Palestinian Authority President Mahmoud Abbas wants to sue Foreign Minister
Avigdor Liberman for incitement in the International Criminal Court.
good measure, Liberman wants to sue Abbas for being complicit in terror
Abbas says Liberman’s recent letter purporting to push for his
ouster was tantamount to a call for his assassination. Liberman says that Abbas,
as a leader of the PLO, was responsible at the very least for being complicit in
what was at one point viewed as a terrorist organization.
individuals from Fatah may still be involved in terror, no one from the Israeli
government has recently accused the Palestinian Authority of such
Neither of them has a leg to stand on and the reasons are
Let’s start with jurisdiction, or a court’s right or authority to
even hear an issue. Abbas can’t sue Liberman in the ICC because even though you
can sue individual defendants in the ICC for various war crimes, only states can
do the suing.
The PA is not yet a state. This is not just a diplomatic
The ICC itself went through over a year of debate and
entertaining legal briefs from pro-Israel and pro-Palestinian legal bodies all
over the world before deciding that it simply could not hear Palestinian
allegations of war crimes against Israelis from Operation Cast Lead in December
2008- January 2009, because the PA is not a state. The same roadblock would stop
Abbas from suing here.
Israel is a state, but also can’t show up in front
of the ICC to sue. Quite simply, Israel has chosen not to ratify the Rome
Statute of 1998 in which a state recognizes the authority of the
Theoretically, there are provisions in the statute for ratifying
it after a crime occurred and the ratification would give the court retroactive
But Israel would never do that, or at least not anytime
soon, because the same retroactive provisions could expose Israel to war crimes
lawsuits by many other unfriendly neighbors that are states and that could sue
Israeli soldiers and even possibly settlers at the ICC.
retroactive power of the Rome Statute only goes back in time to 2002 when the
court started. While officials have alleged that late PA president Yasser Arafat
was involved in terrorism behind the scenes even post-Oslo and especially during
the second intifada, no government official has ever accused Abbas of such
involvement post-Oslo and certainly not after 2002.
In fact, the most
often and worst fact stated against Abbas is a work he wrote in the 1980s
denying or undermining aspects of the Holocaust. In other words, long before
2002 and while highly problematic, hardly proof in a case to prove
Still, let’s say jurisdiction wasn’t an issue.
still no leg to stand on for either side.
For one, neither of the crimes
that they accuse each other of really exist before the ICC.
Liberman of incitement against him personally.
The ICC does include a
crime called incitement to commit genocide against a people under the statute’s
Article 25(e)(3). Maybe Abbas’s lawyers could try to manufacture an argument
whereby Liberman’s statement that he should be ousted is not only incitement
against him, but as leader of the PA, incitement against all
But that just makes the whole business an even harder
When the temporary International Criminal Tribunal for Rwanda
pursued cases of incitement to commit genocide in the 1990s, the statements in
question were explicitly about genocide.
In fact, some statements that
prosecutors thought fit the bill were thrown out as mere “hate speech.” In other
words, even really nasty statements against the backdrop of actual genocide
might not be enough in a real court of law.
Liberman’s statements seem to
pale in comparison in terms of how grave they sound.
More important, even
if there was a crime of incitement against an individual, cases before the ICC
are in some ways no different than any criminal case. You need to prove the
crime against the accused beyond a reasonable doubt.
Liberman does have a
history of controversial statements (such as calling for bombing the Aswan
damn), but until the PA raised the specter of a lawsuit, all news reports from
every side of the conflict assumed that Liberman was trying to put diplomatic
pressure on the Palestinians to remove Abbas themselves, and to give him early
No one spoke of assassination.
It would be hard to
prove incitement beyond a reasonable doubt about a statement that virtually no
one viewed as incitement to kill.
Liberman’s case against Abbas is
similarly dead in the water.
In his allegations for his potential
lawsuit, Liberman talked of terror by the entire PA, lumping Abbas into the
There is no crime of terrorism before the ICC or in front of any
international body, except for the Special Tribunal in Lebanon investigating the
2005 assassination of Rafik Hariri, and its jurisdiction is limited to that
But Liberman could modify the allegations to murder or some
other war crime. Again, when the allegations come as part of a general lumping
of all PA leaders together, as opposed to any specific allegations whatsoever,
the chances of proving guilt beyond a reasonable doubt are almost nil.
since these allegations have no real meat to them on either side legally, we
return to what all of this bluster is really about: another way to attack each
other diplomatically by two political leaders who don’t like each other very
One hopes the two leaders will at least save some trees (from the
mounds of paper that the lawsuits would undoubtedly require for legal briefs),
wasted attorney fees and wasted court time, and leave the threats outside the
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