Antinuclear

NSW court draws a line between criticism of Israel and antisemitism

the public repudiation by a majority of Australians of Israeli policies (a Pew Research Centre poll from 4 June 2026 found that 79 per cent had an unfavourable view of that country) reflecting a ‘humanitarian reaction to Israel’s genocide of the Gazans since 7 October 2023, the livestreaming of which to mobile handsets would be difficult to ignore’.

It followed that any assertion that 79 per cent of Australians might be ‘antisemitic because they disapprove of Israel’s treatment of the Palestinians’ was bound to be ‘preposterous’.

By Binoy Kampmark | 27 August 2026, https://independentaustralia.net/politics/politics-display/nsw-court-draws-a-line-between-criticism-of-israel-and-antisemitism,21480

A landmark NSW Supreme Court ruling challenges attempts to conflate criticism of Israel with antisemitism, writes Dr Binoy Kampmark.

THE TERM “antisemitism” is now so commonly used as an accusation as to be beyond questioning. This is particularly so in countries claiming some protections for free speech or lawful assembly. Use that term to your heart’s content and stifle discussion.

Carry a placard accusing Israeli policy of genocidal propensities — antisemitic. Raising the issue of dispossession and ethnic cleansing of Palestinians by Israeli authorities — antisemitic. Mention specific slogans, some used with full-throated approval by Israeli Zionists themselves — antisemitic.

But an interesting New South Wales Supreme Court decision, delivered by Justice Desmond Fagan, restores much-needed and merciful balance. Put it simply, not all acts directed at Israel or unflattering views held about that country, however crudely framed, carry the antisemitic streak.

The acts in question in the case before Fagan were certainly crude. The 22-year-old Mohommed Farhat had been a vandal for hire, defacing parked motor vehicles (nine in total) and the walls of various buildings (four in total) in the eastern Sydney suburb of Woollahra using spray paint. His November 2004 acts featured slogans including ‘PKK’, ‘PKK coming’ and ‘Fuk Israel’. A vehicle was also set alight. 

It transpired that $4,000 had been given to Farhat to execute his acts of arson and graffiti, including a complement of drugs. The recruiter also suggested the wording used in the vandalism. 

On pleading guilty, Farhat was given a term of imprisonment of a year and eight months by the NSW Local Court Magistrate Scott Nash on 18 November 2025. Important in this case was the use of powers available to the State Government under the Terrorism (High Risk Offenders) Act 2017 (NSW) to deem an offender an “unacceptable risk” in committing a serious offence in the event of being released on parole. 

Farhat would have been eligible for release after ten months, but for the concerns of the Corrective Services, which deemed him a “national security risk” inmate in January this year. The State then requested an extended supervision order of a year’s duration with 55 attached conditions. The proceedings, taking place over four days of hearings, centred on whether Farhat’s crimes could be regarded as posing such a risk.

While Fagan delivered his decision on 30 July, the reasons were published on 17 August. In his reasons, a controlling factor for Fagan was the Federal Court case of Wertheim v Haddad (2025), where Justice Angus Stewart postulated what ‘the reasonable, ordinary listener’ would understand as being said in the context of critiquing Israel and Zionism. Depending on the context, such a reasonable person could ‘understand that not all Jews are Zionists and that disparagement of Zionism constitutes disparagement of a philosophy or ideology and not a race or an ethnic group’.

It also followed that political criticism directed at Israel ‘however inflammatory or adversarial, is not by its nature criticism of Jews in general or based on Jewish racial or ethnic identity’.

Fagan reasoned that such phrases as ‘Fuk Israel’ could only be considered antisemitic as ‘dictated… according to established common usage in Australia’. He found that Farhat had not intended to ‘express hatred of Jews’. Slogans such as ‘Fuk Israel’, construed objectively, were ‘crude expressions of political hostility to the state of Israel’, a ‘curse against a foreign state’.

