Israeli judge dismisses damage suit in death of Rachel Corrie, but NY Times still clings to the myth

An Israeli judge, after an exhaustive trial, dismissed a damage suit brought by the parents of Rachel Corrie, who was run over by a military bulldozer in the Gaza Strip in 2003.  The judge ruled that her death was a "regrettable accident," brought about by her failure to keep out of a military zone during the second intifada.  His decision clears the Israeli military of any wrongdoing. 

It notes that the operator of the bulldozer could not have seen Corrie as she climbed aboard a pile of dirt and then lost her footing.  Corrie was a 23-year-old activist and member of the International Solidarity Movement, known for its violent tactics in radical causes.   Her death quickly turned her into a mythical icon -- a martyr  --  for the Palestinian cause.

Stripping away all the anti-Israel legend, the judge handed down a lengthy ruling that, point by point, corroborated Israel's own investigation that there was no intent or negligence on the part of the bulldozer operator, while Corrie engaged in reckless behavior as an all-too-willing human shield for Palestinian provocateurs.

Western media perpetuated the Corrie sacrificial myth and she gained global fame in a stage play.  Judging from early dispatches about the court's anti-Corrie ruling, mainstream media and other liberal, cultural outlets are not about to let a judge's decision get in the way of their Corrie adultation.

For example, the New York Times, in an article by Jerusalem bureau chief Jodi Rudoren on the paper's website, pays minimal attention to the findings of the court, while spilling more ink about the displeasure voiced by critics of its ruling.   In a 15-page dispatch, Rudoren devotes nine paragraphs to the pro-Corrie side, but only four paragraphs to the contents of the judge's ruling and  supportive comments of Prime Minister Netanyahu's office.

The Times' spin is accentuated by the uneven tilt at the top of the article -- a single paragraph on the contents of the ruling, followed immediately by three paragraphs of strong disagreements with the judge's findings and conclusions.

Never mind realities.  The Corrie myth goes on.

