The man who uncovered the Al-Dura video fraud is still being tried for defamation.
By Veronique Chemla
What will the Court of Appeals of Paris decide about
Philippe Karsenty — the deputy mayor of Neuilly, director of the Media
Ratings rating agency, and foreign affairs head of the French Liberal
Democratic Party (a free-market party)?
Will it hold him fully guilty of defamation against France
Televisions (the umbrella organization behind France’s many state-owned
TV channels) and Charles Enderlin, the state-owned France 2 channel
chief correspondent in Jerusalem? Or will it release him once and for
all based on the fact that he had the right to defame them because he
had enough material to substantiate his accusations?
The recent Court hearings on January 16 were about this ultimate question.
Karsenty, one will remember, claimed that the infamous TV report on
the killing in cold blood by Israeli soldiers of Palestinian boy Mohamed
al-Dura — as it was released on September 30, 2000, by France 2 under
Enderlin’s supervision — was a media hoax. Technically, such words can
either be understood as defamation under French law, or accepted as
legitimate criticism of the way the report was conducted, edited, and
distributed worldwide.
The hearings took place in a special atmosphere: Paris was in the
middle of a biting cold wave; one could feel it even at the majestic
Palais de Justice near Notre Dame cathedral. Then there was the Al-Dura
file itself, the ever-increasing suspicion about the report, the concern
about Enderlin’s image. A feeling that some kind of censorship was at
work, one way or the other, and that taboo issues were at stake. Also, a
widespread fear that some of the people involved might engage in legal
procedure almost at will.
You could also notice a measure of irritation with Karsenty, along
with the growing questioning of “Pallywood,” “Hezbollywood,”
“Syriawood,” and almost any other Mideast production.
SNJ, the French journalists union, requested its members attend the
hearings in order to grant support to Enderlin, yet very few turned up
for the six-hour Court session. Daniel Bilalian and Vincent Nguyen from
France 2 were there, as well as Emilie Raffoul of Canal+[1].
However, the top echelon of France Televisions, who had attended a
previous Court session on February 27, 2008, was conspicuous by its
absence. So were the French Jewish media.
On the other hand, there was a large audience present, including VIPs
like Richard Prasquier, the chairman of Crif (the Representative
Council of French Jewish Organizations). JSS News, an Israel-based
online magazine, covered the hearings live.
——————–
Before the hearings start, Karsenty approaches Enderlin and shakes hands with him. They chat briefly.
The president of the Court, Jacques Laylavoix, sums up the case and
the procedure. Reading from stapled sheets of paper, he mentions — quite
amazingly — “the Israeli positions” (plural) at the Netzarim crossing
in the Gaza Strip. A factual error to be found in earlier Court
decisions as well as in the submissions of Enderlin and France
Televisions. It appears the judges repeated the plaintiffs’ error.
——————–
Both in the report broadcast by France 2 on September 30, 2000, and
in the reels undersigned by Talal Abu Rahma, the Palestinian cameraman,
Enderlin says:
3:00 PM … Everything turns upside down near the colonial settlement of Netzarim in the Gaza Strip… Here, Jamal and his son Mohamed are targeted by shootings from the Israeli position (singular) … Mohamed is 12 years old … His father tries to protect him … he waves his hand … But a new burst of fire … Mohamed is dead and his father heavily wounded …
The France 2 report draws doubts and investigations from and by Nahum
Shahaf, an Israeli physicist; Gerard Huber, a French psychoanalyst and
philosopher of science; Stéphane Juffa, the editor in chief of Mena, a
press agency; Esther Schapira, a German journalist and filmmaker; Luc
Rosenzweig, a French journalist; and Richard Landes, the American
scholar who coined “Pallywood” as a generic name for the Palestinian
propaganda industry.
Things got more polemical as France 2 declined to release the
report’s rushes, and as Abu Rahma made contradictory statements about
what happened. On October 3, 2000, Abu Rahma declared under oath at the
Palestinian Human Rights Center that “the child was killed on purpose
and in cold blood by the Israeli Army.” Two years later, on
September 30, 2002, he said in a facsimile message sent to the France 2
Jerusalem desk: “I never said to the Palestinian Human Rights
Organization that Israeli soldiers killed Mohamed al-Dura and wounded
his father on purpose and in full awareness.”
