Conversation with John Dugard, Richard Falk, and S. Michael Lynk on the Role of the Special Rapporteur, and the International Criminal Court & Jurisdiction

By Scott Douglas Jacobsen

As far as I know, this is the first live group conversation between Professor John Dugard, Professor Richard Falk, and Professor S. Michael Lynk. As such, the subject matter became narrowed to the positions held by Dugard, Falk, and Lynk, and the current context before the International Criminal Court regarding jurisdiction.

Professor John Dugard is the Fmr. (4th) United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (2001 to 2008). He is Professor Emeritus at the Universities of Leiden and the Witwatersr, who remains one of the most important legal and investigative voices in the history of rights and law reportage for the United Nations on this issue of Israel and the occupied Palestinian territories.

Professor Richard Falk is the Fmr. (5th) United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (26 March 2008 – 8 May 2014). Professor Falk is Albert G. Milbank Professor of International Law and Practice, Emeritus, at Princeton University, the Director of the Climate Change Project, and an Advisor on the POMEAS Project in the Istanbul Policy Center at Sabanci University. He is widely revered as one of the great legal minds in the world today, especially on the issue of Israel and the occupied Palestinian territories, and reviled in other circles as well.

Professor S. Michael Lynk is the current (7th) United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 (March, 2016 to Present). He is an Associate Professor at the Faculty of Law, Western University, in London, Ontario, who works in one of the most important legal and investigative positions in the history of rights and law reportage for the United Nations on this issue of Israel and the occupied Palestinian territories.

Their – Dugard’s, Falk’s, and Lynk’s – importance in the legal and rights history of this subject matter cannot be understated. In many ways, they set the tone and calibre of human rights and international humanitarian law reportage to this day. As well, this exists as a conversation with the current United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 and two of the former special rapporteurs. The position of the United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 isn’t, and shouldn’t, be taken lightly based the depth and length of the human rights issue, and on the level and extent of state and other actions one can encounter against oneself in the position devoted to this long-standing human rights catastrophe seen on the Israel-Palestinian issue. With great pleasure and honour, I present the extensive and narrowed live group conversation with Professors Dugard, Falk, and Lynk.  

Here we talk about the role of the United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967 and the International Criminal Court in regards to jurisdiction.

*Interview conducted on May 1, 2020.*

Scott Douglas Jacobsen: So, let’s begin, this is a 4-way conversation with John Dugard, Richard Falk, and S. Michael Lynk discussing some narrow topics concluding on the International Criminal Court jurisdiction question based on some recent news put out by Fatou Bensouda. Starting with John, beginning, how do you view your prior role as a special rapporteur?

Professor John Dugard: I placed this question on the agenda because my role was so very different from both Richard and Michael because I was allowed to enter the occupied Palestinian territories. So, my role was that of a factfinder. I visited the occupied Palestinian territories twice a year for ten days each. I spent all of the time travelling around the country visiting not only the cities, but also the rural areas and taking evidence from people whose homes had been destroyed. In 2002, for instance, I was shown the beginnings of the Wall. There were stones marking the beginning of the Wall. I alerted the United Nations that the Wall was about to be constructed. My role was very much that of a fact finder on the ground. My reports were, in large measure, reporting what I had seen, and what conversations I had had with ordinary people in both urban and rural areas. Of course, I saw the political leaders too. I had access to the leaders of the Palestinian Authority. Yasser. Arafat gave me an open door as most foreign diplomats were boycotting him at the time. He was delighted to see me. Many members of the small communities I visited liked to see me as representing the United Nations. They tended to believe that I could remedy their situations. I always felt it embarrassing because many Palestinians believed I could change their lives but I could not. The United Nations was fairly oblivious to the reports from me. I also saw my role as that of advocacy, which I suspect is the way Michael and Richard have seen their roles. I reported on the violation of human rights and international humanitarian law. I argued strongly that the occupied Palestinian territory was subject to a system of apartheid. So, this was my role, as I saw it.

Jacobsen: Richard, how about yourself?

