Category Archives: International law

The Tyranny of the Judges

On Wednesday 9 November 2022, the UN Social, Humanitarian and Cultural Affairs Committee is set to begin debating, and voting on, a motion tabled by Nicaragua on behalf of the non-member state PA, that the Israeli presence in Jerusalem and the “West Bank” is de facto annexation., and therefore illegal under international law. In the likely event that the committee approves the measure, the UN General Assembly will vote on it next month and depending on that outcome, the issue may be forwarded to the ICJ for adjudication.

Such a move by the PA and its supporters throws up a range of difficulties and arguments as to why such a move may well prove to be ineffective in its broader (unstated) goal of delegitimising Jewish sovereignty and legality.

Firstly, it shows the continuing practical no-through roads delivered to the PA in the legal arena as evidenced in the tactic switch of abandoning a hitherto favourite PA support-base invocation, the Fourth 1949 Geneva Convention (GCIV). This is because that GCIV provision does not deal with the voluntary movement of individuals who do not displace local inhabitants, neither in Jerusalem nor in Area C of the West Bank.

Secondly, in pressing their claim for a ruling that Israeli presence in Israel’s capital Jerusalem is de facto Israeli “annexation” of Jerusalem, the Nicaraguan/PA request states that Jerusalem was intended to be a corpus separatum as foreseen in UN General Assembly Resolution 181 of 1947.

That Jerusalem, on partition in 1948, was intended to be a corpus separatum is in fact accurate.

But, the Nicaraguan/PA (and aided by a current secondary similar attack by the COI…) UN request turns a conveniently turns a blind eye to the fact that the moment six Arab armies attacked the nascent Jewish state which accepted its legal 1948 borders and the designation of Jerusalem as a corpus separatum per Resolution 181, UNGAR 181 became, arguably, moot.

That is to say, the concept of returning to a status quo ante after having lost a war one initiates, has never occurred in history and demanding it of Israel because the Arab world didn’t like the outcome, has several possible interpretations, none of them positive.

And indeed, while also remembering that UNGAR 1947 was, however, only a recommendation with no binding effect, the Resolution recommended the establishment of an Arab state, a Jewish state, and a special entity of Jerusalem.

UNGAR 181 never, ever, mentioned a Palestinian State. Nor did Resolution 242, post the 1967 Six Day War nor even Resolution 338 after the 1973 Yom Kippur war.

That the Arab League, in contrast to the Jews who accepted the territorial borders of the state they then called Israel, advised against accepting that Arab state per UNGAR 181 and gambled the farm on obtaining an easy military victory against a tiny legal and sovereign new state and subsequently lost, is not a sufficient reason to claim that “Palestinian” Jerusalem and the “Palestinian” West Bank have been annexed by the very state they sought to wipe out in 1948 in the first place but couldn’t/didn’t…..

There was, thus, no legal obligation under international law to accept and implement the corpus separatum regime which would only have become binding if the two parties had agreed to it.

Added to this legal difficulty for the PA, is the fact that on 14 May 1948 the Jordanian army attacked Jerusalem. The battle for the Old City ended with the surrender of the Jewish quarter to the forces of the Jordanian Arab legion (on 28 May 1948, 14 days later while the Israelis were in control of the western sector of the city. Jordan annexed East Jerusalem and the West bank in 1949 under the banner of “unification”.

Jordan had created a de-facto annexation of the eastern section of Jerusalem, an act recognized only by Britain and Pakistan, and an act they legislated with a formal annexation  a year later.

No representation was ever made by anybody to any UN body about UNGAR 181 and the principle of corpus separatum. So, no demand for a status quo ante then.

When Jordan saw fit in 1967 to attack Israel again, this time they lost not only the eastern section of Jerusalem, but also the territory they had annexed back in 1948 in what they termed the West Bank (of the Jordan River). With regard to Jerusalem, Israel immediately applied Israeli law to the newly gained sector of the city as well in the re-unification of Judaism’s cultural and religious core. The legality of this move is enshrined in the fact that because Israel had effectively occupied the area in an act of self-defence, over three wars of self-defence, it is a lawful occupant of that territory.

Of note, and also on 14 May 1948 the Israel’s declaration of independence, when the British mandate over Palestine was about to end, representatives of the Jewish community in Palestine adopted the Declaration of the Establishment of the State of Israel. The declaration did not mention Jerusalem, but it declared that Israel “will safeguard the Holy Places of all religions”.

For 74 years, Israel has kept its unwavering commitment to “…safeguard the Holy Places of all religions” as witnessed by complete freedom of worship for Christians, Muslims and Bahai in the Jewish state.

This is in contrast to the Jordanians and the PA which does not allow Jewish prayer on the Temple Mount, and where any Jewish presence during Jewish holidays and festivals are referred to by the rather comical PA term: “storming the Temple Mount/ al-Aqsa etc..

This brings us, finally, to the concept of the PA’s stab at pursuing a variant of universal jurisdiction as it applies to the PA’s latest moves at the UN.

