The Russell Tribunal on Palestine recently found the state of Israel to be guilty of apartheid (EPA)

I firmly believe that the Russell Tribunal has credibility as a venue for truth-telling despite being established and funded by ordinary citizens concerned about the denial of Palestinian rights and Israeli defiance of international law. RToP makes no pretense of being "a court" with enforcement powers, but it does deny allegations of "cooking the books" because it knows in advance that there will be a finding of guilt. Indeed it is this knowledge in advance, based on abundant and non-contested evidence, that explains the motivations for mounting the extraordinary effort to raise the funds and handle the logistics required to organise a proceeding of this type. Such a tribunal makes no real effort made to discover the truth, although representatives of those accused were formally invited to present their defence, but rather its calling is to document the truth. Israel has made no secret of the policies, laws and practices that were presented in Cape Town, although it describes them differently, hides and obscures their application, and draws a different set of conclusions.

Russell's historic initiative

It was the celebrated British philosopher, Bertrand Russell who suggests in his autobiography that he felt that the world needed to know about the Vietnam War in a manner free from self-serving slant and Cold War propaganda, and so he invited leading moral authority figures in the world to take part in an unrestricted inquiry into the alleged criminality associated with the American role in Vietnam.

In Russell's opening statement at the International War Crimes Tribunal convened in 1966 to investigate the atrocities by the US in Vietnam, he declared that the initiative had no clear precedent but that such openness was helpful as it allowed the tribunal "to conduct a solemn and historic investigation, uncompelled by reasons of State or other such obligations". He ended his remarks by making clear the distinctive objective of the undertaking: "May this Tribunal prevent the crime of silence".

In effect, the narration of the criminality is undertaken not primarily to speak truth to power, which is generally deaf to voices from below, but to speak truth to people, awakening public opinion from its apathy to the responsibilities of being human (concern for the victimised other) and duties as citizens of free society to ensure that a government acting in its name upholds the law. Russell expressed this orientation as embodying very grand, some would say grandiose, expectations: "our task is to make mankind bear witness to these crimes and to unite humanity on the side of justice in Vietnam".

Actually, the outcome of the Russell Tribunal was virtually unreported at the time (except derisively), and later its work was known only to small coteries of anti-war activists and intellectuals, and even they were often confused at the time about whether such a one-sided unauthorised event was helpful to the general cause of peace and justice in the world. With the passage of time, the Russell experience has gained in influence and reputation, but it remains a large exaggeration to claim, as Marvyn Bennum does in an otherwise excellent article, "Understanding the rational, logic and procedures of the Russell Tribunal", [Cape Argus, October 31, 2011] that the Russell tribunals had "a profound impact on world opinion", although this historic initiative did set the standard in most respects for subsequent enactments of such an approach, including the RToP.

Unfortunately, although Russell's words are often invoked as the core justifying claim, the reality after some 45 years is that such undertakings, and there have been many since this first one, are rendered almost mute by a media that thinks and feels like a state, which is especially so when the allegations are directed at the lead constitutional democracy that sits firmly at the pinnacle of geopolitical power and influence. The wall of silence does not crumble easily if sustained by the combined corporate and military muscle at the disposal of Washington.

As Russell said in 1967 at the second session of the Vietnam Tribunal, "[w]e are not judges. We are witnesses". This witnessing is meant to be politically effective than mere pronouncements of injustice and criminality, and it has gradually in recent years become more so. As the state system has moved to criminalise certain forms of conduct, and even to establish an International Criminal Court, it seems more plausible to demand that the law should be applied to the strong as well as the weak, and less of a usurpation of governmental functions for persons acting on their own to do what institutions of the state are failing to do, that is, assess charges of guilt.

It may seem to be the case that the Vietnam War Crimes Tribunal gave the game away at the outset by putting the words "investigate the atrocities by the United States in Vietnam". Such provocative language makes us think about the nature of the game, and how it should be played. To deal with the impunity of the powerful in abusing the weak, the supposed uncertainty of outcome in a governmental trial (where some version of the myth of "innocent until proven guilty beyond a reasonable doubt" is in force) is not present in this kind of setting. The very premise of the Russell Tribunal, and the many subsequent replicas, is that there is such certainty present as to generate moral outrage sufficient to give rise to the inquiry.

