Category Archives: bias

International Court of Criminals politicizes itself

International Court of Criminals politicizes itself by accepting the legal fiction of Palestinian statehood

The Lawfare Project is deeply concerned with the recent decision by the Prosecutor of the International Criminal Court (ICC) to open a preliminary examination into the “situation in Palestine,” which follows Palestinian Authority President Mahmoud Abbas’s signing of the ICC’s Rome Statute earlier this month.

During the inquiry, the Prosecutor will evaluate “issues of jurisdiction, admissibility and the interests of justice” in determining whether to launch an investigation into alleged crimes committed in the West Bank, East Jerusalem, and Gaza. Because Abbas recognized the ICC’s jurisdiction retroactively, the Prosecutor could investigate last summer’s conflict between Israel and designated foreign terrorist organization Hamas (see The Lawfare Project’s analysis of war crimes and other violations of international law committed by Hamas).

Regardless of the examination’s outcome, this initial move directly undermines the ICC’s legitimacy, revealing politicization rather than legal competence. Because statehood is a condition of jurisdiction under the Rome Statute, the Prosecutor’s decision involved her finding that a “Palestinian state” actually exists. She did so based on the fact that the U.N. General Assembly voted in 2012 to upgrade the status of the Palestinian Authority from “non-member observer entity” to “non-member observer state.” This maneuver, which followed unsuccessful attempts to achieve legally recognizable statehood via the U.N. Security Council, received widespread criticism because the Palestinians did not at the time meet the requirements for statehood under well-established international law, as was discussed in The Lawfare Project’s article on the legal fiction of Palestinian statehood. Nor do they meet those requirements today.

Not only does the General Assembly lack authority to create states (and its resolutions are not legally binding), but nothing in international law suggests that the General Assembly’s vote to upgrade the Palestinians’ status should have any bearing on the jurisdiction of the ICC, an entity independent of the United Nations. The Prosecutor’s willingness to expand ICC jurisdiction beyond the confines of the Rome Statute is of great concern, and her substitution of politics for law is indeed the epitome of lawfare.

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Palestine and Jerusalem are Occupied

Muslim and other pro- “Palestinian” interest groups have fired the first public shots in the latest round of the anti-Israel campaign down-under.

Apart from the silly and pointless noisy demonstrations outside perceived and real Jewish-owned stores and Israeli products in the major cities, the anti-Israel movement is building steam in the media and in Federal government.

On 1st May 2014, former Labor Foreign Minister Bob Carr, published his memoirs where he caused a media sensation when he publicly made claims about the impact of the “the Israel lobby” in Canberra.

Approximately a week after that, two South Australian public personalities. A journalist and a former state (now federal independent) senator, visited Judea and Samaria for a few days with the Adelaide Friends of Palestine. It was their first trip to Israel.

On May 10th 2014, the Middle East correspondent in Jerusalem for the national daily The Australian , John Lyons, reported on the visit of the Adelaide Friends of Palestine and the Australian independent Federal senator Nick Xenophon. Reporting from “…deep in the heart of the Palestinian territories…” (sic), Lyons quotes Xenophon who tells him “’What I saw in Hebron was heartbreaking – the division, the segregation, the palpable fear in the community.”

On May 17th 2014, the recently returned and enervated journalist, Peter Goers, wrote a puff-piece which lionised the ‘tragic life of Hebron Arabs’ and slammed what he called the “shame of Israeli apartheid.”

He also drew a startling analogy between himself and that other Jew, Jesus: “JESUS wept. In Palestine, Jesus wept and so did I. I weep for the Palestinians living under the Israeli apartheid…” Goers writes for the sole South Australian daily, The Advertiser.

On June 5th 2014, Liberal Party Attorney General George Brandeis was heckled by a former Australian Communist party member, Greens Senator Lee Rhiannon, about his dropping the use of the term “occupied” in relation to East Jerusalem.

Brandeis was quickly reminded that he was still just a politician at the behest of his donors. Eighteen Arab and Muslim diplomats wrote a strongly worded letter of protest to him, and there were noises made about how Australian wheat exports and the live meat trade to the Middle East could suffer.

A few days later, Foreign Minister Julie Bishop and Prime Minister Abbott both began walking back the Brandeis statement, but clarifying that their policy vis a vis Jerusalem and the “territories” had not really changed, just the terminology.

On 25th June 2014, Senator Xenophon, recently back from Hebron, deep in the heart of the Palestinian territories, requested that the matter of Mr Brandeis’ dropping of the term “Occupied” when he referred to East Jerusalem be brought to the Australian people as an item of “public importance. He stated he would provide irrefutable legal evidence which showed the stance of the Liberal Australian government of Tony Abbot regarding the terminology used by people like Attorney General Brandeis to be “…factually untrue…[and] legally ignorant. Mr Xenophon then uploaded his speech to YouTube.

