Written by Richard Falk / Global Justice in the 21st Century
[Prefatory Note: The posted text below will be one of the contributions in the forthcoming virtual roundtable The Responsibility to Protect and Palestine, orchestrated and editedby Coralie Pison Hindawi (AUB), that will appear soon on the Beirut Forum website, http://www.thebeirutforum.com/. The roundtable will feature additional essays by Ghassan Abu-Sittah (AUB), Irene Gendzier (Boston emeritus), Siba Grovogui (Cornell), David Palumbo-Liu (Stanford), Ilan Pappe (Exeter), Vijay Prashad (Tricontinental Institute), Mazin Qumsiyeh (Betlehem) and Chiara Redaelli (Harvard). The fact that Gaza has not even been discussed at the UN, despite the prolonged, intense victimization of its vulnerable and impoverished civilian population is one more indication of the primacy of geopolitics and the marginalization of international law and morality. Only civil society activism can keep the torch of justice burning in this global climate.]
The Emergence of R2P
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 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’] 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, which rested on a humanitarian rationale but lacked UN authorization. The central idea of R2P as set forth in the ICISS Report was the rendering of protection to a people suffering severe harm due to ‘internal war, insurgency, repression or state failure.” It was not directly tied to the underlying presence of the four crimes listed in Outcome Document as triggering possible application of R2P. There is confusion resulting from two parallel framings associated with the R2P norm. The first framing relates to R2P as a response to the occurrence of the four specified crimes. The second framing is more general relating to severe civilian harm resulting from a breakdown and rupture of the internal social order. With respect to the invocation of R2P forcoerciveintervention, the UN understanding seems to be a required Security Council decision, which means the applicability of the veto and that this engages both geopolitical factors and principled objections to overriding of territorial sovereignty.
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, which is one instance of a crime against humanity enumerated in Article 7 of the Rome Statute that provides the constitutional framework governing the operations of the International Criminal Court. The coercive dispossession during the 1948 War of more than 700,000 Arabs who had been living in Palestine often for generations, as combined with Israel’s denial of any right of return for Palestinian who fled or were forced out, possess all the elements of the crime of ethnic cleansing. The persistent collective punishment imposed on the civilian population of Gaza not only flagrantly violates Article 33 of the Fourth Geneva Convention, and in addition is 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 was responsible as a state to prevent Palestinian victimization by adopting policies and practices that were consistent with 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 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 boldly asserted in the Basic Law of the Jewish Nation-State (2018), which reserved the right of self-determination in historic Palestine exclusivelyto the Jewish people. It is the 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 establish the basis for favoring reliance on R2P as essential to overcome the suffering and victimization of the Palestinian people.
The logic of Israeli international crime and the relevance of R2P is compelling from objective legal, moral, and political perspectives. It rests on the existential primacy of nationalism, as reflecting the preferences of the demographic majority, as the foundation 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 5-8%, which increased as a result of Jewish immigration to around 30% at the time of the partition resolution (GA Res. 181) in 1947. In an era of decolonization it was 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 solidarity initiatives of a decolonizing non-Western world. The Zionist movement also pledged a 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. 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 led to an almost inevitable reliance by Israel on the establishment of an apartheid regime alone able to ensure the security and 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] Such a reliance on such racially delimited structures 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 settings of the two countries was very different.
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 are the precise crimes that are supposed to engage this responsibility to accord international protection. This assessment is bolstered by the Israeli refusals to take measures on their own to govern the country in a manner consistent with international law. How, then, do we interpret the silence surrounding R2P when it comes to its application with respect to Israel?
The Primacy of Geopolitics at the UN: Legalistically and Politically
The primary explanation is political and geopolitical. From a political perspective the political 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 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, in all likelihood, 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 in the internal affairs of sovereign states. These two states learned a lesson when they allowed the application of R2P in Libya in 2011 by abstaining from the Security Council initiative (SC Res. 1973) of Western countries to mount an emergency humanitarian undertaking to protect through a no-fly zone the civilian population of Benghazi against approaching Libyan armies. The military operation mounted by NATO supposedly to implement the resolution almost immediately became a regime-changing intervention of greatly expanded scope. The intervention reached its climax with the brutal execution of the head of the Libyan state, Muammar Qaddafi. 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, which was then undermined by an ultra virus expansion of the scope of UNSC authorization required to reach Western geopolitical goals. In both instances, the hypothesis of the primacy of geopolitics is sustained.
A Concluding Comment
It should be evident that despite the universalist language, the application of R2P was deliberately limited to extremely rare instances where a geopolitical consensus existed, and additionally, to situations where the capabilities needed to address the challenge of effective protection was available to the UN. If the intention was to find a way to address the kind of situation 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 in a situation 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 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.
For these reasons, it is evident that short of unforeseeable changes in the global setting, R2P is unlikely to be invoked, and if invoked, almost certain to 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 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 or to create a 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. One such initiative is the BDS Campaign that would 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 would be then perceived as a matter of 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-racila democracy than by living with sanctions and illegitimacy as an apartheid state.
