabilities, but it can encourage solidarity initiatives that exert pressure. This seems to have been instrumental in the case of the anti-apartheid movement that differed from the Palestinian situation because the UN exerted an important delegitimizing influence, including by way of several Advisory Opinions of the ICJ. Also organized elements in civil society including faith-based groups, labor unions, and university protest movement supportive of divestment and boycott exerted pressure on the apartheid regime. As well, as with Occupied Palestine, an array of anti-racist pro-constitutional human rights actors were active and effective in delegitimizing apartheid South Africa.

One such established effort in the Palestinian struggle along these lines is the BDS Campaign which was initiated in 2005 by a coalition of Palestinian activists and grassroots organization. A strong judgment by GT, if widely distributed will add legitimacy to such civil society initiatives and give rise to other meaningful non-governmental undertaking including cultural and sports boycotts, and cooperative academic projects involving exchange programs and other interactions with Israel’s university.

The success or disappointment of our efforts will of course reflect the contextual situation, especially whether there continues to be widespread concern about the behavior of Israel toward Palestinian basic rights as well as whether Israel will continue under present or similar leadership. It is possible if Israel implements its increasing overt plans to annex the West Bank, Gaza in whole or in part, and deny any prospect of agreeing to the emergence of a Palestinian state of equivalent sovereignty, the impact of our GT Tribunal could be considerable even if indirect.

Also quite possible is a Zionist led pushback against the GT probably under its familiar tactic of weaponizing antisemitism. There exists a substantial prospect that a Trump presidency will encourage the demonization of the GT and those closely associated. So far, such dark prospects have not discouraged participation in its activities by those whose contributions we have solicited, which include persons prominent in the civic life of their respective country. The US as a geopolitical leader and the principal supporter of Israel despite the transparency in real time of the genocide is an important battleground in the Legitimacy War being waged effectively on behalf of the Palestinian struggle but at great costs if measured in terms of human suffering and traumatized alienation endured by the entire civilian population of Gaza. A recent report on the condition of the mental health of children in Gaza reached the conclusions that 96% of children believe that they will soon die, 49% have lost the will to live, and 100% of surviving children will need psychological help to restore their mental health. [Study and Report of Gaza Community Centre for Crisis Management, supported by the UK-based War-Child Alliance.]

6- Some believe that people have lost hope in such initiatives, what do you respond to them?

Such initiatives have always had to swim against the currents of geopolitical hard power and the mainstream media’s establishment alignments that were dismissive or hostile to such populist challenges. Such statist attitudes were present from the inception of civil society tribunals as a policy instrument of persons opposed to the behavior of states and their institutions. The serious development of this populist approach to law goes back to the formation  of the Russell Tribunal in the mid-1960s addressing the alleged crimes associated with the conduct of the Vietnam War. This first instance of a people’s tribunal did not have a discernible effect on the US conduct of the war, although it energized to some extent anti-war activism in the US and Europe, and pioneered a model of legitimacy challenges that has been emulated in numerous subsequent instances, including tribunal initiatives concerned with nuclear weapons, interventions in the Global South, gender equality, environmental protection, and corporate wrongdoing. In this sense, this civil society format has emerged as a pedagogical model of soft power resistance with variable educational, media, and activist impacts depending on the issue, overall political context, and the skills of the organizers in disseminating the outcome of their tribunal.

The Palestinian struggle and Israel’s genocide is in many ways a special case, which makes its likely effects either less than hoped for or greater. For one thing Israel learned from apartheid South Africa to use major resources to shape effectively the public discourse relevant to its behavior, including resorting to ‘a politics of distraction’ to divert attention from substantive allegations and criticism by mounting defamatory attacks on the messenger to divert attention from the message.  In this respect Netanyahu and other Israeli leaders have consistently dismissed UN authority, including of the ICJ, with contrary-to-fact defamatory attacks irresponsibly charging UN antisemitism.

Further, the historical background- of Jewish victimization climaxing with the Holocaust continues to inhibit criticism or identification with the Palestinian struggle particularly in Germany but also in the Western democracies, especially the US, that emerged from World War II with a guilty conscience because these governments did so little to oppose Nazi antisemitism culminating in the Holocaust before and during the Second World War. This liberal guilt led to an Orientalist sequel in the postwar context in which Europe’s long history of extreme persecution of Jews were addressed at the expense of people resident in a Global South nation, making Palestinian Arabs themselves persecuted strangers in their own homeland. This is the deep roots of a process that culminated in genocide when Palestinian resistance persisted despite Israeli apartheid policies and practices. Such a pattern of recourse to genocide is embedded in the experience of settler colonialism that long preceded Israeli genocide. While eliminating or marginalizing the resistance of native peoples, settlers from Europe coupled their state-building operations with genocidal tactics in the breakaway British colonies of North America, Australia, and New Zealand in systematic processes. I have labeled this dynamic as ‘genocide before genocide,’ that is before the word ‘genocide’ was invented by Rafael Lemkin and widely adopted throughout the world in the post-Holocaust, written into international law in a widely ratified treaty, International Convention on the Prevention and Punishment of Genocide (1948).

