Karsenty’s Decision up in English Translation

I have now made available and English translation of the court’s decision on the case of France2 and Charles Enderlin vs. Philippe Karsenty. I will be following it up with commentary at this blog. The translation is available in a new Al Durah section of pages listed at the right of the blog.

I welcome all reflections on this decision, especially from people with legal experience. As an historian familiar with the details, the reasoning strikes me as remarkably poor. But it may be brilliant from a legal point of view.

24 Responses to Karsenty’s Decision up in English Translation

  1. Eliyahu says:

    without going into the judges’ decision, I noticed what Enderlin said on the day of his fateful report. He claims that there were passersby going past the Netsarim intersection. This claim is absurd. There were –before October 2000– few homes or other buildings in the vicinity, aside from those of the Jews living in Netsarim. So the area was not exactly a place where one would simply pass by. All the more so on a day when, so we are told, violence and gun battles had been going for hours. All the more so would a father escorting a young son avoid that location on such a day.

  2. RL says:

    actually i don’t think it’s absurd. there actually are people going by (we have a shot of a whole family walking by in Pallywood). remember that not ever culture is so automobile driven. some people would walk by that intersection cause they don’t have a car.

  3. Eliyahu says:

    Well, Richard, if families were walking by, then most likely they did not feel that the situation there was particularly dangerous. It cannot have been both ways. That is, if shooting and violence by Israel were going on for hours, as Enderlin report said, then families would not be strolling by. Not even Arabs, in my view. Hence, if families were strolling by, then they did not feel that it was dangerous.

  4. Alex says:

    Do you really not appear in the courts decision at all? I couldn’t find it.

    For what it is worth, I find their judgements completely unsatisfactory. But then, I guess, France 2 must have hired the better lawyers…

  5. Barbara says:

    I am no lawyer, but it seems to me the crux of the judgement lies in the words

    “On Defamation

    Article 29 of the law of July 29, 1881 defines defamation as “any allegation or imputation of a fact that damages a person’s honor or reputation.” The event or fact imputed must be sufficiently clear, independent of a debate on opinions, and distinct from value judgments so that it can, if necessary, be the object of a useful probative debate.

    The passages at issue in the press release accuse Charles Enderlin of having produced a false report and the company France 2, which is named several times, of having knowingly broadcast it on September 30, 2000.

    The impact of these accusations is reinforced by the use (twice) of the word “fraud” and by the accusation of a “hoax,” which implies, not a culpable recklessness, but the deliberate intent of misleading others by broadcasting images that did not reflect reality (“a false report” according to “film experts” who have “confirmed our conclusions.”)

    Such accusations clearly damage the honor and reputation of their object, even more so when the persons thus described are employed in informing the public, such as in the case of the journalist Charles Enderlin or France 2.”

    Then I gather that the defence had to provide “proof of truth” of these serious accusations but was found not to have done so?

    It’s one thing to allege that a report is wrong – quite another to imply that the person making the report deliberately falsified it.

    An analogy can be drawn with the familiar political allegation that Bush and Blair deliberately falsified the intelligence on WMDs.

    The MSM, for all its faults, is familiar with the constraints of operating within the defamation laws. The blogosphere not so familiar.

  6. Eliyahu says:

    as I understand it, the law of 1881 cited above, was used to charge Emile Zola with defamation after he had defended Capt. Dreyfus with his famous “J’Accuse…” article. Now it is really scandalous that those in France who claim to stand for freedom of speech, of the press, etc., do not shout in outrage against the decision of the court, as well as against the law that it is based on.

  7. Al Ramey says:

    Israeli journalists that I know personally, who are very familiar with the location and the incident knew from the get go that this was another staged fiction. The problem as usual is that Israel, the IDF, the local media do not react swiftly, nor do they control sufficient resources to react swiftly to the reported ‘events’ in a timely manner. This is why in every ‘new’ incident Israel loses, no matter what the circumstances are. Huda, the girl, Dura the boy have become the symbolic equivalent of the Jewish boy in Ghetto Warsha!

    Additionally, for those of us, limited in out ability to read through legal documents, could it be possible to see a one page summation which could beocme handy!

    Thanks

    A.R

  8. RL says:

    To Al Ramey,
    I’d be interested in meeting some Israeli journalists who would say that. I’ve been astonished by the aggressively hostile approach of most Israeli journalists with whom I’ve talked about the al Durah case.

    as for a summary, i’ll work on it.

  9. Loki says:

    This is from an email exchange which I asked Loki to post at the website.