Universal jurisdiction is the relatively new tool in the toolbox of Israel’s delegitimisers and critics. It is “a strategy of using or misusing law as a substitute for traditional military means to achieve military objectives.” (Anne Herzberg, September 2008: 2, “NGO “Lawfare,” Exploitation of Courts in the Arab-Israeli Conflict”, NGO Monitor Monograph Series)

Here we have a non-member and non-sovereign observer UN entity, the PA, using the services of a sovereign member state, Nicaragua, to ask the ICJ to exercise universal jurisdiction over a legal sovereign state on grounds of illegal annexation, crimes against humanity, war crimes, and genocide, effectively in absentia.

And here, the implementation of universal jurisdiction in absentia, is not against a single person, (though that too was tried: Ariel Sharon, Doron Almog, Moshe Ya’alon, Tzipi Livni and Avi Dichter….), but against a state whose crime is apparently forcefully resisting genocidal attempts against it and undercutting its documented legitimacy.

Here, even the judges of the International Court of Justice (the ICJ), which is no

friend of the State of Israel, warned against the possible abuse of the principle of universal jurisdiction in the Yerodia case in 2002, stating: “If, as we believe to be the case, a State (the PA is not a state) may choose to exercise a universal criminal jurisdiction in absentia, it must also ensure that certain safeguards are in place. They are absolutely essential to prevent abuse and to ensure that …[it] does not jeopardize stable relations between States.” (Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 2002 I.C.J. 3 (February 14) (Joint Separate Opinion of Judges Higgins, Kooijmans, and Buergenthal).

At the risk of repetition, the PA is not a state, and the state of Nicaragua is a million miles removed from the Middle East.

That said, the glaring issue raised by the latest PA assault on Israeli legitimacy and security is that of the inviolability of the sovereign state of Israel when the principle of universal jurisdiction is abused to benefit a political agenda as in the Israel Palestinian conflict.

“As recognized by the UN Charter, Article 2(1), all states enjoy “sovereign equality” – that is, all states are equal members of the international community of states, and are to be treated accordingly. Universal jurisdiction, by its very nature, violates sovereign equality of states by allowing one state (here Nicaragua as the supplicant) to judge the actions of the officials of another state.  The principle therefore disregards one of the precepts of modern international law.” (Morrison and Weiner, 2010:7 “Curbing the Manipulation of Universal Jursidiction”, JCPA)

Under consideration in this article is the judicial outcome of the PA’s latest tilt at using lawfare to determine a political outcome; an example of how the political opportunism of ingrained entitlement, not negotiation, has, till now, been a successful strategy.

The issue here is not that the Arabs (now Palestinians) have an understandable right to their newfound wish for statehood, but that that relatively recent nationalistic endeavor has, at its core, the continued and oft-voiced statement(s) that any future Palestinian state will be at the expense of the destruction of the Jewish one, that any future Palestinian state will never agree to live in peace with a neighbouring legal and sovereign Israeli state.

Resolution 181 be damned.

Israel has never wavered in its commitment to face-to-face talks in final outcome negotiations, nor in its documented exchange of land for peace with its Arab neighbours.

What is documented though, is that, time after time after time, the Arab world has exchanged unsuccessful warfare for equally unsuccessful lawfare supported by organisations like the UN, and judicial courts like the ICJ, totally and comfortably removed from the violence and realities on the ground in Israel.

That is the tyranny of the judges.

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The End Game – Deliberations on the Israeli – Palestinian Conflict – Part III

In Parts I and II I posited that, through reference to the literature, the remaining vestiges of the 100 year Arab Israeli conflict, the Israeli Palestinian conflict, has effectively reverted to a religious struggle overlaid with a nebulous and varying Arab notion of “Palestinian” nationalism. In Part II I argued that both Hamas and Fatah/PLO/PA were waging antisemitic or Judeophobic jihad based on both documented Koranic traditions as well as later, more modern European National Socialist dogma such as The Protocols and showed the nexus between the extremist fundamental Islamism of Hamas, the national socialist inspiration of Fatah/PLO/PA and white right wing supremacists which championed violence to gain the goals of religious/cultural hegemony (Hamas/Fatah) or racial purity (white supremacists) no matter the cost to others.

In the third section of this series, Part III, I will look at the tactic of demonization of the Jew as a part strategy in the propaganda war to neutralise Jewish claim to historic Jewish lands and delegitimise modern Israel as a sovereign state in the Middle East.

However, and this is over-imprinted over all three parts of this article, my position in the case against “Palestinian” Arab violence against Jews is not based on a denial of the right of Arab existence on the land or the principle of two states for two peoples.

What it does mean is that, in any future creation of a neighbouring Muslim Arab sovereign state called Palestine to exist in peace and security, that Arab state must likewise accept the right of a sovereign Jewish national state to exist in peace and security.

All else is negotiable.