Professor Richard Falk: I did my best to continue in the spirit very successful tenure as Special Rapporteur. I had the disadvantage from, more or less, the outset of being a target of opposition by the governments of Israel and of the United States, and by the fiercely Zionist NGOs in Geneva and New York. This produced a situation in which my first attempt to enter, as John had done previously without incident, the occupied Palestinian territories resulted in my expulsion, and detainment in a prison near Ben Gurion airport. It seemed clearly, not so much a personal attack on me but, a signal to the United Nations that if they appointed someone to whom Israel had objections, there would be adverse consequences, including signals of non-cooperation. They objected to me from the outset. Not only would they refuse to cooperate with the United Nations, but they would make life as difficult as possible for whoever tried to carry out this investigative role on behalf of a UN agency, which they were bound by treaty to respect. My expulsion was at the time a particularly newsworthy event that surprised UN officials because we had submitted our itinerary to the Israel ambassador in Geneva advance without encountering opposition. Visas had been granted to the two people accompanying me. So, the people in Geneva were convinced that I would have no trouble entering Israel for purposes of carrying out the UN mission. As I had been so viciously attacked when appointed, I was more skeptical and hesitant to come from California only to be expelled. So, I am convinced that my impression is correct– Israel wanted to send a signal of non-cooperation with the United Nations to the extent that individuals perceived as critics who were appointed to be Special Rapporteurs in the occupied Palestinian territories would encounter endless difficulties. As a result, my missions were lacking the direct experience with people and conditions on the ground in occupied Palestine that were such an important aspect of John’s contributions. In contrast, I, and Michael after me, was confined to the neighbouring countries. I listened to the testimony to those who resided outside Palestine, or could cross the border and meet with me in Jordan, Egypt, and Lebanon.

My tenure coincided with the Arab Spring that unfolded in my last few years as SR. After the peaceful overthrow of the Mubarak government in 2011, it became theoretically possible to enter Gaza by way of Egypt, although obstacles of various sort remained. After several failed attempts, I managed to do this in 2012. It was the only time during the six years that I was able to set foot in the occupied Palestinian territories as a representative of the UN. This was my only experience of direct access to the occupied Palestinian territories. I had been throughout the occupied territories previously in my role as academic and public intellectual, but never while I was Special Rapporteur. To reiterate, my contribution substantively was an endeavor to continue the work John initiated so effectively. My central intention, aside from reporting on development bearing on human rights, was to alter somewhat, the parameters of discourse on the occupied Palestinian territories within the United Nations and among civil society NGOs. I reinforced John’s influential characterizing of the situation in Palestine by indirect, although explicit reference to apartheid, not as in South African but as descriptive of the manner by which the West Bank was being administered under occupation. John also introduced the concept of settler-colonialism to describe the overall relationship between Israelis and Palestinians living under occupation. Combined with some subsequent developments with which I was involved, the allegation of apartheid became normalized in discussion of the essential nature of the occupation. It was a more realistic way of talking about the relations of Jews and Arabs. This was a change in mainstream debate. Previously charges of apartheid were rarely encountered outside of radical student activism supporting the Palestinian. Even when I became SR it was not acceptable to refer to apartheid within diplomatic circles when talking about Israeli wrongdoing as an occupying power within the provenance of public international law. The United Nations has an unappreciated role as legitimating certain ways of describing controversial situations. This role continues to have an impact during the period that Michael has been dealing with so effectively. It is what I have written about in the past under the heading of ‘legitimacy wars,’ which are often resolved in the meeting rooms of the UN rather than on the battlefield.

Professor S. Michael Lynk: As you can tell, I do my work on the shoulders of two giants. Both in human rights law, generally, and as special rapporteurs who were exemplary in their analysis with respect to what was happening in the occupied Palestinian territories. I, like Richard, have been granted access to the occupied Palestinian territories. Unlike Richard, I do not even get to go to Gaza. Any requests made to get to Gaza through Egypt has been strongly discouraged by the United Nations and by Egypt with respect as to how to travel across the Sinai with respect to the unstable security situation there. So, I go once a year to Amman (Jordan) and a number of officials from the Palestinian Authority, the various United Nations offices in the occupied Palestinian territories, and various Israeli and Palestinian human rights groups will meet me, in Amman. Or, I will Skype them. I am also constantly in touch with a number of civil society organizations in Israel and Palestine, regionally and internationally, with respect to their analysis of what is happening in the situation. Often, I have said to people who talk about my inability to enter the occupied Palestinian territories.