    Richard…you wrote:

    strange. the only part of all this [Loki's abundant criticism of me. RL] that rings true is the impulsive [one of Loki's admissions about himself, RL]. as far as your comments on me are concerned you seem to view things in black and white.

    millennialism (millenarianism, chiliasm) is the belief that a perfect society on earth is on its way. apocalyptic means you think it’s imminent. active cataclysmic apocalyptic aimed at a hierarchical millennium is the worst — huge devastation must occur to usher in the millennial age, we are the agents of that destruction, and the millennial age will have one group dominate over all the others.

    global jihad anyone?

    I write back now:

    …and a little book called Revelation…and the Torah actually (the former a book that current powerbrokers in the strongest nation on earth currently BELIEVE) or say they believe to get elected… even the fact that they would acknowledge this is worrisome.

    do you have a citation for the leaders of the USA acknowledging this belief in the book of Revelation. As for the “Torah” I don’t know what it’s doing here, there is virtually nothing either apocalyptic or millennial in the Five Books of Moses, unless you want to argue (as I might, but it’s really a new argument), that the laws of Moses aimed at creating a society of free peasants who regularly eat meat and to their fill, is a blueprint for a millennial experiment.

    Questions: Who helped create the ‘global jihad’? (Who created our arguable patient zero Osama?) Who put in the conditions for it to flourish and find supporters? Who supports Israels continual annexation of Palestinian property in the west bank and Golan? Gee could that be construed as a reason?

    Wow, this is a huge issue, and i think i’ll save the long answer for a separate post. the short answer is. no. Bin Laden, Hamas, the Muslim Brotherhood, all have far greater ambitions than the little sliver of Palestine that obsesses so many. If I had to point the finger at anyone for encouraging this global jihad, it’s a combination of European diplomacy that encouraged the festering of the Palestinian refugee problem, and a media which has been so astoundingly credulous about Pallywood, and as a result pumped the poison of blood libel into the world communications system.

    Is there a lesson here for fighting this global monolithic jihad? Would you rather fight the underlying reason the cancer is there, or do you instead want to kill off every cancer cell when it happens to appear one by one?

    I’m with you. get it at it’s source. but if you misread the source, your “radical” solution can backfire. if you think Israel is the source rather than the symptom, you will only make things MUCH worse by sacrificing Israel to this gaping maw of hatred and lust for dominion.

  10. Loki says:

    The reasoning? What could be behind the reasoning? Perhaps because the evidence is contradictory? There’s no mystery to the judges decision if you actually read what he says….Exhibit 1+

    And where does Enderlin use the term ‘blood libel’ ?

    And IF this whole thing was set up (There are people who say 911 was set up too you know) then it would simply be a single representation of the number of children actually killed (by hand or abstractly at a distance) on both sides every day in this futile conflict where NO ONE can claim a higher moral authority.

  11. LOKI says:

    With regardse to the defamation law, the judge says that the evidence must be infallible.

    He dicsusses the caveats within each one of Karsteny’s case and finds them lacking….

    It’s straight forward, the judeg at first lists the eivdence then discusses it and finds it lacking, and going by the reasons he give for finding it lacking , this case would also be thrown out by a British or American judge. The only thing here that many of you and on other blogs are hanging your hat on is the French Defamation law itself. There is a high degree of proof required to win or lose this case, Karsteny did not have convincing proof….Some mystery.

  12. Barbara says:

    Re Loki’s Comment:

    I am reminded of the Hutton Inquiry in the UK where the sensationalist and poorly (legally) informed reporting of the MSM would have led the ordinary reader to suppose that Tony Blair and his government had engaged in a conspiracy to denigrate WMD specialist Dr David Kay, eventually driving him to suicide.

    However the inquiry posted the evidence given before it every day on its website. And if one cared to read the evidence (as I did) it quickly became apparent that, in legal terms, not a shred was ever advanced to support the allegations. It was all speculation, interpretation, hearsay, rumour and political gossip.

    Hutton’s finding, as a result, completely exonerated the Government. Without proof of fact there could have been no other result.

    The same seems to have happened in this case. Having made the allegation that Enderlin had knowingly falsified the report, or had reported what he knew to be false, the defendents were obliged to prove it under French law.

  13. Loki says:

    #10 My comments here by the way do not excuse either side, nor do I seek to legitimize any such tactics should they have occurred or should they occur in the future.

  14. Loki says:

    “During this time, Gog, king of Magog, will attack Israel. Who Gog and the Magog nation are is unknown. Magog will fight a great battle, in which many will die on both sides, but God will intervene and save the Jews. This is the battle referred to as Armageddon. God, having vanquished this final enemy once and for all, will accordingly banish all evil from human existence. One of the sages of the Talmud says, “Let the end of days come, but may I not live to see them”, because they will be filled with so much conflict and suffering.” – The holy book of Wikipedia.

    what entry is this?