Finally, we who are devoting time and mainstream reputations to the GT acknowledge the uncertainty as to its usefulness. In part, we make this major commitment in response to Michelle Obama’s pre-election imperative then directed at Democrats in the US 2024 pre-electoral setting: ‘Do Something!’ Also, even if a direct impact on Israel’s behavior fails, we are confident that there will be secondary impacts of a high-quality tribunal in relation to future legal education, especially in the Global South. The compilation of a historical record and archive is itself a contribution to a people-oriented approach to the study and application of international law in global security contexts.

I suspect that most of those ‘who lost hope’ never had much hope or belief in ‘such initiative.’

7- Why was the Gaza Tribunal Project launched it in London exactly?

The principal reason for locating the November 1 launch in London was to signal and underscore our intention to be global rather than to appear Turkish or even Palestinian. The diverse background of the London participant in this initial meeting of the GT Advisory Council gave full expression to this issue of global identity. London was also logistically convenient. We plan future meetings in other national settings.

8- It’s known at the international level that such initiatives are symbolic, will be there any legal obligations to punish the perpetrators?

Whenever the obligations of international law clash with strong strategic interests of geopolitical actors, especially in relation to war/peace and global security issues, the impacts of even formal governmental or international institutions has been principally symbolic. Israel defies international law and the UN and there is no political will to counteract or even censure such behavior. At most, a non-judgmental call for a ceasefire and a concern about the humanitarian catastrophe being inflicted on the previously entrapped and abused civilian population of Gaza for over 14 months.

And yet, Israel is sufficiently sensitive to the impact of adverse judgments by the ICJ, International Criminal Court (ICC), and the General Assembly as to use all its influence to blunt the effects, including hyperbolic defamation as instanced by characterizing the UN as ‘a vile cesspool of antisemitism’ and trying to use backroom influence to cancel or otherwise nullify the ICC issuance of arrest warrants for Israeli leaders as recommended by the Chief Prosecutor, Karim Khan.  As the Israel historian Tom Segev writes, “Not every criticism against Israel is antisemitic…The moment you say it is antisemitic hate … you take away all legitimacy from the criticism and try to crush the debate.” This is exactly descriptive of the Netanyahu tactics at the UN repeatedly referring to this organization of the world peoples and their governments as an ‘Anti-Israel Flat Earth Society’ and calling the UN ‘a swamp of antisemitic bile.’ Indeed, the UN deserves criticism as weak and incapable of upholding its own Charter and exhibiting no capacity or will to challenge ‘the primacy of geopolitics.’ At least, the president of Turkey, Recep Tayyip Erdogan, has mounted muted criticism of the UN with his catchy slogan ‘the world is greater than five.’

In this sort of context of geopolitically supported lawlessness, the main path leading to the effectiveness for law is symbolic, but the symbolic effects of legitimate political actors, whether inter-governmental or not, are real as evidenced by targeted states doing everything in their power to prevent and discredit them. I have long believed that symbolic arenas of lawmaking should not be trivialized or derided as I argue most emphatically with respect to the existence and activities of the GT. It is always worth remember that the anti-colonial wars since 1945 have all been won by nationalist forces on the symbolic battlefields of legitimacy. In other words, victors in Legitimacy Wars have controlled political outcome in war while competing with militarily superior colonial armies. This is a prime lesson of history, which ‘political realists’ that dominate foreign policy circles and arms merchants wanted banned throughout the lifetime education of their citizenries.

If nothing else, the Gaza Tribunal Project can offer an alternative, TWAIL, or subaltern pedagogical model of how the interplay of law, morality, and war should be configured and interpreted at this time of planetary danger.

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Prof. Richard Falk is a member of the TRANSCEND Network, Albert G. Milbank Professor Emeritus of International Law at Princeton University, Chair of Global Law, Faculty of Law, at Queen Mary University London, Research Associate the Orfalea Center of Global Studies at the University of California, Santa Barbara, and Fellow of the Tellus Institute. He directed the project on Global Climate Change, Human Security, and Democracy at UCSB and formerly served as director the North American group in the World Order Models Project. Between 2008 and 2014, Falk served as UN Special Rapporteur on Human Rights in Occupied Palestine. His book, (Re)Imagining Humane Global Governance (2014), proposes a value-oriented assessment of world order and future trends. His most recent books are Power Shift (2016); Revisiting the Vietnam War (2017); On Nuclear Weapons: Denuclearization, Demilitarization and Disarmament (2019); and On Public Imagination: A Political & Ethical Imperative, ed. with Victor Faessel & Michael Curtin (2019). He is the author or coauthor of other books, including Religion and Humane Global Governance (2001), Explorations at the Edge of Time (1993), Revolutionaries and Functionaries (1988), The Promise of World Order (1988), Indefensible Weapons (with Robert Jay Lifton, 1983), A Study of Future Worlds (1975), and This Endangered Planet (1972). His memoir, Public Intellectual: The Life of a Citizen Pilgrim was published in March 2021 and received an award from Global Policy Institute at Loyala Marymount University as ‘the best book of 2021.’ He has been nominated frequently for the Nobel Peace Prize since 2009.

Go to Original – richardfalk.org

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