I have two answers. I lived there six months a long time ago in 1989 working for the United Nations during the first Palestinian Intifada working out of Jerusalem while going to all of the refugee camps. I have a feel for the topography and the human rights conditions there, albeit somewhat dated. Secondly, I have kept constantly in touch with that since; I think Richard and John would agree with this. There is probably no long-lasting conflict in the world that is as so well covered, so well reported upon, and so well advocated about by civil society as the Israeli-Palestinian conflict. While my Plan A, as with all of us, would have been to spend time in the occupied Palestinian territories, a close Plan B has been to work with the civil society organizations to give me the benefits of their advocacy and to use it, which I use throughout all my reports, comments, and statements. It means, I think, that the human rights situation, which I can work on today, is reflective of the events on the ground in Israel and Palestine with respect to the occupied Palestinian territories.

Falk: One point, I have to mention. One advantage I had as a result of not being able to get to the occupied Palestinian territories and thus spending time each year in Egypt, Jordan, and elsewhere in the region, was the opportunity to meet several Hamas leaders. It was interesting because of their way of expressing their condemnation of the human rights situations in Gaza and the West Bank, coupled with their seemingly strong support for negotiating a long-term ceasefire lasting up to 50 years. Unlike public dismissal of Hamas as nothing more than a terrorist wing of the Palestinian struggle I found the individuals I met with to be thoughtful, informed, and given to reasonable proposals that moved in the direction of a peaceful resolution, not of the ultimate disposition of Palestine, but of working toward some alternative to the confrontational relationship that has existed, especially in Gaza ever since 2006 elections, which were followed by a harsh and unlawful blockade that has lasted almost 13 years and further inflamed by periodic massive military incursions and almost continuous military harassment.. These contacts were important for me, personally. It enabled me to understand more fully the complexities shaping the overall politics of the situation, which included, at that time, sharp tensions between the Palestinian Authority leadership and the Hamas leadership, and a resultant international projection of Palestinian disunity.

Dugard: To Richard and Michael, did you have any difficulties meeting with the leaders of Hamas from the perspective of the United Nations? I say this because when I was in Gaza on one occasion I met with the Prime Minister of Gaza, Ismail Haniyeh, the head of Hamas in the territory at that time. There were strong objections from the United Nations based on meeting an official from Hamas. It was the policy of the United Nations not to speak to a leader of Hamas. I ignored this. I was surprised the United Nations tried to pressure me not to meet with the leader of Hamas.

Falk: I did not seek permission from the UN, and the meetings were arranged outside of my itinerary at the initiative of Hamas, and were not reported on in my official presentations at the UN. I do not recall direct objections from the United Nations. There was strong pushback from the Palestinian Authority. They tried to suppress my early reports. They urged me to resign too. They spread some rumours about my non-existent medical problems, which were supposedly preventing me from carrying out the work of the mandate – and a series of other things. My problem resulting from the meetings, which were as I say informal meetings. Unlike John, I did not try to meet the formal leadership in Gaza although I had some friendly and helpful contact during my 2012 visit. I did meet with Mashal, who was, in some ways, at that time, considered the most important Hamas leader, but this happened in Doha where I was a speaker at a conference, and not in any way part of my work as SR. There was a second person in Cairo who was considered, at least, as important as Haniyeh, who was the actual lead administrator in Gaza. The United Nations people accompanying me did not try to interfere with these meetings. Also, it would not be accurate to say that, they encouraged them.

Lynk: I have not had the opportunity to go to Gaza in my capacity as the special rapporteur. I have not met with Hamas nor had to seek a meeting with Hamas. In my dealings with respect to Gaza, I am exclusively dealing with either Israeli or Palestinian civil society organizations. I have not tried to reach out to Hamas.

Falk: In my case, they reached out to me. I did not have to take the initiative. They arranged rather complicated logistical ways of making contact, particularly in Cairo, and in Qatar while I was in Doha.

