Wednesday, 29 August 2012

The Rachel Corrie Case and the judicial reasoning for its dismissal

Media bias was much in evidence recently with prejudicial coverage of the judgement on the Rachel Corrie case being beamed around the world. Judge Oded Gershon, of the District Court in Haifa, rejected the lawsuit brought by Corrie’s parents. He ruled that her death was an accident, which was caused by highly dangerous acts leading to her demise, after having intentionally entered a conflict zone during the height of the Second Intifada.

Rachel Corrie burning an Israeli flag

The case lasted two and a half years, yielding fifteen court hearings which producing several thousand pages of court transcripts. Apparently the ruling came after an extensive study into the events causing her death:
The verdict was based on three investigations that made clear that the driver could not see Corrie and could not have avoided the "tragic accident," the State Prosecutor’s Office said in an e-mailed statement. It said an expert who testified on behalf of the Corrie family agreed with the finding.
There has been a great deal of debate online, with pro-Palestinians rather absurdly insisting that Rachel's megaphone, located a significant number of metres away, could somehow be heard by a driver in an enclosed space that was heavily shielded, above the roar of an immense engine contained within a very large 50 ton Caterpillar D-9 series bulldozer. The IDF heavily reinforce these vehicles against attack to such an extent that they can withstand the results of heavy explosive devices, rocket propelled grenades, and heavy machine gun fire. They are commonly used to clear dangerous areas, which has minimised IDF casualties. 

An armoured Caterpillar D-9 Series

Notably, photographs making Corrie seem in sight of the bulldozer that killed her have been spread around on the Internet by pro-Palestinian websites but these images actually show Corrie in front of a smaller bulldozer some hours earlier that day.

Similar obfuscations have arisen regarding to the driver’s ability to see Corrie. The field of vision on the D-9 bulldozer is of course limited, leading Corrie’s colleagues to state that she was standing in front of the bulldozer. However, reports and statements at the time assert that Corrie actually "dropped to her knees" before later behaving in a bizarre nigh on suicidal fashion by climbing the dirt mound gathered by the approaching bulldozer.

One notable point is that the judge firmly stated the IDF were not demolishing houses that day. It has been a constant pro-Corrie line that she was defending a Palestinian family, and her father Craig has been displaying a picture of the six year old girl who is a member of the family that Corrie was supposedly shielding. However, it seems increasingly apparent that Corrie and the ISM (International Solidarity Movement) were actually harassing the IDF when they were trying to clear land to improve visibility in a location that posed a great deal of risk to soldiers, which commentators, such as Lee Kaplan, have pointed out. This point was apparently echoed in an old unreleased IDF report on Corrie's death. It casts her actions in a very different light - a hardly defensible one. Such an action would be aiding terrorist activity, totally devoid of any humanitarian context. This is a plausible point because the ISM, of which Corrie was a member acting upon their instruction, have quite a reputation for aiding terrorists.

Unfortunately very little space was devoted to the judicial finding, an oddity considering it precipitated the story. With so much preferential coverage, it is of little wonder that Corrie’s parents are seeking an appeal.

Indeed some commentators suspect the case was more an effort to delegitimise Israel than an attempt to right some supposed injustice, since the Corrie family wholeheartedly support extreme pro-Palestinian stances. With a dedicated play having been shown prolifically in numerous countries, books, documentaries, and over thirty songs written about her, it should be clear by now that Corrie's death has become a kind of fetish, essentially a pro-Palestinian cult - her death cynically used as a useful propagandistic tool due to her youth, gender and American nationality.
We are upset and saddened by the verdict. This is a sad day not only for our family, but also for human rights, for the legal system and for the State of Israel.
So says Rachel's mother Cindy. Corrie's death was of course a great tragedy for her family. However, there is reason to think Rachel's mother was being less than sincere. Perhaps the most disturbing aspect of the Corrie case is the wilful use of her death by the pro-Palestinian movement to promote the demonisation of the Israeli State. This came after the ISM, which is a leading group within that movement, placed her (and many others like her) in extreme danger, which is a central element of their strategy. To quote ISM's co-founders, Adam Shapiro and Huwaida Arraf, one year before Corrie's death:
The Palestinian resistance must take on a variety of characteristics, both non-violent and violent... In actuality, nonviolence is not enough... Yes, people will get killed and injured... no less noble than carrying out a suicide operation. And we are certain that if these men were killed during such an action, they would be considered shaheed Allah.
Therefore, it is a terrible irony that this very demonisation is something which the Corrie's themselves not only indulge but actually promote to a very substantive extent, such as by targeting Caterpillar with repeated lawfare efforts. The Rachel Corrie Foundation has even been linked with possible intimidation so it is little wonder that the Corrie's chose an extremist like Hussein Abu Hussein to lead their case.