On 26th June 2014, a small, niche leftist newspaper crowed that in Parliament, Mr Xenophon “Smashe[d] [Abbott Liberal government] spin on Occupied Territories”. Nobody much noticed.

And so, we come to the subject of this blog: have Judea and Samaria and East Jerusalem been “occupied” by a belligerent army of Jews?

Have the Israelis taken away land that rightfully belong to the “Palestinian people”?

Have the Jews denied the “Palestinian nation” their birthright and are crushing crushed their immutable cultural, spiritual and religious connection to a land rooted in the annals of time?

Is Israel’s current presence in Jerusalem and Judea and Samaria in flagrant violation of international law, and does that make the League of Nations Mandate which eventually made for a Jewish and an Arab state itself illegal?

That is to say, if anybody international legal body, which today represents 193 members, shall make a finding which occludes the wishes of the new Muslim ummah, should the decisions of that body be annulled?

The phrase ‘occupied territories’ has come to mean only one particular place in the entire world — namely Judea/Samaria (i.e. the West Bank). That phrase is the battle cry in a rising tide of global anger directed against Israel. Gaza too was once “occupied” by Israel, but that line of delegitimization died with the Israeli pull-out in 2005. Today, Gaza, for the ummah and its western backers, is merely under “siege”.

But Judea and Samaria still remain “occupied”; as is East Jerusalem…….

For the intellectually curious, even a cursory overview of the non-legal antecedents to this conflict will show the facts of the Muslim claim on East Jerusalem, Jerusalem, Judea and Samaria and the land of Israel.

Consider two questions: What entitles any group of people to possess any particular tract of land? How can we decide whether Jews or Arabs have the true rights to possess the ‘occupied territories’?

In the absence of any universally accepted rules, and in general practice among the nations, it usually boils down to who was there first and also right by conquest, especially if the conquest occurred long ago.

Today, there are 193 member nations in the U.N. with several having major territorial conflicts of their own, such as India and Pakistan regarding Kashmir.

Also, within nations there are separatist groups that seek independence, such as Basques in Spain, the Kurds in Turkey and what’s left of Iraq, and the Chechens in Russia. China’s woes with the Muslim Uyghur have only just begun in earnest.

An added facet is the appearance and disappearance over time of peoples and of nations. Many peoples of antiquity have long ceased to exist. Also, nations and even empires, come and go over the centuries.

But Jews and Arabs are still around and trace their origins back to Abraham of the Bible.

Jews descended through Abraham and Sara, Isaac and Jacob (who was later renamed Israel).

Arabs descended through Abraham and Hagar the Egyptian, and through their son Ishmael whose daughter Mahalath also married Esau, the brother of Jacob.

Thus Jews and Arabs are actually two branches of the same family which have diverged over the centuries and Jews and Arabs come to pray at the tomb of Abraham and Sara.

The Bible, in the book of Genesis, clearly states that descendants of Abraham, Isaac, and Jacob will eventually receive their inheritance in the form of the Promised Land, which is later identified to include the general location of present day Israel.

But Ishmael and his descendants ere also promised an inheritance,
‘…for I will make a great nation of him [i.e. Ishmael]’ Gen. 21:18.

In the Bible, the Jews are assigned only a modest portion of the land in the Middle East, with remaining lands distributed among the other nations.

Unlike certain other empires and religions throughout history, the Jews are not promised, nor commanded to seize, all of the lands in the world, nor to convert all others to their beliefs.

This promise was made at the time of Abraham, about 4,000 years ago (some 2,300 years before the birth of Muhammad) and takes further shape in the time of Moses, about 3,300 years ago (some 1,600 years before advent of Mohammedanism), where the Jewish People became irrevocably linked to the land of Israel, the “Promised Land.”

The Bible assigns this one people to this one specific land and does not do this for any other people.

Over two billion Christians, plus 18 million Jews, accept the Five Books of Moses as a pillar of their religion. They all embrace a religion which clearly defines that land as belonging to the Jewish People in perpetuity.

Those who deny the validity of this Biblical assignment must then fall back on man-made rules which are subject to constant alteration, disagreement, and conflict.

At the time of Mohammed, about 1,400 years ago (some 2,600 after Abraham’s covenant), the Arabs, along with Jews, Christians, and others, lived in the Arabian Peninsula.

Before being forced to convert to the teachings of Allah by Muhammad in the 7th C.E., Arabs had deep-rooted love for the tribe to which they belonged.

This belief in the greatness and excellence of their tribe led them to carve a deity of their own and they sang hymns in its praise in order to win its favour. Thus the tribe called Kalb worshipped Wadd, the Hudhayl worshipped Suwa. The tribe of Madh’hij as well as the people of Quraysh worshipped Yaghuth, the Khaywan worshipped Ya’uq. Similarly the tribe of Himyar adopted Nasr as their god and worshipped it in a place called Balkha. The Himyar had also another temple (bayt) in San’a. It was called Ri’am, the people venerated it and offered sacrifices to it.