Update:English Summary of the Rachel Corrie Verdict

(TRANSLATION PROVIDED BY THE GOVERNMENT PRESS OFFICE)
Summary of the Verdict (T.A. 371/05) Estate of the Late Rachel Corrie, etc.
v. The State of Israel - Ministry of Defense
1. The decedent, Rachel Corrie, was born on April 10, 1979. She was an
American citizen, residing in Olympia, Washington. On March 16, 2003, the
decedent was killed during an incident which is the focus of this lawsuit.
She was 24 years old.
The decedent was an activist in the International Solidarity Movement
(hereafter: "the Organization" or "the ISM").
2. In this lawsuit (T.A. 371/05) the plaintiffs, the estate of the late
Rachel Corrie (hereafter: "the decedent"), the decedent's parents, brother
and sister, are petitioning to direct the defendant, the State of Israel, to
pay them compensation for special damages and general damages inflicted on
them, they claim, as a result of the death of the decedent during the
incident that is the focus of this trial. In addition to the
aforementioned, the plaintiffs have petitioned to direct the defendant to
pay "punitive damages".
3. The plaintiffs claimed in their lawsuit that on March 16, 2003, the
decedent, together with other activists in the ISM, arrived at the
"Philadelphi Corridor" in the Rafiah area of the Gaza Strip where two
bulldozers and an IDF tank were observed conducting operational activities
in the area. The plaintiffs claimed that the bulldozers were about to
demolish a house in the area and that the decedent and her fellow members of
the ISM stood in the path of the bulldozers in order to prevent them from
implementing their plan.
In Article 8.5 of the Statement of Claim, the plaintiffs claimed as follows:
"At 17:00 or thereabouts, the decedent stood near the house of
Dr. Samir Nasrallah, which was designated for demolition, and one of the
bulldozers was 10 to 15 meters from her. The bulldozers approached the
decedent and pulled dirt from under her feet. The decedent fell and the
blade of the bulldozer ran over her leg and later the bulldozer ran over her
body. When the bulldozer backed up the decedent was gravely injured and was
bleeding extensively, although she was still breathing.
The decedent was evacuated to the Al-Najer Hospital in Rafiah, where her
death was declared after 20 minutes".
4. The plaintiffs claimed that the bulldozer intentionally caused the
death of the decedent. The plaintiffs based their claim on the following
three grounds: assault, negligence and legal grounds.
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.
The United States government issued a travel warning on March 16, 2003 to
warn American citizens against visiting the Gaza Strip area or the West
Bank.
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.
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.
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. As aforementioned, less than an hour before the
incident that is the focus of this lawsuit, a live hand-grenade was thrown
at the IDF force.
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.
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.
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.
h. Because I find, as aforementioned, that the decedent was accidentally
killed in the framework of a "war-related activity" as defined in The Civil
Wrongs Ordinance, and in light of the instructions laid out in Article 5 of
the aforementioned ordinance, the State bears no responsibility for the
damages inflicted on the plaintiffs resulting from a war-related action.
This makes superfluous the need to discuss the cause of action made by the
plaintiffs because legally their demand should be rejected.
Nevertheless, above and beyond what is necessary, I have also decided to
discuss the cause of action filed by the plaintiffs as well as their other
claims.
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.
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.
After examining the evidentiary material and studying the claims made by
representatives of both sides, I reached the conclusion that the CID
investigation was conducted appropriately and without fault.
j. With regard to the claims made regarding evidentiary damages
relating to the Institute of Forensic Medicine:
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).
After examining the evidentiary material and studying the claims made by
representatives of both sides, I reached the conclusion that the plaintiffs'
claim of evidentiary damage by the Institute for Forensic Medicine seems
strange. This is because the decedent's father himself testified that, from
the outset, the family had no intention of conducting an autopsy and that
their intention was to pursue the matter diplomatically in order to clarify
what happened to the decedent. Moreover: it appears that the decedent's
family had no interest regarding the identity of the Consular representative
that was to be present during the autopsy, nor in the type of professional
training they had had. The family wanted a Consular representative to be
present even if a secretary or typist had been sent!
Professor Hiss explained in his testimony that the aforementioned fax was
sent to him after he telephoned the United States Embassy and asked that
they send an American doctor to be present at the autopsy. He claims that
the embassy did not find a need to do so. Professor Hiss asked to receive
approval from the decedent's family and he then received the fax 11/T in
which it is specifically stated that the decedent's family agreed to the
autopsy and that no other faxes would be sent.
I believe that under these circumstances, Professor Hiss was well within his
rights to conclude that, ultimately, the decedent's family conceded its
demand for a representative to be present during the autopsy. 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.
I am aware of the fact that, according to the language of the District
Court's decision regarding the autopsy of the decedent's body, there should
have been a representative of the US Embassy present during the autopsy.
However, under the circumstances, when it was explained that the embassy saw
no reason to send a representative, as Professor Hiss testified, and because
the fax sent to Professor Hiss (11/T) stated that the family agreed to the
autopsy, we can understand why Professor Hiss believed that there was
nothing preventing him from conducting the autopsy without an embassy
representative being present. There is no doubt that the proper course of
action would have been to return to the District Court so that, in light of
the change in circumstances, the court could amend its decision and remove
the condition regarding the presence of an embassy representative. However,
given the circumstances and in light of the aforementioned, it is not clear
what evidentiary damage was made to the plaintiffs' case because of the
conduct of the Institute of Forensic Medicine.
With regard to the plaintiffs' claim regarding the recording documenting the
autopsy, I found no grounds to accept it. It is an audio recording (as
opposed to a video recording) which served as a draft for Professor Hiss
when preparing his report. Recordings like this are made because, during an
autopsy, the doctor's hands are holding scalpels and covered in blood, and
therefore notes cannot be taken. Apparently, the aforementioned audio
recording simply does not exist anymore because, due to budgetary problems,
the Institute of Forensic Medicine recycles tapes (see the testimony given
by Professor Hiss). Under these circumstances, it is not clear what
evidentiary damage was caused to the plaintiffs as a result of the
aforementioned draft having been erased due to recycling.
In summation, with regard to evidentiary damages, I hereby determine that
the two cumulative conditions necessary as laid out in the precedent
determined by the Supreme Court were not upheld. They did not prove that
evidentiary damage was caused which harmed their ability to prove their
claims, nor did they prove that the defendant, through negligence, caused
the claimed evidentiary damage.
k. With regard to grounds for assault I hereby determine that there is no
foundation for such claims because there is no component of "malice". As I
have determined that the decedent was killed accidentally and not
intentionally, legally the claim regarding grounds for assault must be
rejected.
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.
Given these circumstances, I have reached the conclusion that it was not
negligence on the part of the defendant or any of its representatives that
caused the decedent's death. Therefore it can be understood that I reject
the claim that there is any foundation for the grounds of negligence in this
case.
m. The defendant claims a "willing endangerment" defense, in accordance
with Article 5(A) of the Civil Wrongs ordinance. I reached the conclusion
that the foundation for this defense, as determined by the Supreme Court,
has not been proven in this case, and therefore I hereby determine that the
aforementioned defense does not exist with regard to this lawsuit.
However, even though I have determined that it was not negligence on the
part of the defendant or its representatives that led to the death of the
decedent, and although the aforementioned defense does not exist with regard
to this lawsuit, it is not enough to change the result of rejecting this
claim.
n. With regard to legal grounds: It is true that the decedent was killed
during the incident that is the focus of this lawsuit. However, in this
case the defendant did not violate the decedent's right to life. The
decedent 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.
The decedent's death was the result of an accident that the decedent caused.
This occurred despite the efforts of the IDF force to distance her and her
colleagues from the area.
I believe that, under these circumstances, there is no justification to
obligate the State to pay compensation for damages that the decedent could
have prevented, but preferred not to, thereby choosing to risk her life as
she did.
Therefore, I reject the request to obligate the State to pay compensation on
legal grounds.
6. Because of this and in light of the aforementioned, I reject the
lawsuit.
Because of the circumstance surrounding the decedent's death, I will not
make the plaintiffs' pay the legal expenses and each side will bear its own
costs.