What first amounted to a discussion about the shootings — who
actually shot, Israelis or Palestinians? — quickly switched to whether
the whole France 2 narrative and the facts it relied upon were true or
not.
Karsenty, as the director of Media Ratings, twice dismissed the
France 2 report as a “media hoax,” “sham reporting,” “pure fiction,“ and
a “hoax” in two electronic messages forwarded in November 2004.
Moreover, he demanded that both Enderlin and Arlette Chabot,
then-director of information at France 2, be fired.
Enderlin and Chabot’s reaction was to sue Karsenty for defamation.
Karsenty was found guilty by the Court of Paris on October 19, 2006. He
appealed. Upon his demand, the Court of Appeals of Paris requested on
October 3, 2007, that France 2 present the report rushes. After viewing
them, the Court released Karsenty on May 21, 2008. Moreover, it berated
the respondent party.
However, the Court of Annulment, France’s highest authority in
judicial matters, quashed the decision on technical grounds on February
28, 2012: it argued that the defender is supposed to produce evidence by
himself.
The case was thus sent back to the Court of Appeals of Paris — with a
new panel of judges — in order to either confirm or revoke its
decision. Hence the current hearings.
The Court’s president asks Karsenty to introduce himself.
Karsenty presents the equipment he will use in order to defend his
standpoint: a PowerPoint presentation consisting of September 30, 2000
press agencies’ rushes; and a one-hundredth model of the Netzarim
crossing.
Then, he corrects the president’s aforementioned error: there was only one Israeli position at Netzarim crossing.
He reminds the Court about his political duties as deputy mayor of
Neuilly (a posh suburban municipality in Greater Paris, of which Nicolas
Sarkozy was mayor until being elected president) and as spokesman and
person in charge for international affairs at the Liberal Democratic
Party (nothing to do with the American Democrat party — they were the
only ones in France to support Mitt Romney). Then, he places the Al-Dura
case within the global historical context and points to the
controversial pictures’ “planet-wide impact”: from Osama Bin Laden, who
used them to instill hatred among jihadists; to the video featuring the
slaughtering by jihadists in Pakistan of the American journalist Daniel
Pearl, inlayed with the face of Mohamed Al-Dura; to the French jihadist
Mohamed Merah, who ascribed his killing spree in Montauban and Toulouse
in March 2012 to a will to avenge the Palestinian boy:
Back in 2002, I, like many other people, just held as wholly unthinkable that France 2, the French public television, would broadcast a false report, or make any mistake, especially within the framework of a report commented by Charles Enderlin. … He is seen in France as the voice of the Middle East. Dominique de Villepin is reported to have asked, just ahead of a press conference at the French embassy in Israel: “What does Charles think about it ?” One must remember how powerful Enderlin is as a character. He is a very convincing person. I would dare to say that he is the Middle East’s Thierry Roland.
(Dominique de Villepin is a former conservative foreign minister and
prime minister of France. Thierry Roland was for decades the number one
TV commentator on sports in France.)
Karsenty reminds the Court about Enderlin’s political friends:
Jacques Chirac, the former president of France; Bertrand Delanoë, the
mayor of Paris. “And Shimon Peres,” Enderlin adds. Karsenty:
As a matter of fact, I think that Enderlin is a victim. He is the victim of his cameraman, who supplied him with doubtful pictures. He is the victim of his own fame, which somehow prevented him to admit he had erred. He is the victim of his friends or of those who pass as his friends, who built around him a wall to protect him against the truth.
Karsenty then explains how he gradually got involved in the
ever-changing controversy, both through personal research and
professional investigation undertaken within his agency’s activities.
Karsenty starts his presentation by quoting “La Charte des Antennes de France Television” [2],
the ethical and deontological charter of France Televisions. He then
displays samples from France 2 news programs devoted to the Al-Dura case
and its legal developments as evidence that the channel did not just
report facts or events, but actually distorted them in its own interest.
Moreover, he mentions that Senator Jean-Pierre Plancade, the deputy
chairman of the French Senate’s commission on Culture, Education and
Communication, quoted another deontological code — the “Charte du Groupe Audiovisuel Public
(Charter for Public Broadcasting)” — on July 12, 2010, in a question to
Remy Pfimlin, then a candidate to France Televisions’ chairmanship.