Jacobsen: John, what was the main focus when entering into the special rapporteur role during tenure?

Dugard: My primary role was that of factfinder. I was the special rapporteur during the Second Intifada. I was, to a large extent, caught up in much of the violence when I visited the occupied Palestinian territories. I attempted to report on what I had seen there. My focus of attention in the West Bank was largely on the construction of settlements and the demolition of houses, especially for political reason. The restrictions of movement were particularly severe during the Second Intifada. When I was in Gaza, there were still Israeli settlements there at the time. I spent a lot of time speaking to Palestinians who had complaints about settlers and talking to people who had been subjected to violence. On one occasion when I visited an UNRWA school in Gaza city I listened to the counselling of young girls whose friends has been shot in one of the many of IDF attacks on Gaza city. My focus was on international humanitarian law in respect of the attacks on civilians and civilian targets, and then, in the West Bank, on settlements and demolition of houses and restriction of people’s movement.

Jacobsen: Richard, when gathering that baton, what was the central focus carrying forward for you?

Falk: It was not much different from John. However, I did not have much occasion for direct witnessing or experiencing conditions on the ground. Similarly to Michael, the way I gathered information was to make comprehensive use of public sources and accessible knowledgeable persons in relation to the main issues in tension. In this period, 2008 to 2014, there were two major military incursions, 2008/09 and 2012, into Gaza. (the 2014 incursion, perhaps the most devastating of the three occurred after my term expired in May), which were very important international developments with all kinds of ramifications for the way in which security was being pursued by Israel, and perceived internationally. After 2005, in Gaza, there was a big dispute as to whether the Israeli disengagement meant Israel no longer was in a position under international humanitarian law of being an occupying state (“Occupying Power”). I tried to address this by agreeing with the international and United Nations consensus that concluded that the idea and implementation of ‘disengagement’ did not alter the status of Israel as the Occupying Power with its attendant legal responsibilities. Elaborate assessments about the degree of effective control Israel exercised over activities both within Gaza and at the border that rigidly regulated the entry and exit of people and goods, as well as exerting direct control over Gaza airspace and access to Gaza from the sea.

So if on balance, the intrusion on the normal existence of the population living in Gaza was greater after this disengagement in 2005, which was mispresented, in my view, to the international community as a step toward peace and the failure to achieve a peaceful relationship with Gaza. It was more like, in my judgment, a flagrant and continuous violation of Article 33 of the Fourth Geneva Convention that unconditionally prohibited ‘collective punishment.’ There were disputes about the rockets. Were the rockets retaliatory? Were the rockets fired at the initiative of Hamas and provocative in that way? Were Israeli responses proportionate and discriminatory? In any event, the indiscriminate firing of rockets and other weapons by both side definitely violated international humanitarian law, but were not a fraction as damaging as the massive incursion of 2008/09 by Israel that led to the “Goldstone Report”; that was a very controversial phase in how to view Israeli and Hamas accountability during that period of the military incursion in 2008/09. I was rather involved with the controversy over the interpretation of the “Goldstone Report.” Again, I had trouble with the Palestinian Authority, which surprised me by objecting to my strong endorsement of the report and encouragement of the implementation of its recommendations. To my surprise and regret the PA was politically persuaded for tactical reasons to bury the report and not seek its implementation; this created problems for me as I was trying to exert what pressure I could, so as to have the recommendations of the report taken seriously. They included a potential reference to the international criminal court, which finally to have occurred ten years later, but still in a preliminary and inconclusive form.

Jacobsen: Michael, in your particular case, the one individual prior to you resigned. So, less of a smooth transition as from John to Richard inasmuch as one can have a “smooth transition” on this issue. Carrying forward on the legacy that they brought forward, what is the main focus now?

