Those questions were all in play in a civil negligence claim brought against the Israeli state by Corrie’s family, who claimed $1 in damages. Having exhausted other avenues, the family were looking for answers, not a pay out. The Haifa District Court examined the issues over 15 days of oral testimony, and two weeks ago Judge Oded Gershon released a 73-page ruling (Hebrew) as well as a detailed summary of the Judgment (English).
I was particularly interested in the judgment as a significant proportion of my work recently has involved public inquiries into allegations against the British Armed Forces over events which happened in Iraq in 2003/4. Unfortunately, the reporting of the ruling has been fairly poor. The Guardian published eight articles and a cartoon about the ruling (by comparison, the appointment of a new Justice Secretary generated four). But despite the sheer volume of commentary, I had no sense from reading the articles that the writers had attended the oral hearings, read the judgment (which is long and in Hebrew) or even consider the court’s English summary. The Guardian’s legal section is very good so it is disappointing that the legal interest of the story was largely ignored.
With this in mind, I thought I would post a summary of the judgment and brief discussion of how an equivalent claim would work in the UK.
Two issues
Rachel Corrie was killed in 2003 whilst attempting to stop house demolitions by the Israeli military. At the time, the Israelis and Palestinians were in the depths of a bitter conflict known as the Second Intifada, or uprising. Corrie was part of a group organised by the International Solidarity Movement.
This was a civil negligence claim, and there were two main issues. First, whether the area in which Corrie was attempting to stop house demolitions on behalf of the International Solidarity Movement was “a war-related action” as defined in Israel’s Civil Wrongs Ordinance (CWO). This was essential to the case as according to Article 5 of the CWO in operation at the time,
The State is not civilly liable for an act done in the course of a war operation of the Israel Defense Forces
So, if Corrie’s death occurred “in the course of a war operation“, then the state could not be liable in civil negligence. “War operation” is defined as “any action combating terror, hostile acts, or insurrection, and also an action intended to prevent terror, hostile acts, or insurrection that is taken in a situation endangering life or limb“.
The CWO has seen some changes both before and after Corrie’s death, as detailed here. There has been a regular back and forth between Israel’s Supreme Court and the Knesset (parliament), limiting and expanding the scope of liability for accidents. A few months before Corrie’s death, the definition of ‘war operation’ was expanded to include anti-terrorist operations.
The king can do no wrong
Exemptions for negligence liability in war zones are not unusual. Here in the UK, the Armed Forces used to enjoy a wide statutory exemption, including any acts which occurred whilst a member was “on duty” (a reflection of the ancient principle of Crown Immunity, also known as the “king could do no wrong”). That was repealed in 1987 but remained in force for events occurring prior to that date (the House of Lords later found this to be compatible with the European Convention on Human Rights). Since then, the courts have continued to refuse claims which occurred during combat operations, although the Armed Forces’ policy is to compensate soldiers for certain injuries anyway.
As to enemy combatants or third parties, until recently there was little hope of succeeding in a damages claim, but the European Court of Human Rights had a lot to say on this in 2011 – see our posts on Al-Skeini and Al-Jedda. As a result, any future wars may generate a significant number of damages claims under the Human Rights Act which prior to 2011 would have been impossible. Israel is not signed up to the ECHR, although it has ‘observer status’ at the Council of Europe, so a similar international claim would not be possible there.
Returning to Rachel Corrie, the Israeli court found that the bulldozer which killed Corrie was indeed involved in a “war related action”:
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.
Indeed, the court found that “mission did not include, in any way, the demolition of homes”, the very action which Corrie was acting to prevent.This therefore put paid to the negligence claim, as under the CWO there was no liability. Of course, this could be appealed – see this article by the family’s lawyer who disputes the finding that the area was a closed military zone, which I assume (although this is not clear from the summary) may have a bearing on whether the bulldozer was engaged in a “war related action”.
In any event
Despite the “war related action” finding being enough to dispose of the action, the Judge went on to make detailed findings on the facts. Why? Because if the family succeeds on appeal in showing that the action did not occur as part of a war related action, then the Supreme Court will have to examine the facts to see whether it would be fair to impose liability on the state. If so, Corrie’s family face some very significant challenges.
