Tag Archives: international law

International Court of Criminals politicizes itself

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

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

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

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

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

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WHEN INTERNATIONAL LAW’S THE THING…..

Without question, Israel is currently facing an increasingly coordinated and concerted effort by Europe and the Arab world, to delegitimise and cripple her.

Barack Obama is presiding over seismic shifts in geopolitical alliances instigated by a foreign policy that is foreign to everything America has said they stand for till now.

It is not coincidental that China and India are strenuously courting the tiny Jewish state as it becomes increasingly clear that liberal democrat America does not have Israel’s best interests at heart.

Consider the present administration’s full-throated support of “Palestinian” statehood and its increasingly strident efforts to accommodate a landscape-changing Iranian nuclear deal.
Both developments would seriously affect Israel’s ability to adequately protect itself without using the nuclear option if the Arab world continues to see as its primary foreign policy objective, the removal of the Jewish state from the Middle East.

But are Europe and America barking up the wrong tree? Do the Chinese and Indian governments more accurately evaluate the danger of spreading radical Islam given the chaos Muslim minorities cause in their respective countries? Does Russia, whose propaganda campaign is responsible for much of the European shift towards delegitimisation of Israel, also know what the Israelis know: that radical Islam unchecked today will rapidly convert significant sections of European cities into expanding Sharia-controlled no-go Muslim enclaves? Will Muslim terror stop once the world recognises the illegality of the Zionist enterprise in the Middle East. Is the foundation of the state of Israel illegal under international law?

The short answer is that the formation of the State of Israel is completely legal under international law, even if Arab backed European politically motivated communities would like to revise the fact.

There is a reason, in international law, there has been no “Palestinian” state these past 66 years.

And as long as there are those who would delegitimise a UN member state, there will always be those who will make sure that petty, genocidal, religious dogma neither changes the facts of history nor subverts international law which has at its very core, the objective of limiting the institutionalised violence we call war.

Israel is a sovereign state under international law. International law is a set of rules that are generally accepted in relations between states (Glick, 2014). International law is based on consent, and states follow the rules of international law to which they consent.

International law comprises two strands: treaties and custom. Treaties may be bilateral, based on international conventions like the 1948 Geneva Convention, or they may be multilateral such as is the case with the NATO treaty.

However, while treaties are binding under international law, institutions created by the treaties cannot make new law. Thus international bodies such as the UNGA can only pass resolutions which are recommendations. The UNSC may pass binding resolutions, but exercise of that power is limited to situations that are 1) threats to peace, 2) breaches of peace, 3) and acts of aggression against UN member states. Clearly, in the case of the Israeli Arab conflict as regards “Palestine”, “Palestinian” Arabs, hyperbole notwithstanding, have no legal leg to stand on. They have continuously threatened the peace, breached innumerable ceasefires, and often attacked a UN member state.

On the other hand, treaties do not carry the same weight as legislation, and states only have to obey treaties to which they are parties. In other words, no consent, no law.
Does this mean that a would-be “Palestinian” ‘nation’ could refuse to honour a treaty to which they were not party?

The brief legal answer is no.

International law permits self-determination claims to be satisfied by incorporation into the ruling state, by sovereign independence, or by anything in between.

In order to abide by its international obligations as a member of the family of nations to respect the self-determination rights of “Palestinians”, Israel is required to take good-faith negotiations with the “Palestinians” in a bid to satisfy these self-determination rights.

Nobody would dispute that the two unprecedentedly generous Israeli peace offers to Arafat and Abbas, in attempts to reach a peace settlement over the past 20 years, in addition to the commencement of the Oslo Accords which recognised the PLO as official representative of the “Palestinian” people, do not constitute good-faith efforts by the Israelis to satisfy “Palestinian” self-determination rights. The remarkable Barak and Olmert offers are historically documented proof of that.

Thus, Israel has fulfilled its obligations in this sphere as well.