They were ‘not antisemitic according to the ordinary understanding of that concept in the Australian community’. It also did not matter that the graffitied slogans had been made in a locality with a high proportion of Jewish residents: this did ‘imbue the curse with an antisemitic character’.

The judgment also gave the definition of antisemitism so treasured by the Australian government, most state governments and their agencies, and the Special Envoy for Antisemitism Jillian Segal, a frightful dressing down.  The International Holocaust Remembrance Alliance (IHRA) definition deems antisemitism to be “a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

This semantic spray did not impress Fagan. With bracing clarity, he stated that the text was ‘so verbose and imprecise that it could not realistically be attributed to the ordinary, reasonably informed member of the Australian public’. It was unclear what a ‘certain perception’ was. Might it manifest ‘in the expression of some other, less egregious, sentiment towards Jews and, if so, what?’

The inclusion of ‘non-Jewish individuals’ was also baffling and ‘counterintuitive’, as was the lack of limits to the notion of which ‘rhetorical [or] physical manifestations’ might amount to antisemitism. 

The Justice was far from alone in making remarks about the shoddy formulation. He noted the views of Sir Stephen Sedley, a former judge of the Court of Appeal of England and Wales who accepted the proposition that the IHRA failed ‘the test of any definition: it is indefinite’.

Fagan also drew on the critical submission by the Jewish Council of Australia (JCA) to the Royal Commission on Antisemitism and Social Cohesion, established in response to the Bondi terrorist attack of 14 December 2025:

‘Discussion of the IHRA wording and adoption of it by some institutions does not change the established meaning of a word that has been in use in the English language for 150 years.’ 

Many of the submissions made to the Senate Legal and Constitutional Affairs Committee informing its October 2024 report on the Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 (No. 2) also noted the conflation of ‘political criticism of Israel with antisemitism’.

The IHRA definition was, the judgment asserted, not intended to give effect to common understandings of antisemitism but aimed at furthering another goal:

‘Its tendency and the apparent purpose of promoting it, is to graft onto the community’s abhorrence of antisemitism, understood as hostility to Jews for their Jewishness, a parasitic rejection of protest against Israel.’

Such a rejection refused to acknowledge the public repudiation by a majority of Australians of Israeli policies (a Pew Research Centre poll from 4 June 2026 found that 79 per cent had an unfavourable view of that country) reflecting a ‘humanitarian reaction to Israel’s genocide of the Gazans since 7 October 2023, the livestreaming of which to mobile handsets would be difficult to ignore’.

It followed that any assertion that 79 per cent of Australians might be ‘antisemitic because they disapprove of Israel’s treatment of the Palestinians’ was bound to be ‘preposterous’.

Justice Fagan was convinced that the state had not made the case ‘that the defendant poses an unacceptable risk of committing a serious terrorism offence if not subject to extended supervision’. What mattered was whether he might succumb to using ‘illicit drugs and lower order crime’; there was no evidence that Farhat had been ‘politically radicalised’.

Beyond court proceedings, there have also been broader concerns that Farhat’s case has seen fiddling on the part of NSW Police.

Greens MP Sue Higginson wrote to the NSW oversight body, the Law Enforcement Conduct Commission (LECC):

‘The material failure of police to provide critical evidence to the court has resulted in Mr Farhat’s prolonged and quite possibly wrongful incarceration, as well as serious errors of fact and law.’

Fagan’s reasons provoked howls of protest from the offices of the Executive Council of Australian Jewry (ECAJ). This was a dangerous example of judicial ‘activism’ that avoided ‘the community impact’. (Presumably a judge favouring an aggressively wide interpretation of antisemitism, one armouring and fortifying Israeli policy from scrutiny, would not be entertaining activism.) 

The co-chair of the ECAJ, Alex Ryvchin,  groaned on Sky News:

“It’s quite extraordinary [given] where we are as a society, as a country, globally with antisemitism, that we’re still being dragged back to these foundational discussions about is and what isn’t antisemitism.”

