April 13, 2010
To the Senate of the Associated Students of the University of
California, Berkeley (ASUC):
I am writing to encourage renewed support for Senate Bill 118A (“A
Bill in Support of ASUC Divestment from War Crimes”), including the
override of ASUC President Will Smelko’s veto on March 24, 2010. The
earlier passage of the bill by a 16-4 vote in the Senate has been
widely hailed as a major step forward in the growing global campaign
of divestment and boycott as a means of holding Israeli accountable
for flagrant and persistent patterns of violating fundamental rules of
international criminal law, as well as those portions of international
humanitarian law applicable to military occupation. We have reached a
stage in world history where citizens of conscience have a crucial
role to play in the implementation of a global rule of law, and this
initiative by Berkeley students, if implemented, will be both a
memorable instance of global citizenship and an inspiration to others
in this country and throughout the world.
I would agree that recourse to divestment and boycott tactics should
be reserved for exceptional and appropriate circumstances. Such
initiatives by their very nature deliberately interfere with the
freedom of the global marketplace and the normally desirable free
interplay of cultures, nations, persons, and ideas. There are several
reasons why the circumstances of prolonged Israeli criminality
resulting in acute suffering for several million Palestinians living
under occupation since 1967 present such a strong case for reliance on
the tactics of divestment and boycott.
First of all, it has become painfully clear that neither the United
Nations, the United States, the actions of other governments, nor
world public opinion are willing or able to persuade or pressure
Israel to terminate policies that are both violations of Geneva
Convention IV, governing occupation, and international criminal law,
relating to both war crimes and crimes against humanity. At the same
time, there is reason to believe that efforts by Palestinians to wage
what might be called the Legitimacy War, are having a strong impact on
Israel and elsewhere. It should be remembered that many of the
conflicts of the last 75 years have been resolved by reliance on soft
power superiority, which has more than compensated for hard power
inferiority. In this respect the anti-apartheid movement, waged on a
symbolic global battlefield, created a political climate that achieved
victory in the legitimacy war that was translated, nonviolently, into
a totally unexpected political outcome—the peaceful transformation of
South Africa into a multi-racial constitutional democracy. The
Palestinian solidarity movement has become the successor to the
anti-apartheid movement as the primary legitimacy war of this
historical moment. Berkeley’s participation by way of this divestment
initiative thus takes account of the failure of governments and the
international community to protect Palestinian victims of ongoing
criminality, but also joins in a movement of solidarity that contains
some hope of an eventual peaceful and just resolution of the
underlying conflict allowing both peoples to resume a secure and
normal life.
Secondly, we in the United States face a special challenge as our tax
dollars, economic and military assistance, and unconditionally
supportive diplomacy have shielded Israel from mechanisms of
accountability for criminal behavior. Most recently, the U.S.
Government repudiated the Goldstone Report, a highly respected
fact-finding mission conducted under UN auspices, that had carried out
a scrupulously fair and comprehensive investigation of allegations of
war crimes attributable to Israel and Hamas during the Israeli
offensive in Gaza that started on December 27, 2008, and lasted for 22
days. The Goldstone Report’s main findings confirmed earlier respected
investigations, concluding that the evidence supported overall
allegations of criminal tactics, including intentional efforts to
target in Gaza civilians and the civilian infrastructure in flagrant
violation of the provisions of the law of war, which should have been
particularly upheld in a situation of such one-sided military
operations conducted against an essentially defenseless Gaza, an
unprecedented situation In which the entire civilian population of 1.5
million were locked into the combat zone, and denied even the option
to become refugees.
It should be also noted that the people of Gaza have been subjected to
an unlawful Israeli blockade that has for more than 32 months limited
the entry of food, medicine, and fuel to subsistence levels, with
widely reported drastic harm to physical and mental health of the
entire population. There are two related points here: the allegations
of criminality are abundantly documented, including by a range of
respected human rights organization in Israel and occupied Palestine;
and the U.S. Government has done its best to ensure the continuation
of Israeli impunity and it has been complicit as arms supplier and as
a country deferential to the blockade despite its gross and clear
violation of the prohibition against collective punishment contained
in Article 33 of Geneva IV. In this respect, as Americans we have an
extra duty beyond that of those living elsewhere to support the global
divestment campaign, thereby showing that our government does not
speak for the whole society when it comes to the application of the
rule of law to Israel and its political leadership.