The most ancient of all these idols was Manah. The Arabs named their children after them as ‘Abd Manah and Zayd Manah. Manah was erected on the seashore in the vicinity of Mushallal in Qudayd, between Medina and Mecca and all the Arabs used to venerate her and offer sacrifices to her.

Another goddess which was ardently worshipped by the Arabs was known as al-Lat. “She was a cubic rock beside which a certain Jew used to prepare his barley porridge (Sawiq). Her custody was in the hands of Banu Attab Ibn Malik of the Thaqif who had raised an edifice over her. She was venerated by the Quraysh and almost all the tribes of Arabia and they named their children after her, e.g., Zayd al-Lat and Taym al_Lat.

So, prior to the arrival of Mohammad in the polytheistic Arab Peninsula, only two, monotheistic Abrahamic faiths existed: long-established Judaism following the word of the omnipotent Yahweh, and early Christianity which believed in the Trinity.

The Arabs of the Peninsula were pagan worshippers who practised polytheism.

Not then, and not at any time after that, have the teachings of Muhammad as encoded in the Qu’ran, ever considered either Judea or Samaria or Jerusalem as significant in the new, nascent Muslim faith. Jerusalem, Judea, and Samaria simply figured little in Islam.

The table below shows the frequency with which key words to the three faiths are a signifier of their importance to the three Abrahamic faiths:

Book                         Subject                        Number of times mentioned
Jewish Bible              Jerusalem                                669
Jewish Bible             Zion (i.e. Jerusalem                  154
or the land)
Christian Bible           Jerusalem                                 154
Christian Bible               Zion                                         7
Both Jewish and
Christian Bibles       Judah or Judea                          877
Both Bibles                 Samaria                                  123
The Qu’ran            Israel or Israelites                          47
The Qu’ran             Jew or Jewish                               26
The Qu’ran            Christian or Christians                  15
The Qu’ran            Mecca and Medina                         8
The Qu’ran                Jerusalem                                Zero!
(not mentioned)

We are sophisticated readers, all of us, and we are all familiar with the urban myth that numbers can be made to tell any story one chooses to.

What, however, is incontrovertible from the numbers above, is just how many references in both the Hebrew and Christian Bibles testify to the integral historic connections between the Jewish People and the Land of Israel and also to Jerusalem, the eternal capital of Judaism and of the Jewish People.

It is also incontrovertible that that same Judea, Samaria and Jerusalem, of which “Palestinians” (sic) are allegedly “disposessed”, are of no historical, spiritual or even religious significance to Muslims in any way. The Qu’ran shows that this is so.

Jerusalem was the capital of Israel 3,000 years ago under King David.

The Qu’ran was written about 1,600 years later. An the focus of the nascent Muslim faith was always Mecca.

Together with that, the Qu’ran has more references to things Jewish and Christian than to their own two holy cities of Mecca and Medina.

This indicates their keen awareness of Jewish roots in that region.

And, of course, most remarkable statistic is that the Qu’ran fails to mention Jerusalem even once.

Thus, with Muslims facing towards Mecca while praying, while Jews have turned to Jerusalem since antiquity, it is clear that Islam has no Qu’ranic connection to either Jerusalem or to the land of Israel, and therefore no spiritual, religious or cultural claim to either.

The Qu’ran simply confirms that this is so.

Islamic scholars themselves, such as Khaleel Mohammed, state that the Qu’ran actually supports the right of Jews to the land of Israel. He cites Sura 5:20, 5:21 in the Qu’ran which are translated as follows:
5:20. Remember Moses said to his people: ‘O my People ! call in remembrance the favor of Allah unto you, when He produced prophets among you, made you kings, and gave you what He had not given to any other among the peoples.
5:21. ‘O my people ! enter the holy land which Allah hath assigned to you, and turn not back ignominiously, for then will ye be overthrown, to your own ruin.’ (The Meaning of the Illustrious Qur’an by A. Yusuf Ali)

Further, the Qur’an explicitly refers to the return of the Jews to the Land of Israel before the Last Judgment – where it says: “And thereafter We [Allah] said to the Children of Israel: ‘Dwell securely in the Promised Land. And when the last warning will come to pass, we will gather you together in a mingled crowd.'” [Qur’an 17:104]

The messages in the Islamic Qu’ran are therefore very similar to that in the Jewish Bible which preceded it by one and a half millennia.

But this Qu’ranic message is not taught, or is conveniently forgotten by those radical Muslims and their European enablers and financial backers who would de-legitmise and wish for the demise of the Jewish state.

The Qu’ran also never mentions Palestine or Palestinians because there was such a nation, a people, or a political entity never existed.

We now have the holy books of Judaism, Christianity, and even Islam, recognizing the Jewish claim to the Land of Israel. Those three religious represent half of all humanity.