For example, the IDF force were “very careful” not to harm the activists, having “repeatedly relocated to continue carrying out their mission“. As to what the Bulldozer could see and hear (the coverage has made much of the fact that Corrie was wearing a bright orange vest), Corrie was in the driver’s “blind spot“, having been “behind the bulldozer’s blade and behind a pile of dirt“. It appears that Corrie was already partly buried in a pile of dirt by the time the bulldozer hit her. Perhaps the most difficult piece of evidence for the family’s case is this:
an expert who testified on behalf of the Corrie family also noted that the driver could not and did not see Ms.Corrie due to the nature of the vehicle he was operating
If the family’s own expert witness agreed that the driver could not have seen Corrie, it is difficult to see how he could have been negligent. It might be said that knowing that there were activists in the area, those carrying out the mission should have simply stopped in order to avoid danger to them. But that point can only be taken so far; I am fairly confident that an English court would also sympathise with an Army fighting a war (which in March 2003 this undoubtedly was) having to deal with activists attempting to sabotage that effort.
Blaming the victim
Much has been made of the court “blaming the victim”. This is the most difficult part of the ruling. Based on the imperfect Google translation of the judgment that I read, it seems that the judge was particularly critical of Corrie’s actions as was as those of the International Solidarity Movement. My impression was that some of the criticisms may have crossed the line to political rather than judicial statements, excoriating the movement and its alleged collusion with terrorists. But those points, whether inappropriate or not, were incidental to the claim, which focussed necessarily on the narrow facts of this incident in deciding where blame lies. And on that, the judge ruled:
[Corrie] put herself in a dangerous situation. She stood in front of a large bulldozer in a location where the bulldozer’s operator could not see her. Even when she saw the pile of dirt moving towards her and endangering her, she did not remove herself from the situation, as any reasonable person would have. The decedent began to climb the pile of dirt, got tangled up in it, fell and eventually died
This may be difficult reading for the family but I cannot see much that would be out of place in an ordinary English negligence claim. Perhaps by saying that “any reasonable person would have” moved out of the way somewhat ignores and undermines the courage Corrie undoubtedly demonstrated in challenging what she saw as unlawful and immoral action in a non-violent fashion. But applying ordinary negligence and contributory negligence and volenti (voluntary assumption of risk) principles, she did put herself in harm’s way and therefore may well have borne some or all of the blame for what happened.
Trouble with memory
All that said, there is an important proviso in relation to the facts of this case. This was a case which hinges on just a few moments. And the court was examining a few moments which occurred almost ten years ago. As such, I have no doubt that however well the witnesses who gave evidence say they recall events, their memories will have been imperfect at best. From my experience, people (including me) often cannot remember what happened to them a year ago, let alone a decade ago.
This means that in getting to the bottom of things, much reliance will have to be placed on investigations which were carried out much closer to the events. The family has always said these were flawed. The judge ruled that they were not, but again that might be a point of appeal. The US Ambassador to Israel has criticised the initial investigation. But if the investigation was inadequate, unfortunately there may be little that can be done to rectify that now.
A troubling case
It is quite possible that the Israeli Supreme Court will have more to say about Corrie’s death. But the legal hill which the family need to climb is steep. Even if Judge Gershon was wrong on whether combat immunity applied at the time and place of Corrie’s death, the Supreme Court will have to rely on many of his factual findings, although it may be possible to quibble with the conclusions he reached from them. The fact that the Corrie family’s expert accepted that the bulldozer driver would not have seen her will be particularly difficult to overcome, as it would be in any negligence claim on these shores.
As I have said, the coverage was also troubling. It is a shame, although not surprising, that The Guardian chose to call the result a whitewash without really explaining why that was, how or why an independent judge participated in it and how to explain some of the difficult factual findings he made without any reference to the evidence. My impression is that those conclusions were reached long before this detailed judgment was released.
The intense politicisation of this case is regrettable as there are a lot of interesting issues, aside from the troubling facts, which are relevant here: the proper scope of combat immunity, the adequacy or otherwise of internal military investigations, the difficulty which the British Armed Forces may face in the next war with the potential for hundreds or even thousands of negligence claims arising afterwards following the European Court of Human Rights’ recent rulings. Politicised coverage of legal judgments helps no one, including the victims of tragedies such as the death of Rachel Corrie.
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