As he did in the 2008 hearings, Karsenty displays evidence that on
October 1, 2000, France 2 broadcast as a factual report complete with
comments by Enderlin a mere staging by Gaza militants. The respondent
party looks embarrassed.
Karsenty then displays more samples to establish that anonymous
Palestinians were staging various war sketches at Netzarim crossing on
September 30, 2000, the very day of Mohamed Al-Dura’s alleged killing,
and shows how these playlets were staged in order to pass as real
incidents and as evidence of tension on the ground. He lists the famous
Al-Dura report’s many contradictions. He insists on the unlikelihood of
many parts of the report: no blood on the sidewalk, the walls, or the
alleged victims’ clothes, almost no bullet impacts on the wall after
what was a supposedly 45-minute shooting, and so on. He stresses that
there are many contradictions between Enderlin’s and Abu Rahma’s
narratives on the Netzarim shooting. Regarding the Palestinian
cameraman, Karsenty reminds the Court that he said on April 2, 2001, in
an interview with Le Matin du Sahara, that “he made a decision to become a journalist in order to uphold the Palestinian cause.”
All in all, Karsenty speaks for about an hour and one half (with one
interruption by Enderlin on a factual point). To conclude, he quotes one
of the two texts for which he is being sued: “Charles Enderlin erred
and by his very erring led us into error.”
Enderlin did not express any dissent with what amounted to a lecture
on controversial images. The only time he attempted to correct Karsenty,
he withdrew on face of evidence. When Karsenty quoted Abu Rahma as
saying: “The Israelis kept shooting the child for 45 minutes,” Enderlin shook his head, and claimed “that was not true.” “Let’s look again”,
Karsenty replied. Indeed, the France 2 cameraman was heard saying it,
several times: “The Israeli soldiers targeted the child for 45 minutes.”
It is now the plaintiff’s turn. Enderlin stresses that he is a good
Israeli citizen, that he served in the Israeli Army and that his
children served in the Army also. In other terms, there are no reasons
why he would harm his country.
He then quickly conjures up the tensions stirred in September 2000 by
Ariel Sharon’s visit to what he terms “the Mosques Esplanade“ (the
Temple Mount, according to Jews and Christians). True, he was in
Ramallah (on the West Bank) on September 30, and not in the Gaza Strip.
On the other hand, he knew the place very well and trusted Talal Abu
Rahma, who at the very moment he was filming the controversial scene
called him on the phone and told him in a tragic tone that he was
“filming a child’s death.” Charles Enderlin does not make clear how the
cameraman would know, in a premonitory manner, that the child would die,
and not the father, especially since the child did not appear to be
wounded.
Did Enderlin ever entertain doubts about the cameraman? He says that
he consulted the Shin Bet (Israel’s home security service) about Talal
Abu Rahma, “who constantly goes out of Gaza.” He admits that Abu Rahma
does not hold a press card anymore.
Enderlin admits that he made a mistake when he mentioned to Telerama (a magazine dealing with TV programs and cultural issues) that he edited out images showing “Mohamed al-Dura’s agony.” “Agony” (“agonie” in French, which means both “dying“ and “unbearable suffering”) was not the proper word to be used, even if the Littré dictionary (the French language’s most respected, but somewhat outdated dictionary) could be quoted to the contrary.
Enderlin and France Televisions then use DVDs to make their point.
They intend to show again the Al-Dura report and other films they
already submitted in the 2008 hearings. Unbelievably, technical
difficulties arise. Karsenty obligingly lends his own loudspeakers to
allow for a proper sound level.
Some scenes had already been dissected by Karsenty, and had raised the audience’s hilarity.
As for the picture of a Palestinian child brought to the morgue on
September 30, held by the plaintiffs as being Mohamed Al-Dura’s,
Karsenty establishes on sheer chronological grounds that it must be
another child.
Three witnesses speak on behalf of the appellant.