And lest anti-semitic zeal conflate fact with myth, we should remember that two thousand years ago, before the birth of Muhammad, Rome ruled much of the known world.

The Jews in the land of Israel (called Judea at that time) were a colony of Rome with their capital in Jerusalem. The Jews revolted against harsh Roman rule and were defeated after a long and brutal war.

As punishment the Romans destroyed Jerusalem and renamed that city Aelia Capilolina and renamed the geographical location from Provincia Judea to Provincia Philistia/Palaistina in an attempt to totally erase Jewish history and prevent another uprising.

No Arabs were involved in this action.

And it is this Roman nomenclature used to put down a Jewish revolt, with no input from Arabs who were not actors in this episode of history, which has been commandeered by the terror leader Yasser Arafat after the second defeat of monumentally large Arab Muslim armies by the numerically insignificant Jews in 1967.

The foundations of the chimera of a “Palestinian” ‘people’ and a “Palestinian nation” with Jerusalem as its capital, was laid progressively by an Arab Muslim leadership, furious at a second resounding physical defeat by a numerically weaker opponent.

With the exception of the Arab fight-back and subsequent defeat in yet a third war in 1973 , the delegtimisation and attempted destruction of Israel by law-fare rather than full-frontal violence, had begun.

The name Aelia Capilolina later reverted back to the ancient word Jerusalem after the Romans and their empire disappeared. The name Philistia/Palaistina evolved into Palestine and came to designate a region, but never a country or a people.

Thus the ongoing enthusiasm of the Muslim world to destroy a Jewish state is not only not based on any Arabic name for any Arab land, nor even any city held sacred by Muslims and/or Arabs, but rather on the Roman term ‘Palestine’ which was historically used by a now-vanished Roman people and empire to describe an area inhabited by the indigenous Jewish inhabitants of antiquity.

So much for the historical ‘first-dibs’ Abrahamic narrative.

The legal narrative why, in international law, Israel does not occupy East Jerusalem, Jerusalem, Judea or Samaria may be the focus of a later blog.

In his May 10th, 2014 article for The Australian, correspondent John Lyons said that Mr Xenophon had a message for Australian politicians. It was this: “I would urge Foreign Minister Julie Bishop and Opposition Leader Bill Shorten to have a good look at the International Court of Justice’s statement on Israeli settlements,” he said. “The ICJ statement is crystal clear…”

I believe the Senator and those like him who may not have the time  (or inclination) to fully study the issue, would be  surprised by just how crystal clear international law really was, and is, in relation to Israeli settlement in Jerusalem, Judea and Samaria………

Meanwhile, the push-back against bias and demonisation of a legitimate legal entity by those publicly committed to its demise, will continue.

Sooner rather than later, the persistent presentation of truth  and fact, backed by law, will expose the true face and motives of  a rejectionist and revisionist Arab political culture which has historically been intolerant of “other”.

Xenophon and Selective Xenophobia

It is hard to accept that a politician paid from the public purse, can abuse his political leverage to condemn a country he has visited briefly only once (May 2014), as a guest of the Adelaide Friends of Palestine interest group.

This post will show that independent senator Nick Xenophon understanding about international law regarding the Israel-Arab conflict, the disputed territories in Judea and Samaria, and the status of Israel’s capital, Jerusalem, is redolent of a Year 10 student research essay.

And because it is not a mature understanding, it needs to be challenged.

Mr Xenophon’s twitter feed directs the reader to his June 25 speech in Parliament where he submitted an item of “public importance” to the Senate that “…the term “occupied” in relation to the occupied “Palestinian” territories is an objective legal description of the status of those territories.” (emphasis mine) (http://youtu.be/9W7ZhGFwz6g #auspol)

Mr Xenophon then states: “Mr Deputy President, I will now demonstrate, conclusively, why that claim is false and most unhelpful to the process of achieving a lasting peace in the Israel-Palestine conflict.” He also purports to mention that “The statement made by the Australian government on 5 June this year is not only wrong; it is factually untrue, legally ignorant and most unhelpful” (emphasis mine).

Mr Xenophon starts by acknowledging invisible others in the gallery who have come to hear his speech as evidence of great “international” interest in his speech. Mr Xenophon then reads from a pre-prepared text in front of him:
“The term “occupied” is an objective legal description of the status of the occupied Palestinian territories. According to the 1949 Geneva Convention and 1907 Hague Regulations, territories are considered occupied when it comes under the actual authority of the invading military. There are certain objective tests…

One – has the occupying power substituted its own authority for that of the occupied authorities? Yes. It is a matter of fact that Israel’s authority prevails in the Occupied Palestinian Territories.

Two – Have the enemy forces been defeated, regardless of whether sporadic local resistance continues? Yes. It is a matter of fact that Israel defeated its military adversaries in the June 1967 war. (Xenophon fails to elaborate whether this was a defensive war or not)

Three – Does the occupying power have a sufficient force present to make its authority felt? Yes. It is a fact that Israel has sufficient force to make its authority felt.

