By Katherine Gallagher, Senior Staff Attorney at the Center for Constitutional Rights. Huffington Post 16 March 2015
Twelve years ago today, 23-year-old U.S. human rights defender Rachel Corrie was crushed to death by an Israeli military bulldozer while peacefully protecting Palestinian homes in Gaza from demolition. For these past 12 years Rachel’s family has sought accountability for her killing, while also shining a spotlight on Israel’s ongoing violations in the occupied Palestinian territory.
Despite the efforts of the Corrie family — and Palestinian civil society — the record during these years is one of ongoing impunity. We have seen more violations of international law by the Israeli military in the Gaza Strip: In “Operation Cast Lead” (2008 to 2009), an estimated 80 percent of the more than 1,400 Palestinians killed were civilians, and this past summer more than 2,130 Palestinians, including more than 500 children, were killed during a 50-day assault on Gaza. According to the United Nations, at least 142 Palestinian families had three or more members killed in single Israeli attacks. Seventy-three Israelis, of whom seven were civilians, were killed during the conflict last summer. Illegal settlement construction has continued in the West Bank and East Jerusalem, as has the crackdown by Israel of peaceful protests in the occupied Palestinian territory.
A decision by the Israeli Supreme Court last month not to hold Israel accountable for the actions of Israel’s military in the Gaza Strip that were responsible for Rachel’s death only affirmed the absolute immunity — the widespread impunity — that Israeli officials enjoy.
The Corries had called on the Israeli Supreme Court to enforce — not ignore — the law, but the court accepted Israel’s argument that Rachel fell outside the protections of international humanitarian law. The court rejected the arguments that no “war activity” was underway when Rachel was crushed to death, essentially declaring entire swaths of Gaza a war zone and everyone present there a legitimate target or at least acceptable “collateral damage.” The court effectively affirmed the testimony of an Israeli colonel that all of Gaza — with its 1.8 million children, women, and men — is a war zone and that there are no civilians in war. The court did not apply the body of law designed for war and occupation, the Geneva Conventions, or cite the obligations that parties to the conflict take all feasible precautions to spare civilian life at all times. Instead, it found that Israel could not be held accountable for any deaths or other harms to civilians caused by its military’s actions, based on the exemption of the military from civil liability under Israeli law.
The Supreme Court also rejected the Corries’ claim that the Israeli military’s investigation into Rachel’s death was fundamentally flawed because officials failed to question key witnesses and secure the evidence properly. Among other things, it was revealed over the course of the district court proceedings that an Israeli official not only breached a judicial order when he conducted an autopsy without a U.S. embassy representative present but took tissue and organ samples from Rachel’s body that have still not been returned to the Corrie family. The Supreme Court remanded this macabre part of the appeal to the magistrate court in Nazareth for further consideration.
Twelve years ago former Israeli Prime Minister Ariel Sharon promised George W. Bush that there would be a “thorough, credible, and transparent” investigation into Rachel’s killing. Even the U.S. government had earlier concluded that this promise had yet to be met, but the Israeli Supreme Court accepted the testimony and evidence presented by the Israeli officials wholesale.
Indeed, it was the United States that urged the Corries to press for justice in the Israeli courts, though, in 2006, the U.S. Departments of Justice and State filed a brief opposing our lawsuit in Washington on behalf of the Corries and Palestinian victims against Caterpillar, the U.S. corporation that sold Israel the bulldozers knowing that they were being used to commit international law violations. (That case, brought by the Center for Constitutional Rights and the Ronald A. Peterson Law Clinic at Seattle University School of Law, together with the Palestinian Center for Human Rights, was dismissed.) The U.S. has yet to make a public statement in reaction to last month’s Israeli decision.
After filing the case in Haifa, Israel, in 2005, the Corries traveled back and forth to Israel for 15 hearing dates spread over 16 months in 2011 and were present both for the delivery of the district court decision in 2012 and for the Supreme Court hearing in 2014. After the verdict the Corries said, “Our family is disappointed but not surprised. We had hoped for a different outcome, though we have come to see through this experience how deeply all of Israel’s institutions are implicated in the impunity enjoyed by the Israeli military.”
With Israel’s dismal track record of providing justice to victims — including both Palestinian and U.S. victims — it is no wonder that Palestine has recently joined the International Criminal Court (ICC). The lack of proper investigations across the board demonstrate that Israel is unwilling, if not also unable, to conduct thorough, credible, and transparent investigations into crimes by its military.
Because its jurisdiction only reaches back to June 2014, the ICC will not be able to provide the accountability and justice that the Corries have so far been denied in Israeli and U.S. courts. But many hope that it will be able to provide at least some measure of justice for the thousands of Palestinian victims of serious violations committed by the Israeli military. With a preliminary examination opened by the ICC prosecutor in January, the days — years — of impunity may be coming to an end.
Katherine Gallagher is a senior staff attorney at the Center for Constitutional Rights in New York and a vice president of the international board of the International Federation for Human Rights (FIDH). She was a co-counsel for the plaintiffs in the U.S. case Corrie et al. v. Caterpillar and observed the Corrie trial in the district court in Haifa in October 2010. Her prior blog post on the appeal hearing is here.