The Fragile Ceasefire: Gaza Tribunal More Relevant

TRANSCEND MEMBERS, 3 Feb 2025

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

30 Jan 2025 – This was published by Middle East Eye yesterday, representing my latest attempt to express support for the Gaza Tribunal Project seeking civil society enforcement of international law given the neutering of the global normative order.

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Amid Fragile Ceasefire, the Gaza Tribunal on Genocide Will Bring Us Closer to Justice

By Richard Falk

In 1 November 2024, a coalition of concerned individuals and organisations launched the Gaza Tribunal (GT) in London in response to the international community’s failure to halt the genocide in Gaza.

After more than a year of carnage, its convenors launched this civil society initiative with an urgent mission: to stop the killing in Gaza and establish a permanent, reliable ceasefire – something the United Nations and other parties involved failed to do.

The guiding aspiration of the tribunal was to represent the peoples of the world in their endeavour to overcome this horrifying spectacle of daily atrocities in Gaza and resist the temptation to accept our collective helplessness in the face of such totalising devastation.

It also seeks to hold Israel – along with complicit governments, international institutions and corporations – accountable for their roles in the violence.

In line with this mission, the GT has worked to ensure political independence from governments and active politicians, refusing to accept governmental or compromised funding.

With the three-phase ceasefire agreement now being implemented, the tribunal remains more critical and relevant than ever.

Complementary role

From the start, a key question facing the tribunal was what particular role it would play, given that both the International Court of Justice (ICJ) and the International Criminal Court (ICC) were already investigating criminal charges against Israel.

How could a civil society tribunal add anything to the work of this respected judicial process, an organ of the UN enjoying a preeminent status when called upon to resolve legal disputes among governments?

The tribunal is not seeking to compete with the ICJ but rather to play a complementary role that appreciates the ICJ’s contributions while offering its own distinctive impact

What could be our added value? Who the hell did we think we were?

In response to the perception of irrelevance, the tribunal views its function as distinct from these international bodies.

Through its operations, the tribunal will reach conclusions about the central issue of genocide and related criminality much faster than the ICJ, which is expected to take several years to issue a final judgment.

A key justification for this type of tribunal is its freedom from legalistic rules that limit the scope of inquiry, allowing it to address underlying questions of justice directly.

Additionally, the GT will produce accessible and readable texts that are informed by international law but not burdened by its technicalities, making them far more accessible to the public through media outlets and political gatherings.

In sum, the tribunal is not seeking to compete with the ICJ but rather to play a complementary role that appreciates the ICJ’s contributions while offering its own distinctive impact that addresses some of the limitations of a strictly legal approach, however authoritative.

Continued relevance

An additional concern, along similar lines, arises from the ceasefire process, which, if upheld, will be seen as the end of the humanitarian catastrophe in Gaza by many but as the beginning of a fragile and ambiguous future by the convenors of the tribunal.

The issues of continued relevance in light of the ceasefire are different and can be summarised as follows: issues of accountability, complicity and the fulfillment of the basic rights of the Palestinian people are outside the scope of the ceasefire.

The ceasefire itself is fragile, and the right wing of the Israeli cabinet appears confident that the genocidal war will resume after the return of the first batch of hostages, with no concern for the further promised release of Palestinian prisoners.

As with the Oslo diplomacy of the 1990s, Israel often upholds the first phase of promising peacemaking that serves its interests – only to then scuttle the remainder, which would require agreeing to some form of co-existence.

There are already signs of Israeli non-compliance, highlighted by the lethal shooting of Palestinians in Rafah and deadly raids in Jenin and Nablus in the occupied West Bank.

Additionally, US President Donald Trump and his Middle East envoy, Steve Witkoff, have both floated proposals of ethnic cleansing, suggesting that the return of hostages could be coupled with the transfer of a portion of the surviving Palestinian population in Gaza to neighbouring countries and other Muslim states, including Indonesia.

Like previous civil society tribunals that have addressed violent conflict, civic efforts to establish such a tribunal are undertaken only when formal structures of authority in international relations fail to stop the violence and related criminal actions.

Civil society approach

Perhaps the most important – yet least understood – aspect of the Gaza Tribunal initiative is its deliberate political nature in both the proceedings and the goals being pursued.

This civil society-driven approach to its judicial framework differs significantly from the analogous frameworks found in intergovernmental or national courts.

The tribunal begins with the premise that the policies, practices and politicians of the accused state are guilty of severe wrongdoing – ethically, legally and, in a profound sense, spiritually.

