AL-DURA: THE TRIAL (PART THREE)

Erratum: the name of the pert and pertinent procureur is madame Alimi-Uzan, not Halimi-Selam. Richard Landes apologizes for the error. In mistakenly granting her the names of Sébastien Selam and Ilan Halimi, was he seeking justice for those two young Jewish men murdered by Muslims in France? The al-Dura blood libel certainly feeds the kind of hatred that inspired those crimes.

Philippe e-mailed me a transcript of the conversation with the Figaro journalist mentioned in Part Two. In my next report I will give a résumé of SDS’s article (Le Figaro, 16-17 September 2006), which is comprehensive, coherent, well-written, and quite fair.

You can say that the journalist made the remark to me…here’s exactly what was said: Stéphane Durand-Soufflant: I was really surprised by the recommendations of the procureur.

PK: Why?
SDS: Because she was convinced [by the defense]. I wasn’t. But after all, her name is Alimi-Uzan…
PK: Meaning?
SDS: Meaning she’s Jewish!
PK: Enderlin is Jewish too!

N.B. I have no experience in court reporting and apologize in advance for approximations or errors. Accepted translations of legal terminology are often misleading because there is no exact correspondence between the French and American legal systems. Procureur is translated as “prosecutor” or “state’s attorney.” But I’m not sure that the function fits the translation.

The case is heard by a panel of three judges: the presiding judge, or président, and two magistrats who listen but do not participate in the debates. The case was heard in the 17e chambre correctionnel or court of “summary jurisdiction.” Except for one minor detail, too insignificant to develop here, the debate was conducted in language that any layman could understand, and the issues were framed in terms that we can grasp without any legal background. However, the acoustics in the courtroom were very bad. I may have missed important points. All that follows is drawn from my notes, written in simultaneous translation. In the absence of a certified transcript, all “quotations” should be considered indirect.

THE TRIAL

[Dozens of cases are put on the docket, postponed, or dismissed before the Karsenty trial. Two lawsuits involving the president of the Front National, Jean-Marie Le Pen were scheduled; he is being sued for apology for crime against humanity. Hmmm…Le Pen is accused of apology for the last genocide of the Jews and Karsenty is defending the right to prevent the next genocide.]

I observe the France 2 lawyer, Maître Bénédicte Amblard, who is sitting about 2 feet in front of me. She is very busy shuffling stabile-striped papers bedecked with fluoro postits. She rummages in her briefcase, takes out some CDs, puts them next to the thick file. Is she super-prepared or throwing things together at the last minute? Her chignon falls apart.

I feel as if I too stand accused for all I have written on the al-Dura hoax. What if she has the proof!!! How do you feel when you are a lawyer for France Télévisions? Powerful.

Dr. Charles Gouz, his lawyer Aude Weill-Reynall, and Maître Amblard step forward to confirm their trial date. The judge asks if Charles Enderlin will attend. I cannot hear well but it seems like the reply is negative, and the judge shows his disapproval. After a short recess, the court reconvenes to hear Karsenty’s case.

The judge gives a cogent presentation of the issues, showing that he has closely studied the documents. He calls Netzarim an implantation [settlement] not a “colonie.” I am impressed! The French love to call the disputed territories “colonies” and all that goes with it. Listing evidence that has been reviewed, he describes the Ména (Metula News Agency) video as “less interesting than Esther Schapira documentary, because it is focused uniquely on the hypothesis that the al-Dura incident was staged. The judge reads from the incriminated Media-Ratings article that accuses Enderlin-Chabot-France 2 of producing, broadcasting, and stubbornly maintaining a falsified news report [English translation forthcoming]; first, the passages cited for insulting language (faux, masquerade, imposture) then a longer excerpt that describes a falsified scene—the “wounded” man and the jeep. This is followed by projection of the original al-Dura news broadcast and two follow-up reports, and the Ména video.

The follow up reports, broadcast in October and November 2000, are a revelation. Karsenty tells me his adversaries gave them as evidence! In fact those broadcasts are damning evidence against Enderlin, they show how he pushed and pressured to make the accusation against the Israeli soldiers stick. And right from the start he treated every one who questioned that version of the incident as crooked and dishonest.