This condition is based on the principle that it is the Jews who are indigenous to the area despite Arab invasion(s) and colonisation and that, in addition to the unopposed validity of four Muslim majority nation states created by the Mandate out of the defeated Ottoman lands, the creation of a single Jewish majority state is just as valid a creation, the convenient man-made Muslim concept of conquered lands remaining “an Islamic endowment in perpetuity” (the waqf) notwithstanding.

This concept of a Muslim “endowment in perpetuity” didn’t apply to India after the Moghul invasions, it didn’t apply to Spain after the Moorish invasions, and it does not apply to the State of Israel after the Muslim Arab invasions.

All the same, the historical track record of demonizing one’s adversary goes far back in history. It has evolved over time, mutating from a once literal belief in demonic possession to a now figurative—and more politically charged—accusation against one’s adversary.

The process of demonization of one’s enemy highlights the intimate historical relationship between religion and politics: how the Devil – an ancient religious character – is used in historic and modern political discourse in international conflict situations.

Thus, today, in the fevered discourse of some Muslim states, America is the “Big Satan” and Israel is the “Little Satan”, and Jews are designated “Sons of the Devil” if they are not dehumanised as the “offspring of pigs and apes”. No change here, showing that demonization is one particular narrative-based and psychological dimension of conflict framing a polarizing identity of “us” as good and “them” as evil. As an example, the 1988 Hamas Charter uses the word “evil” seven times to describe Jews and Israel.

But, when all is said and done, it makes absolutely no difference to the facts on the ground: Israel exists, there is as yet no viable Palestinian state, and an Arab demonization and dehumanisation of Jews and Israel will not produce an additional Arab state called Palestine. Nor will BDS, Iranian cartoon competitions on the Holocaust nor the tsunami of interest-based pro-Palestinian academic articles decrying what they term Israeli apartheid, Israeli abuse of human rights, stating that Jerusalem is not the core of Jewish life and spirituality these past 3000 years, that the Temple Mount is a Muslim construct, that the Holocaust didn’t really happen, that Israeli Arabs are not equal in Israeli law, that Israel itself is a colonialist construct, that Jews are foreign interlopers on Muslim soil, that Gaza is occupied by Israel, that the IDF gargets civilians and that Jesus was a Palestinian to name but a few of the gross historical fallacies which inculcate Jew-hate in a new generation of millions of non-Jews a lifetime removed from the realities on the ground of Israeli life.

Rebutting these and other deliberately antisemitic and clichéd propaganda untruths will be the basis of the remainder of this article.

  1. The Jews do not have national rights in Mandated Palestine

Jews are a religion and a nation, with cultural and ethnic characteristics, a documented truism as true before Israel was established as it is true today. By being a nation, Jews are entitled to national rights, not only to religious and cultural rights which include the right to state-level self-determination. Just like Jordan, Syria, Iraq and Lebanon. That some commentators might argue that world Jewry never saw their Judaism as justification for a Jewish nation state despite identifying as Jewish, has its corollary in the fact that fundamentalist Islamic Hamas and the (mostly) secular PLO do not differently view their Palestinian state as Muslim.

That is to say, in the context of the Israeli Palestinian conflict, if religious Muslims and secular Muslims believe in the right of a Muslim state called Palestine as their national right, then that same principle may also be applied to Jew, Judaism and the sovereign state of Israel.

Any future Palestinian self-determination is not an excuse to delegitimise Jewish self-determination.

  1. The “Zionist entity” is a foreign colonial aberration on Muslim soil

Framing Israel as a ‘settler colonial state’ is now routine in academia and the U.S. and EU media, a disheartening signal of the primacy of political activism over critical inquiry – and inconvenient facts; a deliberately pointed charge, part of an ongoing campaign to undermine Israel by challenging its very founding.

The Muslim law of a permanent endowment in perpetuity is a man-made law of Muslim colonialism subservient to a Caliph in Baghdad or Saudi Arabia. It never existed in other colonial enterprises like the Belgians in the Congo, the French in Lebanon, Cambodia or Niger, the British in India or the Dutch in Indonesia. There is, then, no overarching historical logic in Muslim exceptionalism.

Besides, several Muslim scholars such as Sheikh Dr Muhammad Al-Husseini make the case that this claim has no basis in the Koran: not only that, but the foundation text of Islam, in fact, recognises the special link between the Jewish people and the Land of Israel. “You will find very clearly,” says, “that the traditional commentators from the eighth and ninth century onwards have uniformly interpreted the Koran to say explicitly that Eretz Yisrael has been given by God to the Jewish people as a perpetual covenant. There is no Islamic counterclaim to the Land anywhere in the traditional corpus of commentary…. Nobody can go to the text and just freely interpret the text for their own purposes.” (Jewish Chronicle, 18 March, 2009, What the Koran says about the Land of Israel)

The term “settler colonialism” conjures historical memories of exploitative white European empires militarily invading lands in the Middle East, Asia and Africa. In actual fact, just this terminology is perfectly well suited to the Arab Islamicisation of the Levant and Middle East where various Caliphs and Muslim brought in hundreds of thousands of soldier slaves loyal to their pay masters. The Tulunides brought in Turks and Negroes. The Fatamids introduced Berbers, Slavs, Greeks, Kurds. The Mamelukes imported legions of Georgians and Circassians. Saladin brought in 150,000 Persians who were given lands in Galilee and the Sidon district for their services. In the fourteenth century, 18,000 Yurate Tartars from the Euphrates were brought in, soon followed by 20,000 Ashiri and 4,000 Mongols who occupied the Jordan Valley and settled from Jerusalem south.