Unlike Israel, there has never been a polity/state called “Palestine”. Thus not agreeing to international law has never been an option for them, despite their bombast and continuous claims of victimhood over the years.

And finally in this section about the legality of the Israeli negotiating position under international law, the prospect of the PA unilaterally approaching the UN for membership and thus statehood, would be a grave violation of the PLO’s signed agreement with Israel, under international aegis, which specifically barred such unilateral actions. Under international law, this agreement was witnessed by outside parties including the United States, Russia, Norway, the EU and so on.

This means that any material violations of agreements that were witnessed by the EU or similar, would irreversibly jeopardise the worth of such agreements in international law and the worth of such witnessing, and would free Israel to act in its best interests without fear or favour. A scenario fraught with potential for untold violence anyway you care to look at it.

Custom in international law, on the other hand, is different in that it results from general and consistent practice of states followed by them from a sense of legal obligation.

International law requires states to follow customary law even when the states have not explicitly consented to the custom (Glick, 2014). However, because customary law is also based on implied consent, a state that consistently objects to an international custom, is not bound by that custom.

Once again, in the absence of there ever being a sovereign “Palestinian” state to even invoke customary law and thus invoke consistent objection to the legal establishment of the State of Israel, in the light of the point blank refusal of three offers of “Palestinian” statehood 1947-2014 thus abrogating its rights to sovereignty in PA controlled “West Bank”, and in the absence of any codification of rules and charters minimising violence against Jews by the current “unity” government as per the requirement of an intending member of the United Nations, “Palestinian” claims that they are a people living in a non-self-governing territory and thus have a right to self determination is belied by the fact that the “Palestinians” have been exercising self rule over inhabited parts of Judea and Samaria since 1994 when PA was formed…….

Thus, the PA’s invocation of even this tenet of international law is baseless.

In light of the above, understanding “Palestinian” Arab violence towards the State of Israel becomes even more difficult to accept in any form, because of the documented incidents of a violent minority which proffers its own apocalyptic Islamic interpretation of how the world should be, and what should replace western interpretations of law and order.

In Gaza, and further afield, the rebirth of Islamic imperialism and violence post 9/11, from the World Trade Center, to a discothèque in Bali, to beheadings in the barren stony lands around Dabiq and Raqqa point to what Buruma and Margalit (2004) have termed Occidentalism.

Like Orientalism, which was perceived as a general patronizing Western attitude towards Middle Eastern, Asian and North African societies, Occidentalism sees the West as something less than human, something to be destroyed, something that goes beyond Wall Street, Hollywood, capitalism or the all-too-convenient catch-cry of “US imperialism”.

The current crop of jihadis see western liberalism as a threat to their religious fundamentalism, self-appointed caliphs and religiously inspired “pure” and “authentic” cleansing of the kuffar through blood letting, because it deflates the pretensions of their own brand of heroic Islamic utopianism.

Wherever it occurs, this Occidentalism is fed by an inflated Muslim perception of humiliation, of defeat.

The current wave of Islamic Occidentalism seeks to right a perceived historical wrong. And nothing matches the perceived Arab Muslim sense of failure and humiliation as much as the perception that a once glorious civilization has been left behind in every respect by the post-Enlightenment West.

This over-indulged perception of humiliation, historically redolent of the Arab psyche, can easily turn into a self-aggrandising cult of the pure and the authentic. And it is when “purity” or “authenticity”, of faith or race, leads to purges of the supposedly inauthentic, of the allegedly impure, that mass murder begins. The fact that anti-Americanism, anti-Zionism, anti-Semitism, and a general hostility to the West currently overlaps is no coincidence. (Buruma & Margalit, 2004).

However, in a modern world dominated by the spread and take up of western values of business and culture, copied and practised skilfully by the very people who would kill you for it, international law remains the final fragile red barrier “authenticity” and “purity” of Islamic thought must breach in order to imprint its brand of religious fundamentalism on a wide swathe of the world’s peoples.