Lynk: To start off, my own appointment was controversial. It was raised in the Canadian Parliament. The Minister of Foreign Affairs had made several statements against my appointment. Even though, Canada has nothing to do with the appointment by the United Nations or by the Human Rights Council of the special rapporteur. To my great relief, both Richard and John were extremely supportive of my appointment and gave great advice during the early weeks and months of my appointment, and how to react to that. Also, the way to do the job. Whatever contributions I have made with respect to this, a great deal is owed to both the predecessors with respect to this (Richard and John). With respect to the role as the special rapporteur, there are two themes. One is what happens on the ground, in particular, with the respect to the events beginning in end of March in 2018 with Gaza with the Great March of Return and the shooting deaths of Israel troops at the Gaza frontier, including the shooting and killing of around 60 Palestinians around the middle of May of 2018. At that time, I was calling for the appointment, by the Human Rights Council, of a commission of inquiry. There was a special convening of the Council. At that point in time, after the shooting of the 60 Palestinian protestors, the High Commissioner of Human Rights made the same call. This was accepted.

The Commission of Inquiry released the report in February of 2019, which was a very strong report. I thought it was a very good report. Notwithstanding, the fact, I do not think any of the three commissioners had much of a background with respect to the Middle East about Gaza or the occupied Palestinian territories in general. They repeated the claim in the “Goldstone Report” in 2009 and the “Davis Report” in 2015 about lifting the siege on Gaza. All three reports made this present. The immediately retired Secretary-General of the United Nations made the call to lift the siege on Gaza. None of that has happened. While, I think, you may find polite statements emanating from Europe, there was not effective pressure on Israel by the international community to do anything about the full state of the living conditions in Gaza caused overwhelmingly by the siege. The other point or theme in the work is to try to locate aspects of the occupation and provide them a legal framework within international human rights law and international humanitarian law. My report in October, 2017, dealt with the concept of illegal occupation. At some point, an occupation may be legal. I would leave this to the historians to decide at what point the red line may be crossed. Surely, now, an occupation has been on for five decades with every sign given by the Occupying Power; it intends to annex all or some of the occupied Palestinian territories is surely a violation of international law.

Also, I have issued reports in 2018 on annexation. Both the illegal framework and the events on the ground. Most recently, in October, 2019, I focused on the issue of accountability or the duties owed diplomatically, politically, and, particularly, legally to unite or bring to an end an obvious hotspot with respect to human rights violations. What we see, this is what both Richard and John would have confronted during their tenures as special rapporteurs and continuing into mine. The international community will, sometimes, be willing to make rebukes of Israel’s behaviour or conduct in the occupation, or plans to further entrench in its claim of sovereignty in the occupied Palestinian territories while no willingness to do anything about it. There is criticism without consequences; there are resolutions without rebukes. It always astonishes me. The international community, particularly, with respect to Europe could bring about wide sanctions in regard to Russia and its annexation of Crimea in 2014, but can do nothing and remains paralyzed with respect to a much smaller country and over an issue with worldwide attention. So, this, I think, has become the issue of the day for all of the illegal steps Israel has taken and, now, plans to take; to what degree will the international community, particularly the most powerful players, want to hold Israel to account.

Falk: I want to make one point, which, I think, is important. The focus on the emergent unlawfulness of the occupation. There is a real deficiency in international humanitarian law, which does not put a time limit on the temporal extent of occupation. I argued during my mandate that prolonged occupation is incompatible with the underlying objectives of international humanitarian law. I received very little support for these contentions despite trying my best to get the International Committee of the Red Cross to back a call for reform. The ICRC did not want to touch the international humanitarian law framework, or be seen as engaging with controversial criticisms of Israel’s behavior. It is a real deficiency of the international humanitarian claims made on behalf of the Geneva Conventions. Occupied Palestine has endured five decades or more of occupation reducing the population to a condition of rightlessness and still allow this to remain subject to such an abusive form of militarized administration and, as Michael points out, to be further victimized further by Israel’s annexationist intentions; both de facto annexation by imposing control in a variety of ways, e.g., the settlements, the Wall, and other measures, and, now, a fallacious de jure push for annexation with a strong geopolitical green light given by the United States Trump Administration.

Jacobsen: I want to take this into fewer individuated responses and more groups discussions. What do you consider the main issues confronting Palestine now?

