.jpg){kind=small}
mini.jpg)
Rachel Corrie sometime before, and after being killed by IDF bulldozer (photo: ISM/AP)On July 9th, three justices of the 9th circuit Court of Appeals heard arguments from lawyers representing Rachel Corrie’s family and Caterpillar about the former’s lawsuit over their daughter’s 2003 death under the treads of an IDF operated bulldozer:
The family of a woman killed trying to prevent the demolition of a Palestinian home in 2003 asked a federal appeals court panel to reinstate its lawsuit against Caterpillar Inc., saying the company knew bulldozers it sold to the Israeli government were being used to commit human rights violations.
“Caterpillar sold this product knowing — or it should have known — it would cause exactly this harm,” one of the family’s lawyers, Duke University law professor Erwin Chemerinsky told the three judges from the 9th U.S. Circuit Court of Appeals on Monday.
A Tacoma federal judge had thrown out the case:
A U.S. District Court judge in Tacoma dismissed the lawsuit in 2005, agreeing with the company’s argument that it wasn’t responsible for how the Israeli army used its product.
Hey, I’m not an attorney, but I’d think product liability should apply in this case. If a product is being used to commit an act of violence (destroying a home) that COULD ALSO, and HAS killed people in the process–wouldn’t you think that the company would be liable for the way its product was used? Wouldn’t you think the company should at least be required to create guidelines or conditions under which the IDF would use its product so as to minimize possible injury or death??
I suppose it’s possible my theory of the case doesn’t work since the family’s lawyers have pursued a different legal tack:
Her parents, Cindy and Craig Corrie, sued Peoria, Illinois-based Caterpillar, which manufactured the bulldozer, seeking to hold the company civilly liable for aiding and abetting human rights violations — the destruction of civilian homes.
Unlike the courts in countries like Belgium and Spain, U.S. courts have been notoriously inhospitable to tort claims based on human rights violations. I’m hoping that this will change both with this case and others against multinational corporations accused of causing the deaths of U.S. citizens and foreign nationals.
I’m delighted that a human rights attorney as distinguished as Erwin Chemerinsky has taken on the case representing the Corries. He argued against the dismissal in the 9th circuit hearing:
Chemerinsky insisted that the [Tacoma] judge applied the wrong legal standard, and that as long as the company knew how the bulldozers were being used, it can be held liable under common law dating back centuries.
The arguments advanced by Caterpillar attorneys are predictable, though quite interesting in one respect:
But lawyers for Caterpillar and the U.S. Justice Department, which filed a friend-of-the-court brief on Caterpillar’s behalf, argued that letting the case proceed would require U.S. courts to improperly intervene in political issues reserved for the president and Congress. It would also require American judges to pass judgment on Israel’s practice of demolishing Palestinian homes — “you can’t aid and abet a legal activity,” Caterpillar attorney Robert Abrams told the judges.
It is quite provocative to claim that home demolition is legal under Israeli law. Of course, under international law home demolitions are a clear-cut violation. But I’d like to see Israeli legal code that would justify home demolitions.
Human rights groups note that the majority of cases the IDF claims a home was constructed without a building permit. Of course, it is impossible to get a building permit from the Israeli authorities so virtually every home built in the past 40 years or so is illegal. And one wonders whether illegal building by Israelis is pursued with the same zeal??
A Human Rights Watch report also questions the underlying rationale for such demolitions:
Based on extensive research in Rafah, Israel, and Egypt, it [the report] places many of the IDF’s justifications for the destruction, including smugglers’ tunnels and threats to its forces on the border, in serious doubt. The pattern of destruction, it concludes, is consistent with the goal of having a wide and empty border area to facilitate long-term control over the Gaza Strip. Such a goal would entail the wholesale destruction of neighborhoods, regardless of whether the homes in them pose a specific threat to the IDF, and would greatly exceed the IDF’s security needs. It is based on the assumption that every Palestinian is a potential suicide bomber and every home a potential base for attack. Such a mindset is incompatible with two of the most fundamental principles of international humanitarian law (IHL): the duty to distinguish combatants from civilians and the responsibility of an Occupying Power to protect the civilian population under its control.
