Category Archives: double standard

Proportionality in Gaza 2014

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. “

                         Article 51 of the Charter of the United Nations

 

The July 2014 Gaza conflict finally separated the moral wheat from the anti-semitic chaff.

Scenes of unbelievable vitriol directed against Jews exploded in many cities. In Belgium, a café owner welcomed dogs but refused Jews entry. In Morocco, a rabbi was beaten up because he was a Jew. In Sweden, a man displaying an Israeli flag had his windows smashed. In Paris, a mob of Muslim supporters barricaded Jews in their synagogue while trying to break down the entrance gate to get at them. All in the name of a “free “Palestine”…..

Whereas all these centres of demonstrated anti-semitic hate were quiet when Hamas rained down rockets on civilian centres in Israel, people with barely concealed hate for Jews went into paroxysms of anti-semitic speech and actions as Israel began to defend herself.

As in 2008-09 and in 2012, the chorus of anti-semities masquerading as anti-zionists chanted in unison about Israeli war crimes against “Palestinian” civilians and how the Israeli response was disproportionate. In England, while Sayeeda Warsi resigned her position in Parliament in protest against what she considered a soft British stand against a disproportionate Israeli response in Gaza, in Turkey, Erdogan declared that what the Jews were doing in Gaza was worse than the atrocities carried out by Hitler.

It would appear that almost everybody seemed to have ideas and suggestions as to how to augment the humanitarian component in the law of international armed conflict. This is all great stuff and thoroughly commendable. However, it is important to keep in mind the thought that wars are actually fought to be won. In war, people die.

Just wanting to see zero-casualty warfare is a contradiction in terms, no matter how many UN bodies and/or NGOs would like to say differently. War, almost by definition, entails human losses, suffering and pain. As long as it is waged, humanitarian considerations cannot be the sole legal arbiters of the conduct of hostilities.

This is not to be taken as an apology for war. Rather it is to be taken as a basis for examining the conduct of parties in armed conflict, where that basis and framework in law is applied equally to both sides.

In the case of Gaza 2014, the overt support provided Hamas by the media cover up of the activities of this terror group, is slowly beginning to unravel.

For the fools’ chorus banging on about Israeli war crimes and Israeli crimes against humanity, information is now getting out from Gazan journos free of retribution from Hamas, on just how cynical the terror group has been in manipulating the media and the jaundiced classes.

Two days ago, NDTV from India, visually documented a Hamas rocket set up and launch from a teeming civilian centre, metres from their hotel.

France 24’s Gallagher Fenwick live TV coverage from Gaza had to take an unscheduled break during a live cross to Paris as a rocket was fired overhead from just behind him. The next day he re-visits the site to show a wider angle shot of the launch site metres away from a 7 storey building flying the UN flag…..

Reporter Peter Stefanovic, of Australia’s own Nine Network’s news, stationed in Gaza, received a surge of abuse and threats when he tweeted that he had seen rockets fired into Israel from near his hotel, in a civilian area.

The Wall Street Journal’s reporter Nick Casey fell foul of Hamas by reporting that Shifa hospital was Hamas’s control centre.

French-Palestinian journalist Radjaa Abu Dagga wrote that he was forcibly blocked from leaving Gaza and detained and interrogated by members of Hamas’s al-Qassam Brigade at a room in Shifa hospital next to the emergency room.

A Finnish TV reporter who did not feel safe to give her name on TV for fear of repercussion verified that Hamas was indeed launching rockets from the car park of the al-Shifa hospital.

And, of course, Italian reporter Gabriele Barbati (now) famously tweeted: “Out of #Gaza far from #Hamas retaliation: misfired (Hamas) rocket killed children today in Shati. Witness: militants rushed and cleared ­debris.”

All this may help explain the PA’s new-found reluctance to pursue action against Israel in the ICC despite the urging of “Palestinian” “chief negotiator” Saeb Erekat and HRW chief, Kenneth Roth.

It could also be a result of a bleak warning by Shurat HaDin that in doing so, the “unity” government would itself face a “…tsunami of charges for human rights violations and war crimes…” if it cared to go down that path.

But rhetoric and threat aside, what is Israel’s position legally when it comes to possibly being arraigned for war crimes over use of disproportionate force against Hamas in Gaza?

The short answer is, it’s pretty good.

The law of international armed conflict (LOIAC ) can and does forbid some modes of behaviour, with a view to minimizing the losses, the suffering and the pain. But it can do so only when there are realistic alternatives to achieving the military goal of victory in war.

Not many would realistically refute the suggestion that, from the Hamas coup in 2007 to June 2014, Hamas rockets at civilian concentrations were ongoing provocation of the highest order. That much is clear.

Thus, in interpreting the law of international armed conflict, Israel’s efforts to avoid war were numerous and ongoing. In the end, on paper, Israel went to war because there were no longer any realistic alternatives to achieving safety for its citizens apart from a determined military response.

But what of the charge of disproportionate response?

