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: