Judgment in the case of Rachel Corrie
Judgment of the Haifa District Court (T.A. 371/05)Between
(1) Estate of the Late Rachel Corrie
(2) Craig R Corrie
(3) Cynthia A Corrie
(4) Christopher R Corrie
(5) Sarah E Simpson Claimantsv.
The State of Israel - Ministry of Defence Defendant 1. In the claim before me (T.A. 371/05) the claimants, the estate of the late Rachel Corrie (‘the deceased’), the deceased’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 allegedly inflicted upon them as a result of the death of the deceased during the incident that is the focus of this trial. In addition to the aforementioned, the claimants have petitioned to direct the defendant to pay"punitive damages".
2. Summary of the claimants’ amended Statement of Claim
a. The deceased, Rachel Corrie, born on 10 April 1979, was an American citizen,residing in Olympia, Washington. On 16 March 2003, the deceased was killed during an incident, which is the focus of this case. She was 24 years old. The deceased was an activist in the International Solidarity Movement (‘the Organisation’ or ‘the ISM’).
b. The claimants, through their Attorney Hussein Abu-Hussein, claim that on 16March 2003, the deceased, together with other ISM activists, arrived at the"Philadelphi Corridor" in the Rafah area of the Gaza Strip where two bulldozers and an Israeli Defence Force (‘IDF’) tank were conducting operational activities. The claimants claim that the bulldozers were about to demolish a house in the area and that the deceased and her fellow ISM
members stood in the path of the bulldozers in order to prevent them from carrying out their task.
c. At paragraph 8.5 of the Statement of Claim, the claimants state: "At 1700 hours or thereabouts, the deceased stood near the house of Dr.Samir Nasrallah, which was designated for demolition, and one of the bulldozers was positioned 10 to 15 meters from her. The bulldozer approached the deceased and pulled dirt from under her feet. The deceased fell to the ground and the blade of the bulldozer ran over her leg and afterwards ran over her body. When the bulldozer reversed, the deceased was gravely injured and bleeding extensively in several parts of her body. However, she was still breathing.The deceased was transferred to the Al-Najer Hospital in Rafah, where her death was pronounced after 20 minutes" .
d. The claimants claim that: “ (...) the untimely death of the deceased was brought about as a result of the intentional use of force by the bulldozer’s operator , which was unreasonable in all the circumstances, against the deceased’s body while she was still alive and without her consent. In assessing the proportionality of the harm caused to the deceased against the harm the bulldozer’s operator sought to prevent, it is considered that the use of force was extremely disproportionate and entirely unreasonable. The identity of the bulldozer’s operator remains unknown to the claimants at this time, but they reserve the right to amend the statement of claim to reflect naming the bulldozer’s operator and the military officers present at the time as defendants, once their identities are disclosed. In any event, the claimants claim that the defendant was negligent in supervising the bulldozer’s operator and the military officers present at the time” (my emphasis).
e. The claimants claim that the actions of the bulldozer’s operator and the other soldiers and officers present at the scene of the incident fell below the normal standards of behaviour which could be expected of a skilled professional in the circumstances of this specific incident.
f. Furthermore, the claimants claim that the bulldozer’s operator and his commanders breached, inter alia, the bulldozer Operational Guidelines (the Guidelines were submitted as evidence and marked as exhibit T/31), in that they allowed the presence of people near the bulldozer, and did not remove the deceased and her fellow activists who were present at the time from the scene.
g. The claimants claim that the defendant is responsible for the incident and for the death of the deceased both under international law and under the laws of vicarious and/or direct liability.
h. The claimants seek a ruling that “the incident which is the subject of this claim should not be regarded as a "war-related activity" which was brought about as part of an anti- terrorist activity in circumstances where there was a risk to life and limb”.
i. The claimants seek a ruling that they suffered evidential damage. They state that having reviewed the Military Police’s files relating to this incident, it emerged that no substantive, robust or objective investigation had been carried out in this case.
j. Furthermore, the claimants claim that the Military Police investigators and/or the Coroner’s staff, who are all representatives of the defendant, breached a court order in allowing the deceased’s autopsy to take place in the absence of are presentative from the American Embassy.
k. Furthermore, the claimants look to the court – “to rule that sections 23, 35, 36 and 41 of the Civil Wrongs Ordinance (as amended) are applicable in this case. The claimants claim that in the circumstances it is just and reasonable for the court to exercise its discretion and implement section 41 of the Civil Wrongs Ordinance given the unique circumstances of the incident in question” .
l. The claimants claim that the defendant should be ordered to pay damages on the following grounds:
i. Assault contrary to section 23 of the Civil Wrongs Ordinance (as amended)
ii. Negligence contrary to sections 35 and 36 of the Civil Wrongs Ordinance (as amended)
iii. Breach of the deceased’s right to life contrary to international humanitarian law, international human rights law and the Israeli Basic Law: Human Dignity and Liberty 1992. The claimants argue that this breach amounts to a constitutional breach of a Basic Law.
3. Summary of the defendant’s grounds for resistance
a. The defendant, through its representatives, attorneys Irit Kalman-Brom and Nir Gancherski, claims in its grounds for resistance that – “During the relevant time, and also at present (the first grounds for resistance was submitted on 23 June 2005) the State of Israel has been engaged in an uncompromising struggle against Palestinian terrorist organisations. Since September 2000, those terrorist fractions have engaged in a cruel and bloody battle against the State of Israel and its citizens. Terrorists have committed,and continue committing, the most appalling and unprecedented acts of terror on a daily basis. Those acts of terror are directed indiscriminately against all Israelis: men, women and children. Those murderous actions include shootings, use of IED, missile and rocket attacks, terrorist attacks using vehicles or cold weapons and suicide bombings.”
b. The defendant claims that – “The ‘Philadelphi Corridor’ is a main transport artery which is located east of the border with Egypt and, inter alia, crosses the city of Rafah. According to the Oslo Accord, this territory is defined as a territory where Israel has complete civilian and security control. Due to its attractive location, the corridor is used for smuggling weapons and terrorists to and from the Gaza strip. The volume of terrorist activity and the attempts to harm IDF forces in this area are disproportionately high compared to its relatively small size.”
c. The defendant claims that until 16 March 2003, when the incident took place,the following terrorist incidents had been recorded: approximately 6,000 hand grenades had been thrown at IDF forces, there had been approximately 1,400 incidents of gunfire and sniper attempts, 150 bombs were laid, approximately200 incidents against tanks were recorded and more than 40 mortar bombs had been fired. In addition, more than 100 tunnels used for smuggling weapons and terrorists had been exposed. The defendant states that “as a result of the horrendous and unprecedented terrorist campaign mounted by terrorist organisations against IDF forces in the ‘Philadelphi Corridor’, three Israelis were killed and dozens more injured.”
Therefore, and in the light of the extreme dangerousness of the ‘Philadelphi Corridor’, the security forces adopted security and operational steps, including detailed working procedures and guidelines, for working in this region.d. The defendant states that in view of the numerous terrorist attacks in the‘Philadelphi Corridor’ it had to employ D9 bulldozers to level the ground in order to prevent further terrorist threats .
“The purpose of the [bulldozer’s]work is to uncover bombs which have been concealed in the ground in order to kill and maim the security forces and to uncover potential hiding places for terrorists in the vicinity of the corridor. Each bulldozer is controlled by an operator and an officer, the latter’s role is to direct the operator as the field of view from within the vehicle is restricted” .The defendant emphasised that given the real and immediate threat to human life due to sniper attacks, appointing a soldier to direct the bulldozer (a‘director’) outside the vehicle is prohibited. “It is prohibited due to the increased risk of doing so. Appointing an external director in the “Philadelphi Corridor” would inevitably mean that the director- soldier would be exposed to the risk of sniper fire etc. and all its consequences”.
e. At paragraph 38 of the grounds for resistance the defendant states that-
i. “On 16 March 2003 at 1400 hours bulldozers began working in the ‘Philadelphi Corridor’. Approximately one-hour later ISM activistsarrived in the area carrying banners and cameras and began disrupting the on-going military operation. The army tried to disperse the protesters using loudspeaker announcements and other crowed control measures such as throwing stun grenades towards them, using tear gas and even firing warning shots towards them. The army’s attempts to disperse the demonstrators were unsuccessful and the activists remained in the area.
The work of the bulldozers continued despite continuous interruptions from the protestors. The decision to continue the work of the bulldozers in spite of the presence of civilians in the area was made due to the critical nature of the task, including the immediate and future danger to the lives of soldiers operating in this area from sniper attacks. In order to emphasise the real danger to which the operators of the bulldozer were exposed suffice to say that one hour before the incident a deadly fragmentation grenade was thrown in the direction of the bulldozer with the sole aim of killing the soldiers in its vicinity.
ii. From examining the circumstances of the incident it transpired that at approximately 1700 hours the deceased, Rachel Aliene Corrie, began moving towards one of the two bulldozers operating in the area. The[relevant] bulldozer, operating in accordance with the regulations and while traveling forwards, piled building waste using its front loader arm. When the bulldozer was approximately 20 meters away from the deceased, the latter sat or kneeled on the ground believing or assuming that the bulldozer would stop when it approached her. The bulldozer continued traveling forwards with the dirt pile in front of it. When the dirt pile reached the place where the deceased was sitting she began climbing the pile, but struggled to keep her balance.
During her climbing attempt, but before she had reached the top of the pile, the deceased decided to get down from the pile. She turned in the opposite direction and began climbing down from the pile when, unexpectedly,her leg had become entangled in something and she fell to the ground and lay down at the bottom of the pile.
At the same time, the bulldozer continued traveling at a very slow pace towards the pile using an internal director while the dirt pile began covering the deceased until she was completely covered. The deceased’s friends approached the bulldozer and began gesturing and shouting at the bulldozer’s operator to stop. The bulldozer’s operator and his officer stopped immediately upon noticing the actions of the young people, lifted the blade and reversed. Once the bulldozer had reversed, the deceased was uncovered lying on the ground, still alive. The deceased spoke to her friends and a few minutes later was taken to hospital”.
f. The defendant claims that the incident took place while performing an ‘Act of State’ “the implication of which to the jurisdiction of the court in this matter is that the claim should be dismissed” .