 

An Israeli judge, after an exhaustive trial, dismissed a damage suit brought by the parents of Rachel Corrie, who was run over by a military bulldozer in the Gaza Strip in 2003.  The judge ruled that her death was a "regrettable accident," brought about by her failure to keep out of a military zone during the second intifada.  His decision clears the Israeli military of any wrongdoing. 

It notes that the operator of the bulldozer could not have seen Corrie as she climbed aboard a pile of dirt and then lost her footing.  Corrie was a 23-year-old activist and member of the International Solidarity Movement, known for its violent tactics in radical causes.   Her death quickly turned her into a mythical icon -- a martyr  --  for the Palestinian cause.

Stripping away all the anti-Israel legend, the judge handed down a lengthy ruling that, point by point, corroborated Israel's own investigation that there was no intent or negligence on the part of the bulldozer operator, while Corrie engaged in reckless behavior as an all-too-willing human shield for Palestinian provocateurs.

Western media perpetuated the Corrie sacrificial myth and she gained global fame in a stage play.  Judging from early dispatches about the court's anti-Corrie ruling, mainstream media and other liberal, cultural outlets are not about to let a judge's decision get in the way of their Corrie adultation.

For example, the New York Times, in an article by Jerusalem bureau chief Jodi Rudoren on the paper's website, pays minimal attention to the findings of the court, while spilling more ink about the displeasure voiced by critics of its ruling.   In a 15-page dispatch, Rudoren devotes nine paragraphs to the pro-Corrie side, but only four paragraphs to the contents of the judge's ruling and  supportive comments of Prime Minister Netanyahu's office.

The Times' spin is accentuated by the uneven tilt at the top of the article -- a single paragraph on the contents of the ruling, followed immediately by three paragraphs of strong disagreements with the judge's findings and conclusions.

Never mind realities.  The Corrie myth goes on.