This was population transfer on a grand scale and accounts today for the great variety biological markers in the Arabs (now Palestinians) of Palestine.

“From the time that Athens established an outpost at Ephesus, colonies have related to a metropole, or a mother country. The Puritans saw themselves as English, Afrikaaners as Dutch, Muslim conquerors as Arabs, Algerian Pied-Noirs as French. They spoke the mother country’s language and attempted to transfer its culture to their new land… The early, pre-state Zionists, however, sought to escape Europe, not to replicate it. They rejected Yiddish and adopted an old Middle East language – Hebrew – which they updated for modern purposes, while changing their German or Russian-sounding names. They created no “New Odessas” in the Holy Land.” (Lubet and Zasloff, Jul 5 2021, “Is Israel Really a Settler Colonial State?” Haaretz)

For the Jews, the only country in which they had ever exercised political sovereignty was Zion, the Land of Israel.

The Land of Israel was/is integral to the Jewish religion and culture, the connection between Jews and the land is embedded throughout Jewish rituals and texts. There is no “motherland” to which the Jewish population in the land of Israel may otherwise return, unlike Dutch, French and British colonialists. And, prior to 1948, Jews immigrated to the Land of Israel of their own volition, not directed nor overseen by any state or military power like colonialists.  They came, and still come to Israel escaping antisemitism and other forms of persecution. Typically, the European settler colonists were not escaping persecution or bigotry.

The oft-claimed cliché that Zionism is nefarious because it promoted Jewish return is no more nefarious than “Palestinianism” which demands a return of Arab refugees who fled Mandated Palestine at the outbreak of a war initiated by 5 Arab armies in 1948 fixated on the goal of destroying a nascent and legal sovereign Jewish state.

Thus, if the context of the Israeli Palestinian conflict is justified and validated by the Arabs as “Palestinian” nationalism  (Palestinianism), in lands conquered by Muslim invaders, then how is Zionism not justifiable as a Jewish nationalism in a section of the southern Levant, home to the only remaining indigenes who had an unbroken existence in the region centred on Jerusalem for 1700 years before Islam was created 1400kms away in the Saudi Arabian Hejaz?

Ironically, and apropos the allegation of “Jewish colonisation”, the Arabs (now Palestinians) chose a national nomenclature granted by another colonising force, the Romans, and now “…use an English word, based on a Latin one that in turn has its roots in a Greek one… [where] somewhere in-between it was adopted in Arabic…” and localised to “Filasteen” (Adir Bar Yohanan, Oct 1, 2022,“Palestine:A story of Colonialism through the ages, https://www.israelnationalnews.com/news/360614)

3. Israel as a Jewish state is biased against its Arab citizens

Israel does not have a written Constitution; it has a Proclamation of Independence.

This document

  • guarantees equal citizenship rights to all the inhabitants of the country without discrimination and assures the cultural and religious rights of all communities. Israel has 2.1 million Arab Muslim and Chrisitian citizens with complete freedom of worship
  • enshrined the Law of Return, which guaranteed the right of immigration and citizenship to every Jewish person willing to immigrate to Israel.
  • ensured Arabic was declared the second official language of the Jewish state as is evident from the bilingual inscriptions on its stamps and currency; a requirement NOT demanded by the stipulations of the UN partition plan.
  • gave Israeli Arabs the right to send their children to state schools which teach in Arabic, with the curriculum tailored to the cultural differences involved.
  • extended voting rights to those Arabs who had remained in the country and the participated in the elections on an equal basis despite the fact that Israel was still at war.

That the nascent state of Israel enshrined democratic liberal pluralism in those early uncertain and violent days of 1948 is to Israel’s credit that on this issue, the newly established country, despite having been attacked and besieged, did not adopt a harsher policy. It remains an unwavering testament to the values which continue, despite all difficulties, to guide the moral compass of the Jewish state.

4. Jews are not indigenous to the Middle East

Jews and Jewish communities have lived in parts of the Middle East, North Africa, and the Gulf region for more than 2,500 years.

Historical records verify Jewish communities in Iraq, 6th century BCE;

Lebanon,1st century BCE;  Libya, 3rd century BCE;  Yemen, 3rd century BCE; Syria,1st century CE;  Morocco, 1st century CE;  Algeria,1st-2nd century CE; and Tunisia, 3rd century CE; i.e several centuries before the Islamisication  and Arabisation of the Levant.