The defendant claims that in the circumstances, the incident was defined as a‘war- related activity’ and as such, the state does not carry responsibility for it.The defendant claimed that from the statement of claim itself it is evident that the deceased was injured due to an activity by virtue of section 3 of the Civil Damages (Responsibility of the State) Act 1952.
g. Furthermore, the defendant claims that the criteria for reversing the burden of proof are not met. Therefore, the defendant claims that the burden of proof is on the claimants to prove their case.
h. The defendant claims that the IDF forces operating in the area during the time of the incident were not negligent.The defendant claims, inter alia, that the actions of the soldiers and/or the security forces were reasonable and intended to protect themselves and/or others from unlawful use of force. The defendant states that its actions and the actions of its representatives were careful and prudent. The actions were undertaken according to the guidelines, regulations and warnings regarding the security measures appropriate for use of weapons and action in the circumstances. The actions taken were reasonable and designed to enable IDF soldiers and officers to maintain the civil and military order to ensure effective law enforcement.
i. Further and in the alternative, it was claimed that in the circumstances it would be correct to consider the operation of section 65 of the Civil Wrongs Ordinance (as amended) because the deceased had willingly put herself at risk.Therefore, the claimants should not be awarded any damages, or alternatively that any damages awarded should be substantially reduced.
It was claimed that the deceased was injured due to engaging in a prohibited and/or unlawful activity in clear breach of a Major General Military Directive decreeing the area was a ‘closed military zone’ to which civilian entrance is prohibited. It was claimed that the deceased exposed herself to injury deliberately while she remained in the Gaza strip in general and in the‘Philadelphi Corridor’ in particular. It was claimed that the deceased assumed the risk upon herself in view of the numerous shootings and terrorist incidents in the corridor.
j. The State claimed that even if it was decided that there was a causal link between the injury caused to the deceased and the actions of the army during the incident, in the circumstances the deceased should be attributed contributory negligence at a rate of 100%, which cuts the causal link completely and nullifies this claim.
k. The State claims that the autopsy on the deceased’s body was performed in the absence of a representative from the American Embassy only after the Embassy informed Professor Hiss, Chief Pathologist in the Abu-Kabir Forensic Institute, that the autopsy could proceed in the absence of such a representative.
l. In relation to the Military Police’s investigation of the incident, it was claimed that a full and thorough investigation was carried out which included consultation with several other public bodies. In addition, a re-enactment was done, tens of people and witnesses were interviewed and investigations were carried out in order to uncover the truth. In this context, it was noted that once all procedures have been exhausted, the Military Police concluded that none of the people involved should be charged with any offense.
m. On the basis of the above the defendant stated that the claim should be dismissed in its entirety and the claimants be ordered to pay the defendant’s costs.
4. The Trial
a. The court directed both parties to submit witness statements and the witnesses were questioned on those statements. Also, expert reports were submitted by both parties and the experts were cross-examined on their opinions.
b. The parties agreed that the trial will be split such that the question of responsibility for the death of the deceased will be decided first. If the claimants are successful in establishing their case then the question of damages will be discussed.This judgment therefore deals solely with the question of responsibility.
5. The facts
Having considered the evidence presented to the court and studied the oral evidence given by the witnesses in this court I hereby make the following findings of fact:
a. Place and time The place of the relevant incident is the ‘Philadelphi Corridor’ in the Gazastrip, near Rafah.The time is March 2003 - a period of daily warfare, i.e. daily sniper gunfire,missile fire and IED explosions directed at IDF forces. During this period,constant attempts were being made to kidnap IDF soldiers [see witness statement of Colonel Finki Zuaretz].At the relevant time, the ‘Philadelphi Corridor’ was the subject of a Military Directive made by an IDF Major General, which decreed the area a ‘closed military zone’ and prohibited civilian access.
b. The ‘Philadelphi Corridor’ The Corridor is situated east of the border with Egypt in an area defined as a‘security facilities zone’ in which Israel had full civilian and military control according to the peace treaty with Egypt (see witness statement of Colonel Zuaretz). During the relevant time, the Corridor was a place of conflict between IDF forces and the terrorist activists operating in Gaza. It was against this background that the corridor was being used as a main artery for smuggling weapons and terrorists to and from the Gaza strip. The terrorists leaving the Gaza strip exited with the sole purpose of entering Israeli territory and committing murderous terrorist activities, including suicide attacks in its territory. The volume of terrorist attacks and terrorist attempts in the area was particularly high and accounted for approximately 70% of all terrorist activities in the State of Israel at the time. The Corridor was a daily battleground and only combat soldiers were allowed to fight there (see witness statement of Colonel Zuaretz).At the relevant time, Colonel Zuaretz was the commander of the Southern Brigade of the Gaza division, which was responsible for this territory and all military actions therein (see witness statement of Colonel Zuaretz).
c. Terrorist activities in the ‘Philadelphi Corridor’ According to IDF records, from September 2000 to the date of the incident that is the focus of this claim (16 March 2003), nearly 6,000 grenades had been thrown at IDF forces in the Corridor, approximately 1,400 incidents of gunfire and sniper shootings had taken place, 150 IED had been placed, approximately 200 incidents of shootings against tanks had been recorded and there more than 40 occurrences of mortar fire had taken place. These aforementioned events led to the injury and death of many Israelis (see witness statement of Colonel Zuaretz). Furthermore, from 2001 to the date of the incident 47 tunnels had been discovered from the Israeli side and 64 tunnels from the Egyptian side of the border. The tunnels are used for smuggling weapons. In addition, some tunnels had been booby-trapped and car bombs had been detonated in the area (see witness statement of Colonel Zuaretz).
d. The use of the ‘Philadelphi Corridor’ The Corridor was used for movements of IDF troops in order to secure the border with Egypt and to prevent the infiltration of terrorists through that border. During the relevant time, there was no security fence in that area. The task of IDF troops was to prevent terrorist attacks, to prevent the infiltration of terrorists into Israeli territory and to prevent smugglings across the border, including the smuggling of explosives (see witness statement of Colonel Zuaretz).
e. The dangers in the ‘Philadelphi Corridor’ The Corridor is one of the most dangerous corridors in the Gaza strip and therehave been daily attempts to harm soldiers there by shootings, launching of missiles, IED etc. This terrorist activity was made possible due to the topographical layout of the Corridor, which contained a large amount of building rubble, long grass and land folds. This enabled terrorists to find hiding places and organise for terrorist action against IDF soldiers (see witness statement of Colonel Zuaretz).
f. The International Solidarity Movement (ISM) In considering the nature of the Organisation, I rely on the opinions of Mrs Ruth Yaron, former spokesperson for the IDF during 2002-2005, and on are search paper from the Institute of Intelligence and Terrorism named after Major General Meir Amit (‘MALAM’). These statements make the following observations:
ISM was established in 2001 as a voluntary organisation. “The Organisation's aim (as stated in its documents and its internet website)is to work alongside the Palestinian population against the “Israeli occupation”. They purport to achieve this aim by apparently using non-violent methods and “direct action”. As can be gleaned from various documents, the Organisation declares that “it supports the right of Palestinians to resist the Israeli violence and occupation using an armed struggle”. Notwithstanding the fact that members of the Organisation express their views orally and in writing using the rhetoric of human rights and humanitarian organisations, the actions of its members do not match these decelerations. The Organisation exploits the discourse of human rights and morality in order to blur the severity of its de facto violent actions .
By doing that, the Organisation undermines the work of other human rights organisations which operate as they should and according to procedures governing humanitarian action in combat zones” (my emphasis)(see witness statement of Brigade General Yaron)Mrs. Yaron notes in her statement that the ISM is known for having“defended” Palestinian families despite the fact that they were implicated in terrorism. In her opinion and supplementary statement dated 15 May 2011, Mrs Yaron highlighted the lacuna between the declarations of the Organisation and the true nature of its operation and actions .
In her supplementary witness statement Mrs. Yaron relied on the research paper about the Organisation prepared by MALAM and stated that the paper: “(...) strengthens my view in that it supports my opinion regarding the nature of the Organisation and the lacuna between the declarations made and its de facto actions. The paper supports the fact that the Organisation operates through violence, which is inconsistent with its declarations” .Furthermore, Mrs Yaron states in her supplementary witness statement that: “In my first witness statement I said that “the Organisation caused its volunteers to be consistently sent to dangerous war zones while intensive combat action was underway, thereby unlawfully putting the volunteers’ lives at risk”. Recently I learnt about a travel warning issued by the US Government on 16 March 2003 , which warns American citizens against visiting the Gaza Strip and the West Bank.
This travel warning in itself strengthens my opinion that members of the organisation knowingly chose totravel to places where there is a clear risk to life and limb” (my emphasis)As stated above, Mrs Yaron included a copy of the MALAM paper to her statement. The paper stated, inter alia, that: “3. In the years 2001-2005 during the “second Intifada”, the ISM periodically recruited volunteers for intensive periods of activity in the Judaea, Samaria and the Gaza Strip areas. The volunteers, who began arriving in the “occupied territories” did not stop at aiding the Palestinian population, but “specialised” in disrupting the operational work of the IDF”.4. ISM’s activities included, inter alia: positioning activists to act as“human shields” for terrorists wanted by the Israeli security services,monetary, logistical and moral assistance to Palestinians, including terrorists and their families; disrupting demolition or “sealing-off” of terrorist’s homes who have carried out terrorist activities causing multiple casualties ” (my emphasis)
g. What were the IDF forces engaged in on the day in question: house demolition or ground exposure? The claimants state that the bulldozers were intent on demolishing the house of Dr Sameer Nasralla on the day in question. I rule unequivocally that this claim has no foundation in fact. On the day in question the two bulldozers, assisted by a smaller armoured personnel carrier were only engaged in ground exposure work . The platoon commander, S.R., described their mission on 16 March 2003 as follows: “On 16 March 2003 around lunchtime, two bulldozers (model DR9)and an armoured personnel carrier were ordered under my command to complete a task of exposing and leveling the ground in the“Philadelphi Corridor” (‘the corridor’). The task included leveling the ground and clearing it from weeds with a view to exposing possible hiding places for terrorists, which were being used to place IED against IDF soldiers.