I also found this colloquy instructive:
Judge Michael Hawkins asked Justice Department lawyer Robert Loeb to consider the hypothetical case of a U.S. oven manufacturer during World War II: If the company continued selling ovens to Germany, knowing they were being used to kill Jews, would there be legal grounds to go after the company?
Yes, Loeb replied — treason, for starters.
But Israel is a U.S. ally, and “a U.S. court would have to opine on what really happened in Gaza and the West Bank,” Loeb said. “This is a prime example of where the court should decline to extend its common-law jurisdiction. … The financing and the sale of this equipment have been approved by the United States. (The plaintiffs) want to have a court second-guess the judgment of the government.”
This is of course a provocative question which overstates the relevance of the Holocaust to this case. But it is nonetheless suggestive that if it would be illegal for a U.S. corporation to participate in a project that killed Jews, why would it be much different for a company to allow its products to be used to destroy the homes and livelihoods of Palestinian civilians? I’m not arguing as some might that those who participate in the Occupation are engaging in genocide, an argument I find a stretch.
Isn’t it interesting that Caterpillar’s attorney finds it legally problematic for a U.S. court to “opine” on the Occupation when the U.S. government has already made quite clear that it opposes the settlement policy which is one of the pillars of the Occupation. The U.S.’ avowed policies oppose, in large part, the Occupation. So why would it be problematic for a judge to rule in accordance with announced government policy opposing Israeli home demolitions?
Chemerinsky and another Corrie attorney, Gwynne Skinner of the International Human Rights Clinic at Seattle University School of Law, …wondered aloud how the U.S. could finance Israel’s acquisition of bulldozers while simultaneously decrying the demolition of civilian homes in the occupied territories.
Let’s hope the judges see the logic of this summary of the plaintiff’s claims:
“This is a case about direct commercial sales,” Chemerinsky said. “It’s about holding corporations liable when they aid and abet violations of human rights.”
The national media have as usual failed the test in ignoring this story. Happy to say my local Seattle papers have covered it along with the AP. Even Fox News covered it though only in order to make fun of the case.
For further resources on this subject, check out:
Israeli Committee Against House Demolitions
Center for Constitutional Rights summary of case
Corrie family statement
Rabbis for Human Rights housing rights initiative
Related posts:
- Koret Foundation Flays San Francisco Jewish Film Festival Over Corrie Documentary
- Pro-Israel Family’s Control of ‘New Republic’ in Jeopardy?
- Family of Injured American Activist Demands Israeli Investigation
- Some in Clemmons Family Did Right Thing
Related posts brought to you by Yet Another Related Posts Plugin.
Tags: 9th-circuit-court-of-appeals, corrie-family-lawsuit-against-caterpillar, erwin-chemerinsky, palestinian-home-demolitions-violate-international-law
![Image of Family and Friends: Rambling Boy [Vinyl]](http://ecx.images-amazon.com/images/I/61YAzRoqibL._SL110_.jpg "Family and Friends: Rambling Boy [Vinyl]")
Correction, it wasn’t his wife driving, it was his brother.
http://www.ynet.co.il/articles/0,7340,L-163808,00.html
Then you haven’t read the Wikipedia sources I provided. There are numerous instances in which Arabs were killed or wounded when they were unarmed & not even demonstrating.
That is a cruel statement. What, would you have had more than 12 Arabs killed in order to have provided a greater level of safety & security for yr fellow Jewish citizens??
I don’t know that I’d vote for him either. But my reasons would be entirely diff.
Maybe a more forcefull and early response would have PREVENTED death and injury to BOTH Jewish and Arab citizens.
…Or else provoked a full blown internal Israeli intifada that, instead of lasting 10 days, might’ve lasted 10 months or 10 years.
And you can find the decision here: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6DFD4322CA06B5FA88257359005660A6/$file/0536210.pdf?openelement
Thanks for the link. It is a very sad decision and one I hope they will appeal to the U.S. Supreme Court. I am glad that Rachel Corrie is getting the day in court she deserves and that her memory is being respected by bringing the issues involved in her murder before the legal community and American public.