To that extent, I submit that Muslim violence today against the west is not the fault of anyone else except irrational, inverted Muslim Quranic interpretation and thought, and a willingness to shed as much blood (of others) as it takes to spread a violent, radical brand of Islam.

This vision radical Islam has of itself as an antidote to “Westoxification”, is a mixture of the universal and the pure: “universal” because all people can/should, in the eyes of the believers, become orthodox Muslims; and “pure” because those who refuse the call are not simply lost souls but savages who must be removed from this earth.

Thus the “pure” and/or “authentic” Occidental hero is the one, whether he is a Nazi or an Islamist, who is just as ready to destroy those who sully the purity of his race or creed. It is indeed his duty to do so. When the West is seen as the threat to authenticity, then it is the duty of all “holy warriors” to destroy anything to do with the “Zionist Crusaders,” whether it is a U.S. battleship, a British embassy, a Jewish cemetery, or a Bali discotheque; even unto the extreme of beheading well-meaning western aid workers and journos in Dabiq and Raqqa as a terror tactic to induce compliance (Buruma & Margalit, 2004).

But, whatever the rest of the world might be comfortable acceding to in appeasing Muslim violence by permitting Sharia police no-go zones in European cities and towns, with regards to the Israeli- “Palestinian” conflict, there is always the question of international law.

It is the source of greatest frustration to large hostile bodies such as the Arab League and their enablers in the European Union that, since their inception in 1945, they have never been able to either militarily extract a territorial concession from Israel in all the wars they have initiated, nor circumvent the rule of international law in their efforts to financially and socially/legally cripple the sovereign Jewish state these past 66 years….

The sovereignty of the Jewish state became a legal issue in 1917 with the demise of 400 years of Ottoman Muslim rule in the Levant.

Whereas the Levant Arabs, now freed from the oppressive yoke of the Ottomans, agreed to League of Nations mandates to create Muslim entities in Iraq, Syria, Lebanon, Jordan and Gaza in return for supporting the British and the French, those self-same Arabs did not see their way clear to the same League of Nations establishing the Jewish state of Israel in what was called the British Mandate for Mesopotamia……

Thus, with the disintegration of the despotic Ottoman rule in the region, the Arabs accepted international law in the creation of five more Muslim entities along national ethno-religious lines, but just not a single Jewish one.

Fortunately for Israel, its creation has always been anchored in international law both through treaty and through custom as described above. For example, Israel is well within its international legal rights in building as it sees fit in Judea and Samaria. Yehuda and Shomron were always included territory in the intended Jewish state under both the League of Nations and the legally approved British Mandate, despite the illegal invasion and occupation of the area (euphemistically called the West Bank [of the Jordan]) by Jordan in 1948. In 1967, Judea and Samaria were returned to Jewish sovereignty in a defensive war where Egypt, Syria, Jordan and Iraq combined to try and wipe out (again) the tiny Jewish state.

Forty years previously, the 1937 Peel Commission succumbed to Arab violence and recommended the partition of the remainder of the Mandate, now not including Jordan, into a further division of Jewish and Arab land. The Jews were now to receive a mere 19% of the truncated Mandated lands, with 81% going to the creation of yet another Muslim Arab state. The Jewish Agency accepted even this disappointing breach of promise. The Arabs rejected the compromise.

The records will always show the facts of the matter: Arab intransigence and religious racism are the only reasons there is no “Palestine” today. The Arab-Israeli conflict never had anything to do with land. It was always a war of religion.

Clearly, as it has always done since 1917, international law will always back up the Israeli position on any future negotiated settlement.

International law (and an innate sense of fairness in other nations around the world that is difficult to legislate for) remained the major stumbling block in MENA and the EU preventing the dismemberment of the Jewish state.

But, in the end, all of history shows that people do not like continuous change or violent upheaval. The average person in the street does not approve of murder and mayhem, be they from Dubai or Donetsk. The average person just wants to get on with life and make the most of their time while alive.