Frank Barat, the main organiser of RToP put the issue slightly differently, by observing "[o]ur intention has never been to find out if Israel were guilty or not, nor to start a debate about it. This work has already been done by UN bodies, human rights organisations, aid organisations and countless violated UN Security Council resolutions". And further, "[i]t is our duty to stand with the oppressed in its quest for justice".

In this respect, those civil society tribunals that try to imitate to the extent a judicial model of inquiry and decision risk generating confusion. They make it more reasonable for critics to point out that if the tribunal purports to be trying to ascertain guilt rather than denounce it on the basis of a preexisting legal consensus, then a pretense of "judicial process" does make itself subject to criticism as a hypocritical fraud. To some extent, the recently concluded Kuala Lumpur War Crimes Tribunal, while impressive in many respects, fell into this trap by emphasising the legal credentials of its "judges" who were almost all exclusively jurists who were only locally known and by putting forward a kind of token defence on behalf of Bush and Blair who were charged with crimes in connection with the Iraq War. The Russell Vietnam Tribunal, in contrast, had clearly signalled its rejection of this vocational law model by using such a loaded word as "atrocities" in naming itself, by not seeking to appoint individuals with a law background to serve on its panel of judges, and by not mounting any defence on behalf of those accused (although a ritualised invitation was issued to the American president, Lyndon B Johnson, to do so).

Obviously, this issue raises a question for the future. Is it better to mimic the state-centric model of judicial process in a criminal case to the extent possible or is it preferable to produce a morality pageant in which a true story is told with as much passion, reasoning, and proof as possible? Of course, international law can be invoked in the pageant model as explained by Barat when he writes that the RToP "by using international law as its basis, proposes a no-nonsense way forward. The law is on the side of the Palestinians, so let's make good use of it. The Tribunal intends to assist the people working on a just peace for all with the legal means they have crucially been lacking for too long". [Frank Barat, "What is the point of the Russell Tribunal on Palestine?"] The pro-Palestinian claim here seems to correspond with a fair reading of relevant international law on all crucial dividing issues: settlements, Jerusalem, refugees, occupation, land, water, and the utmost issue, self-determination. So stacked it reinforces the moral condemnation.

Goldstone's charm

Realising that the objective is to overcome "silence", the RToP was greatly helped by the publication of a slanderous attack on the prospective undertaking in the pages of the New York Times by the notable South African public figure Richard Goldstone. [Goldstone, "Israel and the Apartheid Slander", NY Times, October 31, 2011] Never before in the more than four decades of such proceedings had an influential media venue in the West stooped to take notice of such happenings prior to their occurrence. Not only did Goldstone call global attention to RToP, but he created a platform for response that was used by John Dugard, another South African of global stature with special expert credentials as to conditions in Palestine as well as to the experience of apartheid in South Africa. The Goldstone attack suggests that it sometimes better to have enemies than friends!

In the article almost ludicrously Goldstone wrote, "In Israel, there is no apartheid. Nothing there comes close to the definition of apartheid under the 1998 Rome Statute. 'Inhumane acts... committed in the context of an institutionalised regime of systematic oppression and discrimination'..." Really! The list of discriminatory laws, the dual administration of settlements and Palestinians, the checkpoint treatment of Palestinians, the settler only roads, the non-protection of Palestinians living under occupation, the midnight abusive arrests of children certainly suggest a pattern of inhuman acts even to an uninformed mind!

Without naming the participants, among whom were a death camp survivor, Stephane Hessel, a former member of Mandela's cabinet - Ronnie Kasrils, a world renowned author - Alice Walker, a distinguished English barrister - Michael Mansfield, QC, and a former American congresswoman - Cynthia McKinney, Goldstone calls them "critics whose harsh views of Israel are well known". The question, of course, is not whether these outstanding personalities have strong opinions on the matter at issue, but whether they have credibility based on their reputation for bearing witness truthfully and effectively. [For insightful interviews by Hanan Chehata with these leading RToP participants see the Middle East Monitor website].