The allegation that Israel is made up solely of latter-day immigrants is therefore a distortion of history because Jews were resident in the region over one thousand three hundred years before the advent of Islam. Their descendants make up a significant portion of Israel’s population and their presence there demonstrates the historical connection of Jews to Israel, for thousands of years, as the homeland of the Jewish people.

With the beginning of Islam in the seventh century CE, Jews were ruled under the legal status of dhimmi, a “protected” people (IF they paid the Muslim jizya tax…), a status assigned to Christians and Jews. Dhimmis were extended some degree of legal protection, while relegated to being second-class citizens in line with Islamic law. And this is an exact inversion of the Arab (now Palestinian) allegation that Jews treat Arabs as second class citizens where, as outlined above, Israel’s Proclamation of Independence enshrines the exact opposite.

5. The Israeli Occupation and the Settlements are illegal

“These general and all-embracing terms have become the “lingua franca” of the United Nations – accepted phrases that neither generate nor attract any thought or discussion as to their legal, historical, or political accuracy.” (Alan Baker, 2011:65,  “Israel’s Rights regarding Territories and the Settlements in the Eyes of the International Community, JCPA)

  • Israel’s presence in the West Bank areas of Judea and Samaria stems from the historical rights granted in Palestine to the Jewish people by the Balfour Declaration and affirmed by resolution of the League of Nations in 1922, granting to the Jewish people a national home in all parts of Mandatory Palestine and enabling “close settlement on the land.”
  • This validity is today maintained by Article 80 of the UN Charter, according to which rights granted to peoples by international instruments remain unaltered, and hence still valid ( Martin Gilbert, “‘An Overwhelmingly Jewish State’ from the Balfour Declaration to the Palestine Mandate.”).
  • The Oslo Accords critically changed the legal and political nature of Gaza and the West Bank per the signature by Israel and the Palestinian leadership of the Israel-Palestinian Interim Agreement of 1995, signed and witnessed by the United States, the European Union, Egypt, Jordan, Russia, and Norway, and the status of each of the parties to the agreement vis-à-vis the territory changed as well. In Area A, all political and security responsibility passed to the PA, in Area B, all responsibilities and power except for security, passed to the PA, Area C, including the Israeli settlements and military installations remain under Israeli jurisdiction pending the outcome of the permanent status negotiations.   This means, with signed PLO approval, Israel’s presence in the territory of the West Bank is with the full approval of the Palestinian leadership composing the PLO.
  • Per a mutually agreed-upon component of the Oslo accords between Israel and the Palestinian leadership, the PLO/PA now under Abbas, accepted and committed to the fact that it does not exercise jurisdiction regarding permanent status issues settlements included, in Area C pending the outcome of the permanent status negotiation.
  • The Palestinian leadership cannot therefore present Israeli presence in Area C in the EU or the UN or even in the ICC, as an alleged violation by Israel of the 1949 Fourth Geneva Convention, in order to bypass their acceptance of the rights and responsibilities pursuant to the 1995 Interim Agreement as well as the international community’s acknowledgment of the articles of the 1995 Interim Agreement’s relevance and continued validity.
  • The Oslo Accords, as signed by the PLO, contain no requirement that prohibits, limits, or freezes construction by Israel in Area C.
  • Any invoking of Article 49 IVGC by the Arab (now Palestinian) leadership in studied ignorance of the scope, relevance and original intent of the article can find absolutely no basis or criterion in the attempt to link it and Israeli settlement policy as illegal.
  • During the negotiation on the 1998 Rome Statute of the International Criminal Court, Arab states initiated an alteration in the text of the court’s statute listing as a serious violation of the laws of armed conflict the war crime of “transferring, directly or indirectly, parts of the civil population into the occupied territory.”

The deliberate addition of the phrase “directly or indirectlyalmost 50 years later to the original 1949 text was intended by them to adapt the original 1949 Geneva Convention language in order to render it applicable to Israel’s settlement policy. This in itself is indicative of the proponents’ and the international community’s acknowledgment of the fact that Article 49(6) as drafted in 1949 was simply not relevant to the circumstances of Israel’s settlements. (Alan Baker, 2011:72, “Israel’s Rights regarding Territories and the Settlements in the Eyes of the International Community, JCPA). In other words, devising tailor-made rules of international law for application only where Israel is concerned undermines international law.

6. The Apartheid Wall is but one symbol of an apartheid Jewish state

  • A border fence serves to separate areas and, for so long as Israel has to face terrorist acts, it is legitimate for it, as it is for other states, to erect a barrier to prevent terrorist attacks and illegal crossings. For its part, the International Court of Justice on the issue makes no reference whatsoever to “apartheid” or analogy with “apartheid” and has been careful not to deny Israel’s right in principle to build such a security fence.
  • As mentioned before, devising tailor-made rules of international law for application only where Israel is concerned smacks only of considered bias against the Jewish state. This because, no allegations of apartheid are made for other countries with border fences and security walls. These include the Egypt-Gaza barrier, the Saudi Arabia- Iraq border wall, the Algeria-Libya border wall, the Iran-Pakistan border barrier, the Korean Peninsula’s demilitarised zone, the India-Bangladesh border fence, the Russian constructed Crimea-Ukraine border wall, the Spain-Morocco border fence, the Greek-Turkey border fence, the Kenya-Somalia border wall, and the Turkey-Syria border wall to name but a few.
  • ·       The Arab and Muslim world’s oft-repeated accusation that the very fact that Israel is a Jewish state proves that there is an “apartheid-like” situation. This allegation conveniently ignores the fact that there are 51 Muslim majority states and 3 Islamic republics that are, apparently, not apartheid entities. Amnesty International claims that merely identifying as a “nation state” of a particular people is an apartheid practice—but only when it comes to Israel.