Esther Schapira, a frequently awarded German journalist and
filmmaker, explains that she devoted a first documentary movie to the
Al-Dura case in 2002: Three Bullets and a Dead Child. She says
she made sure to listen to both parties, and did not question then the
images’ authenticity, even if she suspected the boy to have been killed
by Palestinian gunmen rather than by Israeli soldiers. However, she adds
that she was dismayed — since France 2 and ARD, the German TV channel
she was working for, were partners in the same European media network
and usually cooperated in such matters — that Charles Enderlin declined
to show her the France 2 report rushes. Even more shockingly, she was
not just deprived of any help in her investigation but was actually
threatened.
Schapira says also that Karsenty visited her in Frankfurt in 2002,
after her documentary was broadcast by ARD, and he viewed her rushes at
length. This is an important statement as far as the appellant is
concerned, since it confirms that he was already engaged in a serious
investigation and already fully cognizant of the inconsistencies and
contradictions of the France 2 report. The appellant’s lawyers will
refer to it later on.
After she finally viewed the France 2 rushes during the 2007 hearings in Paris, Schapira completed a second movie: The Child, the Death and the Truth. She insists that Enderlin made two grave errors about her in his book Un Enfant est mort (A Child Died):
contrary to what he said, she visited the Gaza Strip; and her movies
were sold out of Germany, the first one to nine different countries and
the second one to five countries.
Dr. Patrick Bloch, war surgeon and medical expert, makes clear that
children hit by bullets “don’t move, as a result of a specific traumatic
shock, but stay in a state of sideration,” contrary to the
allegedly wounded child shown in the France 2 report who does move.
Moreover, bullets usually go through a human body and “always create a
second visible wound as they go out,“ except when lodged in the
head and the thorax, where they may remain. Also, the damage created by
high-velocity bullets, either in terms of flesh or blood projection, is
always significant, whereas no such necessary outcome of a shooting is
to be seen in the report. If the femoral artery is hit — something that
happened to the father, according to his own words — “blood runs out at a
300 to 600 milliliters per minute speed, which means that the wounded
person is completely emptied of his or her blood in 10 minutes.” The
father, Jamal al-Dura, is supposed to have been rescued by an ambulance
after 20 minutes of bleeding.
The terse and sharp-minded public prosecutor Jean-François Cormaille
de Valbray asks Dr. Bloch about a reddish spot he says he has noticed on
Jamal al-Dura’s abdomen. The expert looks carefully at the spot. After
some reflection on the matter, Dr. Bloch concludes that while it is
likely to be just a color spot that popped up through image processing,
it could be a blood stain as well.
Jean-Claude Schlinger, a ballistic expert to the Court of Appeals of
Paris, was consulted in 2008 at Karsenty’s request, and built up his
opinion on both the report and additional evidence. From the “eight
bullet impacts” that can be seen behind the Al-Dura persons, he
concludes that the shootings cannot have originated from the Israeli
position. From a 30° shooting angle, the impacts would have been
oval-shaped rather than round — and a 45-minute non-stop shooting is
totally unbelievable. Schlinger goes so far as to admit that the whole
thing “may have been staged.” Cormaille de Valbray asks: “How can one
say that the people who hit the Al-Duras were not snipers, who shot bit
by bit?“
Schlinger’s reply is even terser: “Because the cameraman said otherwise”.
The actual pleading starts in the afternoon. Under French law [3],
the defendant in a defamation case is released if he can prove that his
assertions are true, or that he acted in good faith. And good faith, in
turn, needs four conditions under French case law to be established: a
serious preliminary investigation; a legitimate aim; caution in the
wording; and the absence of personal enmity. More often than not,
release is granted under an assumption of good faith.
Maître Bénédicte Amblard, counsel for France Televisions and Charles
Enderlin, faintly denounces “a media destruction undertaking,” labors to
establish that defamation is “well-established,” argues that Karsenty
has no access in 2004 to any information that would substantiate his
statements, and requests him to be found guilty and “legally publicized
as such … in order to turn the page.” She says that a book and a movie
will be available shortly.
Prosecutor Jean-Francois Cormaille de Valbray reminds the Court that
it does not rule on “historic truth” in “a difficult, sensitive debate,”
but rather on “the defamatory character of the incriminated remarks.”
He leaves it to the Court to decide, just as he did previously in Jamal
al-Dura’s suit against Dr. Yehuda David, an Israeli witness, and Clément
Weill-Raynal, a French journalist.