There was an urgent need to complete this task so that the look-out soldiers could scan the area, identify terrorists and prevent the placing of IED. The purpose of the mission was in no way house demolitions and it was clear to anyone present in the area that the bulldozers were engaged in leveling the ground as they did not touch or demolish any houses ” (my emphasis)In this context, see also the witness statement of Colonel Zuaretz.I would like to emphasize that both witnesses were cross-examined by the claimants’ legal representatives at some length, and this examination did not bring about any departure from their original position. Both witnesses struck me as very reliable and I do not hesitate to rely fully on their statements in this judgment.
h. “Routine action” or a “war-related activity”? The claimants stated in their closing submissions that “(...) there is no significant factual dispute between the parties in relation to the circumstances which caused the death of the deceased, (...) (para 21 of the closing submission) , i.e. that the incident took place on 16 March 2003 on the edges of the “Philadelphi Corridor” during “ routine works of ground exposure and leveling ” (my emphasis)Conversely, the defendant states that the ground exposure is not a routine action at all. The State claims that exposure is an operational task which is carried out by trained fighters (see the defendant’s closing submissions).I side with the defendant in relation to this disagreement.S.R, the force commander, gave evidence about the nature of the action. He stated that in relation to ground exposure the claim that this is a “routine action” is not accurate at all. The witness stated that due to the dangerous nature of the area, every entry into it was an action liable to result in a complicated incident.
Therefore, this was a “combat procedure” – “an operation in every way” .Colonel Finky Zuaretz has also referred to the exposure activity as very dangerous, in light of the daily routine in the “Philadelphi Corridor” which is a combat zone. “We are talking here about a territory where daily combat is routine. It is not a question of if or when you will be shot at - there is shooting on a daily basis. IED are placed and detonated every day. There are attempts to kidnap soldiers every day. It is a war zone!” (see witness statement of Colonel Zuaretz).(in this context see also further references to Colonel Zuaretz’s evidence, Commander S.R.’s evidence etc.)I find that on the day in question the two bulldozers and armoured personel carrier were unequivocally engaged in operational combat action of ground exposure in a dangerous and unpredictable area . The actions of the IDF forces were aimed at preventing acts of hostility and terror in order to avert the danger of having terrorists hiding in the land folds and in order to expose IED concealed therein. Both the terrorists and the IED aim to kill IDF soldiers.
i. Moreover, while members of the Organisation were demonstrating around the task force, which was acting for their dispersal, a live grenade was thrown at the IDF force (see witness statement of S.R).
6. Finding of facts regarding the circumstances which led to the deceased’s death
On the basis of the evidence and the credibility of the witnesses before me I find the following facts regarding the circumstances which led to the deceased’s death:
a. The claimants called four eye- witnesses who are members of ISM and were with the deceased at the relevant time. They are: Richard Purcell, Alice Quay, Gregory Shnabelle and Tom Daley.
The four witnesses said that they arrived at Rafah as part of the ISM activities in order to protest against the occupation and its impact on the civilian Palestinian population.The witnesses testified that they document as observers the impact of the occupation on the lives of Palestinians, and they engage in non-violent action (note the relevant witness statements). The witnesses testified that they were not aware of the travel warnings issued by the American Foreign Office alerting members of the public against travel to the Rafah area (note relevant witness statements). In relation to the day of the incident the four witnesses testified that they arrived at the scene in order to prevent house demolitions by bulldozers (note relevant witness statements)
b. The witnesses described the chain of events where the deceased was injured as follows:
Richard Purcell testified that at 1630 hours there were two bulldozers in the area.One of the bulldozers began some sort of action to the left-hand side of a partially demolished building. He states that most members of the group were standing behind the demolished building at a range of 70 meters from each other. At this stage,according to Richard, he stood with the deceased between Dr Sameer’s partially demolished building and approximately 50 meters from the bulldozer. The deceased stepped forward until she was approximately 15-20 meters in front of Richard.
At this point, the bulldozer turned around so that its front was facing Dr Sameer’s house and began traveling forward. The witness testified that when the deceased was approximately 20-30 meters away from the bulldozer she kneeled in the bulldozer’s path. The bulldozer continued traveling towards her while its blade was in the rubble at a height of approximately 1.5-2 feet or half a meter. The witness said that when the bulldozer reached the deceased she climbed on a small pile of dirt while the bulldozer continued traveling forwards. The deceased turned around and began to move away with a view to climbing down from the dirt pile. However, the pile was in motion as she was climbing down and then the deceased disappeared underneath the dirt pile.
The bulldozer moved forwards at least four meters; the deceased’s friends ran towards the bulldozer and only then, it had stopped. Alice Quay stated that at approximately 1700 hours, she was sitting near Dr Sameer’s house and from there she had a view of the deceased. She saw that the bulldozer was approaching the deceased so she and another person named William began walking towards the deceased. William began shouting and Alice saw the deceased covered in rubble up to her chest. Tom Daley stated that the deceased and Richard were wearing high-visibility jackets.
According to him, the deceased was standing approximately 40 meters from Dr Sameer’s house and the bulldozer was moving toward the house and was approximately 15-20 meters from her. The deceased advanced a couple of meters and then kneeled . The witness states that that the bulldozer continued traveling towards the deceased while creating and pushing a pile of dirt. According to the witness when the deceased noticed that the bulldozer was approaching her, she stood, climbed on the dirt pile and while doing so most of her head was visible above the outline of the bulldozer’s blade. However, the bulldozer continued traveling forward and the deceased began falling into the dirt pile and the bottom part of her legs was buried.
Tom and his friends began shouting but the bulldozer’s driver continued traveling forwards. The deceased turned around and when the dirt pile had covered her, she was facing downwards. The bulldozer continued traveling forward and the deceased disappeared underneath the pile. The bulldozer paused for a few seconds and then reversed, revealing the deceased’s body. Gregory Shnabelle stated that the bulldozer approached the deceased while she was approximately 5-10 meters away from Dr Sameer’s house. According to him, the deceased was wearing a high-visibility jacket and while the bulldozer was approaching her, she was waving her arms. According to him, the bulldozer created the dirt pile approximately 25 meters from the deceased. Gregory testified that he noticed Rachel standing and beginning to climb the pile while it was being pushed towards her. The pile was as high as half the bulldozer’s blade and Rachel’s height was about 1.80 meters.
When the bulldozer approached Rachel it began pushing the dirt underneath her legs and around her ankles. She stood up and struggled to keep on top of the pile, but she lost her balance and fell back. The deceased was trapped underneath the rubble, the bulldozer continued traveling forwards and the deceased was trapped in the rubble. The bulldozer continued traveling with the blade down and ran over her entire body from her feet up to her head.
c. The soldier who was operating the bulldozer at the time of the incident was a military reserve man Y.P. In his statement, Y.P noted the following facts: “
9. Before going out on this mission we were briefed by the commander. During the briefing and given the location of the operation, which is known asan area where there is a real and immediate threat to life from Palestinian shootings, the commander explained that there is an absolute prohibition on leaving the armoured bulldozer, and emphasised the fact that Palestinian shooting is also aimed at the bulldozers (shootings from various weapons including hand-guns, anti-tank weapons and RPG). We were also told by the commander that there are demonstrators in the area, some of whom are foreign citizens.
10. During our operation we were disturbed by a group of 3-4 protestors. Afterwards another 8 protestors joined them. During the operation, I did not know the identity of the protestors who could have also been terrorists. They would approach the bulldozers and try to prevent us from carrying out our task by jumping before the bulldozer’s blade or standing behind it. The commander told us on the radio that we should not harm them, so every time the protestors interrupted us to the extent of putting their own lives at risk, were treated, or relocated south a number of times. The protestors then achieved their goal, which was to delay us and generally make the completion of our task more difficult. We tried to disperse the protestors in order to prevent their interruptions but even crowed dispersal measures would not deter them.
11. There were dirt piles in the area which were approximately a meter and a half tall, with tall weeds. During the works, the bulldozer pushes forward dirt piles and building waste thereby forming earth piles. During the incident in question, I pushed an approximately two meters high dirt pile forwards. The bulldozer traveled slowly and very carefully at a speed of approximately 1km/h. Obviously, while traveling forwards I did not see anyone standing in front of the bulldozer.
12. It is important to note that the bulldozer is very noisy when operational and we were also wearing protective earphones. Therefore, we were unable to hear what was happening outside the bulldozer.
13. At some stage I reversed. Apparently, and as I learned after the event, the protestors had run towards the bulldozer. I told the bulldozer’s commander tolook out because I could not see anything. The bulldozer’s commander could not see people behind the bulldozer so we reversed. At this stage, the bulldozer’s commander told me that the people are waving their arms and told me to stop. If I had seen anyone standing before the bulldozer, I would have obviously stopped and avoided injuring them. After we had reversed because we had seen that people were waving their arms as if trying to tell us something, and since they began taking photos of
us, I became worried that I had hit someone, so I reported it to the commander, as you can hear from the radio voice recording. I only learnt that we had hit someone from the reports on the radio.
14. I would like to point out that visibility from within the bulldozer is restricted due to its structure and its armoured construction.
15. I did not notice anyone in my travel route and I certainly did not notice anyone on the dirt pile I was pushing. I did not see where the deceased was standing and I could not have known where she was standing. One thing is clear – she was not in my line of vision. If I had noticed her, I would have stopped the bulldozer. All day we were careful not to hit the people present in the area who were disrupting our operation. We gave a lot of thought and effort to avoiding injuring them. The pile created by the bulldozer consists of a number of peaks and not just one like a pyramid. The pile separating the bulldozer and deceased and on which the deceased had climbed was a wide and uneven pile, created from rubble collected in the area. It is likely that anyone trying to climb it would sink into it straight away. Therefore, there could not be a situation where the deceased was standing for a few seconds on top of the pile in a stable manner.
