Analysis: No leg to stand on

Efforts by Abbas and Liberman to sue each other in the International Criminal Court are legal nonstarters.

Liberman BS 311 (photo credit: Benjamin Spier)
Liberman BS 311
(photo credit: Benjamin Spier)
Palestinian Authority President Mahmoud Abbas wants to sue Foreign Minister Avigdor Liberman for incitement in the International Criminal Court.
For good measure, Liberman wants to sue Abbas for being complicit in terror attacks.
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.
(While individuals from Fatah may still be involved in terror, no one from the Israeli government has recently accused the Palestinian Authority of such activity).
Neither of them has a leg to stand on and the reasons are many.
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 judgment.
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 court.
Theoretically, there are provisions in the statute for ratifying it after a crime occurred and the ratification would give the court retroactive jurisdiction.
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.
Also, the 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 terror.
Still, let’s say jurisdiction wasn’t an issue.
There is 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.
Abbas accuses 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 Palestinians.
But that just makes the whole business an even harder sell.
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 retirement.
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 mix.
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 incident.
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.
So 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 much.
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 courtroom.