The Israeli Court System on Trial: The Rachel Corrie Appeal

Katherine Gallagher, Senior Staff Attorney at the Center for Constitutional Rights

On March 16, 2003, 23-year old human rights defender Rachel Corrie was crushed to death by an Israeli military bulldozer while protecting Palestinian homes in Gaza from demolition. For the past 11 years, Rachel's family has sought accountability for her killing, while also shining a spotlight on Israel's ongoing violations in the Occupied Palestinian Territory and the widespread impunity Israeli officials enjoy. This week's appeal hearing before the Israeli Supreme Court will likely signal whether there will finally be a modicum of justice for Rachel -- and a measure of accountability to be had in an Israeli court.

In 2003, former Israeli Prime Minister Ariel Sharon promised George W. Bush there would be a "thorough, credible and transparent" investigation into Rachel's killing. The U.S. government was not satisfied with the investigation done by the Israelis. Instead of opening its own investigation into the death of the American peace activist, however, the U.S. urged the Corries to press for justice themselves, in the Israeli courts. (Ironically, in 2006 the United States Departments of Justice and State filed a brief opposing the Corries' lawsuit in Washington against Caterpillar, which sold Israel the armored bulldozers knowing they were being used to commit international law violations; that case was dismissed). In 2005, the Corries filed their civil action in Haifa, Israel. The family spent much of 2010 and 2011 traveling back and forth for the 15 hearing dates spread over 16 months.

Rather than find flaws with the military's investigation -- as the U.S. had -- the judge accepted the testimony and evidence by the Israeli officials wholesale. Judge Gershon found in 2012 that Rachel was ultimately responsible for her own death because she traveled to Gaza and was present in an area where Israeli forces were operating. Effectively ignoring the obligations the Geneva Conventions place on Israel to protect civilians, he described her killing as an act of war, and as such, based on the exemption of the military from civil liability under Israeli law, found the military could not be held responsible. In essence, the district court agreed with an Israeli colonel who testified that all of Gaza -- with its 1.8 million children, women and men -- is a warzone and there are no civilians in war. The verdict was widely criticized by human rights organizations, and former U.S. President Jimmy Carter stated that it confirmed "a climate of impunity," which facilitates further Israeli human rights violations.

After the verdict, Rachel's mother, Cindy Corrie, said, "[o]ur lawsuit was not a solution but rather a symptom of a broken system of accountability within Israel and our own government."

The Corries are now calling on the Israeli Supreme Court to enforce -- not ignore -- the law. In addition to their arguments that no "war activity" was underway and Rachel fell within the protections of humanitarian law, the Corries claim the Israeli military's investigation into Rachel's death was fundamentally flawed because officials failed to question key witnesses and secure the evidence properly. They also assert that officials breached policies when they conducted an autopsy without a U.S. embassy representative present.

In its appeal, Israel took things to a whole new level, arguing in its brief to the Supreme Court that Rachel fell outside the protections of international humanitarian law. Israel's novel argument -- which goes against both international law and Israeli precedent -- is that only the "occupied population," i.e., certain Palestinians, enjoy the protection of international humanitarian law, and that non-Palestinian civilians, including U.S. human rights defenders and presumably NGO workers, can be targeted by Israeli forces. If the court accepts this argument, it would set a dangerous precedent and place human rights defenders in the Occupied Palestinian Territory at even greater risk than they already are.

With Israel's dismal track-record of providing justice to victims -- including both Palestinian and U.S. victims -- it is no wonder that calls for Palestine to join the International Criminal Court (ICC) have only gotten louder. Earlier this month, an impressive list of international and Palestinian human rights organizations sent a letter to Palestinian President Abbas calling on Palestine to ratify the Rome Statute so that the ICC "can step in to address impunity when domestic authorities are genuinely unable or unwilling to do so."

On the eve of the appeal, Rachel's father Craig Corrie said, "The Supreme Court now has a choice, to either show the world that the Israeli legal system honors the most basic principles of human rights and can hold its military accountable, or to add to the mounting evidence that justice cannot be found in Israel."

The world will be watching.

___________

Katherine Gallagher is a Senior Staff Attorney at the Center for Constitutional Rights in New York, and a Vice-President of the International Board of the International Federation for Human Rights (FIDH). She was co-counsel for the plaintiffs in the U.S. case, Corrie, et al. v. Caterpillar, and observed the Corrie trial in the District Court in Haifa in October 2010.