Update:English Summary of the Rachel Corrie Verdict

(TRANSLATION PROVIDED BY THE GOVERNMENT PRESS OFFICE)
Summary of the Verdict (T.A. 371/05) Estate of the Late Rachel Corrie, etc.
v. The State of Israel - Ministry of Defense
1. The decedent, Rachel Corrie, was born on April 10, 1979. She was an
American citizen, residing in Olympia, Washington. On March 16, 2003, the
decedent was killed during an incident which is the focus of this lawsuit.
She was 24 years old.
The decedent was an activist in the International Solidarity Movement
(hereafter: "the Organization" or "the ISM").
2. In this lawsuit (T.A. 371/05) the plaintiffs, the estate of the late
Rachel Corrie (hereafter: "the decedent"), the decedent's parents, brother
and sister, are petitioning to direct the defendant, the State of Israel, to
pay them compensation for special damages and general damages inflicted on
them, they claim, as a result of the death of the decedent during the
incident that is the focus of this trial. In addition to the
aforementioned, the plaintiffs have petitioned to direct the defendant to
pay "punitive damages".
3. The plaintiffs claimed in their lawsuit that on March 16, 2003, the
decedent, together with other activists in the ISM, arrived at the
"Philadelphi Corridor" in the Rafiah area of the Gaza Strip where two
bulldozers and an IDF tank were observed conducting operational activities
in the area. The plaintiffs claimed that the bulldozers were about to
demolish a house in the area and that the decedent and her fellow members of
the ISM stood in the path of the bulldozers in order to prevent them from
implementing their plan.
In Article 8.5 of the Statement of Claim, the plaintiffs claimed as follows:
"At 17:00 or thereabouts, the decedent stood near the house of
Dr. Samir Nasrallah, which was designated for demolition, and one of the
bulldozers was 10 to 15 meters from her. The bulldozers approached the
decedent and pulled dirt from under her feet. The decedent fell and the
blade of the bulldozer ran over her leg and later the bulldozer ran over her
body. When the bulldozer backed up the decedent was gravely injured and was
bleeding extensively, although she was still breathing.
The decedent was evacuated to the Al-Najer Hospital in Rafiah, where her
death was declared after 20 minutes".
4. The plaintiffs claimed that the bulldozer intentionally caused the
death of the decedent. The plaintiffs based their claim on the following
three grounds: assault, negligence and legal grounds.
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.
The United States government issued a travel warning on March 16, 2003 to
warn American citizens against visiting the Gaza Strip area or the West
Bank.
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.
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.
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. As aforementioned, less than an hour before the
incident that is the focus of this lawsuit, a live hand-grenade was thrown
at the IDF force.
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.
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.
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.
h. Because I find, as aforementioned, that the decedent was accidentally
killed in the framework of a "war-related activity" as defined in The Civil
Wrongs Ordinance, and in light of the instructions laid out in Article 5 of
the aforementioned ordinance, the State bears no responsibility for the
damages inflicted on the plaintiffs resulting from a war-related action.
This makes superfluous the need to discuss the cause of action made by the
plaintiffs because legally their demand should be rejected.
Nevertheless, above and beyond what is necessary, I have also decided to
discuss the cause of action filed by the plaintiffs as well as their other
claims.
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.
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.
After examining the evidentiary material and studying the claims made by
representatives of both sides, I reached the conclusion that the CID
investigation was conducted appropriately and without fault.
j. With regard to the claims made regarding evidentiary damages
relating to the Institute of Forensic Medicine:
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).
After examining the evidentiary material and studying the claims made by
representatives of both sides, I reached the conclusion that the plaintiffs'
claim of evidentiary damage by the Institute for Forensic Medicine seems
strange. This is because the decedent's father himself testified that, from
the outset, the family had no intention of conducting an autopsy and that
their intention was to pursue the matter diplomatically in order to clarify
what happened to the decedent. Moreover: it appears that the decedent's
family had no interest regarding the identity of the Consular representative
that was to be present during the autopsy, nor in the type of professional
training they had had. The family wanted a Consular representative to be
present even if a secretary or typist had been sent!
Professor Hiss explained in his testimony that the aforementioned fax was
sent to him after he telephoned the United States Embassy and asked that