Jamie Hyams, director of public affairs at the Australia Israel and Jewish Affairs Council (AIJAC), chastised Fagan for appearing ‘to range a long way past the question the court had to decide, into contested questions of history, politics and international law on which his honour appears to have had no independent expert evidence’. Such expert evidence, it would seem, can only be sought by those sacred sources approved by a select cartel, one sympathetic to Israeli policies, whatever their import.

The authorities in NSW have shown what can only be contempt for Justice Fagan’s ruling that Farhat had been subject to a ‘serious miscarriage of justice’. The commissioner for corrective services, Gary McMahon, had already intervened last December to have the parole order revoked without a hearing from the defence team, a nasty denial of natural justice that should provoke further comment. 

The parole authority’s 24 August decision also refused to acknowledge the ruling and the reasons by Farhat that he had been a vandal for hire: he would be kept in prison as ‘the offending was reflective of a deep-seated adherence on the part of the offender to an extremist ideology of an antisemitic character’. The purported ignorance of the meaning of the phrases used was also rejected. It follows that this miscarriage of justice, and the project of inoculating Israeli policy from stern and valid criticism, continues.

August 31, 2026 Posted by Christina Macpherson | legal | Leave a comment

Can the Israeli military be trusted to investigate itself? Evidence shows genuine accountability is rare

Shannon Bosch, Associate Professor (Law), Edith Cowan University, August 20, 2026, https://theconversation.com/can-the-israeli-military-be-trusted-to-investigate-itself-evidence-shows-genuine-accountability-is-rare-290142

Australian Prime Minister Anthony Albanese says it’s an “outrage” the Israeli Defense Forces (IDF) have decided not to open a criminal investigation into the Israeli strikes that killed an Australian aid worker, Zomi Frankcom, and six of her colleagues in Gaza in April 2024. He added:

It falls far short of the accountability that we expect and consistently called for on behalf of Australia.

International law is clear: states are obligated to investigate alleged war crimes committed by their nationals or armed forces, or on their territory. And, if it’s appropriate, they are obligated to prosecute the suspects.

To this end, military and civilian leaders must report suspected breaches of the law up the chain of command to ensure prompt, independent and impartial investigations are carried out.

On Wednesday, the IDF published the findings of an internal investigation into five incidents in Gaza since the war began in October 2023.

Two incidents were deemed to raise “reasonable suspicion of criminal misconduct”. The IDF ordered the Military Police Criminal Investigation Division, the primary investigative unit within the IDF, to open criminal probes into them. They are:

The killing of Hind Rajab, January 2024: The IDF acknowledged that soldiers opened fire on a vehicle carrying five-year-old Hind Rajab and her family as they fled Gaza City. In addition, the IDF said “a shell was fired toward” an ambulance trying to reach the car, killing two paramedics.

The killings of Palestinian rescue workers, March 2025: The review also referred the killings of 15 Palestinians in southern Gaza – some of whom it recognised as paramedics and medical personnel – to criminal investigators.

It said Israeli troops fired on three vehicles, which were later identified as ambulances, a fire truck and a UN vehicle.

Forensic Architecture, a research group at the University of London, alleges the military tried to cover up the killings by crushing and burying the medics’ vehicles.

The IDF investigators did not recommend further investigations into three other incidents, including:

The strikes on the World Central Kitchen convoy, April 2024: In addition to Frankcom, three British nationals, a Palestinian, a Pole and a dual US-Canadian citizen were killed when the IDF mistakenly identified their vehicles as carrying Hamas operatives.

The investigation found serious operational failures in the soldiers’ actions. Two commanders were stripped of their ranks and three officers were reprimanded. However, the review did not find “reasonable suspicion” of criminal conduct.

The other two incidents related to the killings of four employees of Médecins Sans Frontières in 2023 and 2024.

How often are Israeli soldiers prosecuted?

Statistically, very few complaints against IDF personnel result in investigations or criminal convictions.