If the deceased had made it to the top of the pile, an event which I do not consider is likely, then it is possible that she was standing on one of the peaks of the pile (one of several) outside my line of vision because I did not see her. If the deceased had been standing in my line of vision then I would have of course seen her because I was conducting my mission very carefully. I did not see anyone of the protestors giving me any warning sign before the event took place”. The bulldozer’s operator was questioned at length about his witness statement. He was consistent in saying that he did not see the deceased standing in front of the bulldozer during the incident. The cross-examination did not change anything to his original statement. The soldier strikes me as reliable and I have no reason to doubt what he has said.
d. Not one of the soldiers involved saw the deceased while she was standing in front of the bulldozer (see various statements)
e. The radio recording, which is an unequivocal and objective piece of physical evidence, supports the defence statements and proves categorically that the bulldozer team did not see the deceased.The video camera was not initially directed towards the location of the incident. Only after the incident had been reported, the camera was directed to find the place of the incident and homed in on it. However, from the soldier’s initial report on the ground,as the radio recording documents in real time, it is clear that at first the soldiers had no idea who had been injured and what the cause of the injury was .
f. The defendant submitted as evidence an expert report from the engineer Mr Yoram Menshuri (retired IDF Major). This report focused upon the visibility from armoured vehicles and their characteristics.Mr Menshuri examined the bulldozer’s field of view at various heights, which represents typical heights of people and various areas in the body. In addition, he examined the field of view from the ground.In analysing the field of view of the bulldozer’s driver/operator he found that: “
1) At the front of the bulldozer, in a horizontal line measuring 1.80 meters in height off the ground and positioned less than 10 meters from the bulldozer’s operator (approximately 5.5 meters from the blade) one cannot see anything (i.e. it would have been impossible to even see the top of the deceased’s head). The lower the horizontal line is (assuming the deceased was kneeling) the blind spot of vision increases to over 10 meters.
2) The most prominent factor in the operator’s field of view is the engine hood (this is, in fact, similar to non armoured vehicles).
3) At the front of the bulldozer at an angle 10-20 degrees to the right and 10-20 degrees to the left there is a blind spot because of the bulldozers pistons.The area is greater in an armoured vehicle as opposed to a civilian bulldozer because the pistons have to be armoured as well.
4) The blind spots at the front at an angle of 5-10 degrees to the right and 5-10 degrees to the left are because of the exhaust and the air filter hood.
5) While operating the bulldozer, the operator is focused on the position of the blade, especially the lower sides of the blade (the armoured structure, as shown in the field of view analysis, enabled the operator to see both sides of the blade. If a person comes from the side of the bulldozer to its front at a distance of less than 5.5 meters from the blade, there would be no chance for the operator to see this person.
6) The shorter the height of the operator – the more restricted the field of view is”.
Regarding the field of view of the bulldozer’s commander, it was said that even if “the commander has the ability to improve his field of view by dangling his upper body through the commander’s hatch” then in this case “the sniper threat in the area prevented the commander from taking his head out of the vehicle and therefore the entire command of the vehicle was conducted from the operator’s booth. As a result the commander could not have contributed to the operator’s field of view in the area close to the blade.”
Furthermore, the expert report states that “one has to consider that soldiers wear protective glasses which, during prolonged periods, get covered in steam. This makes it even more difficult to notice people at the front of the bulldozer”; and “while working the bulldozer produces small clouds of dust which also contribute to a restricted field of view”. Regarding the second bulldozer’s team and the armoured personnel carrier team, the expert noted that “although the field of view at the front of the second bulldozer was checked, it does not appear to be relevant because that team was busy undertaking its own tasks and trying to avoid harming the protestors who were operating nearby. The same thing can be said about the armoured personnel carrier team which was engaged in securing the soldiers while remaining vigilant about terrorists in the perimeter area.”
For the reasons stated above, Mr Menshuri concluded, “it is clear to me that the soldiers did not see, could not have seen and did not have a chance to see the deceased” .Further, the defence expert referred to the possibility of installing cameras in the bulldozer, which was raised by the claimants’ expert, Mr Esban. He stated that effective camera equipment could have been installed at a cost of only a few hundred shekels.Mr Manshur ruled out this option stating – “It is not possible to install several cameras connected to several screens due to the cameras’ limited durability and due to the inability of the operators to watch them all simultaneously while conducting operational tasks. In addition,a camera which can transmit a 360 degrees picture to one screen does not exist and therefore the recommendation made by the claimants’ expert whereby a simple and cheap camera equipment, costing only a few hundred shekels would have given the vehicle’s operator and commander a 360 degrees field of view, is impractical and ineffective” .
g. I should point out that even the claimants’ expert, Mr Asher Esban, an expert in safety and accident investigation, stated in his report that it is doubtful if the bulldozer’s operator and his commander had seen the deceased while she was behind or near the pile they were pushing: “*It is doubtful if the vehicle’s operator and his commander had seen the deceased while she was behind or near the pile they were pushing using the bulldozer.
*The commander of the force who was sitting in the armoured vehicle could not have seen the deceased who was beyond the dirt pile and beyond the bulldozer due to its incorrect position” (my emphasis)During questioning, Mr Esban was asked whether it is correct to say that given the position of the forces at the time that they could not have seen the deceased , here sponded that - “There was no possibility that the armoured vehicle and both D9s could have seen” Mr Esban continued: “From the position where the armoured vehicle and both D9s were standing they could not have seen the deceased, if the deceased was behind the dirt pile”.
h. The behaviour of the members of the ISM organisation, including the deceased, was not only unlawful due to the fact that it was in breach of a Major General’s Directive decreeing the area a “closed military zone” and prohibiting the presence of civilians in the “Philadelphi Corridor” area, it was also irresponsible. Mrs Ruth Yaron described the situation adequately in her report: “The tragic event which is the subject of this claim, brings to the fore their responsible and unlawful manner in which members of the Organisation conducted themselves and particularly, the deceased. This behavior is typical of members of the Organisation and is expressed in its members’ willingness and consent, including that of the late Rachel Corrie, to risk their lives,whether by their presence in the “Philadelphi Corridor” which is dangerous(it is known that there is daily combat action in this area which includes: shootings, sniper fire, IEDs, missile launching, throwing of live grenades etc),or through their choice of serving as human shields from various dangers in the name of the Organisation.
In the event which is subject to this claim, Rachel Corrie, an Organisation activist, chose to be present in the dangerous “Philadelphi Corridor” without authorisation (of course) and without any protection while exposing herself to a life threatening situation. (This is a combat area and only combatant are allowed to be present). Furthermore, the deceased chose to stand in front of a large, heavy and dangerous operational vehicle. Even when the vehicle was approaching her at a snail’s pace allowing her to escape easily, she chose to remain standing. This behaviour demonstrates that the deceased was prepared to put her life at risk out of her own free will in the name of the Organisation.This behaviour, which is typical of members of the Organisation and their activities, has brought about the tragic outcome of this incident.”
i. There is almost not dispute between the claimants’ witnesses and the evidence of Y.P., the bulldozer’s operator, and A.V., the bulldozer’s commander, regarding the circumstances in which the deceased died.
Therefore, I find that the circumstances of the incident were as follows:On 16 March 2003 IDF forces were engaged in a land exposure mission in the“Philadelphi Corridor”. A Directive issued by an IDF Major General decreed that the area was a “closed military zone” and prohibited entry of civilians into it .Members of the ISM Organisation breached this Directive, arrived unlawfully to the“Philadelphi Corridor” area, interrupted the bulldozers, which were engaged in ground exposure and made every effort to prevent them from doing their job.
From the reports in the operational diary, it seems that crowed dispersal techniques, which were employed by the forces in the area, such as stun grenades, tear gas and even warning shots near the protestors was futile in getting the ISM members to leave the area. The IDF forces were very careful not to injure civilians. Indeed, members of the Organisation had partially achieved their aim because due to their constant interruptions the force moved the location of the mission south several times.
From the evidence before me it emerges that at approximately 1700 hours the deceased was walking and standing approximately 15-20 meters from the relevant bulldozer and kneeled. The relevant bulldozer is a large, clumsy and armoured vehicle of a DR9 make. The operator’s field of view from within the bulldozer is limited. At some point the bulldozer turned around and began traveling towards the deceased.The bulldozer was pushing a high pile of dirt. As far as the bulldozer’s operator was concerned, the deceased was standing in a “blind spot” in his field of view.
The deceased was situated behind the bulldozer’s blade and behind the pile of soil and therefore the bulldozer’s operator could not have seen her.The bulldozer was traveling at a very slow pace, around 1 km/h.When the deceased noticed the dirt pile approaching her she did not move away from the scene, as every reasonable person would have done. Instead, she walked towards the bulldozer and began climbing on the pile. However, because the pile of dirt continued moving, as a result of being pushed by the bulldozer, and due to its loose and soft consistency, she was trapped in the pile and fell over. At this stage when the deceased’s legs were concealed by the dirt pile her friends saw that she was trapped and ran towards the bulldozers signalling by waving their arms and shouting for it to stop.
By the point the bulldozer’s operator and his commander noticed the deceased’s friends and stopped the vehicle, a significant part of the deceased’s body had already been covered in dirt. Not all of the deceased’s body was covered in dirt. The fact of the matter is that when the bulldozer reversed, the deceased’s body was seen sticking out of the dirt pile, while she was still alive .The deceased was taken to hospital and pronounced dead some 20 minutes later.
Professor Hiss who conducted the autopsy stated in his report that: “Having conducted an autopsy on the body of Ms Rachel Alien Corrie, 24 year old woman, I am of the view that her death was caused by pressure to her chest (“mechanical suffocation”) with fractures to the ribs and spine, the collar bones and puncture wounds to the right lung with bleeding. Additionally I found a tear in the upper lip of the mouth and a dry friction wound on the left cheek”.
I unequivocally conclude that there is no basis to the claimants’ argument that the bulldozer hit the deceased intentionally . This was a very unfortunate accident and not a deliberate action. No one sought to cause harm to the deceased. I am persuaded that the bulldozer’s operator would not have continued his actions had he seen the deceased standing in front of the bulldozer, as he and his colleagues had done on previous occasions that day, when they changed the location of their operation due to the disruptions caused by members of the Organisation.
Therefore, I find that the deceased’s death was caused as a result of an accident, when the deceased tried to climb the pile of dirt unsuccessfully. She got trapped in the pile and fell over. The bulldozer continued pushing the dirt pile until it stopped once the deceased’s friends signaled to the operator that an accident had occurred. These are the facts.
