Family had sought to overturn rejection of civil damages for wrongful death case in which activist was killed by an IDF bulldozer.
The Supreme Court on Thursday put out its dramatic decision in the Rachel Corrie case, rejecting her family’s appeal of a lower court decision which had denied them civil damages for wrongful death in which Corrie died in connection with an IDF bulldozer.
At the same time, the court accepted a separate appeal by the family and reversed a separate lower court decision – with the result that the lower court will need to further probe the family’s claim regarding the possible misplacement of some of Corrie’s remains.
In the first decision, the court upheld the “combat activities exception” principle of the lower court in which the state cannot be held liable for damages of activities which occur in a war zone.
In the second decision, the court said that regardless of the posture of the competing legal claims, the lower court’s decision to strike the family’s claim without fully assessing the claim had been too extreme.
The decision comes nearly 12 years after the death of the famous US activist, whose tragic death has spawned books, plays and received unrivaled international attention in the global media.
The main issue at stake was whether the area where Corrie died was a combat zone, and therefore, whether the “combat activities exception” applied to absolve the state of responsibility as the lower Haifa District Court had ruled in August 2012.
Haifa Judge Oded Gershon had said that Corrie, who was killed in disputed circumstances involving an IDF bulldozer on March 16, 2003, while protesting an IDF home demolition in Rafah, could have avoided the dangerous situation, and called her death a “regrettable accident.”
The combatant activities exception essentially says that a country’s armed forces cannot be held liable for civil damages for physical or economic harm to civilians in an area defined as a war zone.
At a hearing last year, the court pressed the state on the issue, but expressed open skepticism about the Corrie family’s chances in its questioning of their lawyer Hussein Abu Hussein.
Hussein said that the state had failed to produce a copy of the order declaring the area a closed military zone, despite Gershon basing his application of the combat activities exception on the idea that the IDF had declared the area such a zone.
He had also said in the appeal that the fact that the IDF did not undertake any criminal or administrative actions against the group of left-wing activists trying to block the bulldozers in the area showed that it had not been a closed zone.
With Gershon having also found that the area was a dangerous military area since soldiers had been attacked not long before by a grenade, Hussein had written that the grenade allegation could be disproved as well.
He had noted that none of the soldiers in the area personally remembered a grenade attack and that the only evidence was in an operations log, which they declared invalid if unsupported by any soldiers’ testimony.
Hussein also scrutinized the operations log, noting statements indicating that the IDF did not really believe that the area was dangerous or the bulldozing was alleviating military dangers, but rather that the bulldozing continued that day to make an amorphous point to the activists that the IDF would not let them interfere with bulldozing operations.
The court countered that maybe those IDF concerns were valid and that at any rate, the statement by itself, might not be nearly sufficient on appeal to overcome Gershon’s finding that the area was a combat zone.
The state also vehemently defended Gerson’s finding that the area was dangerous and a combat zone.
According to Hussein, Gershon also completely ignored international law principles in his ruling.
He said that whether Corrie belonged in Gaza or not “there are no black holes in international law” – with the Supreme Court acknowledging that Gershon barely mentioned it in his verdict.
Hussein attacked Gerson’s decision on several other grounds, but none of them can get off the ground if he cannot overcome the combat zone issue said the Supreme Court panel of Deputy President Miriam Naor, Justice Esther Hayot and Justice Zvi Zilberthal.
At the start of the hearing, the parties also had several exchanges with the court about a separate lawsuit by the Corrie family against Professor Yehuda Hiss, Abu Kabir Forensic Institute, the Rishon Lezion Magistrate’s Court and the state for allegedly mishandling Corrie’s autopsy.
Part of the allegations relate to Hiss infamously taking body samples from many bodies he inspected, a group in which Corrie was allegedly included based on admissions by Hiss in the larger case against the state.
Corrie, 23, from Olympia, Washington, died in Rafah, in the southern Gaza Strip, on March 16, 2003, when a bulldozer struck her during a protest by the ISM.
Corrie’s family filed the civil suit against the Defense Ministry in the district court seven years ago. They claim that the IDF either deliberately killed Corrie or is at least guilty of gross negligence.