    Bush has been described as a ‘mainstream evangelical’ he argues for intelligent design to be taught along side evolution. He buys it, whether he knew it was included in the purchase or not, Revelation that is, most Christians do don’t they? Isn’t it part of the deal?

    it’s not so simple as, “it’s in the book, they bought it.” apocalyptic scenarios are always complicated, deeply ambiguous, dense and opaque, and (pace “literal” readers) notoriously hard to “nail down.” so believing in sacred scriptures that include apocalyptic texts does not mean that you necessarily a) believe that that apocalyptic prophecy is NOW coming true, nor b) that it will happen “literally” the way it’s described. in any case, Bush, and any other Christian believer in the book of Revelation believe in a what i call a passive cataclysmic scenario, that is the apocalyptic transformation into the millennial kingdom will occur with enormous devastation, but that destruction is God’s work, not ours. any “activist” scenario (e.g., nuclear weapons are what the text describes) are necessarily “interpretations”, as in “blessed are the cheesemakers? what’s that supposed to mean?” “it’s meant to refer allegorically to everyone in the dairy industry…”

    Who said anything about sacrificing Israel? I didn’t. Maybe the West bank…but we all know that the Israelis are in for the long haul. 100 years from now there’ll be no Palestinians in those areas.

    i think that anyone who thinks that “solving the arab-israeli conflict” in the terms demanded by those islamist (and “nationalist”) forces on the arab side who want “right of return” and an armed palestinian state — the sine-qua-non of the arab position on “solving” the conflict, has created the conditions for israel’s demise, and is therefore sacrificing it. thinking that the palestinians who would take over such a state, or swamp the israeli state demographically are going to play by our rules of civil society represents at best a naivete so breathtaking as to, at this point, constitute either aggressive stupidity or bad faith. (sorry)

    Im looking for causes not excuses of dupedom. I said that some of its policies need real reviewing. The continued settlements of mainly American and Russian Jews amongst others in the West bank is not an ideal situation.

    i’m not up for a big discussion of the settlements. but a historical note: the problem with the arabs wanting to destroy israel long precedes the settlements and is not a function of them. they are a good excuse for palestinians seeking your sympathy. for the key players right now, palestine is river to the see and tel aviv is a settlement. if you believe the argument that by giving back the “occupied territories” and letting the refugees return, you are going to “solve” this problem and make jihad better, then i’d say you qualify as dupe, and if you’re looking for the causes of dupedom, i’d introspect as to why you believe these things despite the overwhelming evidence that they have nothing to do with reality.

    One could also blame Moshe Dayan who allowed the Arabs to stay in the late sixties when the area could have been ‘ethnically cleansed’ of them after that war.

    he believed in human rights. he also believed that with enough good will — like bringing telephone service and economic development and higher education to the territories — the problem could be solved. alas — cognitive egocentrist.

    European Diplomacy is at fault for global jihadism? No you are saying they are dupes. They aren’t apologists for Islam but they’re not willing to see human rights denied to anyone. That’s the balance of freedom and the cost of freedom.

    i disagree pretty strongly. dupes generally are apologists for islam in this conflict, downplaying the role and importance of jihad. they have no concern for the human rights of the objects of genocide whether in sudan or the balkans, they obsess over israel’s violation of palestinian rights while turning a blind eye to the atrocious behavior going on in algeria. they couldn’t be farther from the benign picture you paint. the balance and cost of freedom is giving up the kind of honor-killings that permeate the arab world (and the refusal to give up such things explains the failure of democracy in those lands), and giving up the kind of honor-libels that permeate the european world about israel and the usa (permitting the europeans to feel morally superior to both), and the refusal to give these libels up — feels too good — will explain why europe may lose its democracies.

    What about the US stoking imbeciles like bin Laden amongst others into Mudjahadeenic raptures to fight the Soviets in Afganistan? That’s well known. It would not be the first time in history mercenaries turned against their previous pay masters once the war had run out and they knew no other life.

    in german there’s an analytic distinction btw “anlass” (trigger) and urgrund (fundamental cause). american encouragement of bin laden was clearly a shortsighted policy (from the frying pan to the fire), but not the fundamental cause of islamism or its success. bin laden’s guru, Azziz, was a palestinian apocalyptic preacher who grew up in the toxic waste-dumps of a palestinian problem that had festered for decades under the benign neglect of a european diplomacy above all dedicated to keeping the israelis constantly under threat, creating an impossible situation, and permitting them to indulge in the fantasies that, ultimately, israel was not legitimate. active cataclysmic apocalyptic movements, with their death cults, do not emerge easily. it takes decades of appalling conditions and intense teaching of resentment and hate to do that. (and you need both. appalling conditions exist all over the world, but only in the muslim world — and principally in “palestinian culture” do you see it emerge with such force and depravity.)