Judgment of the Haifa District Court (T.A. 371/05)Between
(1) Estate of the Late Rachel Corrie
(2) Craig R Corrie
(3) Cynthia A Corrie
(4) Christopher R Corrie
(5) Sarah E Simpson Claimantsv.
The State of Israel - Ministry of Defence Defendant 1. In the claim before me (T.A. 371/05) the claimants, the estate of the late Rachel Corrie (‘the deceased’), the deceased’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 allegedly inflicted upon them as a result of the death of the deceased during the incident that is the focus of this trial. In addition to the aforementioned, the claimants have petitioned to direct the defendant to pay"punitive damages".
2. Summary of the claimants’ amended Statement of Claim
a. The deceased, Rachel Corrie, born on 10 April 1979, was an American citizen,residing in Olympia, Washington. On 16 March 2003, the deceased was killed during an incident, which is the focus of this case. She was 24 years old. The deceased was an activist in the International Solidarity Movement (‘the Organisation’ or ‘the ISM’).
b. The claimants, through their Attorney Hussein Abu-Hussein, claim that on 16March 2003, the deceased, together with other ISM activists, arrived at the"Philadelphi Corridor" in the Rafah area of the Gaza Strip where two bulldozers and an Israeli Defence Force (‘IDF’) tank were conducting operational activities. The claimants claim that the bulldozers were about to demolish a house in the area and that the deceased and her fellow ISM
members stood in the path of the bulldozers in order to prevent them from carrying out their task.
c. At paragraph 8.5 of the Statement of Claim, the claimants state: "At 1700 hours or thereabouts, the deceased stood near the house of Dr.Samir Nasrallah, which was designated for demolition, and one of the bulldozers was positioned 10 to 15 meters from her. The bulldozer approached the deceased and pulled dirt from under her feet. The deceased fell to the ground and the blade of the bulldozer ran over her leg and afterwards ran over her body. When the bulldozer reversed, the deceased was gravely injured and bleeding extensively in several parts of her body. However, she was still breathing.The deceased was transferred to the Al-Najer Hospital in Rafah, where her death was pronounced after 20 minutes" .
d. The claimants claim that: “ (...) the untimely death of the deceased was brought about as a result of the intentional use of force by the bulldozer’s operator , which was unreasonable in all the circumstances, against the deceased’s body while she was still alive and without her consent. In assessing the proportionality of the harm caused to the deceased against the harm the bulldozer’s operator sought to prevent, it is considered that the use of force was extremely disproportionate and entirely unreasonable. The identity of the bulldozer’s operator remains unknown to the claimants at this time, but they reserve the right to amend the statement of claim to reflect naming the bulldozer’s operator and the military officers present at the time as defendants, once their identities are disclosed. In any event, the claimants claim that the defendant was negligent in supervising the bulldozer’s operator and the military officers present at the time” (my emphasis).
e. The claimants claim that the actions of the bulldozer’s operator and the other soldiers and officers present at the scene of the incident fell below the normal standards of behaviour which could be expected of a skilled professional in the circumstances of this specific incident.
f. Furthermore, the claimants claim that the bulldozer’s operator and his commanders breached, inter alia, the bulldozer Operational Guidelines (the Guidelines were submitted as evidence and marked as exhibit T/31), in that they allowed the presence of people near the bulldozer, and did not remove the deceased and her fellow activists who were present at the time from the scene.
g. The claimants claim that the defendant is responsible for the incident and for the death of the deceased both under international law and under the laws of vicarious and/or direct liability.
h. The claimants seek a ruling that “the incident which is the subject of this claim should not be regarded as a "war-related activity" which was brought about as part of an anti- terrorist activity in circumstances where there was a risk to life and limb”.
i. The claimants seek a ruling that they suffered evidential damage. They state that having reviewed the Military Police’s files relating to this incident, it emerged that no substantive, robust or objective investigation had been carried out in this case.
j. Furthermore, the claimants claim that the Military Police investigators and/or the Coroner’s staff, who are all representatives of the defendant, breached a court order in allowing the deceased’s autopsy to take place in the absence of are presentative from the American Embassy.
k. Furthermore, the claimants look to the court – “to rule that sections 23, 35, 36 and 41 of the Civil Wrongs Ordinance (as amended) are applicable in this case. The claimants claim that in the circumstances it is just and reasonable for the court to exercise its discretion and implement section 41 of the Civil Wrongs Ordinance given the unique circumstances of the incident in question” .
l. The claimants claim that the defendant should be ordered to pay damages on the following grounds:
i. Assault contrary to section 23 of the Civil Wrongs Ordinance (as amended)
ii. Negligence contrary to sections 35 and 36 of the Civil Wrongs Ordinance (as amended)
iii. Breach of the deceased’s right to life contrary to international humanitarian law, international human rights law and the Israeli Basic Law: Human Dignity and Liberty 1992. The claimants argue that this breach amounts to a constitutional breach of a Basic Law.
3. Summary of the defendant’s grounds for resistance
a. The defendant, through its representatives, attorneys Irit Kalman-Brom and Nir Gancherski, claims in its grounds for resistance that – “During the relevant time, and also at present (the first grounds for resistance was submitted on 23 June 2005) the State of Israel has been engaged in an uncompromising struggle against Palestinian terrorist organisations. Since September 2000, those terrorist fractions have engaged in a cruel and bloody battle against the State of Israel and its citizens. Terrorists have committed,and continue committing, the most appalling and unprecedented acts of terror on a daily basis. Those acts of terror are directed indiscriminately against all Israelis: men, women and children. Those murderous actions include shootings, use of IED, missile and rocket attacks, terrorist attacks using vehicles or cold weapons and suicide bombings.”
b. The defendant claims that – “The ‘Philadelphi Corridor’ is a main transport artery which is located east of the border with Egypt and, inter alia, crosses the city of Rafah. According to the Oslo Accord, this territory is defined as a territory where Israel has complete civilian and security control. Due to its attractive location, the corridor is used for smuggling weapons and terrorists to and from the Gaza strip. The volume of terrorist activity and the attempts to harm IDF forces in this area are disproportionately high compared to its relatively small size.”
c. The defendant claims that until 16 March 2003, when the incident took place,the following terrorist incidents had been recorded: approximately 6,000 hand grenades had been thrown at IDF forces, there had been approximately 1,400 incidents of gunfire and sniper attempts, 150 bombs were laid, approximately200 incidents against tanks were recorded and more than 40 mortar bombs had been fired. In addition, more than 100 tunnels used for smuggling weapons and terrorists had been exposed. The defendant states that “as a result of the horrendous and unprecedented terrorist campaign mounted by terrorist organisations against IDF forces in the ‘Philadelphi Corridor’, three Israelis were killed and dozens more injured.”
Therefore, and in the light of the extreme dangerousness of the ‘Philadelphi Corridor’, the security forces adopted security and operational steps, including detailed working procedures and guidelines, for working in this region.d. The defendant states that in view of the numerous terrorist attacks in the‘Philadelphi Corridor’ it had to employ D9 bulldozers to level the ground in order to prevent further terrorist threats .
“The purpose of the [bulldozer’s]work is to uncover bombs which have been concealed in the ground in order to kill and maim the security forces and to uncover potential hiding places for terrorists in the vicinity of the corridor. Each bulldozer is controlled by an operator and an officer, the latter’s role is to direct the operator as the field of view from within the vehicle is restricted” .The defendant emphasised that given the real and immediate threat to human life due to sniper attacks, appointing a soldier to direct the bulldozer (a‘director’) outside the vehicle is prohibited. “It is prohibited due to the increased risk of doing so. Appointing an external director in the “Philadelphi Corridor” would inevitably mean that the director- soldier would be exposed to the risk of sniper fire etc. and all its consequences”.
e. At paragraph 38 of the grounds for resistance the defendant states that-
i. “On 16 March 2003 at 1400 hours bulldozers began working in the ‘Philadelphi Corridor’. Approximately one-hour later ISM activistsarrived in the area carrying banners and cameras and began disrupting the on-going military operation. The army tried to disperse the protesters using loudspeaker announcements and other crowed control measures such as throwing stun grenades towards them, using tear gas and even firing warning shots towards them. The army’s attempts to disperse the demonstrators were unsuccessful and the activists remained in the area.
The work of the bulldozers continued despite continuous interruptions from the protestors. The decision to continue the work of the bulldozers in spite of the presence of civilians in the area was made due to the critical nature of the task, including the immediate and future danger to the lives of soldiers operating in this area from sniper attacks. In order to emphasise the real danger to which the operators of the bulldozer were exposed suffice to say that one hour before the incident a deadly fragmentation grenade was thrown in the direction of the bulldozer with the sole aim of killing the soldiers in its vicinity.
ii. From examining the circumstances of the incident it transpired that at approximately 1700 hours the deceased, Rachel Aliene Corrie, began moving towards one of the two bulldozers operating in the area. The[relevant] bulldozer, operating in accordance with the regulations and while traveling forwards, piled building waste using its front loader arm. When the bulldozer was approximately 20 meters away from the deceased, the latter sat or kneeled on the ground believing or assuming that the bulldozer would stop when it approached her. The bulldozer continued traveling forwards with the dirt pile in front of it. When the dirt pile reached the place where the deceased was sitting she began climbing the pile, but struggled to keep her balance.
During her climbing attempt, but before she had reached the top of the pile, the deceased decided to get down from the pile. She turned in the opposite direction and began climbing down from the pile when, unexpectedly,her leg had become entangled in something and she fell to the ground and lay down at the bottom of the pile.
At the same time, the bulldozer continued traveling at a very slow pace towards the pile using an internal director while the dirt pile began covering the deceased until she was completely covered. The deceased’s friends approached the bulldozer and began gesturing and shouting at the bulldozer’s operator to stop. The bulldozer’s operator and his officer stopped immediately upon noticing the actions of the young people, lifted the blade and reversed. Once the bulldozer had reversed, the deceased was uncovered lying on the ground, still alive. The deceased spoke to her friends and a few minutes later was taken to hospital”.
f. The defendant claims that the incident took place while performing an ‘Act of State’ “the implication of which to the jurisdiction of the court in this matter is that the claim should be dismissed” .