The Israeli human rights group Yesh Din analysed complaints made to the IDF in 2019–20 and found 72% were closed without criminal investigation and just 2% led to prosecutions.

Another investigation of 52 Israeli military probes between 2023 and 2025 found 88% were either still under review or had been closed. Only one case had led to a prison sentence for an Israeli soldier.

What are the concerns with the IDF investigating itself?

Human Rights Watch has expressed serious concerns with IDF investigations into incidents involving Palestinian civilians. The group says they are “not impartial, thorough or timely”.

Cases often take months or years to navigate the IDF investigative process). Critics say this undermines the cases and diminishes the prospects for prosecutions.

Human Rights Watch reports that initial investigations largely rely on soldiers’ own accounts. The military advocate general, who advises the IDF during military operations, subsequently determines whether conduct should be criminally investigated or prosecuted.

Critics also argue that investigators frequently fail to contact readily available Palestinian witnesses, lack Arabic-speaking investigators, and rely heavily on Israeli NGOs to locate witnesses and obtain evidence.

Palestinian witnesses are often reluctant to cooperate in investigations because of fears of arrest, retaliation or mistreatment.

The military insists investigations are slowed by the difficulties of ensuring due process for its personnel in an active combat zone.

But rights groups say that by the time detectives are authorised to investigate, physical evidence is often long gone, the scenes have been compromised, and witnesses’ memories have faded.

That said, war crimes are not subject to any statutory limitation, meaning prosecutions can occur decades after an alleged offence.

What happens next in these cases?

The Hind Rajab and paramedic cases will now be transferred to military police for formal criminal investigations. They will collect forensic evidence, review communications logs and interrogate the soldiers and commanders involved.

Once complete, the investigation will be handed back to the military advocate general, who will decide whether to issue criminal indictments.

Structural legal barriers suggest, however, that the cases may not go anywhere.

Under Israeli military law, the legality of conduct in war must be assessed based on what a “reasonable commander” knew (or should have known) at the split-second the trigger was pulled. Did they honestly believe they were firing at a legitimate target?

Unless prosecutors can prove explicit intent to murder civilians, cases are often downgraded to “negligence” or closed entirely.

Lengthy proceedings can also create difficulties for eventual prosecution. As evidence becomes unavailable or less reliable over time, defence lawyers may argue that continued proceedings would prejudice their clients’ rights to a fair trial.

In some cases, concerns such as these can lead to reduced charges, plea agreements or the withdrawal of an indictment.

What other options exist?

The International Criminal Court (ICC) is designed to be a “court of last resort”. This means it only steps in if a nation is “unwilling or unable” to genuinely carry out investigations of suspected war crimes.

Israel has long argued that its investigative procedures in cases such as these are both credible and independent.

However, international observers and groups like the Hind Rajab Foundation maintain these internal probes function primarily as a public relations shield rather than a pathway to genuine accountability for wrongdoing.

As Human Rights Watch has put it: “a system that overwhelmingly closes cases without accountability, years after the fact, and only in response to sustained international pressure, is not justice, it’s a whitewash”.

Cases like these could also be investigated and tried in other countries’ courts under what’s known in international law as universal jurisdiction.

This allows domestic courts to launch prosecutions, even when the countries have no link to the perpetrator, victim, national interest or territory where the incidents occurred.

These prosecutions can be supported by UN-appointed independent international commissions of inquiry. These fact-finding bodies collect evidence, interview witnesses and compile exhaustive archives of offences in war zones.

While these UN panels do not hold trials, their formalised, verified evidence files are designed to be handed over to foreign prosecutors or future tribunals.

