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 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.