Analysis: ‘War zone’ designation defeated Corries

Invoking the combat activities exception sealed the case, and almost guaranteed it will go to the Supreme Court.

By YONAH JEREMY BOB
Craig and Cindy, the parents of Rachel Corrie 370 (photo credit: REUTERS/Amir Cohen)
Craig and Cindy, the parents of Rachel Corrie 370
(photo credit: REUTERS/Amir Cohen)
Many media pundits thought the Rachel Corrie case would be a close call. They did not understand the power of the “combatant activities” exception.
This exception exists in England, the US and most countries that have ever had to fight a war, not just in Israel.
Essentially, it 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 war.
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 Rachel Corrie.
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 possible.
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 point.
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 arguments.
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.
The judge 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.
In other 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 from over.
In an interview on Sunday with The Jerusalem Post, the Corries made it clear that they would be ready to appeal to the Supreme Court.
The Supreme Court under former president Dorit Beinisch had sometimes appeared ready to craft new exceptions to the combatant activities principle.
One would guess that current Supreme Court President Asher Grunis is more likely to defer to the military, but he has also been unpredictable.
What is for sure is that invoking the combat activities exception sealed the case, and almost guaranteed that it will continue to the Supreme Court.