“The defining characteristic of apartheid—what distinguishes it from generic racial discrimination—is the rigid separation of groups in public spaces and positions of power. This is the apart in apartheid…. What makes the “Israel apartheid” meme particularly despicable is that is not just a lie, it is an inversion of the truth.” (Kontorovich, 8 Feb, 2022, There’s Apartheid in the Holy Land, but Not in Israel, WSJ).

Kontorovich continues “…a sign of apartheid could be a government policy that bans real-estate sales or transactions to the disfavored group. Apartheid is suggested by policies that carve out massive zones where the disfavored group cannot live or work, create ethnically homogenous zones, and restrict the disfavored group to ghettos. One might consider it apartheid if a government enforced a policy of extrajudicial execution of members of a disfavored group….All these policies are practiced in the West Bank and Gaza—by the Palestinian Authority government against Jews.” (Kontorovich, Ibid.)

Thus,

  • Palestinian law makes selling land to Jews a crime punishable by death.
  • The PLO/PA does not recognize any Jewish titles to private property.
  •  In all the territories controlled by the Palestinian government, Jews are prevented from worshipping at their holy sites, despite explicit provisions in the Oslo Accords requiring the Palestinian Authority to protect such worship.
  • The Palestinian Constitution defines the territory of what was Palestine under the Mandate including the sovereign state of Israel as an exclusively “Arab nation,” with Islam the official religion and Arabic the sole official language.
  •  Palestinian officials and educators deny any Jewish history or connection to Israel.
  • Where the apartheid South African government used death squads against blacks, the Palestinian government pays terrorists for killing Jews—the more people killed, the bigger the bounty.
  • The PA regularly imprisons and beats to death the few Palestinians who speak out against its policies and leadership as was the case of PA Chairman critic Nizar Banat who died in a Ramallah prison as a result of the beating he was given by the PA’s security forces on 24 June, 2021.

Clearly, then, by Amnesty’s own standards, the PA is itself guilty of apartheid.

And, as Stevens points out,

The accusation of apartheid is, however, absurd and obscene. Arab citizens of Israel have full rights under Israeli law, including the right to vote. No fewer than 13 Arab citizens of Israel serve in the Knesset today, most in parties that are openly and harshly critical of Israeli policies (including a party that is a member of the current government coalition).

In Israel today, there is a Muslim Arab judge serving on Israel’s highest court. Sixteen percent of university students are Arabs. Seventeen percent of doctors in Israeli hospitals and 48 percent of pharmacists are Arab-Israelis. What kind of apartheid state is that?” (Michael Stevens, 18 May, 2022, Israel is not an Apartheid State, Inside Sources)

7. The “Judaisation” of Jerusalem is an offence to Islam/ The Temple Mount was never Jewish

On 20 July, at Camp David, PLO leader Yasser Arafat subjected then US President Bill Clinton to “…a lecture of staggering historical revisionism. His central argument was that the biblical temples never existed on the Temple Mount or even in Jerusalem. Arafat baldly asserted that “There is nothing there [i.e., no trace of a temple on the Temple Mount],” further insisting that “Solomon’s Temple was not in Jerusalem, but Nablus.”

As a Christian, a shocked Clinton responded that “not only the Jews but I, too, believe that under the surface there are remains of Solomon’s temple.”

Arafat changed his story two years later to further distance the Temple from Jerusalem, telling the London-based Arabic daily al- Hayat, “They found not a single stone proving that the Temple of Solomon was there, because historically the Temple was not in Palestine [at all].” (Dore Gold, 2007: 22, The Fight for Jerusalem)

The Arab (now Palestinian) battle for the dominant narrative over Jerusalem was/is a planned campaign to completely delegitimise the Israeli Jewish claim to the city, a doctrine Gold describes as “Temple Denial” and which was initiated at Camp David by Arafat.

In essence today, and in the context of the Israeli Palestinian conflict, is yet another facet of inherent Islamic supremacism and negation of other I referred to in earlier parts of this series.

1700 years after documented Jewish veneration of, and at, the Temple Mount, site of Judaism’s First and Second Temples, the new rulers in the southern Levant, the victorious Muslim Arab Caliphs re-named it al-Ḥaram al-Sharīf. Until that time, there were no mosques in Jerusalem in 632AD when the prophet Mohammed, the founder of Islam died… Jerusalem was (then) a Christian city.