Dugard: I think; we would all agree. The main issue facing Palestine is the very real threat that Israel will annex large portions of the West Bank, a portion of Area C, and the Jordan Valley. We have to focus on this. We must distinguish between de jure annexation, as happened in the case of East Jerusalem and may happen in the case of the West Bank, and de facto annexation. It is really clear that over the last few decades, Israel has, in effect, been extending its authority over the West Bank in such a manner that it has annexed large portions of the West Bank. So, this is the reason for liking Michael’s focus on the illegality of the occupation. It is clear to me that this is not an ordinary occupation. It is one rendered illegal by reason of the prolonged nature of the occupation, as Richard pointed out, and the acts taken by the Israeli government such as the construction of settlements, the Wall, the establishment of the system of apartheid, and, overall, an annexation de facto and de jure of large portions of Palestine. This should be our principal focus at present.

Falk: I would completely agree with the statements by John. I would only add that a secondary focus seems, to me, a recognition of the non-viability of a two-state outcome to any future diplomacy. The extent of de facto annexation and the whole way in which Israel has taken advantage of the occupation makes the prospect of a viable, independent sovereign Palestine state no longer a feasible political project, and it may never have been a desirable solution. This is why I have been emphasizing, since I ended my role as Special Rapporteur, the importance of dismantling the apartheid structures by which the Palestinian people as a whole have been both victimized and subjugated within the occupation and beyond the occupation through fragmentation of their identity as a unified people. So, I participated in a study under the auspices of ESCWA (2017), which examined apartheid in relation to the claim of Israel practices and policies subjugating the entire Palestinian people to an apartheid regime. I know John has some differences with the enlarged view of the relevance of the apartheid analysis. His South African lineage gives him a special authority to talk on it, not only authority, but experience to speak about it. In our academic study for ESCWA, we were convinced that Israel was responsible for deliberate political fragmentation of the Palestinian people as a principle mode of discriminatory subjugation. Unless, apartheid is dismantled as a precondition for racial peace, as was the peacemaking process in South Africa itself. Until the Afrikaner leadership decided to dismantle Apartheid and release Nelson Mandela as a signal of the genuineness of its intention, there was no genuine prospect of reforming this kind of system in some gradualistic way through incremental measures. In other words, thinking constructively about real peace for the two people, for Jews and for Palestinians, it depends, in my judgment, on the centrality of apartheid as an obstacle to a solution more fundamental than even the continuing occupation of the West Bank, East Jerusalem, and Gaza.

Lynk: I may build on it. I may be anticipating something you are going to ask us, Scott, which is the Trump plan. It encapsulates everything that has gone wrong over the last 20-30 years in the making of peace in the Middle East. The Trump plan, in my view, changes everything and changes nothing. It changes everything; in that, it is a crack, a substantial crack, maybe, a fatal crack in the continuation of the Oslo process. That there would be a two-state solution in the end. No matter the difficulties of the international community would have in bringing two recalcitrant leaderships to this. More fundamentally, it changes nothing. It is the formal blessing by the American patron of this peacemaking process of the culmination of separation. What both Richard and John have described as apartheid in the making, it, probably, shows how ineffectual the international community, particularly the most powerful players, have been in trying to hold a flicker of hope. That some strong American bias towards Israel’s position, acting as Israel’s lawyer – as has often been reported, would result in a satisfactory solution for the Palestinians. This is what the Trump plan has brought to an end. It, certainly, appears little hope exists for a two-state solution. The only hope is a one-state apartheid reality or a one-state democratic reality. That’s where, I think, the future is going to lie.

Jacobsen: Some of the remarks by Gideon Levy and Norman Finkelstein have been on a lack of viability of a two-state solution or settlement to the issue or the conflict.

Dugard: Richard remarked on the apparent disagreement on the scope of apartheid. I have always taken the position that if one looks at the definition of apartheid in the Rome Statute, it is a very narrow definition. It would not cover discrimination against Palestinians in Israel itself and in the diaspora because the element of gravity is probably lacking. I am looking at this from the point of view of international criminal law and the jurisdiction of the International Criminal Court. Whereas, Richard has looked at this from the broader perspective of apartheid in general. That’s how I see it. It is important to stress that the International Criminal Court has the issue of apartheid before it and the Prosecutor clearly feels uncomfortable with this referral on the part of Palestine. Although, she is clearly prepared to accept jurisdiction, she seems determined to restrict crimes to war crimes and not crimes against humanity, which would include the question of apartheid. The reason for this is, frankly, the West, particularly the European Union, is opposed to the suggestion Israel practices apartheid if only in the occupied Palestinian territories. One has to work hard to persuade the Western states on this score We are facing a situation of apartheid, which is very similar to what happened in South Africa and, in many respects, is worse.

