Every person deserves peace, security, and freedom, values that underpin international law. A lecture on humanity’s future by Princeton professor of law Richard Falk will support and develop this idea as he explores the United States’ current disregard for prudence, law, morality, and its complicity in Israel’s genocidal and militaristic approach not only in relation to Occupied Palestine, but also to the Middle East as a region.
This talk will be the 21st Frank K. Kelly Lecture, hosted by the Nuclear Age Peace Foundation and presented at the Music Academy of the West at 6 p.m. on April 7.
Prof. Falk took time to be interviewed by VOICE Magazine, answering questions associated with his upcoming Frank K. Kelly Lecture. His responses have been edited for length.
VOICE: How have sovereignty and international law been impacted by the current attempts to justify regime change as part of a new world order?
Prof. Falk: In modern international law, as summarized in the UN Charter with respect to issues of peace and security, regime change by intervention is never legal unless authorized by the Security Council in the context of peace and security. Under normal circumstances, the UN is itself prohibited from intervention in the internal affairs of any sovereign state unless overridden by threats to international peace and security. Such a limitation was inserted in the Charter as a repudiation of the practice in the colonial era of invoking ‘humanitarian intervention’ to carry out the political agenda of European colonial powers and regional hegemons in states of the Global South.
VOICE: What is the relationship between the International Criminal Court and the United Nations?
Falk: The ICC is based on the Rome Statute that sets up the legal framework for tribunal operations, including its scope of authority, but as a treaty it is binding only on those states that agree to become Parties. This is unlike the International Court of Justice (ICJ) that is an organic part of the UN, and states by becoming Members of the UN automatically become parties to the Statute that frames ICJ undertakings.
This elementary distinction is an introduction to the operation of the two tribunals, which proceed along quite different lines.
The ICC was early discredited by seeming to concentrate its activities to violations of international criminal law on the basis of judicially approved recommendations of the Prosecutor to proceed with an investigation of alleged criminality on the part exclusively of leaders in African countries. Whereas the scope of ICJ activity is to resolve legal disputes among sovereign states, the ICC addresses crimes of individuals acting on behalf of the state.
Both judicial bodies are without direct enforcement capabilities, with the ICJ depending on the SC, and the ICC depending on the implementation of its criminal proceedings through the cooperation of those states that are parties to the Rome Statute, and can issue arrest warrants for accused individuals even if their nationality is of a state not party to the ICC, provided that the crimes prosecuted occurred on the territory of a party. In the highest profile case in ICC’s history, brought against top Israeli and Hamas leaders, crimes justifying the prosecution were alleged to be committed in Palestine, which despite being occupied, was considered a sovereign state.
The implementation of the Arrest Warrants calling for the arrests of PM Netanyahu and former Minister of Defense Gallant have not been acted upon, including by parties to the Rome Statute, leaving implementation in a grey zone of voluntary law enforcement.
Both tribunals have performed in accord with admirable professional standards of judicial practice in their several decisions since October 7, both provisionally in relation to alleged Israel violations of the Genocide Convention and as to the legality of Israel’s continued occupation of Palestinian Territories (West Bank, Gaza, and East Jerusalem) that began as a result of the outcome of the 1967 War.
VOICE: Do you think the UN Security Council will refer recent acts of aggression by the US and Israel to the ICC? What would be the implications of this?
Falk: It is impossible to expect such a referral. We need to remember that the SC cannot act without the unanimous support of the five permanent members of the SC, three of whom are NATO members supportive of the aggression to varying degrees. And even if these governments were to be swayed by public opinion in their countries it is unrealistic to suppose that the US Government would vote in favor of such a referral.
As mentioned, the ICC is not institutionally part of the UN, and it is not clear that even if there was support from the P5 it would have any formal impact. It is possible to envision that the ICC Prosecutor might recommend to ICC judges that they authorize an investigation of the charges of aggression, and if found persuasive, that arrest warrants be issued for the respective heads of state, and possibly other officials or even officials of corporate entities.
As the experience of earlier arrest warrants against Netanyahu and Gallant illustrate, respect for ICC arrest warrants is essentially voluntary and not likely to be implemented against leading figures of powerful countries. The ICC, unlike the ICJ, can only proceed against individuals and lacks jurisdiction to take formal legal action against governments, corporations, and financial institutions.