Highlights of the Judge's concluding remarks concerning the Rachel Corrie lawsuit

Quoted highlights of Judge Oded Gershon's detailed conclusions on the case, with some further remarks.
5. After hearing many witnesses from both sides, including expert witnesses, and studying the extensive summations from representatives of both sides, I hereby determine as follows:

a. During the relevant period of time, the "Philadelphi Corridor" was the site of daily warfare, i.e. daily gunfire by snipers, missile fire and IED explosions directed at the IDF forces. During this period, unceasing efforts were made to kidnap IDF soldiers. Only soldiers who were in combat units fought in the region.

According to the notes made in the IDF records, from September 2000 to the date of the incident that is the focus of this lawsuit (March 16, 2003), nearly 6,000 grenades had been thrown at IDF forces in the Corridor; there had been approximately 1,400 incidents of gunfire; and there were more than 40 occurrences of mortar fire. These aforementioned events led to the injury and death of many Israelis. [...]

b. During the period pertinent to this case, there was a military directive in force declaring the "Philadelphi Corridor" a "closed military area" and forbidding the entry of civilians.
The actions of the ISM (International Solidarity Movement), a notorious pro-Palestinian group, were also scrutinised since Rachel Corrie was a high profile member partaking in ISM activities that day:
c. The ISM assigned itself the task of working alongside the Palestinians against the "Israeli occupation" by using what it called "non-violent protest activities". However, the evidence presented to me shows a significant gap between the Organization's statements and the true character of its activities and actions. The actions taken by the members of the organization, in practice, do not match its statements. In fact, the Organization exploits the dialogue regarding human rights and morality to blur the severity of its actions, which are, in fact, expressed through violence.

Inter alia, ISM activities included "defending" Palestinian families, even ones that were engaged in terror activities. The Organization's activists "specialized" in sabotaging the IDF's operational actions. ISM activities included, inter alia: stationing activists to serve as "human shields" for terrorists wanted by Israeli security forces; financial, logistical and moral assistance to Palestinians, including terrorists and their families; interrupting demolition activities or the sealing off of houses belonging to terrorists who conducted suicide attacks with multiple casualties.
The judge provided some context surrounding the incident, and addressed the objectives of the IDF that day. He asserts that the aim was to level the ground and clear undergrowth rather than demolish homes:
d. The mission of the IDF force on the day of the incident was solely to clear the ground. This clearing and leveling included leveling the ground and clearing it of brush in order to expose hiding places used by terrorists, who would sneak out from these areas and place explosive devices with the intent of harming IDF soldiers. There was an urgency to carrying out this mission so that IDF look-outs could observe the area and locate terrorists thereby preventing explosive devices from being buried. The mission did not include, in any way, the demolition of homes. The action conducted by the IDF forces was done at real risk to the lives of the soldiers. Less than one hour before the incident that is the focus of this lawsuit, a live hand-grenade was thrown at the IDF forces.

e. I hereby determine that, on the day of the incident, the two bulldozers and the armored personnel carrier were occupied with the clear military operational task of clearing the land in a dangerous area which posed a significant risk. The force's action was designed to prevent acts of terror and hostility, i.e. to eliminate the danger of terrorists hiding between the creases of land and in the brush, and to expose explosive devices hidden therein, both of which were intended to kill IDF soldiers. During each act of exposure, the lives of the IDF fighters were at risk from Palestinians terrorists. […]

For this reason, I hereby determine that the act of clearing the land with which the IDF force was occupied during the event was "a war-related action" as defined in The Civil Wrongs Ordinance.
Thus, the judge believes Corrie was interfering with an IDF operation to make an area safe, rather than preventing a house demolition.