Four – Has an administration been established over the territory? Yes. It is a fact — a poignant fact — that even the Palestinian leaders who wish to enter or leave the occupied Palestinian territories cannot do so without permission from Israel. Even the Palestinian president cannot go to the United Nations in New York, or indeed to anywhere else in the world, without permission from Israel.

Five – Has the occupying power issued and enforced directions to the civilian population? Yes. It is a fact that Israel has issued and enforced such directions.

“Indeed, Mr Acting Deputy President, Israel’s highest court — the High Court of Justice — stated in paragraph 23 of its verdict in the case of Beit Sourik Village Council v The Government of Israel on 30 June 2004 that ‘Israel holds the area in belligerent occupation’.

Let me say that again. Israel’s own highest court stated in 2004 that ‘Israel holds the area in belligerent occupation’

Note: Perhaps because he did not have enough time, Mr Xenophon omits to mention that the Israeli High Court of Justice decision in the Sourik decision described at length both the all-pervasive and insidious character of Palestinian terrorism (in breach of UN Charter???) and the injury to Palestinian civilians caused by the security barrier. In Paragraph 28 it concludes:

“We examined petitioners’ arguments and have come to the conclusion, based upon the facts before us, that the Fence is motivated by security concerns. As we have seen in the government decisions concerning the construction of the Fence, the government has emphasized, numerous times, that ‘the Fence, like the additional obstacles, is a security measure. Its construction does not express a political border, or any other border.’ (Decision of June 23 2002).”

Mr Xenophon continues:  “I concede that here the word ‘occupied’ is ‘freighted with implications’, but to say they are pejorative is factually untrue and legally ignorant.” … So, what are these implications in fact and in law? (emphasis mine).

Here I turn to the landmark 2004 International Court of Justice’s advisory opinion (emphasis mine) on, and I quote, “ the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the occupied Palestinian territory, including in and around East Jerusalem. Note the words “occupying” and occupied” used by the International Court of Justice…. Let’s say what the ICJ said in its advisory opinion (emphasis mine).

First, Article 2 paragraph 4 of the United Nations Charter: “All members shall refrain…from the threat or the use of force against the territorial integrity or political independence of any state (emphases mine)….

Second, no territorial acquisition resulting from the threat or use of force shall be recognised as legal.

Third, the principle of self-determination of peoples has been enshrined by the …Charter and reaffirmed by the General Assembly (emphasis mine).

The court (ICJ) observed that the existence of a Palestinian people is no longer an issue. (Xenophon does not inform the audience that creating nations is beyond the clear UN Charter remit of the ICJ as we shall see….) The court stated that the wall’s sinuous route had been traced …to include…the great majority of the Israeli settlements in the occupied Palestinian territory, including (and here Mr Xenophon adds vocal emphasis) East Jerusalem.

It noted that Article 9, paragraph 6 of the Fourth Geneva Convention provides the occupying power to not deport or transfer the parts of its own civilian population into the territory it occupies….

The (Mr Xenophon here spells out each word emphatically) International Court of Justice stated unambiguously that, and I quote, “The Court concludes that the Israeli settlements in the Occupied Palestinian Territories including East Jerusalem had been established in breach of international law….[and even as Israel] has the right, and indeed the duty, to respond in order to protect the life of its citizens,… the [measure of building the wall is] bound nonetheless, to remain in conformity with applicable international law (emphasis mine).

In conclusion, the court (the ICJ) considers that Israel cannot rely on a right of self defense…to build the wall.

…Not one judge…dissented from its findings. [And it is worth remembering that] …[US Judge] Thomas Buergenthal…described his conclusion as a declaration, not a dissent.

As we shall further see, Mr Xenophon is being exceedingly coy.

Mr Xenophon then refers to Judge Buergenthal as a “…remarkable individual and jurist…” whose words we should all heed, as he quotes verbatim Judge Buergenthal’s declaration from paragraph 2 of his declaration onwards where the judge says that the wall is causing suffering:
“ I share the Court’s conclusion that international humanitarian law, including the Fourth Geneva Convention, and international human rights law are applicable to the Occupied Palestinian Territory and must there be faithfully complied with by Israel. I accept that the wall is causing deplorable suffering to many Palestinians living in that territory….”

However, Mr Xenophon, a lawyer by training, omits to inform his audience of Judge Buergenthal’s opening paragraph.

Paragraph 1, which prefaced the remainder of his 10 paragraph declaration, and through which lens the remainder of his stated dissent was clearly to be viewed, opened thus:
“Since I believe that the Court should have exercised its discretion and declined to render the requested advisory opinion, I dissent from its decision to hear the case. My negative votes with regard to the remaining items of the dispositif should not be
seen as reflecting my view that the construction of the wall by Israel on the Occupied Palestinian Territory does not raise serious questions as a matter of international law. I believe it does, and there is much in the Opinion with which I agree (emphasis mine).