The defendant claims that in the circumstances, the incident was defined as a‘war- related activity’ and as such, the state does not carry responsibility for it.The defendant claimed that from the statement of claim itself it is evident that the deceased was injured due to an activity by virtue of section 3 of the Civil Damages (Responsibility of the State) Act 1952.
g. Furthermore, the defendant claims that the criteria for reversing the burden of proof are not met. Therefore, the defendant claims that the burden of proof is on the claimants to prove their case.
h. The defendant claims that the IDF forces operating in the area during the time of the incident were not negligent.The defendant claims, inter alia, that the actions of the soldiers and/or the security forces were reasonable and intended to protect themselves and/or others from unlawful use of force. The defendant states that its actions and the actions of its representatives were careful and prudent. The actions were undertaken according to the guidelines, regulations and warnings regarding the security measures appropriate for use of weapons and action in the circumstances. The actions taken were reasonable and designed to enable IDF soldiers and officers to maintain the civil and military order to ensure effective law enforcement.
i. Further and in the alternative, it was claimed that in the circumstances it would be correct to consider the operation of section 65 of the Civil Wrongs Ordinance (as amended) because the deceased had willingly put herself at risk.Therefore, the claimants should not be awarded any damages, or alternatively that any damages awarded should be substantially reduced.
It was claimed that the deceased was injured due to engaging in a prohibited and/or unlawful activity in clear breach of a Major General Military Directive decreeing the area was a ‘closed military zone’ to which civilian entrance is prohibited. It was claimed that the deceased exposed herself to injury deliberately while she remained in the Gaza strip in general and in the‘Philadelphi Corridor’ in particular. It was claimed that the deceased assumed the risk upon herself in view of the numerous shootings and terrorist incidents in the corridor.
j. The State claimed that even if it was decided that there was a causal link between the injury caused to the deceased and the actions of the army during the incident, in the circumstances the deceased should be attributed contributory negligence at a rate of 100%, which cuts the causal link completely and nullifies this claim.
k. The State claims that the autopsy on the deceased’s body was performed in the absence of a representative from the American Embassy only after the Embassy informed Professor Hiss, Chief Pathologist in the Abu-Kabir Forensic Institute, that the autopsy could proceed in the absence of such a representative.
l. In relation to the Military Police’s investigation of the incident, it was claimed that a full and thorough investigation was carried out which included consultation with several other public bodies. In addition, a re-enactment was done, tens of people and witnesses were interviewed and investigations were carried out in order to uncover the truth. In this context, it was noted that once all procedures have been exhausted, the Military Police concluded that none of the people involved should be charged with any offense.
m. On the basis of the above the defendant stated that the claim should be dismissed in its entirety and the claimants be ordered to pay the defendant’s costs.
4. The Trial
a. The court directed both parties to submit witness statements and the witnesses were questioned on those statements. Also, expert reports were submitted by both parties and the experts were cross-examined on their opinions.
b. The parties agreed that the trial will be split such that the question of responsibility for the death of the deceased will be decided first. If the claimants are successful in establishing their case then the question of damages will be discussed.This judgment therefore deals solely with the question of responsibility.
5. The facts
Having considered the evidence presented to the court and studied the oral evidence given by the witnesses in this court I hereby make the following findings of fact:
a. Place and time The place of the relevant incident is the ‘Philadelphi Corridor’ in the Gazastrip, near Rafah.The time is March 2003 - a period of daily warfare, i.e. daily sniper gunfire,missile fire and IED explosions directed at IDF forces. During this period,constant attempts were being made to kidnap IDF soldiers [see witness statement of Colonel Finki Zuaretz].At the relevant time, the ‘Philadelphi Corridor’ was the subject of a Military Directive made by an IDF Major General, which decreed the area a ‘closed military zone’ and prohibited civilian access.
b. The ‘Philadelphi Corridor’ The Corridor is situated east of the border with Egypt in an area defined as a‘security facilities zone’ in which Israel had full civilian and military control according to the peace treaty with Egypt (see witness statement of Colonel Zuaretz). During the relevant time, the Corridor was a place of conflict between IDF forces and the terrorist activists operating in Gaza. It was against this background that the corridor was being used as a main artery for smuggling weapons and terrorists to and from the Gaza strip. The terrorists leaving the Gaza strip exited with the sole purpose of entering Israeli territory and committing murderous terrorist activities, including suicide attacks in its territory. The volume of terrorist attacks and terrorist attempts in the area was particularly high and accounted for approximately 70% of all terrorist activities in the State of Israel at the time. The Corridor was a daily battleground and only combat soldiers were allowed to fight there (see witness statement of Colonel Zuaretz).At the relevant time, Colonel Zuaretz was the commander of the Southern Brigade of the Gaza division, which was responsible for this territory and all military actions therein (see witness statement of Colonel Zuaretz).
c. Terrorist activities in the ‘Philadelphi Corridor’ According to IDF records, from September 2000 to the date of the incident that is the focus of this claim (16 March 2003), nearly 6,000 grenades had been thrown at IDF forces in the Corridor, approximately 1,400 incidents of gunfire and sniper shootings had taken place, 150 IED had been placed, approximately 200 incidents of shootings against tanks had been recorded and there more than 40 occurrences of mortar fire had taken place. These aforementioned events led to the injury and death of many Israelis (see witness statement of Colonel Zuaretz). Furthermore, from 2001 to the date of the incident 47 tunnels had been discovered from the Israeli side and 64 tunnels from the Egyptian side of the border. The tunnels are used for smuggling weapons. In addition, some tunnels had been booby-trapped and car bombs had been detonated in the area (see witness statement of Colonel Zuaretz).
d. The use of the ‘Philadelphi Corridor’ The Corridor was used for movements of IDF troops in order to secure the border with Egypt and to prevent the infiltration of terrorists through that border. During the relevant time, there was no security fence in that area. The task of IDF troops was to prevent terrorist attacks, to prevent the infiltration of terrorists into Israeli territory and to prevent smugglings across the border, including the smuggling of explosives (see witness statement of Colonel Zuaretz).
e. The dangers in the ‘Philadelphi Corridor’ The Corridor is one of the most dangerous corridors in the Gaza strip and therehave been daily attempts to harm soldiers there by shootings, launching of missiles, IED etc. This terrorist activity was made possible due to the topographical layout of the Corridor, which contained a large amount of building rubble, long grass and land folds. This enabled terrorists to find hiding places and organise for terrorist action against IDF soldiers (see witness statement of Colonel Zuaretz).
f. The International Solidarity Movement (ISM) In considering the nature of the Organisation, I rely on the opinions of Mrs Ruth Yaron, former spokesperson for the IDF during 2002-2005, and on are search paper from the Institute of Intelligence and Terrorism named after Major General Meir Amit (‘MALAM’). These statements make the following observations:
ISM was established in 2001 as a voluntary organisation. “The Organisation's aim (as stated in its documents and its internet website)is to work alongside the Palestinian population against the “Israeli occupation”. They purport to achieve this aim by apparently using non-violent methods and “direct action”. As can be gleaned from various documents, the Organisation declares that “it supports the right of Palestinians to resist the Israeli violence and occupation using an armed struggle”. Notwithstanding the fact that members of the Organisation express their views orally and in writing using the rhetoric of human rights and humanitarian organisations, the actions of its members do not match these decelerations. The Organisation exploits the discourse of human rights and morality in order to blur the severity of its de facto violent actions .
By doing that, the Organisation undermines the work of other human rights organisations which operate as they should and according to procedures governing humanitarian action in combat zones” (my emphasis)(see witness statement of Brigade General Yaron)Mrs. Yaron notes in her statement that the ISM is known for having“defended” Palestinian families despite the fact that they were implicated in terrorism. In her opinion and supplementary statement dated 15 May 2011, Mrs Yaron highlighted the lacuna between the declarations of the Organisation and the true nature of its operation and actions .
In her supplementary witness statement Mrs. Yaron relied on the research paper about the Organisation prepared by MALAM and stated that the paper: “(...) strengthens my view in that it supports my opinion regarding the nature of the Organisation and the lacuna between the declarations made and its de facto actions. The paper supports the fact that the Organisation operates through violence, which is inconsistent with its declarations” .Furthermore, Mrs Yaron states in her supplementary witness statement that: “In my first witness statement I said that “the Organisation caused its volunteers to be consistently sent to dangerous war zones while intensive combat action was underway, thereby unlawfully putting the volunteers’ lives at risk”. Recently I learnt about a travel warning issued by the US Government on 16 March 2003 , which warns American citizens against visiting the Gaza Strip and the West Bank.
This travel warning in itself strengthens my opinion that members of the organisation knowingly chose totravel to places where there is a clear risk to life and limb” (my emphasis)As stated above, Mrs Yaron included a copy of the MALAM paper to her statement. The paper stated, inter alia, that: “3. In the years 2001-2005 during the “second Intifada”, the ISM periodically recruited volunteers for intensive periods of activity in the Judaea, Samaria and the Gaza Strip areas. The volunteers, who began arriving in the “occupied territories” did not stop at aiding the Palestinian population, but “specialised” in disrupting the operational work of the IDF”.4. ISM’s activities included, inter alia: positioning activists to act as“human shields” for terrorists wanted by the Israeli security services,monetary, logistical and moral assistance to Palestinians, including terrorists and their families; disrupting demolition or “sealing-off” of terrorist’s homes who have carried out terrorist activities causing multiple casualties ” (my emphasis)
g. What were the IDF forces engaged in on the day in question: house demolition or ground exposure? The claimants state that the bulldozers were intent on demolishing the house of Dr Sameer Nasralla on the day in question. I rule unequivocally that this claim has no foundation in fact. On the day in question the two bulldozers, assisted by a smaller armoured personnel carrier were only engaged in ground exposure work . The platoon commander, S.R., described their mission on 16 March 2003 as follows: “On 16 March 2003 around lunchtime, two bulldozers (model DR9)and an armoured personnel carrier were ordered under my command to complete a task of exposing and leveling the ground in the“Philadelphi Corridor” (‘the corridor’). The task included leveling the ground and clearing it from weeds with a view to exposing possible hiding places for terrorists, which were being used to place IED against IDF soldiers.