For this reason alone, the current orgy of Islamic violence will splutter and die as the internet continues to interleave the commonality of the human condition, race, religion or creed notwithstanding.

And because of this, the State of Israel will continue to survive and prosper.

Because of this, and international law……….

Propaganda in the Service of Untruths

The recent rush to recognise “Palestine” by the British Parliament and the Government of Sweden fails to take into account several anomalies and illegalities which can’t but be viewed as biased anti-Jewish animus.

The State of Israel was, of course, just one of many new or recreated nations that, in the wake of World War I, were carved out of the former German, Austro-Hungarian, Czarist and Ottoman empires.

These included, for example, Finland, Lithuania, Latvia, Estonia, Poland, Czechoslovakia, Mandate Syria and Mandate Iraq. All of these states entailed the granting of sovereignty, or promised sovereignty in the case of the Mandates, to previously largely disenfranchised peoples, and all also encompassed other ethnic groups within their borders that chafed at the new national arrangements. Yet, 66 years later, none have stirred anything like the animosity displayed by a mainly liberal-left elite in Europe, in thrall to a rampant radical Islamism, to the fact of a recreated Jewish national home.

Rather, a vocal anti-Jewish lobby in Europe and Britain today has opted instead for a smug and casual hatred of the Zionist project, under a transparently ludicrous veneer of moral superiority.

It is not to be forgotten that the medieval blood libel that Jews kill Christians, particularly children, to use the blood of Christian innocents for Jewish rituals, was first introduced in England with the earliest recorded such claim involving the death of one William of Norwich in 1144.

And it should also be remembered that the blood libel was exported from England to the continent, where over eight centuries it provided a rationale for the murder of thousands of Jews. It’s most gruesome and horrific iteration was the Final Solution proposed by an amoral German Nazi regime, but since the end of World War II it has enjoyed its greatest popularity in the Arab world.

Today, Britain and Europe, with enthusiastic backing from a demographically significant European Muslim migrant population together with financial muscle from Arab Muslim kings, emirs and other petty but monied ME tyrants, join in the markedly racist and illegal call for the creation of a Judenrein “Palestinian” state, while still others call for the Jewish state to be subsumed into a binational (read: Arab majority) “Palestine”.

Indeed, with the renewed anti-semitic upsurge in Ireland, long a PLO/Fatah/Hamas backer from the time of the now-sanitized, re-invented Sinn Fein leader Gerry Adams, together with official political bodies in the UK and Sweden, there is a concerted European push calling for the recognition of “Palestine”, claiming that such recognition would “contribute to securing a two-state solution.”

Nothing could be further from the truth.

Any unilateral moves and declarations by Europe to recognise “Palestine” are based on questionable legal, historic and political premises since no Palestinian state exists, and the issue of the status of the territories is subject to negotiation.

In fact, the European and British claim that recognising “Palestine” would “contribute to securing a two-state solution” is the antithesis of what it purports to be by pre-judging the outcome of the very negotiations, under international law and several UN resolutions, they purport to support.

One does not need a degree in international law or political history to see what is the real aim of the parties concerned.

Furthermore, those aims rely on illegal interpretations of international rulings and a willingness to manipulate the law to produce a Final Solution by other means.

While the ultimate aim of a “negotiated two-state solution” correctly acknowledges the present legal situation in which the issue of final status of the territory is a distinct negotiating issue between Israel and the “Palestinians”, pursuant to the Oslo Accords, it is clear that the issue of the permanent status of the territory remains an open negotiating issue, yet to be agreed-on, and one may assume that upon resumption of the negotiating process, it will be duly addressed by the parties as one of the central agenda items.

Thus, imposing an agreement by outside parties will not further a “negotiate” peace process one iota.

The British House of Commons, the Irish Upper House and the Swedish prime minister would appear to contradict themselves by recognizing that negotiations are still pending, while at the same time prejudging the outcome of the very negotiation they purport to support, by calling for recognition of the state of Palestine.

