Richard Falk: The Palestinian solidarity movement has become the successor to the anti-apartheid movement as the primary legitimacy war of...

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