RToP in South Africa

The RToP chose South Africa as the site for this session on apartheid quite obviously to claim continuity with the universally condemned racist regime that governed the country until 1994. This continuity was reinforced by having Archbishop Emeritus Desmond Tutu, renowned opponent of apartheid in South Africa and someone who early drew the analogy to Israeli treatment of Palestinians, deliver an opening address at the session in Cape Town.

This lineage was further reinforced by the presence of Ronnie Kastrils, a Jewish member of the RToP panel, as well as receiving testimony from the world respected South African jurist, John Dugard, who was prominent both for his opposition at home to apartheid and because in his role as UN HRC Special Rapporteur for Occupied Palestine he called the occupation as an instance of the international crime of apartheid.

But there was also some cost paid for emphasising this link to South Africa, which was the only real basis for Goldstone's rant directed at RToP. Goldstone called the comparison "an unfair and inaccurate slander against Israel, calculated to retard rather than advance peace negotiations". In effect, it allows the misleading argument to be made that since there are significant dissimilarities between Israeli treatment of the Palestinians and the South African racist regime the allegation would seem to rest on the credibility of the comparison.

As should be understood by people of good will by now, the apartheid experience in South Africa gave rise to the formulation of an international crime of apartheid as specified in the 1973 International Convention and included in the 2002 Rome Treaty establishing the International Criminal Court, but it does not delimit future occurrences of the crime of apartheid. In this latter legal instrument, apartheid is set forth as one of eleven types of "crimes against humanity" in Article 7(1)(j) of the treaty.

The crime of apartheid

The most controversial, and at the same time far reaching feature, of the RToP finding was to conclude that Israeli responsibility for establishing an apartheid regime applied not only to Palestinians living under occupation, but also to the Palestinians minority living with discriminatory regulations in Israel and to the Palestinian diaspora consisting of 4-5 million refugees and exiles.

Seen in isolation, it seems like an unconvincing extension of the meaning of apartheid, even if separated from its South African connection, to consider Palestinian citizens of Israel, even if victims of severe and humbling discrimination, as living under an apartheid regime or even more so to view diaspora Palestinians in this manner. But there is moral and psycho-political weight to the unanimous view of the RToP jurors that the core right of self-determination applies to the Palestinian people as a whole, including not living under direct Israeli military control.

The RToP divides its rationale for finding guilty of committing the crime of apartheid into three main parts: (1) race as defining identity in Israel/Palestine relations (tribunal agrees that race in the international definition of the crime should be interpreted broadly to include ethnic and national character); (2) inhuman acts (specified in relation to Israeli treatment of Palestinians, as integral to the crime, particularly "colonisation and appropriation of Palestinian land" and coercive fragmentation of the Palestinian community in "different physical spaces"; (3) a systematic and institutionalised regime as pervading the subjugation of the Palestinian people (preferential treatment of Jews, dual legal arrangements, restrictions on residence and mobility, deportations and house demolitions are elements in what the tribunal calls "Israel's institutionalised regime of domination". [See Victor Kattan's excellent detailed analysis of the RToP finding of apartheid in his "The Russell Tribunal on Palestine and the Question of Apartheid", al-shabaka brief, November 23, 2011].

Assessing RToP

The importance of the RToP session is to strengthen the civil society case against the Israeli treatment of the Palestinian people. As such, it adds a certain quality of gravitas to such international initiatives as the Freedom Flotilla and the BDS (boycott, divestment and sanctions) campaign. Thanks to Goldstone, and to the organisational skills of the tribunal, there has also been a certain media visibility for RToP that has been absent in most comparable undertakings, including the recent Kuala Lumpur proceedings against George W. Bush and Tony Blair. In this sense, the crime of silence that disturbed Bertrand Russell during the Vietnam War is still being committed, but it has been to a degree mitigated by the legacy he continues to inspire.