Clearly no such Palestinian state or sovereign entity exists and thus cannot logically be recognized or acknowledged by the Irish Upper House or others.

Similarly, no international treaty, convention or binding international resolution or determination has ever been adopted or entered into, that determines that the territories in dispute are indeed “Palestinian”.

Further, the Palestinian leadership itself is committed, pursuant to the Oslo Accords, to negotiate the issue of the permanent status of the territory.

Article V of the Declaration of Principles on Interim Self-Government Arrangements signed by Yasser Arafat and Yitzhak Rabin on September 13, 1993 states as follows:
“2. Permanent status negotiations will commence as soon as possible, but not later than the beginning of the third year of the interim period, between the Government of Israel and the Palestinian people representatives.
3. It is understood that these negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.”

Clearly then, the ultimate status of “Palestine”, whether as a state or any other sovereign entity agreed-upon by the two sides, cannot be arbitrarily imposed by external parties, including the UK, Irish or Swedish parliaments, or the UN.

It can only result from a genuine negotiating process in accordance with accepted norms and requirements of international law regarding the characteristics of statehood.

The 1933 Montevideo Convention on the Rights and Duties of States clearly determines that:
“The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.”

Clearly, the “Palestinians” do not meet the requirements set out in this convention.

Thus, the attempt by House of Commons, the Irish Upper House of Parliament and the Swedish prime minister to recognise a “Palestinian” state clearly pre-empts the outcome of any negotiation the trio above are themselves legal signatories to through a one-sided determination that totally ignores legitimate legal and historic claims to the territory by Israel, including those based on historic and legal commitments to which the United Kingdom itself is bound. They would, therefore, appear to be intervening in a bona fide negotiating process (in international law) by supporting one side only.

That these three groups do not see the bias, animus and disregard for international law when it suits them, in holding such a position, strains credulity.

If the “Palestinians” do not meet internationally codified definitions of statehood, what about the claim by “Palestinians” that Israel occupies the West Bank.

Article 42 of the Hague Regulations, primarily because it actually falls under a category titled, “Military Authority Over the Territory of the Hostile State,” unequivocally explains the type of territory in question. The West Bank was never/is not a state; it is disputed territory taken in a defensive war after an illegal occupation so-named by all but 2 nations in the world and subject to negotiation under that same international law that Ireland, Britain and Sweden would today conveniently ignore.

In international law, as in any type of law, one should look to an interpretation only if the wording of the original is somehow unclear or vague. The wording of Article 42 is blindingly clear.

Pursuing this theme of Eurabian anti-Jewish animus, in 1967, the ICRC quickly branded Israel’s acquisition of the territory as an “occupation,” but made no such finding during the 19 years of illegal Jordanian rule. In fact, one would be hard-pressed to find any ICRC assertions that a territory is “occupied” by a particular nation in the dozens of other territorial disputes that have yet to find a resolution…..

In addition, the legality of Israeli settlement in Judea and Samaria including Jerusalem beyond the 1949 armistice lines is clearly addressed in Article 49 of the Fourth Geneva Convention. Taken from the ICRC’s own website, it states that “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Here, the terms “deport” and “transfer” are active, meaning that civilians are not acting on their own behest.

As the ICRC itself acknowledges, Article 49 was drawn up in the wake of the Nazi policy of forcibly transferring parts of its own population into territories it occupied before and during the war. The most infamous of these forcible transfers or deportations was the masses of Jews who were sent to occupied territories to be murdered en masse in Poland and elsewhere.

This provision of the Geneva Convention regarding forced population transfer cannot possibly be viewed as prohibiting the voluntary return of individuals to the cities, towns and villages from which they, or their ancestors, had been ousted.

In 1970, regarding Israel’s case, former State Department legal adviser Stephen Schwebel, who later headed the International Court of Justice in The Hague, wrote: “Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.”