    I’m sure no fan of Islam and I thought that this ideological struggle from the start appeared as the 21st century fighting the 17th century.

    early 15th century, by their count, late 11th century if you’re looking for a comparison with the Christian west

    Their extremist ideology is based upon or reflective of the jihadi mentality of the islamists of the middle ages. You are either in the house of peace (Islamic dominions) or in the House of war, (outside Islamic dominions). There is also the humiliation that the West seems to them, progress is humiliation for them. Then you have screaming halfwits who channel this imbecility like Qttb or whatever his name is.

    Qutb, the inspiration of Azziz.

    Is it Islam itself that is to blame? What is it that encourages this mindset. I dont know the bible that well but Im sure you could just as easily cherry pick ‘crusader’ notions from it. If roles were reversed would we as Christians, or Jews terrorize a dominant Muslim culture?

    short answers: it’s honor-shame culture that has taken over a monotheistic religion — my god is great because i’m on top and i get to demand that you “respect” my god — that explains both the belligerence of islam today, and the fury at loss of dominion in the face of modernity.

    as for role reversals, no minority would terrorize Islam (nor did in islam’s long history of dominion), because the muslims would, without hesitation, wipe them out. survival when dominated by honor-shame monotheisms is bought as the price of accepting permanent humiliation. Dhimmi means “protected”, from what? from death.

    If it is Islam we are in trouble because how do you fight a religion?

    good question. i don’t think it’s islam (altho many do), but an honor-shame islam. what to do — tackle not the islam but the honor-shame issues. but if others are right, it’s islam, will pretending it isn’t because you don’t know what to do, make it better or worse? we have to reality test, then look for answers, not pretend that the problem is the way we’d like it to be because we can “solve” that kind of problem.

    But I don’t see the current world phenomenon as co-ordinated or an act of direct or continual war. It is more an act of protest. And it is not unified.

    and if you’re wrong?

  15. Loki says:

    Is it a symbol or aknowledgement of Western superiority that incites jihadist behaviour? I dont know exactly what that means, just ‘impulsively’ said it.
    Why do they (extremists) say they want all out war, when they know they would be annihilated? Is this part of their own ‘end of days’ that you are referring to?..More reading…

    They know that to push too far would destroy them, I am reminded of Monkey the Buddhist character who flew around the world and felt all powerful until he came to these five gigantic pillars and could fly no more, the pillars were the fingers of the hand of Buddha.

  16. Loki says:

    Do they want all out war? Or is this simply a tactic of terror? the more you thnk about it the more they are intent on their own destruction for no reason other than envy. Maybe

  17. Loki says:

    Just quickly I’ll get back to your other points later but this honor shame thing is probably pre-islamic roots in tribal culture?

    Also I am partly Greek background, you don’t have to tell me about dhimmidom. As my uncle (a retired General) said ‘our islands are paid for with blood’.

    If it’s Islam, I do know what to do, but who wants to advocate that? That would be for us in the West a failure of ourselves, of what we pride civilization to mean. I don’t appreciate terms like dupedom really, if you are critical it doenst make you an apologist or dupe, you just want to lift the world onto your level, and treat others the same way. What did Scorates say about tendance to the gods?

    Speaking of Pallywood, there is also Israeliwood, not literally but tonite on the news it said “1 Israeli woman killed” that was a set backdrop (…?!?). Can you imagine if they had a backdrop for every person or group killed everyday? Why are we obsessed with the minutae of both sides of this conflict? (not disrespecting the poor woman,but what is this focus about?) As you say there is Sudan etc.