August 29, 2026 Posted by Christina Macpherson | legal | Leave a comment

New South Wales Supreme Court rules that criticism of Zionism is not antisemitism

Fagan’s Damning Verdict: Vandalism and Antisemitism Down Under

26 August 2026 Dr Binoy Kampmark AIM Extra, https://theaimn.net/fagans-damning-verdict-vandalism-and-antisemitism-down-under/

The term “antisemitism” is now so commonly used as an accusation as to be placed beyond questioning. This is particularly so in countries claiming some protections for free speech or lawful assembly. Use that term to your heart’s content and stifle discussion. Carry a placard accusing Israeli policy of genocidal propensities – antisemitic. Raising the issue of dispossession and ethnic cleansing of Palestinians by Israeli authorities – antisemitic. Mention specific slogans, some used with full throated approval by Israeli Zionists themselves – antisemitic. But an interesting New South Wales Supreme Court decision, delivered by Justice Desmond Fagan, restores much needed and merciful balance. Put it simply, not all acts directed at Israel or unflattering views held about that country, however crudely framed, carry the antisemitic streak.

The acts in question in the case before Fagan were certainly crude. The 22-year-old Mohommed Farhat had been a vandal for hire, defacing parked motor vehicles (nine in total) and the walls of various buildings (four in total) in the eastern Sydney suburb of Woollahra using spray-paint. His November 2004 acts featured slogans including “PKK”, “PKK coming” and “Fuk Israel”. A vehicle was also set alight. It transpired that A$4,000 had been given to Farhat to execute his acts of arson and graffiti, including a complement of drugs. The wording used in the vandalism had also been suggested by the recruiter.

On pleading guilty, Farhat was given a term of imprisonment of a year and eight months by the NSW Local Court Magistrate Scott Nash on November 18, 2025. Important in this case was the use of powers available to the state government under the Terrorism (High Risk Offenders) Act 2017 (NSW) to deem an offender an “unacceptable risk” in committing a serious offence in the event of being released on parole. Farhat would have been eligible for release after 10 months but for the concerns of the Corrective Services, which deemed him a “national security risk” inmate in January this year. The State then requested an extended supervision order of a year’s duration with 55 attached conditions. The proceedings, taking place over four days of hearings, centred on whether Farhat’s crimes could be regarded as posing such a risk.

While Fagan delivered his decision on July 30, the reasons were published on August 17. In his reasons, a controlling factor for Fagan was the Federal Court case of Wertheim v Haddad (2025), where Justice Angus Stewart postulated what “the reasonable, ordinary listener” would understand as being said in the context of critiquing Israel and Zionism. Depending on the context, such a reasonable person could “understand that not all Jews are Zionists and that disparagement of Zionism constitutes disparagement of a philosophy or ideology and not a race or an ethnic group.” It also followed that political criticism directed at Israel “however inflammatory or adversarial, is not by its nature criticism of Jews in general or based on Jewish racial or ethnic identity.”

Fagan reasoned that such phrases as “Fuk Israel” could only be considered antisemitic as “dictated […] according to established common usage in Australia.” He found that Farhat had not intended to “express hatred of Jews”. Slogans such as “Fuk Israel”, construed objectively, were “crude expressions of political hostility to the state of Israel”, a “curse against a foreign state.” They were “not antisemitic according to the ordinary understanding of that concept in the Australian community.” It also did not matter that the graffitied slogans had been made in a locality with a high proportion of Jewish residents: this did “imbue the curse with an antisemitic character.”

The judgment also gave the definition of antisemitism so treasured by the Australian government, most state governments and their agencies, and the Special Envoy for Antisemitism Jillian Segal, a frightful dressing down. The International Holocaust Remembrance Alliance (IHRA) definition deems antisemitism to be “a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorically and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

This semantic spray did not impress Fagan. With bracing clarity, he stated that the text was “so verbose and imprecise that it could not realistically be attributed to the ordinary, reasonably informed member of the Australian public.” It was unclear what a “certain perception” was. Might it manifest “in the expression of some other, less egregious, sentiment towards Jews and, if so, what?” The inclusion of “non-Jewish individuals” was also baffling and “counterintuitive” as were the lack of limits to the notion of which “rhetorical [or] physical manifestations” might amount to antisemitism.