In 1980, Julius Stone, professor of jurisprudence and international Law, wrote: “Because of the ex iniuria principle [unjust acts cannot create law], Jordan never had, nor now has, any legal title in the West Bank, nor does any other state even claim such title. Article 49 thus seems simply not applicable. Even if it were, it may be added that the facts of recent voluntary settlements seem not to be caught by the intent of Article 49, which is rather directed at the forced transfer of the belligerent’s inhabitants to the occupied territory, or the displacement of the local inhabitants for “other than security reasons”(emphasis mine).

And finally, in 1991, Prof. Eugene Rostow, former US undersecretary of state for political affairs, wrote: “The Jewish right of settlement in the area is equivalent in every way to the right of the local population to live there.”

Attempts to impose a state of “Palestine” on Israel by Britain, Ireland and Sweden rest on very shaky legal grounds.

There is a reason there has been no “Palestinian” state these past 66 years.

The Arab leadership refusal to accept the Partition Plan, the repeated attempts to bend international law through waging war, the three “Nos” of Khartoum which precluded legal negotiations, the rejection of three peace initiatives by the “Palestinian” ‘leadershp’ in the past twenty years, all point to an oft-stated goal by the very people Israel is supposed to be negotiating with for its continued safety and survival: an Arab Muslim state from the river to the sea.

The willingness of Britain, Ireland and Sweden to unilaterally press for a “Palestinian” state on the basis that Israel has to end its “occupation” of the West Bank despite the fact that Judea and Samaria did not belong to any state before 1948, flies in the face of any reasonable application of Article 42 of the Hague Regulations to which the trio above, as EU members, are signatories.

And finally, the willingness of Britain, Ireland and Sweden to wilfully ignore the last provision of Article 49 of the Fourth Geneva Convention, which states that an active transfer or deportation of its own citizens has to be undertaken by the state occupying the area, something that has clearly never happened in the history of Israel’s control of the territories in question, merely serves to strengthen the perception that the new/old anti-semitism is prepared to sacrifice Jewish lives again for the sake of new-found “friends” and short term expediencies.

There may yet be a “Palestinian” state in one form or another. But any iteration of that state will have no choice but to take Israel’s security needs into consideration given the neighbourhood it lives in. “Palestine” will come into being through negotiation.

In the meanwhile, the European trio’s rush to recognise “Palestine” will always come up against legal precedent and international law against which it has no recourse now nor in the foreseeable future.

There is a sense of Arab-Muslim privilege which exists today that makes anti-Semitism “okay,” acceptable in academic discourse, and even politically correct. It enables impressionable college students looking for a cause to question a Jew’s very identity, to challenge their ancient history, and therefore allows them no future.

This type of prejudice will be fought against in all the relevant arenas.

It is one thing to be perceived as trying to right a wrong. But no wrong has been committed; a dispersed people have fought for, and earned the right for their very noisy, opinionated, fractious, democratic, cultured, lawful survival.

It needs to be understood that the current Arab-Muslim sense of “entitlement” are ethnically and religiously biased variations of the old European libels that manifested themselves in racist anti-Jewish laws for centuries in Western Europe, and which culminated in the Holocaust.

The politics of internal national voting patterns and demographic demagoguery will never create a ‘nation’ state. International law will see to that.

 

This article is a synthesis of the intellectual property of Yair Shamir, Alan Baker, Jacques Gauthier, Howard Grief and essential principles from Anthony Cullen’s book: “The Concept of Non-International Armed Conflict in International Humanitarian Law”.

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”.

Jerusalem – Confusing Fact and Fiction

Confusing fact and fiction – Gerard Henderson, The Sydney Institute
Is Jerusalem occupied by Israel? The answer is: “not under international law”. Gerard Henderson of the Sydney Institute explains why

[Since the 6 Day War in 1967] there have been…references to the occupied territories [in the ongoing Arab-Israeli conflict].

This description [“occupied”] was once used by some to refer to areas such as the Sinai, Gaza, the Golan Heights and the West Bank.