There was an urgent need to complete this task so that the look-out soldiers could scan the area, identify terrorists and prevent the placing of IED. The purpose of the mission was in no way house demolitions and it was clear to anyone present in the area that the bulldozers were engaged in leveling the ground as they did not touch or demolish any houses ” (my emphasis)In this context, see also the witness statement of Colonel Zuaretz.I would like to emphasize that both witnesses were cross-examined by the claimants’ legal representatives at some length, and this examination did not bring about any departure from their original position. Both witnesses struck me as very reliable and I do not hesitate to rely fully on their statements in this judgment.
h. “Routine action” or a “war-related activity”? The claimants stated in their closing submissions that “(...) there is no significant factual dispute between the parties in relation to the circumstances which caused the death of the deceased, (...) (para 21 of the closing submission) , i.e. that the incident took place on 16 March 2003 on the edges of the “Philadelphi Corridor” during “ routine works of ground exposure and leveling ” (my emphasis)Conversely, the defendant states that the ground exposure is not a routine action at all. The State claims that exposure is an operational task which is carried out by trained fighters (see the defendant’s closing submissions).I side with the defendant in relation to this disagreement.S.R, the force commander, gave evidence about the nature of the action. He stated that in relation to ground exposure the claim that this is a “routine action” is not accurate at all. The witness stated that due to the dangerous nature of the area, every entry into it was an action liable to result in a complicated incident.
Therefore, this was a “combat procedure” – “an operation in every way” .Colonel Finky Zuaretz has also referred to the exposure activity as very dangerous, in light of the daily routine in the “Philadelphi Corridor” which is a combat zone. “We are talking here about a territory where daily combat is routine. It is not a question of if or when you will be shot at - there is shooting on a daily basis. IED are placed and detonated every day. There are attempts to kidnap soldiers every day. It is a war zone!” (see witness statement of Colonel Zuaretz).(in this context see also further references to Colonel Zuaretz’s evidence, Commander S.R.’s evidence etc.)I find that on the day in question the two bulldozers and armoured personel carrier were unequivocally engaged in operational combat action of ground exposure in a dangerous and unpredictable area . The actions of the IDF forces were aimed at preventing acts of hostility and terror in order to avert the danger of having terrorists hiding in the land folds and in order to expose IED concealed therein. Both the terrorists and the IED aim to kill IDF soldiers.
i. Moreover, while members of the Organisation were demonstrating around the task force, which was acting for their dispersal, a live grenade was thrown at the IDF force (see witness statement of S.R).
6. Finding of facts regarding the circumstances which led to the deceased’s death
On the basis of the evidence and the credibility of the witnesses before me I find the following facts regarding the circumstances which led to the deceased’s death:
a. The claimants called four eye- witnesses who are members of ISM and were with the deceased at the relevant time. They are: Richard Purcell, Alice Quay, Gregory Shnabelle and Tom Daley.
The four witnesses said that they arrived at Rafah as part of the ISM activities in order to protest against the occupation and its impact on the civilian Palestinian population.The witnesses testified that they document as observers the impact of the occupation on the lives of Palestinians, and they engage in non-violent action (note the relevant witness statements). The witnesses testified that they were not aware of the travel warnings issued by the American Foreign Office alerting members of the public against travel to the Rafah area (note relevant witness statements). In relation to the day of the incident the four witnesses testified that they arrived at the scene in order to prevent house demolitions by bulldozers (note relevant witness statements)
b. The witnesses described the chain of events where the deceased was injured as follows:
Richard Purcell testified that at 1630 hours there were two bulldozers in the area.One of the bulldozers began some sort of action to the left-hand side of a partially demolished building. He states that most members of the group were standing behind the demolished building at a range of 70 meters from each other. At this stage,according to Richard, he stood with the deceased between Dr Sameer’s partially demolished building and approximately 50 meters from the bulldozer. The deceased stepped forward until she was approximately 15-20 meters in front of Richard.
At this point, the bulldozer turned around so that its front was facing Dr Sameer’s house and began traveling forward. The witness testified that when the deceased was approximately 20-30 meters away from the bulldozer she kneeled in the bulldozer’s path. The bulldozer continued traveling towards her while its blade was in the rubble at a height of approximately 1.5-2 feet or half a meter. The witness said that when the bulldozer reached the deceased she climbed on a small pile of dirt while the bulldozer continued traveling forwards. The deceased turned around and began to move away with a view to climbing down from the dirt pile. However, the pile was in motion as she was climbing down and then the deceased disappeared underneath the dirt pile.
The bulldozer moved forwards at least four meters; the deceased’s friends ran towards the bulldozer and only then, it had stopped. Alice Quay stated that at approximately 1700 hours, she was sitting near Dr Sameer’s house and from there she had a view of the deceased. She saw that the bulldozer was approaching the deceased so she and another person named William began walking towards the deceased. William began shouting and Alice saw the deceased covered in rubble up to her chest. Tom Daley stated that the deceased and Richard were wearing high-visibility jackets.
According to him, the deceased was standing approximately 40 meters from Dr Sameer’s house and the bulldozer was moving toward the house and was approximately 15-20 meters from her. The deceased advanced a couple of meters and then kneeled . The witness states that that the bulldozer continued traveling towards the deceased while creating and pushing a pile of dirt. According to the witness when the deceased noticed that the bulldozer was approaching her, she stood, climbed on the dirt pile and while doing so most of her head was visible above the outline of the bulldozer’s blade. However, the bulldozer continued traveling forward and the deceased began falling into the dirt pile and the bottom part of her legs was buried.
Tom and his friends began shouting but the bulldozer’s driver continued traveling forwards. The deceased turned around and when the dirt pile had covered her, she was facing downwards. The bulldozer continued traveling forward and the deceased disappeared underneath the pile. The bulldozer paused for a few seconds and then reversed, revealing the deceased’s body. Gregory Shnabelle stated that the bulldozer approached the deceased while she was approximately 5-10 meters away from Dr Sameer’s house. According to him, the deceased was wearing a high-visibility jacket and while the bulldozer was approaching her, she was waving her arms. According to him, the bulldozer created the dirt pile approximately 25 meters from the deceased. Gregory testified that he noticed Rachel standing and beginning to climb the pile while it was being pushed towards her. The pile was as high as half the bulldozer’s blade and Rachel’s height was about 1.80 meters.
When the bulldozer approached Rachel it began pushing the dirt underneath her legs and around her ankles. She stood up and struggled to keep on top of the pile, but she lost her balance and fell back. The deceased was trapped underneath the rubble, the bulldozer continued traveling forwards and the deceased was trapped in the rubble. The bulldozer continued traveling with the blade down and ran over her entire body from her feet up to her head.
c. The soldier who was operating the bulldozer at the time of the incident was a military reserve man Y.P. In his statement, Y.P noted the following facts: “
9. Before going out on this mission we were briefed by the commander. During the briefing and given the location of the operation, which is known asan area where there is a real and immediate threat to life from Palestinian shootings, the commander explained that there is an absolute prohibition on leaving the armoured bulldozer, and emphasised the fact that Palestinian shooting is also aimed at the bulldozers (shootings from various weapons including hand-guns, anti-tank weapons and RPG). We were also told by the commander that there are demonstrators in the area, some of whom are foreign citizens.
10. During our operation we were disturbed by a group of 3-4 protestors. Afterwards another 8 protestors joined them. During the operation, I did not know the identity of the protestors who could have also been terrorists. They would approach the bulldozers and try to prevent us from carrying out our task by jumping before the bulldozer’s blade or standing behind it. The commander told us on the radio that we should not harm them, so every time the protestors interrupted us to the extent of putting their own lives at risk, were treated, or relocated south a number of times. The protestors then achieved their goal, which was to delay us and generally make the completion of our task more difficult. We tried to disperse the protestors in order to prevent their interruptions but even crowed dispersal measures would not deter them.
11. There were dirt piles in the area which were approximately a meter and a half tall, with tall weeds. During the works, the bulldozer pushes forward dirt piles and building waste thereby forming earth piles. During the incident in question, I pushed an approximately two meters high dirt pile forwards. The bulldozer traveled slowly and very carefully at a speed of approximately 1km/h. Obviously, while traveling forwards I did not see anyone standing in front of the bulldozer.
12. It is important to note that the bulldozer is very noisy when operational and we were also wearing protective earphones. Therefore, we were unable to hear what was happening outside the bulldozer.
13. At some stage I reversed. Apparently, and as I learned after the event, the protestors had run towards the bulldozer. I told the bulldozer’s commander tolook out because I could not see anything. The bulldozer’s commander could not see people behind the bulldozer so we reversed. At this stage, the bulldozer’s commander told me that the people are waving their arms and told me to stop. If I had seen anyone standing before the bulldozer, I would have obviously stopped and avoided injuring them. After we had reversed because we had seen that people were waving their arms as if trying to tell us something, and since they began taking photos of
us, I became worried that I had hit someone, so I reported it to the commander, as you can hear from the radio voice recording. I only learnt that we had hit someone from the reports on the radio.
14. I would like to point out that visibility from within the bulldozer is restricted due to its structure and its armoured construction.
15. I did not notice anyone in my travel route and I certainly did not notice anyone on the dirt pile I was pushing. I did not see where the deceased was standing and I could not have known where she was standing. One thing is clear – she was not in my line of vision. If I had noticed her, I would have stopped the bulldozer. All day we were careful not to hit the people present in the area who were disrupting our operation. We gave a lot of thought and effort to avoiding injuring them. The pile created by the bulldozer consists of a number of peaks and not just one like a pyramid. The pile separating the bulldozer and deceased and on which the deceased had climbed was a wide and uneven pile, created from rubble collected in the area. It is likely that anyone trying to climb it would sink into it straight away. Therefore, there could not be a situation where the deceased was standing for a few seconds on top of the pile in a stable manner.
