Many media pundits thought the Rachel Corrie case would be a close
call. They did not understand the power of the “combatant activities”
This exception exists in England, the US and most countries
that have ever had to fight a war, not just in Israel.
says that if a civilian or civilian property is unintentionally hurt or damaged
by the state in a war zone – even if there is not an all-out war going at that
time, but the area is in a general condition of war – the state gets a free pass
and cannot be held accountable in a civil case.
The rationale is that
there are military activities, including training, surveillance or the removal
of potential hideouts and booby-traps, which are vital to fighting a war, even
if they aren’t part of the fighting itself.
The law of armed conflict
does not hold an army culpable if the army accidentally hurts civilians in the
process of using “proportional force” to hit a legitimate military target. The
same, therefore, applies to “combat activities” that are critical to fighting a
If someone intentionally violates the rules of engagement or
international law to a criminal standard that is another story altogether – but
few lawyers thought there was a case for proving the intentional killing of
The real issue was negligence and whether the court would
put the case outside the combatant activities exception, which has been done,
but rarely in Israel or anywhere else.
Most US and European courts still
try to defer to their militaries on national security questions where
Those who were mistakenly overwhelmed with the disputes over
the missing color video, the surveillance camera which turned away from the
scene and evidence trying to prove that the driver saw Corrie, were missing the
If a legal principle like the combatant activities exception locks the door to the court, then the facts in
dispute almost do not matter, other than maybe for some amorphous “moral
victory.” Hussein Abu Hussein, the Corries’ attorney, knew this well. He made a
valiant and clever – legally speaking – attempt to beat the combatant activities
exception in the brief he submitted to the court in closing
Hussein noted that IDF Col. Pinhas Zuaretz appeared to
contradict himself in declaring Rafah a war zone, when in answering a different
question he called the entire event an “accident,” the same as a car accident on
a regular street.
Hussein cleverly argued that if the IDF commander in
the area was saying that the concrete incident in dispute was the same as a car
accident on a regular street, than the exception could not be used here,
regardless of the general atmosphere in Rafah on other days.
did not specifically mention this argument in his summary, but it is likely that
he noted that Zuaretz’s statement in context was not relating so much to
describing the legal status of the area, as much as it was his rejection of the
idea that the bulldozer driver killed Corrie intentionally.
words, Zuaretz was saying that the intent of the driver in killing Corrie was
the same as for an accident, where a driver could not be held negligent because
of the negligence of the victim herself.
He was not trying to withdraw
his characterization of the area as a war zone.
But this story is far
In an interview
on Sunday with The Jerusalem Post
, the Corries
made it clear that they would be ready to appeal to the Supreme
The Supreme Court under former president Dorit Beinisch had
sometimes appeared ready to craft new exceptions to the combatant activities
One would guess that current Supreme Court President Asher
Grunis is more likely to defer to the military, but he has also been
What is for sure is that invoking the combat activities
exception sealed the case, and almost guaranteed that it will continue to the
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