However, I am compelled to vote against the Court’s findings on the merits because the Court did not have before it the requisite factual bases for its sweeping findings; it should therefore have declined to hear the case… In my view… [this] vitiates the Court’s findings on the merits” (emphasis mine).

Nor does Mr Xenophon refer to Buergentahl’s paragraph 3 which possibly queers Mr Xenophon’s narrative even further. This could be because the eminent jurist states:
“… to reach that conclusion [of the ICJ] with regard to the wall as a whole without having before it, or seeking to ascertain all relevant facts bearing directly on issues of Israel’s legitimate right of self-defence, military necessity and security needs, given the repeated deadly terrorist attacks in and upon Israel proper coming from the Occupied Palestinian Territory to which Israel has been and continues to be subjected, cannot be justified as a matter of law …” (emphasis mine).

Mr Xenophon, a lawyer by training, continues his extraordinary sleight of hand by disregarding paragraph 4 too.

Here Judge Buergenthal says: “ ….I accept that the Palestinian people have the right to self-determination and that it is entitled to be fully protected. But assuming without necessarily agreeing that this right is relevant to the case before us and that it is being violated, Israel’s right to self-defence, if applicable and legitimately invoked, would nevertheless have to preclude any wrongfulness in this regard. See Article 21 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts, which declares: “The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations.”(emphasis mine)

We now have to decide whether either Justice Buergenthal or Senator Xenophon is correct in their interpretation of international law..

But Mr Xenophon, who continually refers to the ICJ as an arbiter in the case of whether East Jerusalem is legally or illegally occupied, continues his extraordinary display of high-school debating skills by omitting reference to paragraph 5 where Judge Buergenthal says:
“…Since these facts are not before the Court, it is compelled to adopt the…legally dubious conclusion that the right of legitimate or inherent self-defence is not applicable in the present case. The Court puts the matter as follows:
“Article 51 of the Charter . . . recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State. However, Israel does not claim that the attacks against it are imputable to a foreign State……Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.” (Para. 139.)

So Mr Xenophon’s legal training suggests that, in this instance, he is happy to accept that “Palestine” is not a State and because of this, the ICJ, which makes copious reference to the “Occupied Palestinian Territories” is within its rights to maintain that Israel “…cannot rely on a right of self defense…to build the wall” because Israel is not protecting/defending itself against a “foreign State”. (specifically, “Palestine”).

So, no State, no debate, as far as Israel is concerned, seems to be the line.

Yet, confusingly, only moments before, Mr Xenophon has quoted Article 2, Paragraph 4 of the United Nations Charter which says: “All members shall refrain…from the threat or the use of force against the territorial integrity or political independence of any state (emphases mine) where he implies that Israel is in breach of international law because of its aggression against a member “state”…..

In quoting this, Mr Xenophon can only mean that, in the instance immediately above, there is, in fact, a state of “Palestine”, something not yet determined in any mutually recognised international court, or internationally recognised treaty, nor even of a legal, binding directive from the United Nations Security Council which is the legal arbiter and enforcer of decisions such as these in the international arena. Under UN Charter….

But if there is a state of “Palestine” and not just an occupied territory in the geographical location of historically Mandtaed Palestine as Mr Xenophon now seems to imply, and not merely an occupied territory of an entity not recognised under UN charter, then Israel is within its rights to defend itself and its citizens under Article 2 of the Geneva Convention.

But not if a non-state entity attacks its civilian population or kidnaps non-combatant teenagers.

This international law stuff can be a confusing thing.

For some.

For others, it is clear that Mr Xenophon’s assertion that “The statement made by the Australian government on 5 June this year…is factually untrue, (and) legally ignorant”… is predicated on whether there is a state called “Palestine”. He, however, consistently refers to it in his speech as an occupied Territory, thus making it difficult to follow his line of legal reasoning…………

If there is a legal entity/state called “Palestine”, then the government could conceivably be accused of being legally ignorant.

If there is no state called “Palestine” then the ignorance might well belong only to the Senator making the speech….

But if Mr Xenophon is keen on quoting Article 2 of the UN Charter, he remains coy on Article 3 of the Fourth Geneva Convention which states: “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”

This raises the possibility that, for Mr Xenophon, the “Palestinians” are nationals of a legal identity and he alone amongst international jurists, confers on them the status of citizens of a state.

Article 2 continues: “Nationals of a State which is not bound by the Convention are not protected by it…and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.”

The “State of Palestine” has not signed on to the Geneva convention, simply because there has never been such a political entity.

Unfazed by the facts, for Mr Xenophon, who condemns Israel by implication and continually asserts in his speech that he refers to an “Occupied Palestinian Territory”, ICJ terminology he favours, and not the State of Palestine, Article 2 which is unambiguously specific in its terminology, cannot be referring to nationals of a state which does not exist. Particularly since Xenophon repeatedly calls it a Territory.