Israel returned the Sinai Peninsula to Egypt in 1982. In 2005, Israel withdrew from Gaza, which is now ruled by the terrorist Hamas organisation. The Golan Heights still remains disputed between Israel and Syria. The Palestinian Authority, which recently included Hamas in its government, presides over much of the West Bank, with the obvious exception of the Israeli settlements.

Following its defensive war in 1967, Israel captured East Jerusalem and the West Bank, which had been occupied by Jordan for some two decades.

Jordan never created a Palestinian state and no such nation has ever existed.

Clearly in 1967 Israel did not conquer and occupy any territory ruled over by a Palestinian nation.

Any successful Middle East peace process will almost certainly involve the withdrawal of Israel from nearly all areas of the West Bank and, possibly, a part of East Jerusalem. Also, it is likely that there would be land swaps between Israel and what would become the nation of Palestine in a two-state solution.

This would be consistent with the UN Security Council Resolution 242, passed in November 1967, which called on Israel to withdraw from “territories”, not all territories, as part of what would now be called a land-for-peace deal. In such an eventuality, it is likely that Israel would swap some land within its borders since the creation of the state in 1948 for some of the land that it took from Jordan (not Palestine) in 1967.

Anyone familiar with the topography of Jerusalem would be aware that Israel is not defendable on its 1967 borders.

Former Labor foreign minister Bob Carr is a critic of Israeli Prime Minister Benjamin Netanyahu and his government. Yet even Carr concedes in Diary of a Foreign Minister that Israel’s security concerns are real. Carr relates a conversation at the Knesset in Jerusalem when he asked the Israeli Prime Minister to explain his security concerns. An aide pulled aside the curtains and Netanyahu declared: “I don’t want Iran on that hill.”

If the [Australian Senator and member of the communist movement that supported the Soviet Union right up until the collapse of the Berlin Wall in 1989] Rhiannon line [in the Australian Parliament] prevails, there will be no peace process at all. And no Palestinian nation.

Even beyond the obvious security concerns, East Jerusalem includes the Jewish quarter of the Old City including the Wailing Wall, Judaism’s holiest site.

It is doubtful whether any democratically elected Israeli government would willingly facilitate a pre-1967 situation occurring again whereby Jews are driven out of East Jerusalem and prevented from praying at or visiting the Wailing Wall.

At the Senate hearings, Rhiannon…declared she had been insulted when [Attorney General] Brandeis commented on her longstanding membership of that part of the Australian communist movement that supported the Soviet Union right up until the collapse of the Berlin Wall in 1989.

Rhiannon’s past association with communism is a matter of public record.

Interviewed on Radio National on December 6 last year, she even admitted to having studied at the Lenin International School in Moscow in 1977, at the height of Leonid Brezhnev’s brutal totalitarian dictatorship.

A two-state solution may take place in the Middle East. Even if it does, this will not suddenly bring peace and stability to the region. The Israel-Palestine dispute is but a sideshow in the looming battle between the Shia and Sunni brands of Islam.

Sunni Saudi Arabia is much more concerned with Shia Iran than with Israel. And, right now, the Sunni terrorist movement the Islamic State of Iraq and al-Sham seems more interested in murdering Shia Muslims than Jews or Christians.

On ABC’s Insiders last Sunday, David Marr suggested “there is a very real possibility that the Arab world is going to respond to Australia’s unique stand on East Jerusalem by saying: ‘Well, we won’t buy your wheat.’ ”

Similar views have been expressed by Suzannah Moss-Wright of the Australia Arab Chamber of Commerce.

This seems unduly pessimistic. The Arab world, plus Iran, appears to be involved in a religious civil war of disturbing ferocity.

In such a reality, Australia’s position concerning the appropriate terminology on East Jerusalem is of scant importance. Despite Rhiannon’s Green-left advocacy.

Note: It is worthy of note that Rhiannon has the vocal support of independent Senator Nick Xenophon in Parliament  on whose selective xenophobia I have written in a previous post (http://bit.ly/1q07S1G )

 

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.