Arlene from Israel – Not a Crisis.


Editor’s note: Once again and excellent piece from Arlene Kushner.


Mahmoud Abbas would certainly like us to think it is a crisis.  He wants us cringing in fear.  But he’s going to be disappointed on this score:

On Wednesday, Abbas made a show of filling out membership forms for a variety of international organizations. But filling out forms is not applying.

On Friday night, that step was taken, when Riyad Mansour, Palestinian Arab envoy to the UN – acting on behalf of the “State of Palestine” – submitted to the Secretariat of the UN in New York applications to join some 20 international treaties.  Key among these was the Rome Statute of the International Criminal Court at the Hague. (The Rome Statute is the founding treaty of the ICC.)

A UN spokesman confirmed receipt of the documents and said they were being reviewed.


The process of joining the ICC requires 90 days from the time the application is submitted.  But Abbas didn’t even wait for the ink to dry on the application he filed before moving forward.  On Thursday morning the PA filed a request with the Dutch Embassy (the court is in the Hague, in Holland – the Dutch have a consulate in Ramallah) requesting that Israel be investigated for alleged war crimes committed during the 50 days of the Gaza war this summer.

I see this as grandstanding and not a move that has legal legitimacy at all. But what we’re seeing is that Abbas, who hesitated for some time in filing with the ICC, seems ready to go full steam ahead now, and is talking about leveling every charge he can come up with against Israel, including retroactively.  I even read about the idea the Palestinian Arabs have that they can charge Israel with “war crimes” because of the “settlements.”


The ICC has the jurisdiction to prosecute individuals (not states) for the crimes of genocide, crimes against humanity, and war crimes. It is able to exercise its jurisdiction only when certain conditions are met. The process is not simple or automatic.  In point of fact, it is exceedingly doubtful that what Abbas is attempting to do will yield anything resembling the results he says he wishes to achieve.

The ICC will not take seriously any petition registered by the PA for investigating Israeli officials until “the State of Palestine” is recognized as a member of the Court.

Gambian lawyer, former government civil servant, international criminal law prosecutor and legal adviser. She has been the International Criminal Court’s chief prosecutor since June 2012, after having served as a Deputy Prosecutor in charge of the Prosecutions Division of the ICC since 2004.[2] She has held positions of Legal Adviser and Trial Attorney at the International Criminal Tribunal for Rwanda
It is Fatou Bensouda, of Gambia, Chief Prosecutor at the ICC, who has responsibility to make this initial determination.

Should she, after initial consultations, decide that Palestine is a state, qualified to lodge complaints, she must then determine whether these complains merit investigation.  If she does determine so, she would begin with a preliminary investigation.  But this in no way guarantees that a full criminal investigation would follow.

Says international law professor Robbie Sabel, of Hebrew University:

“I assume that they will start a preliminary examination.  But the prosecution will soon find that it’s an entirely political issue, and unless Israel goes mad and decides to start committing mass atrocities, which it won’t, the prosecutor will be reluctant to proceed with an actual criminal investigation.”

Determination of a basis for a full investigation depends on many factors, including complex issues of jurisdiction and gravity.

Generally, charges can only be brought for alleged crimes committed in territory over which a state has jurisdiction after that state has joined the Court.  The charges against Israel for events that occurred last summer would be questionable.  The fact that these charges involve Gaza further complicates the matter, because it may be determined that Hamas and not a “Palestinian state” is in charge there.

Then there is the question of whether charges could be brought against Israel for “settlements,” as Israel is not a member of the court and the court only has jurisdiction over crimes committed within the territory of members of the court.

And there is the fact that the court, according to the Rome Statute, the jurisdiction of the court is limited to the most serious crimes of concern to the international community as a whole…unimaginable atrocities that deeply shock the conscience of humanity.”

Even in the unlikely event that Abbas were to succeed in achieving a full criminal investigation against key Israeli figures, there would be no final result for years because of the complexity of the process.


According to Alan Baker, international lawyer and director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, this entire action seems to be a PR bluff that Abbas hopes will pressure the US into agreeing to a Security Council Resolution.  Might be.  PA officials are already making noise about calling for another vote at the Security Council.  As there are now new temporary members of the Council, more predisposed to supporting a “Palestinian state” unilaterally established, the US would have to veto to block it.