The judge gives a brief résumé of Three Bullets and a Dead Child, implicitly giving Esther Schapira credit for a reasonable investigation because it leaves questions open instead of claiming, like the Ména, to have the answers. I am firmly convinced that subsequent testimony made him reconsider.

Philippe Karsenty takes the stand. The judge’s questions are pertinent, Philippe’s answers are clear and compelling. Does he personally think the scene was staged or simply questionable? Philippe replies that he was initially convinced by the Schapira film, but realized after further investigation that the incident had to be staged. He gives an example: when it became clear from ballistics tests that the al-Duras could not have been hit by direct fire from the Israeli position, it was claimed they were hit by ricochets. But the father says he was hit 9 times, and the boy 3 times. Twelve ricochets? It’s impossible.

Then comes the ten-gun question: why don’t Israeli officials protest? Karsenty’s answer is plausible: they think it would do no good to bring the image back to the forefront. Even if the truth could be established, it would turn against them.

Q: Denis Jeambar and Daniel Leconte, who viewed the 27-minute outtakes, said (Radio Communauté Juive) all the scenes were staged except the al-Dura scene. Jeambar cited a video of the father displaying his scars, a new element of proof shown by France 2 at a press conference.

A: I did not see the film because I was not allowed to attend the press conference. Leconte told me he was interested in the affair, and intended to investigate it. But Arte [French-German-Spanish cultural TV channel] warned him they would not work with his production company, Doc en Stock, anymore if he didn’t drop the subject. Jeambar was under pressure from inside l’Express, notably Jacques Attali. Alexandre Adler told me that Charles (who is his brother-in-law) was tricked by his fixer. Many people have told me privately that they know the scene was staged, but they won’t say it in public.

The judge’s features tighten as if he is trying to hide his surprise…or distress. The hatchet man, Maître Guillaume Weill-Raynal, who has been coaching Maître Amblard since she came into court, whispers excitedly giving the impression that he has an ace of spades that will trump these revelations and make them explode in Karsenty’s face.

The witnesses are called to the bar.

Francis Balle, professor of media, former member of the CSA (French equivalent of the FCC) describes how he had encouraged Karsenty to go ahead with his plan to launch Media-Ratings. When professor Balle viewed Karsenty’s exposé of the al-Dura affair, he concluded that the images are dubious and their effect was drastic. He doesn’t understand why France 2, an honorable network, has consistently refused to question its own material and open it to public scrutiny.

Karsenty’s lawyer, Maître Dauzier asks the witness if France 2’s refusal to show the 27-minute outtakes can be justified as protection of its source? Or does the public have a right to see them, to dispel doubt? Monsieur Balle replies that it has nothing to do with protecting a source; the footage should be shown so the truth can be told. Was Karsenty’s language excessive? No, it is normal to use words with strong impact to attract attention on a controversial subject of public interest.

Judge Boyer asks two questions that clarify the debate: by presenting the outtakes to three journalists was France 2 not in fact “showing” them. And, further, how do we distinguish distinction between valid controversies [as this one might be] and abusive “investigations” like the 9/11 conspiracy theories? The witness pursues the clarification by replying that there is a tendency in French society to blur the distinction between factual reports and commentary.

Witness: Luc Rosenzweig, 63 year-old retired journalist (Libération, Le Monde) whose last position was TV critic.

Rosenzweig says his attention was drawn to the al-Dura affair while he was attending a congress in Tel Aviv. He pitched the idea to Jeambar, then editor of l’Express, and began his investigation. [I have a draft of the article scheduled for publication on the 4^th anniversary of the al-Dura incident. Jeambar wanted to double check. This led to their meeting with Arlette Chabot, the France 2 counter-offensive, and a wave of articles and interviews. But Jeambar never published Rosenzweig’s article.]

Judge Boyer asks Rosenzweig if he started with the idea of finding out who killed the boy, or already posited that the scene was staged. Rosenzweig says he didn’t have any hypothesis, he just found the report dubious. And when he finally saw the 27-minute footage? He saw that, contrary to repeated declarations by Abu Rahmeh and Enderlin, they did not have 27 minutes of al-Dura footage; it was 24 minutes of staged scenes. My conviction is that the incident did not occur as it has been described.

