THE HABIBI LIBEL TRIAL: DEFAMATION AND THE HIDDEN-COMMUNITY BASIS OF CRIMINAL LAW

Abstract

Does the link between national community and criminal law reflect a practical limitation on the jurisdiction of domestic courts or is there a more intrinsic relation between the two? This question stands at the centre of the ongoing debate over the principle of universal jurisdiction – the ability of third-party national courts to adjudicate criminal cases that involve communities outside their territories. This article suggests that we can find the key for understanding the community basis of criminal law in the neighbouring field of libel law. At its centre stands the libel trial of Emile Habibi against the editors of Al-Sinara that took place in 1988–90. Libel law provides an interesting arena for exploring the community component of criminal law, as it takes its guidelines for recognizing defamation from an ‘imagined community.’ Habibi, an Arab citizen of Israel, a writer, and a political leader, was accused by the editors of Al-Sinara of having collaborated with the Zionist forces during the war of 1948 and having thereby contributed to the Palestinian Nakba (the catastrophe). Habibi sued in an Israeli court, arguing that such accusations amounted to defamation. The case raises several fundamental issues: can the story of the Palestinian Nakba of 1948 be told in an Israeli court? what are the normative implications of recognizing this narrative? and more broadly, are national courts capable of distancing themselves from the demands of ‘heroic history’ and recounting the perspective of the defeated? As the article shows, the legal process offers moments of subversion and resistance and invites the court to acknowledge the ramifications of adhering to the hegemonic Zionist narrative of the 1948 war.