If the deceased had made it to the top of the pile, an event which I do not consider is likely, then it is possible that she was standing on one of the peaks of the pile (one of several) outside my line of vision because I did not see her. If the deceased had been standing in my line of vision then I would have of course seen her because I was conducting my mission very carefully. I did not see anyone of the protestors giving me any warning sign before the event took place”. The bulldozer’s operator was questioned at length about his witness statement. He was consistent in saying that he did not see the deceased standing in front of the bulldozer during the incident. The cross-examination did not change anything to his original statement. The soldier strikes me as reliable and I have no reason to doubt what he has said.
d. Not one of the soldiers involved saw the deceased while she was standing in front of the bulldozer (see various statements)
e. The radio recording, which is an unequivocal and objective piece of physical evidence, supports the defence statements and proves categorically that the bulldozer team did not see the deceased.The video camera was not initially directed towards the location of the incident. Only after the incident had been reported, the camera was directed to find the place of the incident and homed in on it. However, from the soldier’s initial report on the ground,as the radio recording documents in real time, it is clear that at first the soldiers had no idea who had been injured and what the cause of the injury was .
f. The defendant submitted as evidence an expert report from the engineer Mr Yoram Menshuri (retired IDF Major). This report focused upon the visibility from armoured vehicles and their characteristics.Mr Menshuri examined the bulldozer’s field of view at various heights, which represents typical heights of people and various areas in the body. In addition, he examined the field of view from the ground.In analysing the field of view of the bulldozer’s driver/operator he found that: “
1) At the front of the bulldozer, in a horizontal line measuring 1.80 meters in height off the ground and positioned less than 10 meters from the bulldozer’s operator (approximately 5.5 meters from the blade) one cannot see anything (i.e. it would have been impossible to even see the top of the deceased’s head). The lower the horizontal line is (assuming the deceased was kneeling) the blind spot of vision increases to over 10 meters.
2) The most prominent factor in the operator’s field of view is the engine hood (this is, in fact, similar to non armoured vehicles).
3) At the front of the bulldozer at an angle 10-20 degrees to the right and 10-20 degrees to the left there is a blind spot because of the bulldozers pistons.The area is greater in an armoured vehicle as opposed to a civilian bulldozer because the pistons have to be armoured as well.
4) The blind spots at the front at an angle of 5-10 degrees to the right and 5-10 degrees to the left are because of the exhaust and the air filter hood.
5) While operating the bulldozer, the operator is focused on the position of the blade, especially the lower sides of the blade (the armoured structure, as shown in the field of view analysis, enabled the operator to see both sides of the blade. If a person comes from the side of the bulldozer to its front at a distance of less than 5.5 meters from the blade, there would be no chance for the operator to see this person.
6) The shorter the height of the operator – the more restricted the field of view is”.
Regarding the field of view of the bulldozer’s commander, it was said that even if “the commander has the ability to improve his field of view by dangling his upper body through the commander’s hatch” then in this case “the sniper threat in the area prevented the commander from taking his head out of the vehicle and therefore the entire command of the vehicle was conducted from the operator’s booth. As a result the commander could not have contributed to the operator’s field of view in the area close to the blade.”
Furthermore, the expert report states that “one has to consider that soldiers wear protective glasses which, during prolonged periods, get covered in steam. This makes it even more difficult to notice people at the front of the bulldozer”; and “while working the bulldozer produces small clouds of dust which also contribute to a restricted field of view”. Regarding the second bulldozer’s team and the armoured personnel carrier team, the expert noted that “although the field of view at the front of the second bulldozer was checked, it does not appear to be relevant because that team was busy undertaking its own tasks and trying to avoid harming the protestors who were operating nearby. The same thing can be said about the armoured personnel carrier team which was engaged in securing the soldiers while remaining vigilant about terrorists in the perimeter area.”
For the reasons stated above, Mr Menshuri concluded, “it is clear to me that the soldiers did not see, could not have seen and did not have a chance to see the deceased” .Further, the defence expert referred to the possibility of installing cameras in the bulldozer, which was raised by the claimants’ expert, Mr Esban. He stated that effective camera equipment could have been installed at a cost of only a few hundred shekels.Mr Manshur ruled out this option stating – “It is not possible to install several cameras connected to several screens due to the cameras’ limited durability and due to the inability of the operators to watch them all simultaneously while conducting operational tasks. In addition,a camera which can transmit a 360 degrees picture to one screen does not exist and therefore the recommendation made by the claimants’ expert whereby a simple and cheap camera equipment, costing only a few hundred shekels would have given the vehicle’s operator and commander a 360 degrees field of view, is impractical and ineffective” .
g. I should point out that even the claimants’ expert, Mr Asher Esban, an expert in safety and accident investigation, stated in his report that it is doubtful if the bulldozer’s operator and his commander had seen the deceased while she was behind or near the pile they were pushing: “*It is doubtful if the vehicle’s operator and his commander had seen the deceased while she was behind or near the pile they were pushing using the bulldozer.
*The commander of the force who was sitting in the armoured vehicle could not have seen the deceased who was beyond the dirt pile and beyond the bulldozer due to its incorrect position” (my emphasis)During questioning, Mr Esban was asked whether it is correct to say that given the position of the forces at the time that they could not have seen the deceased , here sponded that - “There was no possibility that the armoured vehicle and both D9s could have seen” Mr Esban continued: “From the position where the armoured vehicle and both D9s were standing they could not have seen the deceased, if the deceased was behind the dirt pile”.
h. The behaviour of the members of the ISM organisation, including the deceased, was not only unlawful due to the fact that it was in breach of a Major General’s Directive decreeing the area a “closed military zone” and prohibiting the presence of civilians in the “Philadelphi Corridor” area, it was also irresponsible. Mrs Ruth Yaron described the situation adequately in her report: “The tragic event which is the subject of this claim, brings to the fore their responsible and unlawful manner in which members of the Organisation conducted themselves and particularly, the deceased. This behavior is typical of members of the Organisation and is expressed in its members’ willingness and consent, including that of the late Rachel Corrie, to risk their lives,whether by their presence in the “Philadelphi Corridor” which is dangerous(it is known that there is daily combat action in this area which includes: shootings, sniper fire, IEDs, missile launching, throwing of live grenades etc),or through their choice of serving as human shields from various dangers in the name of the Organisation.
In the event which is subject to this claim, Rachel Corrie, an Organisation activist, chose to be present in the dangerous “Philadelphi Corridor” without authorisation (of course) and without any protection while exposing herself to a life threatening situation. (This is a combat area and only combatant are allowed to be present). Furthermore, the deceased chose to stand in front of a large, heavy and dangerous operational vehicle. Even when the vehicle was approaching her at a snail’s pace allowing her to escape easily, she chose to remain standing. This behaviour demonstrates that the deceased was prepared to put her life at risk out of her own free will in the name of the Organisation.This behaviour, which is typical of members of the Organisation and their activities, has brought about the tragic outcome of this incident.”
i. There is almost not dispute between the claimants’ witnesses and the evidence of Y.P., the bulldozer’s operator, and A.V., the bulldozer’s commander, regarding the circumstances in which the deceased died.
Therefore, I find that the circumstances of the incident were as follows:On 16 March 2003 IDF forces were engaged in a land exposure mission in the“Philadelphi Corridor”. A Directive issued by an IDF Major General decreed that the area was a “closed military zone” and prohibited entry of civilians into it .Members of the ISM Organisation breached this Directive, arrived unlawfully to the“Philadelphi Corridor” area, interrupted the bulldozers, which were engaged in ground exposure and made every effort to prevent them from doing their job.
From the reports in the operational diary, it seems that crowed dispersal techniques, which were employed by the forces in the area, such as stun grenades, tear gas and even warning shots near the protestors was futile in getting the ISM members to leave the area. The IDF forces were very careful not to injure civilians. Indeed, members of the Organisation had partially achieved their aim because due to their constant interruptions the force moved the location of the mission south several times.
From the evidence before me it emerges that at approximately 1700 hours the deceased was walking and standing approximately 15-20 meters from the relevant bulldozer and kneeled. The relevant bulldozer is a large, clumsy and armoured vehicle of a DR9 make. The operator’s field of view from within the bulldozer is limited. At some point the bulldozer turned around and began traveling towards the deceased.The bulldozer was pushing a high pile of dirt. As far as the bulldozer’s operator was concerned, the deceased was standing in a “blind spot” in his field of view.
The deceased was situated behind the bulldozer’s blade and behind the pile of soil and therefore the bulldozer’s operator could not have seen her.The bulldozer was traveling at a very slow pace, around 1 km/h.When the deceased noticed the dirt pile approaching her she did not move away from the scene, as every reasonable person would have done. Instead, she walked towards the bulldozer and began climbing on the pile. However, because the pile of dirt continued moving, as a result of being pushed by the bulldozer, and due to its loose and soft consistency, she was trapped in the pile and fell over. At this stage when the deceased’s legs were concealed by the dirt pile her friends saw that she was trapped and ran towards the bulldozers signalling by waving their arms and shouting for it to stop.
By the point the bulldozer’s operator and his commander noticed the deceased’s friends and stopped the vehicle, a significant part of the deceased’s body had already been covered in dirt. Not all of the deceased’s body was covered in dirt. The fact of the matter is that when the bulldozer reversed, the deceased’s body was seen sticking out of the dirt pile, while she was still alive .The deceased was taken to hospital and pronounced dead some 20 minutes later.
Professor Hiss who conducted the autopsy stated in his report that: “Having conducted an autopsy on the body of Ms Rachel Alien Corrie, 24 year old woman, I am of the view that her death was caused by pressure to her chest (“mechanical suffocation”) with fractures to the ribs and spine, the collar bones and puncture wounds to the right lung with bleeding. Additionally I found a tear in the upper lip of the mouth and a dry friction wound on the left cheek”.
I unequivocally conclude that there is no basis to the claimants’ argument that the bulldozer hit the deceased intentionally . This was a very unfortunate accident and not a deliberate action. No one sought to cause harm to the deceased. I am persuaded that the bulldozer’s operator would not have continued his actions had he seen the deceased standing in front of the bulldozer, as he and his colleagues had done on previous occasions that day, when they changed the location of their operation due to the disruptions caused by members of the Organisation.
Therefore, I find that the deceased’s death was caused as a result of an accident, when the deceased tried to climb the pile of dirt unsuccessfully. She got trapped in the pile and fell over. The bulldozer continued pushing the dirt pile until it stopped once the deceased’s friends signaled to the operator that an accident had occurred. These are the facts.