  18. Eliyahu says:

    Loki justifies Arab acts of mass murder by adducing “continual annexation of Palestinian property.” First of all, the Arabs in the country never considered themselves a separate people or a “palestinian people.” Then, after Israel had been reestablished, psychological warfare experts invented the “palestinian people” notion which the Arabs were persuaded to accept. Yet, if you read the PLO charter, the first article makes clear that these are Arabs. “The Palestinian Arab people is a part of the Arab nation and Palestine is a part of the great Arab fatherland/homeland” [watan]. Now, I charge that the palestinian people notion is much like the al-Durah affair. In both cases, lies were invented in order to besmirch the Jews and to diminish their rights. Yet, there is no distinct palestinian people, according to the Arabs themselves [viz., PLO charter]. Secondly, you talk of “annexing” Arab lands. In fact, in history what you call the West Bank was Jewish land. It was part of the Roman province of Judea [Ioudaia in Greek, for you]. Judea in Roman-Greek usage was roughly equivalent to the Jewish concept of Land of Israel [that is, NOT the same as Erets Yehudah or Land of Judah]. After the Arab invasion of the 7th century, Arabs confiscated Jewish real estate, as well as RE belonging to Christians, Samaritans]. Under Arab and later Muslim rule [Mamluks, Ottomans] it was difficult for dhimmis to obtain title to property, until Western powers forced the Ottoman empire to allow RE purchases by non-Muslims in the late 19th century. Jews bought much real estate after that change, especially in and around Jerusalem, but also in Transjordan, the Golan Heights, what is now southern Lebanon and what you call West Bank. Unfortunately, the British often made it difficult for Jews to realize their property rights. The Arab-Israeli armistice agreements of 1949 made it impossible for Jews to have access to their real estate left under Arab control, let alone to exercise property rights. Finally, Loki speaks of “annexation.” In fact, the “West Bank” and Gaza Strip and Transjordan were recognized as parts of the Jewish National Home set up under international law in 1920 at the San Remo conference, and endorsed by the League of Nations in 1922. This status of those areas has never changed in true international law. The UN General Assembly partition resolution of November 1947 was merely a recommendation, as are all General Assembly resolutions on political matters. The 1949 armistice accords did not set up or recognize borders, at the insistence of the Arabs themselves, who looked forward to another round. So today, international friends of terrorism, such as Kofi Annan, are lying when they call those areas “occupied territory.” Loki’s “annexation” argument is fraudulent.

  19. Loki says:

    Loki’s annexation argument is fraudulent’ what do you call whats happening as you sit down to dinner on the West bank? A traveling musical? Since it is a legal grey area, you contend that it is moral to steal land from people who live there? The bottom line is that at the ground level it is one persons property, another person comes and steals it and thats ok in your book?
    If you want to do a demographic count you can say that Palestianians have the same rights of self determination as Kossovars or Kurds.
    Did I say they were justified? Or did I say that we should look for reasons?

    ‘Loki justifies Arab acts of mass murder’ No I dont.
    Do you want to do a body count of both sides and get back to me on that one? I decry dehumanization.

    As for your recital of Palestinian non identity and partisan history, No one, no one has the right to tell anyone what their identity is, do you think your own identity is a given? It’s NOT. This is what we in anthropology are against, this dissemination of ‘historical facts’ that are neither facts nor historical. These traditions are invented and if you think Palestinian identity is a political act you are dead right, and so is YOURS mine and Gods.

    Kofi Annan is a friend of Terrorism? That is hysterical.

  20. Loki says:

    On the one hand there is little point arguing back and forth because dehumanization and propaganda happens in times of war and that’s what you are in, a time of war. The trouble is that this is a war that will take a century or so. I don’t see why you dont just push them all into Jordan ala Milosovich, who’s going to stop you? The UN? How? the EU? How? (will they embargo renaults?) the US? Never. Now that’s real realpolitik. Do what the Turks did in Cyprus. One (relatively) quick painful push and your troubles are over.

  21. Loki says:

    Silence is acquiesance?

  22. Eliyahu says:

    Loki, I am not silent and do not acquiesce. If we accept that everyone has the right to define his own identity, then the PLO –supposedly representing “palestinians”– has defined them as Arabs. I did not write the PLO Charter. Arafat and his minions wrote it. If you follow Arafat’s statements over the years [and now Abu Mazen's] you will see that arafat continually described the people that he was leading as Arabs. He justified PLO intervention in the Lebanese civil war [actually instigated by the PLO to a great extent] by saying that Lebanon was an Arab country that must be kept within the Arab fold and should not be allowed to leave that fold by Christian separatists. Likewise, arafat justified PLO support of saddam hussein’s invasion of Kuwait on the grounds that saddam was unifying the Arab world.

  23. Eliyahu says:

    Correction: I may have been misleading. I don’t know what role arafat himself played in writing the PLO which was first adopted in 1964 and then revised in 1968 [or 69?]. Arafat and his Fatah gang were not part of the PLO at the beginning but came in after the Six Day War, so perhaps he was involved in the revision [or even the original version, before he took over the PLO]. In any case, he never sought to change it [not even when Clinton came to Gaza for a show of removing anti-Israel clauses, which was only a show].

  24. Reporters Without Borders Redux

    Apparently, for the Reporters Sans Frontiers who decided that France has a freer press than the US, the definition of a “free press” includes the right to slander entire countries, and then to haul into court anyone who bothers to…

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