The intent and actions of Corrie leading to her unfortunate death were addressed in detail:
f. On March 16, 2003, the decedent and her fellow ISM activists arrived at the location where the IDF force was working to clear the land. They did so, they claim, in order to prevent the IDF force from demolishing Palestinian houses. They did so illegally and in contradiction of the military directive declaring the area a "closed military area". They held signs, stood in front of the bulldozers and did not allow them to carry out their mission. The IDF soldiers informed the activists that they had to distance themselves from the area, threw stun grenades towards them, fired warning shots towards them and used methods to disperse demonstrations. All without avail.

The IDF force was very careful not to harm the Organization's activists. Because of the activists' interference, the force repeatedly relocated to continue carrying out their mission.

g. Based on the evidence presented to me, including the testimony of the expert for the prosecution, Mr. Osben, I hereby determine that at approximately 17:00, the decedent stood roughly 15 to 20 meters from the relevant bulldozer and knelt down. The bulldozer to which I refer was a large, clumsy and shielded vehicle of the DR9 model. The field of view the bulldozer's operator had inside the bulldozer was limited. At a certain point, the bulldozer turned and moved toward the decedent. The bulldozer pushed a tall pile of dirt. With regard to the field of view that the bulldozer's operator had, the decedent was in the "blind spot". The decedent was behind the bulldozer's blade and behind a pile of dirt and therefore the bulldozer's operator could not have seen her.

The bulldozer moved very slowly, at a speed of one kilometer per hour.

When the decedent saw the pile of dirt moving towards her, she did not move, as any reasonable person would have. She began to climb the pile of dirt. Therefore, both because the pile of dirt continued to move as a result of the pushing of the bulldozer, and because the dirt was loose, the decedent was trapped in the pile of dirt and fell.

At this stage, the decedent's legs were buried in the pile of dirt, and when her colleagues saw from where they stood that the decedent was trapped in the pile of dirt, they ran towards the bulldozer and gestured towards its operator and yelled at him to stop. By the time the bulldozer's operator and his commander noticed the decedent's colleagues and stopped the bulldozer, a significant portion of the decedent's body was already covered in dirt.

The decedent's entire body was not covered in dirt. In fact, when the bulldozer backed up, the decedent's body was seen to free itself from the pile of dirt and the decedent was still alive.

The decedent was evacuated to the hospital and after 20 minutes, her death was declared.
It is notable that Corrie’s team claim she had died before reaching hospital.
I hereby determine unequivocally that there is no foundation to the plaintiffs' claim that the bulldozer struck the decedent intentionally. This was a very unfortunate accident and was not intentional. No one wished to harm the decedent. I was convinced that the bulldozer's operator would not have continued to work if he had seen the decedent standing in front of the bulldozer, as he and his colleagues acted in similar circumstances earlier that day, when they moved from location to location because of the disturbances caused by the members of the Organization. […]
Other claims by the Corrie legal team of an unprofessional investigation and loss of evidentiary material, appear to have been perceived by the judge as muckraking:
i. The plaintiffs claimed that evidentiary damage was done in two areas: first, they claim that the Criminal Investigations Division (CID) investigation carried out after the event was sloppy and unprofessional and led to evidentiary damage for the plaintiffs; the second area, which refers to the responsibility of the Institute for Forensic Medicine for evidentiary damage caused to the plaintiffs as a result of the violation of the judicial order and the destruction of the recording documenting the decedent's autopsy.
Bizarrely the Corrie legal team objected to a crucial investigative file being submitted to the court:
It could be expected that, in light of the claim made above, the plaintiffs' representative would submit to the court the file of the investigation conducted by the CID so that I could form my own opinion regarding the investigatory actions carried out and the manner in which the investigation was carried out, and to learn if the actions taken by the CID were sufficient or not. However, it was the plaintiffs that objected to submitting the full file of the investigation as evidence, even though the defendant agreed to do so. Thus did the plaintiffs, by their own actions, introduce circumstances in which an extremely important tool to examine their claims was denied to the court. […]

