Appointed to be the Special Rapporteur in March 2008, Professor Falk is an international law and international relations scholar who taught at Princeton University for forty years before his appointment as Special Rapporteur. Despite his mandate to monitor the human rights situation, Falk has never been granted entry into the oPt. The Government of Israel detained and expelled Falk from Ben Gurion Airport upon his first visit to the region as the Special Rapporteur on December 14, 2008, and has not mitigated its policy three years into Falk’s six-year mandate, maintaining that Falk’s appointment demonstrates the UN’s bias towards Israel because, according to then Israeli Ambassador to the UN, Falk could not “possibly be considered independent, impartial, or objective.”2 In fact, although his appointment was reached by consensus among the Council’s 47 members, Jewish groups fervently lobbied Canada and the European Union to oppose his nomination.3 Consequently, the Special Rapporteur has been forced to write his reports without the benefit of on-the-ground information gathering.
Falk, who started a blog to mark his 80th birthday4 and continues to teach at UC Santa Barbara, has not been deterred by his limited access. In addition to publishing numerous press statements, letters, and speeches on the human rights situation in the oPt,5 he has submitted three extensive reports for review by the Council during its Tenth, Thirteenth, and Sixteenth Sessions. Always distinguished by timely research and analysis, Falk’s reports to the Council have also been marked by their consistency in focus.
In each of his reports Professor Falk has explored the illegality of Israel’s blockade on Gaza and the legal issues raised by Israel’s military operation against Gaza; the crisis wrought by ongoing settlement expansion; as well as Israeli non-cooperation with the United Nations. While Falk’s emphasis on Israeli non-cooperation is informed by his own dismal experience in 2008, it is also characteristic of Israel’s historic relationship to the UN.
In fact, the UN Resolution establishing the Special Rapporteur to the oPt in 1993, notes “great concern the Israeli refusal to abide by resolutions of the Security Council, the General Assembly and the Commission on Human Rights,” and intended for the Special Rapporteur to overcome the impediments created by Israeli non-cooperation.6 The country mandate has seemingly failed on this count as evidenced by Israel’s treatment of the Fact-Finding Mission to Gaza.
Like the Special Rapporteur, Israel also denied the Mission entry to Gaza and forced it to find alternative means to gather information including entering Gaza through Egypt’s Rafah border. In continuation of its intransigent refusal to cooperate with the international multilateral body, the Government of Israel also refused to cooperate with the Independent International Fact-Finding Mission on the incident of the humanitarian Flotilla. Falk has repeatedly drawn the Council’s attention to Israel’s non-cooperation and in his most current report, he cites Article 104 and 105 of the UN Charter to underscore his point that Israel’s acceptance as a UN member state obligates it to cooperate with the UN. Falk also emphasizes that Israel’s non-cooperation should be met with a concerted effort by the Human Rights Council as well as the office of the Secretary-General to do what it can to obtain Israel’s cooperation.
Israeli cooperation is ultimately voluntary but its non-cooperation violates the spirit of the UN, in particular its Special Procedures. Special procedures refer to the HRC mechanism employed to address country situations and thematic issues globally. These procedures call on mandate holders to “examine, monitor, advise and publicly report on human rights situations in specific countries or territories, known as country mandates, or on major phenomena of human rights violations worldwide, known as thematic mandates. Various activities are undertaken by special procedures, including responding to individual complaints, conducting studies, providing advice on technical cooperation at the country level, and engaging in general promotional activities.”7
The Mandate holders provide an indelible service to the promotion of human rights through their reports to the HRC, as they provide an international platform for what may be obscure matters. Through a mandate holders’ advocacy, an issue can easily become central to an international human rights agenda.
Professor Falk has made significant and unique contributions to the Council’s proceedings in his Reports and, by extension, on behalf of the broader struggle for Palestinian human rights. Of particular note is his insistence on appropriate language, the possibility of new human rights violations, as well as his emphasis on extra-legal mechanisms aimed at achieving accountability.
In paragraph 7 of his Submission to the 16th Session, Professor Falk examines the significance of language on Israel’s impunity for ongoing human rights violations in the international legal order. Specifically, Falk writes that in order to expose the “normalization” of Israel’s unlawful patterns executed with U.S. sanction, “requires the stronger expository language to better understand the unbridled assault upon Palestinian rights and prospects for meaningful self-determination. It is against this background that this report has decided to employ such terms as ‘annexation,’ ‘ethnic cleansing,’ ‘apartheid,’ ‘colonialist,’ and ‘criminality’ as more adequately expressing the actual nature of the situation in the occupied Palestinian territories.” Falk’s emphasis on the role of language in the conflict as well as his own choice of language is abundantly refreshing. Consider that Falk does not hesitate to use the framework of forcible transfer, also known as ethnic cleansing, to describe Israel’s policies in East Jerusalem, effectively underscoring BADIL’s legal analysis of the situation in East Jerusalem which it described in its written submission to the 16th Session.8
In addition to using more illustrative language to challenge Israel’s attempts to legitimate its policies, Professor Falk also raises questions about new human rights violations. In his Report to the Tenth Session of the Human Rights Council, he asks whether Israel’s policy of sealing Gaza’s borders during Operation Cast Lead thereby prohibiting civilians from becoming refugees of war, what he terms “refugee denial,” amounts to a crime against humanity. He writes “refugee denial under these circumstances of confined occupation is an instance of “inhumane acts,” during which the entire civilian population of Gaza was subjected to the extreme physical and psychological hazards of modern warfare within a very small overall territory” and should therefore be understood as a crime against humanity in international criminal law.9
Professor’s Falk intrepid approach to the Human Rights Council is best illustrated by his insistence that Israeli accountability be achieved by extra-legal, non-governmental mechanisms, namely through the use of boycott, divestment, and sanctions (BDS). In his submission to the Thirteenth Session, Falk recommends that the Human Rights Council consider BDS as a non-violent means to alleviate human rights violations and that it provide the language for such a campaign. He makes the case for BDS in paragraph 37 where he writes, BDS “is a central battleground in the legitimacy war being waged by and on behalf of Palestinians…BDS represents the mobilized efforts of global civil society to replace a regime of force with the rule of law in relation to the OPT.”
Professor Falk's efforts to address the power dynamics that underpin ongoing violations of Palestinian rights has earned him the ire of the US,10 Israel, and Palestinian11 governments alike. However, he has been a refreshing breeze for the human rights organizations that tirelessly work to overcome formidable political hurdles impeding the realization of human rights for Palestinians. Even if the Council does not heed his calls for visionary approaches to resolving the human rights crises in the OPT, given his legacy of consistency, the human rights community can rest assured that Professor Falk will not cease to raise the most critical issues before the Council until they respond to his calls with meaningful action.
Noura Erakat is a human rights attorney and BADIL's US-based Legal Advocacy Consultant
8. Badil, “Jerusalem’s Protracted Demographic Transformation: A Policy of Population Transfer and a Regime of Apartheid and Colonialism,” Submission to 16th Session Human Rights Council.
9. A/HRC/10/20 (February 11, 2009) at Paragraph 19.