they send an American doctor to be present at the autopsy. He claims that
the embassy did not find a need to do so. Professor Hiss asked to receive
approval from the decedent's family and he then received the fax 11/T in
which it is specifically stated that the decedent's family agreed to the
autopsy and that no other faxes would be sent.
I believe that under these circumstances, Professor Hiss was well within his
rights to conclude that, ultimately, the decedent's family conceded its
demand for a representative to be present during the autopsy. 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.
I am aware of the fact that, according to the language of the District
Court's decision regarding the autopsy of the decedent's body, there should
have been a representative of the US Embassy present during the autopsy.
However, under the circumstances, when it was explained that the embassy saw
no reason to send a representative, as Professor Hiss testified, and because
the fax sent to Professor Hiss (11/T) stated that the family agreed to the
autopsy, we can understand why Professor Hiss believed that there was
nothing preventing him from conducting the autopsy without an embassy
representative being present. There is no doubt that the proper course of
action would have been to return to the District Court so that, in light of
the change in circumstances, the court could amend its decision and remove
the condition regarding the presence of an embassy representative. However,
given the circumstances and in light of the aforementioned, it is not clear
what evidentiary damage was made to the plaintiffs' case because of the
conduct of the Institute of Forensic Medicine.
With regard to the plaintiffs' claim regarding the recording documenting the
autopsy, I found no grounds to accept it. It is an audio recording (as
opposed to a video recording) which served as a draft for Professor Hiss
when preparing his report. Recordings like this are made because, during an
autopsy, the doctor's hands are holding scalpels and covered in blood, and
therefore notes cannot be taken. Apparently, the aforementioned audio
recording simply does not exist anymore because, due to budgetary problems,
the Institute of Forensic Medicine recycles tapes (see the testimony given
by Professor Hiss). Under these circumstances, it is not clear what
evidentiary damage was caused to the plaintiffs as a result of the
aforementioned draft having been erased due to recycling.
In summation, with regard to evidentiary damages, I hereby determine that
the two cumulative conditions necessary as laid out in the precedent
determined by the Supreme Court were not upheld. They did not prove that
evidentiary damage was caused which harmed their ability to prove their
claims, nor did they prove that the defendant, through negligence, caused
the claimed evidentiary damage.
k. With regard to grounds for assault I hereby determine that there is no
foundation for such claims because there is no component of "malice". As I
have determined that the decedent was killed accidentally and not
intentionally, legally the claim regarding grounds for assault must be
rejected.
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.
Given these circumstances, I have reached the conclusion that it was not
negligence on the part of the defendant or any of its representatives that
caused the decedent's death. Therefore it can be understood that I reject
the claim that there is any foundation for the grounds of negligence in this
case.
m. The defendant claims a "willing endangerment" defense, in accordance
with Article 5(A) of the Civil Wrongs ordinance. I reached the conclusion
that the foundation for this defense, as determined by the Supreme Court,
has not been proven in this case, and therefore I hereby determine that the
aforementioned defense does not exist with regard to this lawsuit.
However, even though I have determined that it was not negligence on the
part of the defendant or its representatives that led to the death of the
decedent, and although the aforementioned defense does not exist with regard
to this lawsuit, it is not enough to change the result of rejecting this
claim.
n. With regard to legal grounds: It is true that the decedent was killed
during the incident that is the focus of this lawsuit. However, in this
case the defendant did not violate the decedent's right to life. The
decedent 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.
The decedent's death was the result of an accident that the decedent caused.
This occurred despite the efforts of the IDF force to distance her and her
colleagues from the area.
I believe that, under these circumstances, there is no justification to
obligate the State to pay compensation for damages that the decedent could
have prevented, but preferred not to, thereby choosing to risk her life as
she did.
Therefore, I reject the request to obligate the State to pay compensation on
legal grounds.
6. Because of this and in light of the aforementioned, I reject the
lawsuit.
Because of the circumstance surrounding the decedent's death, I will not
make the plaintiffs' pay the legal expenses and each side will bear its own
costs.

 

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