Palestine – Falk’s Failed Philosophy Guarantees Continuing Conflict


By: David Singer

Professor Richard Falk – United Nations Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 – has returned to world headlines with another controversial annual Report.

Falk this time round has encouraged a boycott of United States industry giants Caterpillar Inc., Hewlett Packard and Motorola, Israeli cosmetic firm Ahava, Cemex of Mexico, Veolia Environment of France, G4S of the United Kingdom and Volvo Group of Sweden, among others, and for civil society to join that effort.

His call amounts to a denial of the rights of people to choose who they deal with, where they establish their businesses and who they employ. The successful implementation of Falk’s call will lead to the loss of employment, loss of dignity and inability to provide food and shelter for those put out of work as a result – excerbating rather than helping to resolve the Jewish-Arab conflict.

Professor Falk said the focus on the business community was partly an expression of frustration over the failure to persuade Israel to comply with its fundamental legal obligations.

Professor Falk’s notion of what Israel’s “fundamental legal obligations” are – can best be gleaned from the following comments made by him during an exchange with me on his personal blog site on 1 August 2012:

I really do respect your concern with the historical background of the conflict, and how it bears on the merits of various lines of interpretation from the perspective of relative rights and international law. I hold two views, however, that make it seem to me not useful, in fact, the opposite to dwell on these concerns at this stage: first, a long political process ever since the UN was established that has settled the international law questions in favor of Palestinian claims on such matters as settlements, Jerusalem, self-determination, and even refugees, and I find that these outcomes accord with my sense of justice in determining the relations between the two peoples; I believe that Israel has itself generally, although indirectly, acknowledged this conclusion by using its leverage to avoid the intrusion of international law issues in ‘the peace process’ and by defying international law when it cannot avoid its relevance (wall advisory opinion of ICJ; Goldsone Report)

Secondly, I regard the Balfour Declaration and the mandatory system as classic colonial moves that have lost whatever legitimacy that they possessed at the time of their utterance, and prefer to view the competing claims to land and rights on the basis either of the 1948 partition proposal or the 1967 boundaries, although if there was diplomatic parity, I would respect whatever accommodation the parties reached, but without such parity, it seems necessary to invoke the allocation of rights as per settled international law.

Professor Falk’s peremptory dismissal of settled international law between 1919 and 1947 in relation to the former territory of Palestine – part of the former Ottoman Empire for 400 years until its capture by Great Britain in World War 1 – is puzzling.

The Treaty of Versailles, the San Remo Conference, the Treaty of Sevres, the Treaty of Lausanne, the League of Nations Mandate for Palestine and article 80 of the United Nations Charter are all dismissed as “classic colonial moves” in what can only be displayed as a breathtaking display of arrogance by Professor Falk.

Indeed his rejectionist views are identical to the views espoused by the Palestine Liberation Organization (PLO) in Article 20 of the PLO Covenant:-

The Balfour Declaration, the Mandate for Palestine, and everything that has been based upon them, are deemed null and void

Professor Falk – like the PLO – prefers to abandon these internationally sponsored legal building blocks in favour of “a long political process ever since the United Nations was established that has settled the international law questions in favour of Palestinian claims on such matters as settlements, Jerusalem, self-determination and even refugees”.

With the greatest respect to Professor Falk – international law is not settled by pronouncements of the United Nations but by judgements and advisory opinions delivered by the International Court of Justice operating within the jurisdictional parameters conferred on it by the United Nations Charter.

There have been no binding resolutions by the United Nations in relation to settlements, Jerusalem, self determination or refugees that can be used as a basis for approaching the International Court of Justice to seek their enforcement against Israel.

If there were – Israel’s enemies would most certainly have been queuing up at the International Court seeking orders long ago.

Professor Falk sees as extant the League of Nations unanimous decision to recognise the right of the Jewish people to reconstitute the Jewish National Home in Palestine without prejudice to the civil and religious rights of the non-Jewish communities living there.

The preservation of that right as enshrined in Article 80 of the 1945 UN Charter is also irrelevant in Professor Falk’s blinkered view.

By some queer quirk of logic Professor Falk wants to take as his starting point in the Jewish-Arab conflict either the “1948 partition proposal” or the “1967 boundaries”.

Neither of Professor Falk’s starting points even exist.

There was a 1947 – not 1948 – partition proposal by the United Nations.

The Arabs regrettably rejected that proposal. The opportunity then afforded by the United Nations to end the Jewish-Arab conflict cannot possibly be replicated 64 years later.

There were no 1967 boundaries – but there were 1967 armistice lines. The

difference between the two is critical and cannot be transposed as Professor Falk seeks to do.

Professor Falk’s claim that Israel is defying international law in relation to the  wall advisory opinion of the International Court of Justice is equally without substance since that decision is non-binding according to the Court’s own constitution.

One would expect a Professor of Law to be precise and accurate in his choice of language and attention to factual detail. Professor Falk fails on both counts.

Professor Falk is certainly entitled to espouse the views he does.

However his entitlement to continue in his role as a Special Rapporteur must surely be questioned when he seeks to ignore a whole body of settled international law created before 1948 – whilst continuing to act in this highly sensitive position.

A new appointment to replace Professor Falk should be a priority. His use by date has surely been reached.

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