Indirectly, also, the very existence of RToP should encourage states to be more active in exerting their own authority to implement individual accountability under international criminal law via reliance on universal jurisdiction. At present, the impulse to reassert such national agency to supplement weak international enforcement mechanisms has been set back by a geopolitical backlash led by the US in the aftermath of the Spanish indictment and British detention of Augusto Pinochet a little more than a decade ago. This struggle between the vitalisation of international criminal law and geopolitical actors demanding impunity will help determine whether global governance is primarily a regime of power or a regime of just law.

Finally, we notice that the jurisprudence of conscience, that is, applications of law without punitive capacity in relation to alleged violators, is maturing in two parallel directions. The first illustrated by the Russell legacy, including at this recently concluded inquiry into Israeli apartheid, rests its methodology on law established by testimony of legal experts and findings of individuals whose credibility depends primarily on their moral authority and cultural stature, a jury of conscience. The second illustrated to a degree by the Kuala Lumpur proceedings, seeking to replicate the behaviour of courts under the informal auspices of civil society, and seeks to base its credibility on a pervasive legal framework, including the makeup of the panel making findings and recommendations and extending to providing a defence on behalf of the government and individuals charged with criminal behavior. Hopefully, the fourth and final session of RToP, to be held in 2012 in the US, will in addition to providing an overview of the allegations against Israel, will also offer guidance to those who see a continuing need for a jurisprudence of conscience as a critical arena of struggle in the ongoing quest for humane global governance.

* 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.

by Carlos Latuff

by Cynthia McKinney*

This is Cynthia McKinney and I'm speaking from an Israeli prison cellblock in Ramle. [I am one of] the Free Gaza 21, human rights activists currently imprisoned for trying to take medical supplies to Gaza, building supplies - and even crayons for children, I had a suitcase full of crayons for children. While we were on our way to Gaza the Israelis threatened to fire on our boat, but we did not turn around. The Israelis high-jacked and arrested us because we wanted to give crayons to the children in Gaza. We have been detained, and we want the people of the world to see how we have been treated just because we wanted to deliver humanitarian assistance to the people of Gaza.

At the outbreak of Israel's Operation ‘Cast Lead' [in December 2008], I boarded a Free Gaza boat with one day's notice and tried, as the US representative in a multi-national delegation, to deliver 3 tons of medical supplies to an already besieged and ravaged Gaza.

During Operation Cast Lead, U.S.-supplied F-16's rained hellfire on a trapped people. Ethnic cleansing became full scale outright genocide. U.S.-supplied white phosphorus, depleted uranium, robotic technology, DIME weapons, and cluster bombs - new weapons creating injuries never treated before by Jordanian and Norwegian doctors. I was later told by doctors who were there in Gaza during Israel's onslaught that Gaza had become Israel's veritable weapons testing laboratory, people used to test and improve the kill ratio of their weapons.

The world saw Israel's despicable violence thanks to al-Jazeera Arabic and Press TV that broadcast in English. I saw those broadcasts live and around the clock, not from the USA but from Lebanon, where my first attempt to get into Gaza had ended because the Israeli military rammed the boat I was on in international water ... It's a miracle that I'm even here to write about my second encounter with the Israeli military, again a humanitarian mission aborted by the Israeli military.

The Israeli authorities have tried to get us to confess that we committed a crime ... I am now known as Israeli prisoner number 88794. How can I be in prison for collecting crayons to kids?

Zionism has surely run out of its last legitimacy if this is what it does to people who believe so deeply in human rights for all that they put their own lives on the line for someone else's children. Israel is the fullest expression of Zionism, but if Israel fears for its security because Gaza's children have crayons then not only has Israel lost its last shred of legitimacy, but Israel must be declared a failed state.

I am facing deportation from the state that brought me here at gunpoint after commandeering our boat. I was brought to Israel against my will. I am being held in this prison because I had a dream that Gaza's children could color & paint, that Gaza's wounded could be healed, and that Gaza's bombed-out houses could be rebuilt.