The justice was far from alone in making remarks about the shoddy formulation. He noted the views of Sir Stephen Sedley, a former judge of the Court of Appeal of England and Wales who accepted the proposition that the IHRA failed “the test of any definition: it is indefinite.” Fagan also drew on the critical submission by the Jewish Council of Australia (JCA) to the Royal Commission on Antisemitism and Social Cohesion, established in response to the Bondi terrorist attacks of December 14, 2025. “Discussion of the IHRA wording and adoption of it by some institutions does not change the established meaning of a word that has been in use in the English language for 150 years.” Many of the submissions made to the Senate Legal and Constitutional Affairs committee informing its October 2024 report on the Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 (No. 2) also noted the conflation of “political criticism of Israel with antisemitism.”

The IHRA definition was, the judgment asserted, not intended to give effect to common understandings of antisemitism but aimed to furthering another goal: “Its tendency, and the apparent purpose of promoting it, is to graft onto the community’s abhorrence of antisemitism, understood as hostility to Jews for their Jewishness, a parasitic rejection of protest against Israel.” Such a rejection refused to acknowledge the public repudiation by a majority of Australians of Israeli policies (a Pew Research Center poll from June 4, 2026 found that 79% had an unfavourable view of that country) reflecting a “humanitarian reaction to Israel’s genocide of the Gazans since 7 October 2023, the livestreaming of which to mobile handsets would be difficult to ignore.” It followed that any assertion that 79% of Australians might be “antisemitic because they disapprove of Israel’s treatment of the Palestinians” was bound to be “preposterous.”

Justice Fagan was convinced that the state had not made the case “that the defendant poses an unacceptable risk of committing a serious terrorism offence if not subject to extended supervision.” What mattered was whether he might succumb to using “illicit drugs and lower order crime”; there was no evidence that Farhat had been “politically radicalised.”

Beyond court proceedings, there have also been broader concerns Farhat’s case has seen fiddling on the part of NSW Police. “The material failure of police to provide critical evidence to the court has resulted in Mr Farhat’s prolonged and quite possibly wrongful incarceration, as well as serious errors of fact and law,” wrote Greens MP, Sue Higginson, to the NSW oversight body, the Law Enforcement Conduct Commission (LECC).

Fagan’s reasons provoked howls of protest from the offices of the Executive Council of Australian Jewry. This was a dangerous example of judicial “activism” that avoided “the community impact”. (Presumably a judge favouring an aggressively wide interpretation of antisemitism, one armouring and fortifying Israeli policy from scrutiny, would not be entertaining activism.) “It’s quite extraordinary [given] where we are as a society, as a country, globally with antisemitism, that we’re still being dragged back to these foundational discussions about is and what isn’t antisemitism,” groaned Alex Ryvchin on Sky News. Jamie Hyams, director of public affairs at the Australia Israel & Jewish Affairs Council (AIJAC) chastised Fagan for appearing “to range a long way past the question the court had to decide, into contested questions of history, politics and international law on which his honour appears to have had no independent expert evidence.” Such expert evidence, it would seem, can only be sought by those sacred sources approved by a select cartel, one sympathetic to Israeli policies, whatever their import.

The authorities in NSW have shown what can only be contempt for Justice Fagan’s ruling that Farhat had been subject to a “serious miscarriage of justice.” The commissioner for corrective services, Gary McMahon, had already intervened last December to have the parole order revoked without a hearing from the defence team, a nasty denial of natural justice that should provoke further comment. The parole authority’s August 24 decision also refused to acknowledge the ruling and the reasons by Farhat that he had been a vandal for hire: he would be kept in prison as “the offending was reflective of a deep-seated adherence on the part of the offender to an extremist ideology of an antisemitic character.” The purported ignorance to the meaning of the phrases used was also rejected. It follows that this miscarriage of justice, and the project of inoculating Israeli policy from stern and valid criticism, continues.

August 28, 2026 Posted by Christina Macpherson | legal | Leave a comment