Thirdly, by targeting General Electric and United Technologies for
divestment, the Senate shows that it is not acting arbitrarily or
punitively, but seeking to take action against corporations that are
supplying precisely the weaponry used by Israel to impose its unlawful
will on occupied Palestinian territories. Israel in legally dubious
ways has relied on Apache and Sikorsky Helicopters and F-16 fighter
bombers to mount periodic attacks against a variety of Palestinian
targets, thereby abandoning its primary duty as an occupying power to
protect the civilian population of an occupied territory.
Although most emphasis on criminality has been placed on Israeli
policies toward the Gaza Strip, it is also relevant to note that
Israeli policies on the West Bank and in East Jerusalem have
consistently ignored the obligations imposed on an occupying power by
Geneva IV, and have done so in a manner that has consistently
undermined hopes for peace. Israel has continued to build and expand
settlements, unlawful by Article 49(6) of Geneva IV prohibiting
transfers of population of the occupying power to an occupied
territory; the scale of these unlawful settlements, with some 121
settlements established on the West Bank alone and over 200,000 Israel
settlers now living in East Jerusalem, has produced an aggregate
settler population of about 450,000. Such a massive violation of
international humanitarian law is serious on its own, but also creates
a situation on the ground that has greatly diminished prospects for a
viable Palestinian state or for the sort of withdrawal from occupied
Palestine that had been unanimously decreed by the UN Scecurity
Council in its famous Resolution 242 way back in 1967.
A final expression of Israeli lawlessness can be noted in its
continued construction of a separation wall on occupied Palestine land
despite a 14-1 judgment by the International Court of Justice (ICJ)
that the wall was unlawful, should be dismantled, and Palestinians
compensated for the harm done. It is notable that the ICJ is a diverse
and respected international institution that rarely reaches such a
level of unanimity on controversial issues. Unfortunately, less
notable is the fact that the sole dissenting judge was the American
judge, and that the U.S. rejected the judicial authority of the ICJ in
relation to the wall without even bothering to refute its legal
reasoning. Although the judgment was in the form of an ‘Advisory
Opinion’ it represented a detailed and authoritative assessment of
applicable international law that was endorsed by an overwhelming vote
of the UN General Assembly. Consistent with its attitude toward
international law, Israel immediately expressed its unwillingness to
abide by this ICJ ruling, and has continued to build segments of the
wall, using excessive force to quell nonviolent weekly demonstrations
by Palestinians, Israelis, and international activists at construction
sites. To give perspective, if the Soviet Union had constructed the
Berlin Wall in such a way as to encroach on West Berlin by even a
yard, it would have almost certainly have caused the outbreak of World
War III.
I hope that I have demonstrated that divestment is justified in light
of these realities. Israel has consistently defied international law.
The United States Government has been unrelenting in reinforcing this
defiance, and is a major facilitator through its overall diplomatic,
economic, and military support. The international community, via the
UN or otherwise, has been unable to induce Israel to respect
international humanitarian law and international criminal law. With
such a background, and in light of an increasingly robust worldwide
movement supportive of divestment, it seems both symbolically and
substantively appropriate for Berkeley to divest from corporations
supplying weaponry used in conjunction with Israeli criminality. Such
a decision taken at the behest of students at one of the world’s
leading universities would send a message around the world that needs
to be heard, not only in Israel but in this country as well. It also
shows that when our government cynically refuses to uphold the most
fundamental norms of international law there is an opportunity and
responsibility for citizens to do so. I salute the members of the
Senate (and their supporters in the Berkeley community) who vote to
override this ill-considered veto of Senate Bill 118A.
Sincerely,
Richard Falk
Albert G. Milbank Professor of International Law & Practice Emeritus,
Princeton University
(since 2002) Visiting and Research Professor, Global Studies, UCSB
Special Rapporteur for Occupied Palestinian Territories, UN Human Rights Council