The Muslim “claim” to Jerusalem is based on what is written in the Koran, even though Jerusalem is not mentioned even once, and particularly if we bear in mind that the Koran, originally an oral text, did not exist in an Arabic compilation for another 20-40 years after the death of Mohammad.

Jerusalem was captured from the Byzantines by the invading Arab Muslim armies by Umaayad Caliph Omar in 638 CE, six years after Mohammed’s death and construction of Qubbat as- Sakhrah, the shrine on the Dome of the Rock was constructed to proclaim Islam’s supremacy over Christianity and its most important shrine, the Church of the Holy Sepulchre.

In essence, the current battle over the narrative on Jerusalem aose out of the political and religious rivalries between the Damascus based Umaayad Caliphs who controlled Jerusalem  and the Caliphs  of the Hejaz who controlled Mecca, Omar  wanted to establish an alternative holy site if their rivals blocked access to Mecca and the  Haj. As a result, they built what became known as the Dome of the Rock shrine (the Qubbat as- Sakhrah) and the adjacent mosque.

This mosque was named al Aqsa in an attempt to make the link that the Dome of the Rock was the very spot from which Mohammed ascended to heaven, thus tying Jerusalem to divine revelation in Islamic belief as compiled in the completed Koran.

However, this political sleight of hand flies in the face of early Arab historians al- Waqidi, Ishaq al-Fakihi and others who point out that the actual al Aqsa mosque referred to by Muhammad in Qur’an 17:1 was the mosque in Jiranah, a village just outside of Masjid-al- Haram in Saudi Arabia. The Masjid-al-Haram, according to the inscription near Mecca, was built there in 697-78CE making it difficult to accept that the Jerusalem al-Aqsa mosque, built some sixty years after Islam began, was the same al-Aqsa mosque referred to by the Umaayad Caliph in Jerusalem.

This is about the extent of the importance and sanctity of the al Aqsa compound built some 1700 years after Solomon’s Temple on the Temple Mount, Judaism’s holiest site: a political monument for then inter-Muslim rivalries, now used as a political flashpoint today in the Israeli Palestinian conflict, riven with a revised history to suit political purposes. This is especially so when one considers that in 1300 years of Muslim rule/governance of Jerusalem, not a single Islamic dynasty or Muslim state ever made Jerusalem its capital, physical or spiritual, unlike the Jews of Israel for whom it was its religious, spiritual and cultural core for 2000 years.

Because bringing one’s religion into battle demonstrated that both their armies and their religion were superior to those of their victims when they won, The Dome of the Rock, which was built in 691-692CE by Khalif Abd El Malik of Syria in a first effort to turn Muslim prayers toward his structure, was effectively a victory monument. Eighty years after the death of Mohammad, who had never been to Jerusalem, el Malik’s son Abdel Wahd completed the al Aqsa mosque in 712 CE in Jerusalem to demonstrate Islam’s superiority over the Christians and Jews they had driven from Jerusalem. Thus, together with the recorded chronology that Mohammed died in 632 AD, four years before the first Muslim army reached Jerusalem in 636 AD, five years before it took the city in 637 AD after a siege, and 73 years before the first Al Aqsa Mosque was completed in 705 AD,  there was no possibility that the Prophet Muhammad prayed at Al-Aqsa Mosque in Jerusalem on his nocturnal journey because the mosque did not yet exist in 632, the generally accepted year of Muhammad’s death, making the crux of the argument of a millennia of Arab antipathy to Jews on the “Muslim” Temple Mount just a exercise in Islamic religious supremacism not anchored in any historical chronology.

8. Jesus was a Palestinian

Not much point in devoting too much space to this here.

Jesus was not a Palestinian when he was born circa 6-4 BCE.

Jesus was not a Palestinian (Hail King of the……??) when he was crucified circa 30-36 CE

And he is not a Palestinian in 2022.

Neither are the Pope, Martin Luther and Xi Jin Ping.

The final article in the series, Part IV, will look at possible “solutions” or alternatives to the Israeli Palestinian conflict and consider the merits of each including accepting that the conflict might never be resolved, only ameliorated.

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.

Nakba as National Narcotic

Nakba as National Narcotic

“From 1948 to 1967, there is no historical record whatsoever of any effort to create a separate “Palestinian” state. The PLO’s purpose during that time, was not to create a “Palestinian” state, but rather to exterminate a Jewish one. That effort continues today.”

Speak to any supporter of “Palestinian” Arab ‘rights’ to a ‘national’ home in Judea and Samaria today, and you will quickly come to the nub of the conflict as they see it: the loss of “Palestinian” land must be avenged and the rights of the “Palestinian” nation restored….. Most would have you believe that the Nakba of 1948 was the central incident which defines the Israeli-“Palestinian” conflict today.

Nothing could be further from the truth/facts.

