The Supreme Court on Thursday put out its decision in the Rachel Corrie case, rejecting her family’s appeal of a lower court decision, which had denied them civil damages for wrongful death, in which Corrie died in connection with an IDF bulldozer.
The decision comes nearly 12 years after the death of the US activist, an event that has spawned books, plays and received unrivaled international attention in the global media.
At the same time, the court accepted an additional appeal by the family and reversed a separate lower court decision – with the result that the lower court will need to further probe the family’s claim regarding the unlawful taking of some of Corrie’s remains.
The Corries had claimed that an IDF bulldozer deliberately or negligently killed Rachel, 23, from Olympia, Washington, while she was protesting a home demolition in Rafah on March 16, 2003.
The state had claimed the incident was a tragic accident with the bulldozer driver unable to see Corrie in the closed military zone – where she should not have been.
The Corrie family said they were still studying the lengthy decision and had not responded fully by press time.
In the first and main decision by the three justice panel of Court President Miriam Naor, Zvi Zilberthal and Esther Hayot, they upheld the “combat activities exception” principle of the lower court in which the state cannot be held liable for damages of activities which occur in a war zone.
In its second decision, a spinoff case impacting the Corries, the court said that regardless of the posture of the competing legal claims, the lower court’s decision to strike the family’s claim without fully assessing the claim, had been too extreme.
The second decision relates to allegations by the Corries before the Nazareth Magistrate’s Court that samples of her remains were unlawfully taken by Prof. Yehuda Hiss during her autopsy.
Independent of the Corrie case, Hiss has become notorious in a scandal related to taking samples of remains from a large number of corpses, but the Nazareth District Court rejected the claim pretrial as having been adjudicated in the main case.
The Supreme Court’s order means that this secondary case returns to the Nazareth Magistrate’s Court for further proceedings.
In the main decision, the Supreme Court rejected the Corrie family’s claims that Rachel and her activist colleagues did not present a threat to the IDF bulldozers, that there were no other threats on the area close to the time when she was killed and that a grenade attack presented as evidence of a threat was not close in time to the incident.
Rather, the court said that the only stipulation for the area to be defined as a “combat zone” from a legal standpoint, was that the zone had been a high-risk area where there was a presumption of danger and that the bulldozers were part of an IDF military operation to clear areas where enemy forces could hide.
The court also rejected the Corrie family claim that the area was not a closed military zone since the state failed to produce an official military order to that effect.
Instead, the court accepted that Col. (res.) Pinhas Zuarez’s testimony that such an order had been issued, was sufficient proof that the area was an announced closed military zone.
Other claims the court dismissed included that an IDF surveillance camera was diverted intentionally, or that footage was hidden to erase the incident and any claim that verbal shouts heard from a recording were the bulldozer driver – which, if the court had accepted the argument, could have shown that the driver saw Corrie better than he claimed.
Also, the court rejected that the Corries could win a reversal on claims that a US representative should have been present at the autopsy and that the autopsy should have been recorded.
The appeal to the Supreme Court came after the August 2012 decision of Haifa Judge Oded Gershon who had said that Corrie could have avoided the dangerous situation, and called her death a “regrettable accident.”
The combatant activities exception essentially says that a country’s armed forces cannot be held liable for civil damages and physical or economic harm to civilians in an area defined as a war zone.
At a hearing last year, the court pressed the state on the issue, but expressed open skepticism about the Corrie family’s chances in its questioning of their lawyer Hussein Abu Hussein.
Hussein said that the state had failed to produce a copy of the order declaring the area a closed military zone, despite Gershon basing his application of the combat activities exception on the idea that the IDF had declared the area as such.
He had also said in the appeal that the fact that the IDF did not undertake any criminal or administrative actions against the group of left-wing activists trying to block the bulldozers in the area showed that it had not been a closed zone.
With Gershon having also found that the area was a dangerous military area since soldiers had been attacked not long before by a grenade, Hussein had written that the grenade allegation could be disproved as well.
He had noted that none of the soldiers in the area personally remembered a grenade attack and that the only evidence was in an operations log, which they declared invalid if unsupported by any soldier’s testimony.
Hussein also scrutinized the operations log, noting statements indicating that the IDF did not really believe that the area was dangerous or the bulldozing was alleviating military dangers, but rather that the bulldozing continued that day to make an amorphous point to the activists that the IDF would not let them interfere with bulldozing operations.
The court countered that maybe those IDF concerns were valid and that at any rate, the statement by itself, might not be nearly sufficient on appeal to overcome Gershon’s finding that the area was a combat zone.
The state also vehemently defended Gerson’s finding that the area was dangerous and a combat zone.