This is doubly ironic, for prior to this, the ICJ decided in the Order of its docket, Resolution 2 (December 19 2003), that it was fitting and proper for the ICJ to permit ‘Palestine’ – which does not represent a country – to “submit [to the Court] a written statement supporting its claim that Israel illegally occupies territory in Judea and Samaria and East Jerusalem…..

Mr Xenophon also refrains from quoting Article 2 of the Convention which says that “Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.”

It is becoming increasingly difficult, in the arena of international law, to trust the legal opinion of Mr Xenophon because he seems to cherry-pick whatever he fancies from the ICJ rulings to bolster his new-found altruism.

It is true that It is unclear whether international conventions are even admissible as evidence in an Advisory Opinion such as the ICJ is mandated to provide the United Nations General Assembly, as per Article 38 of the ICJ’s own Mandate.

The wording of Article 38 of their Mandate views as admissible only “international conventions, whether general or particular … expressly recognized by the contesting states” (emphasis mine).

To the average reader, this would seem to indicate that in terms of fair use, the ICJ is mandated to use general conventions such as the Hague and Geneva Conventions and the human rights conventions cited by the ICJ (as well as equally relevant ones the ICJ chose not to cite) only in cases where the ICJ is sitting in the capacity of an arbitrator between two sides where both sides have accepted its jurisdiction.

Therefore, use of general conventions might not apply when the ICJ has been asked for an advisory opinion – all the more so because Israel, the only “state” in the case (Mr Xenophon referring repeatedly to Occupied Palestinian Territories is mystifying…), clarified in its brief to the ICJ that it did not accept the court’s jurisdiction.

Mr Xenophon’s speech is all the more astonishing because Judge Buergenthal, a jurist and human of avowedly unimpeachable character in the Minster’s own words, opens his declaration on the ICJ ruling to which Xenophon refers time and again by saying “…the Court should have exercised its discretion and declined to render the requested advisory opinion…” (emphasis mine).

This is taken from the first sentence of Judge Buergenthal’s declaration………………

It is equally astonishing that Mr Xenophon also omits to mention in the House that the ICJ cannot consider declarations and resolutions of the UN General Assembly as customary international law.

But even further, the International Court of Justice lacks the authority to issue a directive to Member States, a function reserved solely for the Security Council.

This is encoded in the1974 rejected attempt to over- empower the ICJ at the 1492d meeting of the General Assembly’s Sixth Committee because of the subversive threat, already seen by international jurists 40 years ago in the immediate aftermath of the 1973 war and Arab fury at losing a second genocidal campaign. The thwarting of the ICJ’s 1974 attempts to over-empower itself arose because of the entry of scores of new states into the United Nations who promote resolutions in the General Assembly reflecting political, economic, or sociological aspirations rather than a responsible assessment of the relevant legal issues and considerations.

Mr Xenophon does not tell the House that in the ruling he refers to again and again in Parliament, the ICJ invited a series of anti-Israeli terrorist organizations and states which openly champion and justify use of force and terrorism as a means of achieving their stated objectives of the delegitimization and eventual removal of the Jewish State.

Thus, in 2003, the ICJ heard testimony from the PLO, the Organization of Islamic Conference (OIC), and the League Arab States (still officially in a state of war with Israel), while refusing to hear any input from Israeli victims of terrorism.

Mr Xenophon will confirm that the ICJ also heard from 26 states on how Israel’s presence in Judea and Samaria and East Jerusalem was illegal and that it was an occupying power.

These states were: Algeria, Bahrain, Bangladesh, Brunei Darussalam, Comoros, Cuba, Djibouti, Egypt, Indonesia, Jordan, Kuwait, Lebanon, Malaysia, Mauritania, Morocco, Namibia, Oman, Qatar, Saudi Arabia, Senegal, Somalia, South Africa, Sudan, Tunisia, United Arab Emirates, Yemen and ‘Palestine’ – mostly majority Muslim countires; all of whom submitted scathing ‘finger pointing’ affidavits regarding Israel’s conduct.

What Mr Xenophon will not say is that nearly one-half of the briefs were from entities that do not even recognize Israel’s right to exist or have no diplomatic relations with Israel.

Nor does he tell Parliament that 23 out of the 26 states mentioned above who were invited by the ICJ to present affidavits, are categorized as “Not Free” by the human rights monitoring organization, Freedom House.