The movement of Arab Muslims out of the territory of the new state of Israel was as unnecessary as it was a strategic mistake by the Muslim Arab leadership of the time.
They have spent the past 66 years trying to correct it at the expense of other….

Hiding behind a narrative of Jewish depravity and barbarity as they would like to portray it, Muslim Arabs use the narrative of the Nakba as a way to assuage shame and guilt at leaving lands which they were quite welcome to in the first place. In international law.

Over the years, the “Nakba” became a catch-cry which acted as an ideological narcotic on the political will of Muslims Arabs in Judea and Samaria and their backers, irrespective of facts codified in international law.

In other words, using the “Nakba” to press claims of a “Palestinian” homeland for a “Palestinian” people and “nation” merely highlights the fact that the very concept of a stateless Palestinian people is a fabrication.

The “Nakba” is essentially an error of the Arabs own making and it galls the Arab psyche that they cannot turn the clock back on a tiny non-muslim Jewish state amidst a sea of Islamic countries.

In international law, the legally binding Mandate for Palestine document, was conferred on April 24 1920, at the San Remo Conference and its terms outlined in the Treaty of Sevres on August 10 1920. The Mandate’s terms were finalized on July 24 1922, and became operational in 1923.

While Arabs accepted the international community’s creation of the Muslim entities of Syria, Transjordan, Lebanon and Iraq as legal creations of the League of Nations and the Mandated Powers, they refused to accept that same body’s co-decision to create a Jewish state for a people who had been there some 1,700 years before the birth of Islam.

In fact, made clear through Jamal Husseini, the Arab Higher Committee’s spokesman that they would go to war to prevent the establishment of a Jewish state.

After the UN adopted the partition resolution on November 29, 1947, the Arabs declared a protest strike and instigated riots that claimed the lives of 62 Jews and 32 Arabs.
From November 29, 1947, until April 1, 1948, the Palestinian Arabs took the offensive, with help from volunteers from neighbouring countries of Transjordan, Lebanon, Syria and Iraq. The Arabs inflicted severe casualties on the Jews, in breach of international law and UN rulings.

The UN blamed the Arabs for the violence.

The UN Palestine Commission, which was never permitted by the Arabs or British to go to Palestine to implement the resolution, reported to the Security Council on February 16, 1948, that “powerful Arab interests, both inside and outside Palestine, are defying the resolution of the General Assembly and are engaged in a deliberate effort to alter by force the settlement envisaged therein.

The Arabs were blunt in taking responsibility for the aggression and the breach of international law. Jamal Husseini told the Security Council on April 16, 1948:
“The representative of the Jewish Agency told us yesterday that they were not the attackers, that the Arabs had begun the fighting. We did not deny this. We told the whole world that we were going to fight.”

Even the British commander of Jordan’s Arab Legion, John Bagot Glubb admitted: “Early in January, the first detachments of the Arab Liberation Army began to infiltrate into Palestine from Syria. Some came through Jordan and even through Amman . . . They were in reality to strike the first blow in the ruin of the Arabs of Palestine.”

It is this pain and shame that the Nakba as narcotic is meant to deaden: Arab responsibility for their own failures to accept international law and the consequences of trying to take land through a strategy of aggression in direct violation of the 1907 Hague Convention and the draft of the Geneva Convention which was finally published in 1949……

Again, in international law, the partition resolution was never suspended or rescinded.

Thus, Israel, the Jewish State in Palestine, was born on May 14, as the British finally left the country.

Five Arab armies (Egypt, Syria, Transjordan, Lebanon and Iraq) immediately invaded Israel.

Their intentions were declared by Abd Al-Rahman Azzam Pasha, Secretary-General of the Arab League: “It will be a war of annihilation. It will be a momentous massacre in history that will be talked about like the massacres of the Mongols or the Crusades.

The rest, as they say, is history.

Nakba as narcotic is a deadly attraction to those who have a propensity to addiction; flawed intellects who need props to cope.

The rest of us who are able to resist political addictions and its consequences will know that the United States urged a resolution charging the Arabs with breach of the peace.

Joining the USA, the Soviet delegate Andrei Gromyko famously told the Security Council on May 29, 1948, 15 days after the creation of the State of Israel:
“This is not the first time that the Arab states, which organized the invasion of Palestine, have ignored a decision of the Security Council or of the General Assembly. The USSR delegation deems it essential that the council should state its opinion more clearly and more firmly with regard to this attitude of the Arab states toward decisions of the Security Council.

In fact, on July 15, the Security Council threatened to cite the Arab governments for aggression under the UN Charter!!

By this time, however, the Israeli Defense Force had succeeded in stopping the Arab offensive and the initial phase of the fighting ended.

What a difference a few decades of “doublethink” make!

Not for nothing are George Orwell’s words as sinister today as when he first wrote them: “War is peace. Freedom is slavery. Ignorance is strength.”

The continued use of “Nakba” as narcotic inures those who continue to wage war as destruction, not necessarily of human lives, but of the products of human labour (Orwell).

And, like all addictions, it is ultimately fruitless.

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.