But I've learned an interesting thing by being inside this prison. First of all, it's incredibly black: populated mostly by Ethiopians who also had a dream ... like my cellmates, one who is pregnant. They are all are in their twenties. They thought they were coming to the Holy Land. They had a dream that their lives would be better ... The once proud, never colonized Ethiopia [has been thrown into] the back pocket of the United States, and become a place of torture, rendition, and occupation. Ethiopians must free their country because superpower politics [have] become more important than human rights and self-determination.

My cellmates came to the Holy Land so they could be free from the exigencies of superpower politics. They committed no crime except to have a dream. They came to Israel because they thought that Israel held promise for them. Their journey to Israel through Sudan and Egypt was arduous. I can only imagine what it must have been like for them. And it wasn't cheap. Many of them represent their family's best collective efforts for self-fulfilment. They made their way to the United Nations High Commission for Refugees. They got their yellow paper of identification. They got their certificate for police protection. They are refugees from tragedy, and they made it to Israel only after they arrived Israel told them "there is no UN in Israel."

The police here have license to pick them up & suck them into the black hole of a farce for a justice system. These beautiful, industrious and proud women represent the hopes of entire families. The idea of Israel tricked them and the rest of us. In a widely propagandized slick marketing campaign, Israel represented itself as a place of refuge and safety for the world's first Jews and Christian. I too believed that marketing and failed to look deeper.

The truth is that Israel lied to the world. Israel lied to the families of these young women. Israel lied to the women themselves who are now trapped in Ramle's detention facility. And what are we to do? One of my cellmates cried today. She has been here for 6 months. As an American, crying with them is not enough. The policy of the United States must be better, and while we watch President Obama give 12.8 trillion dollars to the financial elite of the United States it ought now be clear that hope, change, and ‘yes we can' were powerfully presented images of dignity and self-fulfilment, individually and nationally, that besieged people everywhere truly believed in.

It was a slick marketing campaign as slickly put to the world and to the voters of America as was Israel's marketing to the world. It tricked all of us but, more tragically, these young women.

We must cast an informed vote about better candidates seeking to represent us. I have read and re-read Dr. Martin Luther King Junior's letter from a Birmingham jail. Never in my wildest dreams would I have ever imagined that I too would one day have to do so. It is clear that taxpayers in Europe and the U.S. have a lot to atone for, for what they've done to others around the world.

What an irony! My son begins his law school program without me because I am in prison, in my own way trying to do my best, again, for other people's children. Forgive me, my son. I guess I'm experiencing the harsh reality which is why people need dreams. [But] I'm lucky. I will leave this place. Has Israel become the place where dreams die?

Former Congresswoman Cynthia Mckinney detained by Israel

Let's change the world together & reclaim what we all need as human beings: Dignity. I appeal to the United Nations to get these women of Ramle, who have done nothing wrong other than to believe in Israel as the guardian of the Holy Land, resettled in safe homes. I appeal to the United State's Department of State to include the plight of detained UNHCR-certified refugees in the Israel country report in its annual human rights report. I appeal once again to President Obama to go to Gaza: send your special envoy, George Mitchell there, and to engage Hamas as the elected choice of the Palestinian people.

I dedicate this message to those who struggle to achieve a free Palestine, and to the women I've met at Ramle. This is Cynthia McKinney, July 2nd 2009, also known as Ramle prisoner number 88794.

* Cynthia McKinney is a former U.S. Congresswoman, Green Party Presidential candidate, and an outspoken advocate for human rights and social justice. The first African-American woman to represent the state of Georgia, McKinney served six terms in the U.S. House of Representatives, from 1993-2003, and from 2005-2007. She was arrested and forcibly abducted to Israel while attempting to take humanitarian and reconstruction supplies to Gaza on June 30th. This letter was originally broadcast on WBAIX on July 3rd. For more information, please see http://www.FreeGaza.org