Jacobsen: Any final thoughts on this particular subject matter before the final question?

Falk: I would briefly reiterate my view of the scope of apartheid. Also, the sense that a more imaginative jurisprudence would incorporate the deliberate Israeli policy of fragmentation as a mode of racist subjugation into its understanding of apartheid and, thereby, extend the scope beyond occupation to the various domains within which the Palestinians have suffered, which looked at independently wouldn’t constitute apartheid. However, if you look at the fragmentation of the Palestinians as a whole which is what we did in our ESCWA study, then the fact that the Palestinian minority in Israel does not seem victimized by a compartmentalized view of apartheid, but it is indirectly being victimized to the extent that its national identity is part of a discriminated ethnicity subject to comprehensive repressive control. It is very important to conceptualize apartheid that include this Israeli combination of discriminatory subjugation and fragmentation of all Palestinians, including refugees and involuntary exiles whose identity had previously been existentially actualized as a unity.

Dugard: I agree with you, Richard, entirely. However, the contextualization does not fall under the definition of apartheid in the Rome Statute. That is where the difference lies. I am looking at this from the perspective of the Rome Statute.

Falk: A more sociological jurisprudential interpretation supports my approach. In my view jurists less attached to positivist conceptions of law would have little difficulty arguing that the Rome Statute of the ICC can be interpreted in the way that I favor conceptualizing apartheid.

Dugard: Let us agree to differ and leave it at that.

Jacobsen: [Laughing].

Falk: Not the first time.

Jacobsen: The final question around the recent update, yesterday, through the International Criminal Court with the Chief Prosecutor Fatou Bensouda around commencing investigations into alleged crimes. Any thoughts on this, concisely?

Lynk: Start with John.

Falk: Maybe, John has the closest familiarity.

Dugard: Scott, I think, we all agree that the fact that the Prosecutor has reaffirmed the reasoning in her request for the pre-trial chamber to exercise her jurisdiction is encouraging. She was not persuaded by other state parties, in particular, as well as some powerful supporters of Israel who made submissions. By and large, I am very encouraged by the developments in the International Criminal Court at present.

Falk: I also feel encouraged by this dramatic development. I have not read the Chief Prosecutor’s response in any careful way. I note, she excludes the exclusive economic zone off the Gaza coast from the territory of Palestine, which seems, to me, to be a questionable interpretation of the responsibilities and rights of a territorial state. It leaves, in a kind of anarchic way, the situation of Palestinian fisherfolk, who fish beyond the territorial waters off Gaza and whose mistreatment by Israeli coastal patrols forms part of the grievances put forward to justify jurisdiction. It may not be the core issue. Yet it is a disappointing way of confining jurisdiction, but less so than the arbitrary refusal of the Prosecutor to include Crimes Against Humanity in her recommendation to open investigations.

Lynk: For me, I am more positive today than two days ago from the perspective of the pre-trial chamber regarding the territorial jurisdiction question. The fact that the Chief Prosecutor made such a strong statement, well-reasoned and very coherent, gives me a lot more optimism that this will turn out successfully. When you think of how few areas there are for accountability presently, there are accountability measures for the CERB. There are accountability measures regarding the database. Although, that is relatively weak with the actions of the International Court of Justice. The most important action would be a positive outcome of the International Criminal Court. This will take a long time to wind its way if the pre-trial chamber agrees with the arguments of the Chief Prosecutor. It does give hope that issues on Palestine and accountability will be positively dealt with by important international forums.

Jacobsen: Gentlemen, thank you for your time.

Lynk: Thank you very much, Scott.

Dugard: Thank you very much, Scott.

Falk: Thanks, Scott.

