By: Richard Falk
There has long been advocacy of the idea that judges in national courts could help strengthen the implementation of global norms by extending the reach of national law, especially for serious crimes that cannot be otherwise prosecuted. The authority to use national courts against piracy on the high seas was widely endorsed, and constitutes the jurisprudential basis for what has come to be known as 'universal jurisdiction,' that is, regardless of where a crime was committed or the national identity of the alleged perpetrator or victim, a national court has the authority to attach its law.
This reliance on universal jurisdiction received a strong shot in the arm as a result of the war crimes trials at the end of War War II against surviving German and Japanese political and military leaders, a legal framework institutionalised internationally in 2002 as a result of the establishment of the International Criminal Court.
Collective justice
The underlying rationale is that aggressive war, crimes against humanity, and severe violations of the law of war and international humanitarian law are crimes against the whole of humanity, and not just the victim state or people. Although the Nuremberg Judgment was flawed, 'victors’ justice,' it generated global norms in the form of the Nuremberg Principles that are considered by international law consensus to be universally binding.
These ideas underlie the recent prosecution of geopolitical pariahs such as Saddam Hussein or Slobodan Milosevic, and several African tyrannical figures. But when it comes to the lead political actors, as understood by the American-led hegemonic hierarchy, the leadership of the rest of the world enjoys impunity, in effect, an exemption from accountability to international criminal law.
It is a prime instance of double standards that pervades current world order, perhaps, most prominently illustrated in relation to the veto power given permanent members of the UN Security Council or the Nonproliferation Regime Governing Nuclear Weaponry. Double standards severs any link between law as administered by the state system on a world level and pretensions of global justice. The challenge for those seeking global justice based on international law that treats equals equally is to overcome in every substantive setting double standards and impunity.
The world of sovereign states and the United Nations have not been able to mount such a challenge. Into this vacuum has moved a surging global civil society movement that got its start in the global fight against colonialism, especially, the Vietnam War, and moved forward dramatically as a result of the Anti-Apartheid Campaign.
The power of solidarity
Various instruments have been relied upon, including boycott, divestment, and sanctions solidarity movements, informally constituted citizens’ war crimes tribunals (starting with the Russell Tribunal during the Vietnam War, and extended by the Permanent Peoples Tribunal in Rome, and in 2005 by the Iraq War Tribunal that held 20 sessions around the world, culminating in a final session in Istanbul), civil disobedience in various forms, especially refusals to serve in military operations that violate international law.
It was a coalition of civil society actors that created the political climate that somewhat surprisingly allowed the International Criminal Court to come into being in 2002, although unsurprisingly without the participants of the United States, Israel, and most of the senior members of the geopolitical first echelon.
It is against this background, that two contradictory developments are to be found that will be discussed in more detail in subsequent articles: the waging of an all out Legitimacy War against Israel on behalf of the Palestinian struggle for a just peace and a backlash campaign against what is called 'Lawfare' by Israeli hardliners. A Legitimacy War strategy seeks popular mobilization on the basis of nonviolent coercion to achieve political goals, relying on the relevance of international law and the accountability of those that act on behalf of states in the commission of crimes of state.
Legitimacy vs. Lawfare
The Goldstone Report illustrates this interface between a Legitimacy War and Lawfare, reinforcing Palestinian contentions of victimization as a result of Israel’s use of force as in the notorious Operation Cast Lead (2008-09) and driving Israel’s top leaders to venomous fury in their effort to discredit the distinguished jurist, Richard Goldstone, who headed the UN mission responsible for the report, and the findings so convincingly reached.
With Israeli impunity under growing threat there has been a special pressures placed on the United States to use its geopolitical muscle within the UN to maintain the mantle of impunity over the documented record of Israeli criminality, and to make sure that the UN remains a selective sanctuary for such outrageous grants of impunity. These issues of criminal accountability are on the front lines of the Legitimacy War, and provide the foundation for efforts throughout the world in relation to the growing BDS Campaign (Boycott, Divestment and Sanctions).
The Lawfare counterattack at one level acknowledges the strength of civil society efforts, but it is also cynically and polemically undertaken to discredit reliance on international law by those who are victimized by abusive and oppressive uses of military and police power.
The Palestinians have been victimized in these respects for more than 62 years, and their efforts to end this intolerable set of realities by an innovative reliance on nonviolent resistance and self-defense deserves the support of persons of conscience throughout the world.
Whether this reliance on a Legitimacy War can finally achieve justice for the Palestinian people and peace for both peoples, only the future can tell, but there is no doubt that this struggle is the best contemporary instance of 'a just war'.
Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades, most recently editing the volume International Law and the Third World: Reshaping Justice (Routledge, 2008).
He is currently serving his third year of a six year term as a United Nations Special Rapporteur on Palestinian human rights.
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