My guess, however, is that Abbas is severely overplaying his hand, if he thinks he can pressure the US.  The State Department has registered great irritation with Abbas over this behavior, and there are members of Congress calling for penalties (withholding of funding) because of the ICC gambit.


The question is whether Abbas is really seeking a SC resolution that “creates” a state. There are yet other ways of looking at the situation.  And so I share here an article by Yishai Schwartz in the New Republic that seems to me an astute analysis of Abbas’s gambit. Things are not always what they seem to be on the surface, and where Abbas is concerned it’s best to seek the devious motivation.  (Emphasis added)

“…on Wednesday, Palestinian Authority President Mahmoud Abbas formally requested membership in the International Criminal Court. Coming in the middle of Israeli elections, these actions—which are sure to infuriate Israelis and strengthen the Israeli right—seem rather self-defeating, and Americans committed to Mideast peace are bewildered…

“The New York Times editorial board warned that ‘Mr. Abbas’s actions will almost certainly make the situation worse, setting back the cause of statehood even farther. By taking this tack before the Israeli elections, which are set for March 17, he has given Israeli hard-liners new ammunition to attack the Palestinians and reject new peace talks.’

“Underlying these responses is the assumption that Palestinian leadership…would prefer to negotiate with [Netanyahu’s] more conciliatory alternatives, Isaac Herzog and Tzipi Livni. It is this assumption that creates the apparent conflict between Palestinian priorities (a negotiated settlement with Israel) and actions (weakening Israeli doves in the middle of election season). This assumption is faulty. Palestinians likely view Netanyahu’s opponents as wolves in sheep’s clothing; Herzog and Livni appear reasonable to the world but are unlikely to offer anything that Palestinians consider acceptable. In the absence of a prospective agreement, negotiations are about optics of blame rather than substance—and in that world, Netanyahu is Palestinians’ best option.

“Imagine for a moment that a sudden surge brings the Israeli center-left to power. From the statements and past actions of figures like Livni and Herzog, we have a fairly good sense of what to expect: respectful and earnest negotiations that culminate in an offer similar to—and likely less generous than—those offers made by Ehud Barak and Ehud Olmert to Abbas and his predecessor, Yasser Arafat. These offers were both, of course, rejected as inadequate for Palestinian needs. And in the years since, the position of the Palestinian leadership—on refugees, on Jerusalem, on borders—has only hardened and gained more international legitimacy. The gap between the parties has only widened from a decade ago, but even then the truth was clear: The most that Israelis will offer is less than the least Palestinians will accept.

“Abbas knows this…he must…recognize that politically, a right-wing Israeli government is a diplomatic triumph. International support for Palestinians plummets when Israel is led by leftist leaders who make concrete offers…[that the PA is going to refuse]…”


As to Israel’s response to Abbas’s ICC membership application, it is, as would be expected, furious.

The announcement has already been made that Israel has frozen the transfer of about $125 million from tax funds collected for the PA.,7340,L-4610793,00.html

The PA is screaming “theft,” but it owes the Israeli Electric Company a fortune.


In addition, Israel is

“weighing the possibilities for large-scale prosecution in the United States and elsewhere”

of PA officials including Abbas.

These cases might be put forward via “non-governmental agencies and legal groups that can file lawsuits abroad,” rather than via the Israeli government.


At the opening of the weekly Cabinet meeting this morning, Prime Minister Netanyahu said that:

The Palestinian Authority is “opting for a confrontation with the state of Israel” and “we will not sit idly by. We will not allow them to drag IDF soldiers and commanders to the International Criminal Court in The Hague.

“…it is the heads of the Palestinian Authority, who struck an alliance with the Hamas war criminals, who should be held accountable.
“The IDF will continue to defend Israel with determination and force, and just as they defend us, we will defend them with the same determination and force.”

Appropriately said.  However, if Netanyahu has received advice that the PA efforts at the ICC will likely come to nothing, there is, as well, a bit of grandstanding in this statement – with regard to not allowing them to drag IDF soldiers to the ICC, etc.  Grandstanding, as in, it’s an election time and the nation must know that I am strong.