I note that the Corrie’s lawyer, Erwin Chemerinsky, one of the country’s most distinguished constitutional scholars, was denied a position as dean of UC Irvine’s new law school because local S. California Republican nincompoops derailed his appointment using this as one of the grounds. There is hell to pay for upholding the rights of individuals and forcing public scrutiny upon them.
Maybe my approach is colored by having been a lawyer for the past 25 years or so, but here goes:
1. Tort liability on the part of Caterpillar is wrong. It is generally accepted law that the manufacturer of a legal product is not liable for the wrongful act of a third party — for example, should Ford or General Motors be liable if one of their cars is used in a bank robbery? To argue that Caterpillar knew or should have known that the bulldozers would be used in a “war crime” creates a huge due process problem for Caterpillar. There is no way to compel the cooperation of the IDF in this case, which would be essential. For the 9th Circuit to hold otherwise, and presume the existence of a war crime, would have our courts making foreign policy independent of the other branches of government.
2. The plaintiffs were simply in the wrong court. If there was a human rights violation, they could have brought it in Israel, which has a very independent judiciary, and would have jurisdiction over the IDF. If the Israeli legal system were to hold that the home demolition program is not a “war crime”, the Israeli courts are entitled to the same deference that we would give to Canada or Britain.
I don’t know how much you know about the Israeli judiciary but its independence, esp. in cases involving national security, terror & oversight of the IDF is decidedly in question.
Many Israelis groan about the Supreme Court in the same way that some Americans groaned about Earl Warren a generation ago. The Court has held the government’s feet to the fire on many occasions, and on the separation wall, has caused work to be halted or rerouted.
Many states, including Virginia where I practice, have enacted the Uniform Foreign Country Money-Judgments Recognition Act. Under that statute, assuming personal and subject matter jurisdiction, a judgment of a foreign court can be docketed in a state court, under the same principles as a judgment of another state under the Full Faith and Credit Clause of the Constitution. This does not apply where the foreign judgment was “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” Thus, a judgment from a British court can be docketed in Illinios (which as adopted the UFCMJRA) or Virginia, but not a judgment from Burma.
The plaintiffs could have sued in Israel, and if they obtained a judgment against Caterpillar, then dockted that judgment in Illinois under the UFCMJRA. The language in the statute refers to the “system”, i.e. is the judicial system of the foreign country independent and does it provide for due process of law. In the Corrie case, the plaintiff’s “forum shopped”, hoping that they would find success in the Ninth Circuit, when they could have brought an action in a court that has jurisdiction over all of the participants.
But they never could for the reasons I enunciated clearly in my earlier comment. The Israeli High Court would never second guess intelligence or military decisions even if they WERE worthy of sanction for reasons that have to do w. Israeli inability or unwillingness to exercise the judicial perogative of oversight.
That’s perfectly true. In some instances the Court has shown great courage & sound judgment. And in others it has completely absconded fr. its judicial responsibility (usually when the case involves Palestinians or second guessing or punishing military violations of law or morality).
Sorry if this repeats points made above, I don’t have time to read it all now, I stumbled here looking for something else.
Articles 146 and 147 of Geneva IV specify that the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” is a grave breach of the Convention which the contracting parties are bound to incorporate into domestic legislation. Might the War Crimes Act of 1996 make Caterpillar criminally liable? Are there any precedents of European companies charged with reference to WW2/Holocaust offences in US courts?
Articles 146 and 147 of Geneva IV are worth reading at
http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/6756482d86146898c125641e004aa3c5
I think that property destruction and appropriation are the best candidates for prosecutions because of the vast amount of documented evidence (eg Al Haq at http://www.alhaq.org excellent source of high quality material). Unlike ‘accidental’ shootings etc, the intended purpose of the act specifically violates the Convention.
Certainly, the legislative incorporation of the convention has had the effect of disbarring senior members and former members of the Israeli Military from travel to parts of Europe.