By Aaron Eitan Meyer
Many around the world were shocked and horrified in 2000 when France 2 broadcast a brief video purportedly showing a young Palestinian boy named Muhammad al-Dura being supposedly shot by Israeli forces in a 55-second video clip taken on September 30, 2000, at the beginning of the deadly Second Intifada against Israel. More shocking still was the revelation that the video has as much truth to it as a late-night sensationalist TV movie “based on true events,” which is to say none whatsoever. Yet though the video’s credibility has been thoroughly undermined over the past decade, it is still routinely used to defame Israel around the world. And the French legal system has been the mechanism for covering up France 2’s egregious conduct and perpetuating this modern day blood libel for over a decade.
On February 28th, 2012, France’s highest court, the Cour de Cassation, overturned a previous 2008 appellate court ruling that acquitted Philippe Karsenty, who had been sued for libel by France 2 for the ‘crime’ of debunking the al-Dura hoax. The 2008 court had acquitted M. Karsenty after compelling France 2 to produce 27 minutes of footage that was then heavily edited down to produce the brief clip that the station then aired. This critical evidence served to demonstrate that M. Karsenty acted in good faith, a defense against libel under the Loi du 29 juillet 1881 sur la liberté de la presse.
Unfortunately, the Cour de Cassation chose to hear the appeal, despite the recommendation of the Advocat General, ruled that the appellate court had exceeded its power by compelling France 2 to turn over the unedited footage, and remanded the case to the Paris Court of Appeal. Instead, the Court stated that if the defendant could prove his good faith by demonstrating special circumstances, the burden of proof was entirely on him without any assistance from the court. [“si le prévenu peut démontrer sa bonne foi par l’existence de circonstances particulières c’est à lui seul qu’incombe cette preuve sans que les juges aient le pouvoir de provoquer, compléter ou parfaire l’établissement de celle-ci”]
The brief ruling was limited entirely to the above technical point, and tellingly did not challenge or even address the lower court’s ruling that M. Karsenty had demonstrated his good faith based on the unedited footage. There was also no mention of the fact that France 2 had categorically refused access to the unedited footage before the appellate court so ordered.
To anyone schooled in the American legal system, the Court’s ruling is baffling in that every burden has been placed upon the defendant, while the only means of defending himself were in the hands of those with a vested interest in keeping the information secret. It is impossible to imagine how any court could justly rule on the case without viewing the unedited footage.
Still, France’s law of defamation defines libel as when an allegation or imputation of fact that impugns the honor or reputation of a person or entity to whom the allegation is attributed. [“Toute allégation ou imputation d'un fait qui porte atteinte à l'honneur ou à la considération de la personne ou du corps auquel le fait est imputé est une diffamation.”]
It could be argued that France 2’s honor was not truly impugned by M. Karsenty or anyone else who exposed the Al Dura Hoax, but by its own actions, first in airing the video, and thereafter by engaging in a legal intimidation campaign against any who dared challenge its falsehood. Indeed, France 2 would be a laughingstock were it not for the fact that its actions allow Hamid Dabashi, Hanan Ashwari and others to continually invoke al-Dura in their quest to delegitimize and demonize the State of Israel years after the deadly – and incidentally premeditated – Second Intifada ceased. No one’s honor is served by France 2’s actions; justice is thwarted and the truth suppressed instead.
Though the Cour de Cassation narrowly ruled that the appellate court overstepped its authority in compelling France 2 to produce the unedited footage, it remains impossible to see how justice could have been done otherwise. When the Paris Court of Appeal next hears the case, it will have the opportunity to further judicially confirm M. Karsenty’s good faith, as opposed to France 2’s legalistically bolstered campaign of disinformation and denial. Then, perhaps France 2 will stop desperately trying to silence others rather than confess to the shame it should feel.