In this case, people not sympathetic to the Israeli cause happily conflate some ideas, or outright make up others which complement their preferred narrative. It is true that many more Gazans (but not armed males??!!) than Israelis died in the conflict so far. Each Israeli death is unbearably painful, and the loss is lasting.

However, the doctrine of proportionality in international law is not about equality of death or civilian suffering, or even about [equality of] firepower.

Recently retired Chief Prosecutor, International Criminal Court, Luis Moreno-Ocampo, defined it thus:

“Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable does not constitute a war crime…. even when it is known that some civilian deaths or injuries will occur.

A crime occurs if there is an intentional attack directed against civilians (principle of distinction) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).”

In this he is backed up by Professor Horst Fischer, Academic Director of the Institute for International Law of Peace and Armed Conflict in Germany who adds that:

“… attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack. This creates a permanent obligation for military commanders to consider the results of the attack compared to the advantage anticipated.” (emphasis mine)


The Council on Foreign Relations notes that according to the doctrine of proportionality, “…a state is legally allowed to unilaterally defend itself …provided the response is proportional to the injury suffered. The response must also be immediate and necessary, refrain from targeting civilians, and require only enough force to reinstate the status quo ante.

Today, Israel has quickly reinstated the status quo ante to the extent that it has pulled out of Gaza once it destroyed the terror tunnels and severely incapacitated Hamas’ long range rocket launching capabilities. It has redeployed to the territorial border prior to the ground offensive and it has taken up defensive positions along the eastern border as a possible ceasefire is hammered out.

Its response to the rain of rockets was immediate and a necessary defensive measure in order to fulfill its obligations to its own citizens.

And unambiguously, Israel’s use of telephone calls and mass leaflet drops to civilians in combat areas to evacuate because of impending attack, its creation and use of the technique of the “roof knock” to warn civilians away from targeted military assets on the ground, and its ongoing demonstrated commitment to aborting attack missions after finding civilians used as human shields on rooftops, all stand up to any legal scrutiny in the ICC.

The same cannot be said of Hamas, nor does it exonerate the supportive actions of the PA in Ramallah who are part of the “unity government”.

In sum, proportionality weighs the military necessity of an action against the suffering that the action might cause to enemy civilians in the vicinity.

Israel has coordinated its documented air and artillery strikes with legal advice prior to each attack in accordance with the spirit and letter of international law and common understandings.

It will be difficult/impossible to prove otherwise in court.

And it will be difficult for Hamas/PA to deflect charges of gross misconduct and war crimes, by that same token.

By any reasonable definition/interpretation of international law, Israel remains legally within its rights in its adherence to principles central to jus ad bellum of right authority, right intention, reasonable hope, proportionality, and last resort.

NB I would add that with regards to the principle of “distinction”, where it is incumbent on belligerents to distinguish between combatants and civilians, Article 8(2)(b)(i) of the Rome Statute of the International Criminal Court which prohibits attack directed against civilians may not necessarily be proved against Israel in the tragedy of the boys on the beach in Gaza, as it is difficult to ascribe intention; and particularly in light of the fact that Israel has more than amply consistently demonstrated, throughout the conflict, intent  to avoid civilian casualties by all available means.

5 Reasons Why New York Times Editorial Today Is An Embarrassment To Journalism

5 Reasons Why New York Times Editorial Today Is An Embarrassment To Journalism

by Ambassador Ron Dermer

1.The New York Times writes that “after days of near silence,” Prime Minister Netanyahu condemned the murder of a Palestinian teenager on Sunday. But Netanyahu called the murder “reprehensible” on Wednesday, the day it occurred, and the next day, in his first public appearance since the murder, again forcefully condemned the killing on prime-time national television. Early July 4th weekend for the entire New York Times editorial board?
2.The New York Times omits that Prime Minister Netanyahu called the father of the murdered boy yesterday to personally express his outrage and condemnation. Maybe the New York Times didn’t get that press release?
3.The New York Times gives numerous examples of hate rhetoric on the margins of Israeli society – rhetoric that has been strongly condemned and rejected by Israel’s political leaders. The New York Times writes Palestinians have also been guilty of hate speech, but neglects to mention that Palestinian incitement is government backed, that Palestinian Authority leaders hail terrorists as heroes, name public squares after them and teach schoolchildren to emulate them. For daily dose of government-backed Palestinian incitement, check out – Palestinian Media Watch. No summer interns in the New York Times research department this year?
4.The New York Times omits the seemingly relevant matter of President Abbas forging a unity pact with Hamas, a terror organization whose charter calls for the murder of all Jews and whose leadership celebrated the kidnapping and murder of the three Israeli teens and called for more kidnappings. News not fit to print?
5. The New York Times fails to mention that a million Israelis were in bomb shelters yesterday as 100 rockets were fired at our civilian population. Maybe the New York Times editorial board will download to their smartphones Israel Red Alert, an app that sends an alert when and where a rocket is fired at Israel. It will only take 15 seconds to download, as much time as the people of Sderot and other Israeli towns in Southern Israel have to run for cover.

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.