Scott Douglas Jacobsen is the Founder of In-Sight: Independent Interview-Based Journal and In-Sight Publishing. He authored/co-authored some e-booksfree or low-cost. If you want to contact Scott: Scott.D.Jacobsen@Gmail.com.

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Canadian Atheist Associates: Godless Mom, Nice Mangoes, Sandwalk, Brainstorm Podcast, Left at the Valley, Life, the Universe & Everything Else, The Reality Check, Bad Science Watch, British Columbia Humanist Association, Dying With Dignity Canada, Canadian Secular AllianceCentre for Inquiry CanadaKelowna Atheists, Skeptics, and Humanists Association.

Other National/Local Resources: Association humaniste du QuébecAtheist FreethinkersCentral Ontario Humanist AssociationComox Valley HumanistsGrey Bruce HumanistsHalton-Peel Humanist CommunityHamilton HumanistsHumanist Association of LondonHumanist Association of OttawaHumanist Association of TorontoHumanists, Atheists and Agnostics of ManitobaOntario Humanist SocietySecular Connextions SeculaireSecular Humanists in CalgarySociety of Free Thinkers (Kitchener-Waterloo/Cambridge/Guelph)Thunder Bay HumanistsToronto OasisVictoria Secular Humanist Association.

Other International/Outside Canada Resources: Allianz vun Humanisten, Atheisten an AgnostikerAmerican AtheistsAmerican Humanist AssociationAssociação Brasileira de Ateus e AgnósticoséééBrazilian Association of Atheists and AgnosticsAtheist Alliance InternationalAtheist Alliance of AmericaAtheist CentreAtheist Foundation of AustraliaThe Brights MovementCenter for Inquiry (including Richard Dawkins Foundation for Reason and Science), Atheist IrelandCamp Quest, Inc.Council for Secular HumanismDe Vrije GedachteEuropean Humanist FederationFederation of Indian Rationalist AssociationsFoundation Beyond BeliefFreedom From Religion FoundationHumanist Association of IrelandHumanist InternationalHumanist Association of GermanyHumanist Association of IrelandHumanist Society of ScotlandHumanists UKHumanisterna/Humanists SwedenInternet InfidelsInternational League of Non-Religious and AtheistsJames Randi Educational FoundationLeague of Militant AtheistsMilitary Association of Atheists and FreethinkersNational Secular SocietyRationalist InternationalRecovering From ReligionReligion News ServiceSecular Coalition for AmericaSecular Student AllianceThe Clergy ProjectThe Rational Response SquadThe Satanic TempleThe Sunday AssemblyUnited Coalition of ReasonUnion of Rationalist Atheists and Agnostics.

About Canadian Atheist

Canadian Atheist is an independent blog with multiple contributors providing articles of interest to Canadian atheists, secularists, humanists, and freethinkers.

Canadian Atheist is not an organization – there is no membership and nothing to join – and we offer no professional services or products. It is a privately-owned publishing platform shared with our contributors, with a focus on topics relevant to Canadian atheists.

Canadian Atheist is not affiliated with any other organization or group. While our contributors may be individually be members of other organizations or groups, and may even speak in an official capacity for them, CA itself is independent.

For more information about Canadian Atheist, or to contact us for any other reason, see our contact page.

About Canadian Atheist Contributors

Canadian Atheist contributors are volunteers who provide content for CA. They receive no payment for their contributions from CA, though they may be sponsored by other means.

Our contributors are people who have both a passion for issues of interest to Canadian atheists, secularists, humanists, and freethinkers, and a demonstrated ability to communicate content and ideas of interest on those topics to our readers. Some are members of Canadian secularist, humanist, atheist, or freethought organizations, either at the national, provincial, regional, or local level. They come from all walks of life, and offer a diversity of perspectives and presentation styles.

CA merely provides our contributors with a platform with almost complete editorial freedom. Their opinions are their own, expressed as they see fit; they do not speak for Canadian Atheist, and Canadian Atheist does not speak for them.

For more information about Canadian Atheist’s contribors, or to get in contact with any of them, or if you are interested in becoming a contributor, see our contact page.

Photo by Ahmed Abu Hameeda on Unsplash

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