This is because some of these states are rated as the worst offenders of human rights for whose citizens political rights are absent or virtually non-existent as a result of the extremely oppressive nature of the regime or severe oppression in combination with civil war.
Mr Xenophon is relying on the ignorance of the House of the minutiae of the proceedings to pay back his Australian Friends of Palestine invitation to Judea and Samaria and Jerusalem……

But perhaps most incongruous of all is Mr Xenophon’s repeated support for the rulings of the the ICJ, where its own mandate repeats time and again the “inadmissibility of the acquisition of territory by war” (or armed jihad) but sees nothing wrong with accepting testimony from the PLO, Fateh, the Arab League and the Organization of Islamic States, entities which refuse to recognize Israel, oppose compromise, justify support for terrorism, blow-up civilians, kidnap teenagers, promote Jewish hate on children’s TV, champion the use of violence and defy in words and deeds, ‘the in-admissability of use of violence’  for political ends.

Thus the behaviour of the ICJ is in direct breach of the basic canon of the very organisation it was created to supply an advisory opinion to, and Mr Xenophon either forgot or cannot comprehend, that the ICJ is in specific breach of that same Article 2, paragraph 4 of the UN Charter that he visited on the Australian parliament not five minutes earlier……

It is clear to current international jurists, that the rules of war enshrined in the Hague (1907) and Geneva Conventions (1949) which Mr Xenophon invokes, did not envision terrorism, a worldwide curse, as a major form of warfare.

America, which respects the rule of law, has taken the lead to fill the void of the gap between 1907 and 2014 by defining a new category for such terrorists – ‘illegal combatants.’

This category recognizes that one cannot abridge all the rules of warfare by targeting civilians and then expect to enjoy the privileges of POWs under the same conventions.

Mr Xenophon doesn’t appear to consider the possibility that the ICJ prefers to adhere rigidly to the 1907 and 1949 conventions written for a far-off time which does not now exist; outdated definitions that hardly reflect current realities, because it chooses to support a favoured narrative.

It is as well to remember the writings of the former president of the International Court of Justice, Judge Schwebel, who wrote that international law was largely the creation of governments and that those who advise governments on what international law is and should be were merely a product of their times.

For this reason, when Mr Xenophon repeatedly refers to the ICJ which makes rulings on evidence tendered by the 26 nations above, as an example, then one has to question Mr Xenophon’s motives in his sudden outpouring of altruistic fervour for “Palestine” in Parliament.

Mr Xenophon has been in state politics in South Australia  since 1997 and  on the national stage since 2007. Before he moved into Federal politics, Mr Xenophon also founded and ran a successful law practice in South Australia.

In February 2013, he was deported from Malaysia by the government because he was identified as a “threat to national security…” and as an Australian Senator “with an agenda” under Section 81 of the Immigration Act of that country.

In Australia, then Labor Foreign Minister Bob Carr said in 2013 that Australia needed to be “robust” in its support of Mr Xenophon and condemnation of Malaysia.

On a happier note for Mr Xenophon, in the September 7 2013 Federal elections,  he garnered a record 24.9 percent of the vote. As an independent in closely contested Houses, Mr Xenophon became eminently woo-able property because he represented a significant voting bloc. He also became attractive to anti-Israel NGOs.

On 1st May 2014, former Xenophon supporter Bob Carr, published his memoirs where he caused a media sensation when he publicly made claims about the impact of the “the Israel lobby” in Canberra.

In the second week of May 2014 (or thereabouts), Mr Xenophon visited Judea and Samaria and Jerusalem with the NGO  Adelaide Friends of Palestine as well as a popular Adelaide-based tabloid journalist of the only state daily and radio talk show host.

On May 17th 2014, the journo initiated a public campaign of pro-Palestinian Israel bashing.

On 25th June 2014, Senator Xenophon felt the altruistic urge to support the ‘underdog’ “Palestinians”, condemn Israel in Parliament and upload his efforts to YouTube.

On 26th June 2014, a small, niche leftist newspaper crowed that in Parliament, Mr Xenophon “Smashe[d] [Abbott Liberal government] spin on Occupied Territories”. Nobody much noticed.

Since his graduation from law school, Mr Xenophon built up a law practice which today deals with representing those injured, whether by motor vehicle, work related, medical negligence or public liability.

For this reason, I can safely surmise that as a lawyer in the sphere of workplace accident  and personal injury law, Mr Xenophon has built a flourishing and respected practice because, until his fulltime immersion in politics, he appeared to know what he was doing in this area.

In the arena of international law, not so much.

Mr Xenophon’s motives not only remain open to interpretation, but his demonstrated grasp of international law seems to be carefully tailored to support forgone conclusions.

But what of xenophobia? Xenophobia is defined as fear of foreigners or strangers or of their politics or culture.

In electing to push the myth of a “Palestinian” people and government both of which are today still on the record as stating that they wish the destruction and removal of the Jewish state, Nick Xenophon, together with long-standing Australian communist party member Lee Rhianon in the Senate, arguably subscribes to that same Arab Muslim xenophobia, particularly if they are Jewish.

Or Christian. Or Hindu. Or Buddhist. Or Bahai.

It is a legal argument that, Mr Xenophon, as someone who enjoys the benefits of a multicultural Australia, can never hope to win.

Under international law.