This leads me directly into a brief discussion of what I have termed the political circus…

Actually, I realized a while ago that while this metaphor is catchy – with its image of multiple activities going on at once, with someone on a high wire and a second person seeking to control lions, while a third is balancing balls in the air – it delivers the wrong message. For a circus suggests fun activity, and I don’t notice many – with the possible exception of Naftali Bennett – who are having fun where this election campaign is concerned.  Quite the contrary.   It is an amorphous and somewhat ambiguous affair, with far far too many tensions.

The Likud has held its primary – to determine its list for the elections – and I conceded readily enough that I am disappointed in the results, which were less solidly nationalist/right wing than I had hoped they would be.

As was to be expected, Netanyahu soundly trounced challenger Danny Danon to head the list; Danon is number 10 on the list.  Following Netanyahu in the top 15 slots are Gilad Erdan – not someone to get excited about, then Yuli Edelstein, Yisrael Katz and Miri Regev – all quite good.  But in slot six, a weak Silvan Shalom, followed by Moshe Ya’alon, who has been a severe disappointment.  Number eight is a top notch Ze’ev Elkin, with a weak Tzachbi Hanegbi following.  Yariv Levin and Ofir Akunis – slots 12 and 15 – are both top notch, with Yuval Steinitz and Gila Gamliel both OK but not enormously strong.  Avi Dichter, in slot 20, is not good news.

Should Likud garner 24 mandates, then the passionately Zionistic Ayub Kara would get back into the Knesset, and I would love to see that.

Final Likud list
Credit: YNet

Missing is Tzipi Hotovely, who had been a fiery MK with some good instincts.  And Moshe Feiglin, whose ouster, it is being strongly suggested, involved machinations behind the scenes.

There is no “Wow!” for this list, no matter how delighted Netanyahu declared himself to be.


I spoke above about the fact that Bennett may be having fun.  He “starred” in a couple of entertaining recruitment videos for Habayit Hayehudi.

The recruitment has now ended, but a vigorous drive increased the number belonging to the party, which will have an effect on the primary for this party, yet to come. Bennett seems to be stretching to make the party as inclusive as he can.  (See below.)  The slogan that has been adopted is that the party is for

“those who love the people of Israel, the Land of Israel and the Torah of Israel.”


Lieberman, head of Yisrael Beitenu, is all over the place, and coping with significant corruption charges – not against him but rather several members of his party.  Painful. Shameful.

Eli Yishai, who did make a nationalist statement a while ago, has not yet clearly defined the nature of his party.  While Shas, from which he withdrew, is imploding.  Head Arieh Deri – embarrassed by a video in which deceased religious head Rav Ovadiah Yosef severely criticized him – submitted a resignation, but has since hinted he will continue to lead the party.

And the Herzog-Livni duo?  As far as I am concerned, the less said about them the better.  Perhaps it is here that the circus metaphor most aptly fits, because I see them as clowns.  Their positions, their criticisms of the government, do not seem truly serious at all.  But – go know! – according to the polls, there is a segment of the population that would vote for them.

Enough said for one go-round.


Ahmed Tibi, an MK who heads the United Arab list – Ta’al is loyal to the Palestinian Authority, even though he holds Israeli citizenship.  This is commonly known.  He once served as an advisor to Arafat.  Yesterday he led a procession to the Temple Mount and raised a Palestinian flag there, declaring, “Al-Quds [Jerusalem] is Arab and the capital of Palestine and the Al-Aksa mosque is a place of Muslim prayer.”

Are we crazy, that loyalty to the State is not required of those who sit in her Knesset?   With this, we are charged with being apartheid.

Ironically, the Israeli Arabs seem to have the very worst representing them in political parties.


But there is a flip side to this story here, with Anett Haskia, an Arab Muslim Israeli whom Tibi calls a traitor.

Her three children have served in the IDF and she is encouraging Arab Israeli youth to do national service to give back to their country.  She calls the Arab Israeli MKs a “fifth column bent on Israel’s destruction.”  And she is running for the Habayit Hayehudi list.

Interesting, to say the least. Refreshing.


© Arlene Kushner. This material is produced by Arlene Kushner, functioning as an independent journalist. Permission is granted for it to be reproduced only with proper attribution. Contact: akushner18@gmail.com

If it is reproduced and emphasis is added, the fact that it has been added must be noted.


“We Have Legal Grounds” –
“We Have Legal Grounds” –

Check Also

From Israel: “Give No Quarter!!”

The world is in horrendous shape.  And yet, yet the focus is on us, here …