Maître Delphine Meillet and Maître Patrick Maisonneuve, Karsenty’s
counsels, claim on behalf of him “a strategy” of deliberate, yet
legitimate, “provocation.” According to them, it was the only way to
crush the media silencing of any questioning about the reality of the
France 2 report’s allegations[4].
They mention case law precedents allowing “for the sake of the public
interest” either “immoderate remarks” or “an amount of exaggeration, or
even of provocation” in remarks (in particular a Court of Annulments
decision from February 3, 2011).
To keep it short, Philippe Karsenty “conveniently broke the law in
the interest of our democracy.” What he did can be described as
“defamation without personal enmity, with a legitimate object, in good
faith, substantiated by a serious and protracted investigation drawing
from different sources.”
There is a light moment as Maître Delphine Meillet sarcastically
quotes some certificates put forward by the respondent party in order to
validate previous certificates delivered by Palestinian cameramen[5].
The Court will deliver its judgment on April 3, 2013.
An incident occurs right after the hearings, as people are leaving
the courtroom. It does not involve the parties. In an adjacent hall,
Charles Enderlin calls Esther Schapira “a militant journalist“ in
English. He wonders why she interviewed only three of the twenty
Israeli soldiers or so that were on duty at Netzarim on September 30.
I reply: “Why did you not tell it to the Court?”
Enderlin shrugs. I insist: “You should have told it to your counsel, who in turn would have asked the Court.”
Finally, as I advance the view that “Talal Abu Rahma is a militant
cameraman,” he goes away, in the custody of three people. One
whispers to him: “They are filming you … “.
Esther Schapira will tell me later that she interviewed only the
three Israeli soldiers who were standing in front of the Al-Duras. The
other soldiers could not possibly have watched the scene from where they
stood.
French-style journalism vs. Western-style journalism, opacity vs.
transparency, blind faith vs. methodical doubt. There is a striking
contrast between the two journalists.
There were some changes since 2000 in the stances of both France 2
and Talal Abu Rahma. Thus, Arlette Chabot, the then director of news at
France 2, said on November 16, 2004: “One will never know where the
shootings came from. Was it from the Israeli or the Palestinian
position?”
Nevertheless, and in spite of many revelations about other Mideast
fabrications, Charles Enderlin unconvincingly sticks to his 2000
comments.
Charles Enderlin claims he knows the place well. Still, being asked
by Richard Landes about the Israeli position, he did not locate it
accurately on a map.
Moreover, he has resorted to puzzling details. During the present
hearing, he said that the ambulance man attempted in vain to resuscitate
Mohamed Al-Dura. Quite a new fact, it seems. How do we reconcile it
with the France 2 report as it has been released, according to which the
ambulance arrives after the child has been declared dead by the
commentator? Was the ambulance man a doctor as well? Why did he engage
into a resuscitation attempt? Everything is clouded in mystery. All the
more so since Mohamed al-Dura must have been emptied of his blood in the
course of an alleged 45-minute shooting.
Even if no blood is to be seen on the film.
Strangely enough, almost no French media saw to it to publish or quote the AFP dispatch about the January 16 hearing. Except Rue89, which published a rather partial piece.
On January 21, Charles Enderlin posted a factual account of the
hearing, written at the third singular person, on his blog. He did not
answer the questions raised by his report.
————————–
[1] Emilie Raffoul signed the Pour Charles Enderlin
pétition (siding with Enderlin). Along with Stéphane Harment, she
authored a TV report mentioning the Al-Dura controvesy that was
broadcast on April 24, 2008 by Jeudi Investigation, a program on the
French privately owned TV channel Canal+. Jeudi Investigation and Tac
Presse were found guilty of defamation against Philippe Karsenty by the
Court of Paris on June 10, 2010. The judgement was upheld by the Court
of Appeals of Paris on January 5, 2012.
[2] http://www.francetelevisions.fr/downloads/charte_des_antennes_web.pdf. See page 50.
[3] According to the French Freedom of Press Act, passed on July 29, 1881.
[4] France 2 is one of France Televisions several TV channels.
[5] France
2 broadcast in 2002 one of Pallywood’s most egregious flops: a scene
where the corpse of the alleged victim of an Israeli shooting rises from
a stretcher and runs.
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