Unlike government-established courts, this tribunal does not extend due process or presumptions of innocence to governments or individuals accused of criminal actions.

This contrasts with conventional court proceedings, which are generally considered unfair or invalid unless defendants are provided a sincere and adequate opportunity to defend their actions.

In this sense, the Gaza Tribunal’s approach differs markedly from the Nuremberg trials, where due process rights were granted to surviving Nazi political figures and military commanders after World War Two.

While these trials sought to deliver justice, they were criticised as “victors’ justice”, as the crimes of the victors were neither investigated nor prosecuted.

The GT operates from a presupposition of guilt, grounded in available evidence and perceptions.

It is motivated by two main objectives: to document criminal wrongdoing as authoritatively as possible and, perhaps more importantly, to mobilise individuals and groups worldwide. This mobilisation draws on moral and cultural authority figures – such as the UN secretary-general, the pope, and Nobel Peace Prize laureates – as well as faith-based groups, labour unions and human rights organisations.

‘People power’

The tribunal can be seen as a form of ethical or advocacy jurisprudence, a kind of lawmaking not typically taught in even the most prestigious law schools in the world’s most democratic societies.

Despite this, it remains an indispensable tool for resisting unchecked evil, of which genocide is widely regarded as the “crime of crimes”.

Unlike the ICJ or the ICC, the Gaza Tribunal encourages enforcement through civic activism in various forms without relying on governments to provide enforcement capabilities, which has yet to happen.

To clarify, the primary goal of the tribunal is action, not judgment, and this holds true even after a ceasefire.

Its focus is on “people power”, not institutional authority.

Its success will be measured by its societal impact, particularly in terms of the intensity and quality of solidarity movements around the world, akin to the Boycott, Divestment, and Sanctions (BDS) campaign in relation to the Palestinian struggle.

Similar non-violent solidarity movements played a key role in dismantling apartheid in South Africa, helping transform it from a regime of racial governance to a constitutional democracy with equal rights for all citizens.

A generation earlier, the anti-Vietnam War movement also demonstrated the power of a mobilised global citizenry – especially in the US and France – to end the interventionist policies of the most powerful nation in the world.

This effort gave rise to the first civil society tribunal, sponsored by the Bertrand Russell Peace Foundation in the UK, led by the great philosopher Bertrand Russell, with participation from leading intellectuals of the time, such as Jean-Paul Sartre.

‘Legitimacy war’

Public opinion today is largely shaped by the modern state, which exerts indirect influence over corporatised mainstream media.

In turn, powerful special interests and their well-funded think tanks ensure that governmental institutions remain aligned with their agendas.

The tribunal can be seen as one symbolic battleground in the legitimacy war that has been ongoing for more than a century between Israel and Palestine.

This dynamic has perpetuated the misleading belief that military power remains the decisive factor in global conflicts post-World War Two.

However, historical records contradict this belief: every significant conflict since World War Two, including anti-colonial wars, has been won by the weaker side militarily.

Israel appears to be an exception to this trend, but its wars should be understood as part of an ongoing and unresolved struggle over sovereignty and control of historic Palestine.

The outcome in Palestine is still undecided, and despite the horrific violence in Gaza, Israel is losing the all-important “legitimacy war” – a symbolic battle for control over law, morality and public opinion.

Except in rare cases – such as Western Sahara, Kashmir and Tibet – the winner of a legitimate war ultimately controls the political outcome.

However, even the winning side may suffer significant losses over the prolonged struggles required to achieve that victory.

The Gaza Tribunal can be seen as one such symbolic battleground in the legitimacy war that has been ongoing for more than a century between Israel and Palestine.

Measure of success

If it succeeds, the tribunal will account for both the success or failure of the ceasefire while also creating a comprehensive archive documenting Israel’s criminality.

Moreover, it will foster worldwide solidarity, encouraging global militancy for justice.

The tribunal also contributes to the legitimisation of an alternative paradigm of international law, one that derives its authority from people and their sense of justice rather than relying solely on governments and their institutions.

The Gaza ordeal should awaken the conscience of people worldwide, making them more receptive to civil society initiatives like the tribunal.

By doing so, it acknowledges the complementary role of civil society in educating and mobilising citizens to embrace the view that the future of international law and justice often depends on their direct engagement in current political struggles.

In this way, this populist backstop of morally and legally driven activism has the potential to help humanity meet mounting global challenges effectively and fairly.

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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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