Investigators from the CID concluded that in order to advance the investigation, an autopsy would have to be performed on the decedent. As a result, they approached the District Court in Rishon LeZion and asked for a court order that would allow for such an autopsy. The court order "…that the body be autopsied at the Abu Kabir Institute for Forensic Medicine by a doctor who is not in the military and in the presence of a representative of the American State Department" (Exhibit 6/T).

Professor Hiss testified that since the American Consulate saw no need to send a representative to be present at the autopsy, the autopsy was conducted, with the family's agreement, without a consular representative. He also testified that the Consulate sent a fax confirming that the autopsy could be conducted without a representative from the family (Exhibit 11/T). […]

The family's desire was to receive the decedent's body as soon as possible. Indeed, the family did not conduct any additional examinations after receiving the decedent's body and it was cremated: see Mr. Craig Corrie's testimony.
The judge concluded by dismissing the case, although the Jewish State was ordered to cover its own legal costs due to the unfortunate "circumstance surrounding the decedent's death".
l. With regard to grounds for negligence: I am convinced that, given the circumstances created at the location of the incident, the actions taken by the force were without fault. Indeed, the field of vision of the bulldozer's operator was limited. However, the decedent's field of vision while she stood in front of the bulldozer and knelt down was open and without any limitation. The decedent could have distanced herself from any danger without any difficulty. However, she chose to take the risk described above, and that eventually led to her death.


Cormac said...

Interesting, I wasn't aware of the circumstances regarding her death before.I can't be sure but as far as I'm aware the Palestinians killed more foreign nationals during the second intifada than what Israel did.Seems like the media didn't bother document all their stories one by one.

Rob Harris said...

Hi Cormac, I was thinking along those lines when I was going to write a longer piece on Corrie but I couldn't find the total deaths. However, from a few sources the consensus in recent years is:

"At least 54 U.S. citizens have been killed in Palestinian terror attacks since 1993. Another 83 have been wounded, some seriously." - many Jewish but certainly not all. Many were tourists which IMHO makes these deaths worse than Corrie's because they were engaged in purely peaceful activities.

There were many attacks before that, especially on planes which killed many American citizens. And lets not forget that presidential hopeful!! Leaders within the Palestinian community have been exhorting their people to kill Americans for decades but all we hear is pro-Palestinians going on about one "poor American girl"...

Rob Harris said...

Sorry I see you meant the Second Intifada - I suppose the deaths listed in Israel and the West Bank between September 2000 and sometime in 2004 would cover it.

Cormac said...

Yeah but conspiracy theorists have been successful in blaming the CIA instead of Sirhan Sirhan for that.Exactly most were tourists not all American either, some were Chinese, British and Swedish citizens who came to enjoy a holiday, in a way Corrie got what she deserved, should of being enjoying her 20s instead of acting like a human shield.

Rob Harris said...

"most were tourists not all American either, some were Chinese, British and Swedish citizens who came to enjoy a holiday"

Absolutely, and then there is the noble contribution of other pro-Palestinian "internationals", such as two British men (opps I forgot the Muslim bit - must be force of habit) who went to honour Corrie's grave before blowing themselves up at a bar called Mikes Place!

BTW an article, written a year after Corrie’s death, summed the whole issue up: "A Tribute to Rachel Corrie - Thanks for showing us what "peace" really means"

Cormac said...

Yeah I remember that bombing being on the news, thanks for the link by the way.

Paul said...

Great article Rob. Personally I had always felt that Corrie was a deranged lunatic and her family poisonous terrorist supporters. However I had also believed that she was seeking to prevent houses being bulldozed, including one that had been used to store munitions. It's depressing to read that she was even more nefarious than that, the real villains are the ISM; they're scum that make NORAID look like reasonable folks. I will cross-post this to my blog.