In sum, the ICC path to accountability is not promising. More constructive avenues to achieve some kind of legal assessment might result from the formation of a civil society or peoples’ tribunal. I served as President of the Gaza Tribunal that gathered evidence, presented expert and survivor testimonies and concluded its inquiries with a strong decision by a Jury of Conscience composed of respected political, cultural, and scholarly personalities. Smaller tribunals in Canada and the UK have critically examined allegations of complicity in the furtherance of Israel’s international crimes in Gaza.
VOICE: What are the reasons why the US, Israel, and Iran are not members of the ICC?
Falk: My response is no more than a speculation based on public postures. I think the basic reason is the awareness that their respective foreign policy positions are controversial from the perspective of international criminal law. These three governments for somewhat different reasons are not prepared to subject their strategic priorities or national security to legal or criminal scrutiny.
VOICE: How has the policing power of the UN evolved and what are the future prospects of this power?
Falk: From the time the UN was established until the present, the policing or enforcement capabilities of the Organization was made dependent on decisions of the Security Council, which gives only the five winners of World War II a right of veto, as prominently used by the US and its NATO allies during the Israel assault upon Gaza, to shield Israel from censure, law enforcement, and accountability.
It is again relevant to interpreting the outbreak of the present Iran War. Once again the political organs of the UN, the SC and General Assembly, have been essentially silent in the face of aggression, and the violation of the core norm of the UN Charter, prohibiting aggressive uses of force have been so far completely neutralized. And even the GA, which lacks enforcement or accountability authority, has lacked the political will to confront outright aggression. This unlawful start of the Iran War resembles what was called at the Nuremberg trials after World War II ‘Crimes against Peace.’
Voice: Would you share any suggestions for how our country or the individuals who read this interview should proceed to support Peace?
Falk: Let your conscience be your guide, as shaped by a knowledge of how ‘wars of choice’ as the New York Times described the present Iran War, so far causing death, suffering, and devastation to Iran and several of its neighbors. This leads to anti-American rage among people everywhere, causing bitter divisions even here. Even the New York Times referred to the Iran War as ‘the ultimate war of choice.’ I call it an unprovoked war of aggression that is likely to make even more stressed the internal situation of multiple hardships being endured by the Iranian people, and to spread disorder throughout the region, and beyond.
U.S. warmaking since World War II has produced few benefits and much grief and destruction. It is time to bring war under control before it dooms the future of humanity. This will only happen when enough people take action that overwhelms special interests and militarism that now shape our foreign policy.
Voice: Are there any precedents for the kind of changed needed to move forward?
Falk: When a situation arises where a state pursues internal and external against the will of the people, opposition in the form of nonviolent protest initiatives often can achieve goals related to peace and justice. This happened in the U.S. at the latter stages of the Vietnam War. Finally exerting enough pressure to produce a transition to peace for this country and an era of reconstruction for Vietnam. Another example is the surprising success of the anti-apartheid movement that was aided by nonviolent solidarity movements around the world including cultural and sports boycotts, divestment campaigns, and alienation in international relations.
The weight of these pressures brought an unexpected change of policy by the ruling South African white leadership that brought racism to an end, and a transition to a constitutional democracy, while far from perfect, is an inspiring improvement over apartheid or a bloody race war. Such a possibility exists for the American people at this time to end its participation in the Iran War, and at the same time adjust its relationship with Israel by reference to law and justice. Although we can know the future, we can know and act to achieve a future that will be shaped by values rather than by the strategic calculations of unaccountable bureaucrats. As many moral giants of our world have insisted upon we must dedicate themselves to ‘peace by peaceful means’ and not take refuge by silently crouching beneath the weight of state propaganda.
Professor Richard Falk is the Albert G. Milbank Professor Emeritus of International Law at Princeton University. He was nominated for the Nobel Peace Prize in 2023. He has served as chair of Global Law, Faculty of Law, at Queen Mary University, London and co-Director of its Centre of Environmental Justice and Crime; Research Associate at the Orfalea Center of Global Studies at the UC Santa Barbara; and Fellow of the Tellus Institute. He directed the project on Global Climate Change, Human Security, and Democracy at UCSB and formerly was the director of the North American group in the World Order Models Project. Between 2008 and 2014, Falk served as UN Special Rapporteur on the human rights situation in the Palestinian territories. Falk is the author or editor of more than 75 books. In 2022, Professor Falk authored Protecting Human Rights in Occupied Palestine: Working Through the United Nations in collaboration with John Dugard and Michael Lynk. He is Senior Vice President of the Nuclear Age Peace Foundation.
This article originally appeared in Voice Magazine.