Rosenwzeig tells what happened when he tried to do a proper journalistic investigation. Having gathered material from Shahaf and others on the Israeli side, he went after the other side of the story. He was told that the cameraman was receiving medical treatment in Paris; he left messages and has not had a reply to this day. He looked for a fixer who could take him to see Jamal—that didn’t work either. He tried to see the doctors at Schifa hospital who reportedly received the corpse of a boy identified as Mohamed al-Dura [at noon or 1 PM, when the incident is reported to have begun at 3 PM]. He tried to go to Gaza but was refused entry. So, he concludes, I couldn’t get the other side of the story. As a journalist I can’t affirm that the scene was staged, but the probability that it was staged is much higher than the version presented by Enderlin.

Q: Did you see Enderlin?

A: Yes. He told me he couldn’t show me the outtakes, they are locked in a safe in the France 2 legal department.

Q: What do you think of Enderlin’s statement that the image “corresponds to the reality of the situation”?

A: That’s not my conception of journalism.

Q: Have you written articles on the subject?

A: Yes. For example, I published an article on the Ména site. The title is “Charles Enderlin is a liar in all languages.”

Did the witness see the additional proof provided by France 2? No, he was not allowed to attend the press conference. [This “invitation only” press spin conference was a low point in the al-Dura machinations. How could France 2 officials think they could get away with it, unless they think they can get away with anything? Sending Abu Rahmeh to film Jamal’s wounds as proof that he was shot that way that day at Netzarim junction is like showing a man’s teeth as proof that he ate twenty Dunkin’ Donuts five years ago. But it worked. The hand-picked journalists who were invited to see the proof swallowed it whole and brought it up in articles and interviews in which they displayed abysmal ignorance of the entire affair. It is a story in itself.]

Witness: Professor Richard Landes, medievalist Boston University.

Professor Landes explains how he got interested in the al-Dura affair, showed the material to media professionals and, in the face of their indifference, put all the material on his website seconddraft.org so that people could judge for themselves. Charles Enderlin showed him the 27-minute footage in Jerusalem, in the presence of an Israeli photographer who laughed at the grotesque staged scenes. Enderlin commented, “they are always doing it.” I said the al-Dura scene could be a fake too. Enderlin said they aren’t smart enough to do that. I realized [this staged news] was an industry, I called it ‘Pallywood.’”

Did Landes see the boy’s death throes? What he saw was the few minutes of al-Dura footage that was cut: the boy moves, holds his hand over his eyes, looks at the camera. He is alive. Landes affirms that as a historian he would say there is a 95% probability the scene was staged.

Q: Did Charles Enderlin investigate further, after the fact? Did he interview family members?

A: I don’t think he made any further effort to understand what had happened. He made a drawing for me [Landes holds out the paper]: it shows the Israeli position directly facing the al-Duras. In fact, that was a Palestinian position. Three years after the event he still doesn’t know the lay of the land? Or did he think I was too stupid to check for myself? And he told me the bullets had been found. Oh? So where are they? In a bag, in the Palestinian general’s desk drawer. You believe that? I believe the Palestinian as much as I trust general Yom Tov Samia].

Witness: Gérard Huber, writer, psychoanalyst, author of Contre-expertise d’une mise en scène [excerpts available at World Net Daily].

Huber explains: I was Paris correspondent for la Ména when I undertook the investigation. I made every effort to contact France 2 to show them our findings and give them the opportunity to correct me if I was wrong. They refused. I read everything, viewed everything, spoke to everyone who would speak to me, and concluded that there is no logical version of the story. It is an enigma. The cameraman who filmed the scene retracted the testimony he gave to the PCHR, he declared under oath that the Israelis shot the al-Duras “deliberately, intentionally, in cold blood.” I don’t accuse Enderlin. No one is able to give a reasonable version of the incident. I suggested an impartial international inquiry. From time to time France 2 retracts elements of the story, but never makes the retractions public. I am in favor of a free, open debate.

Q: Your book is entitled Contre-expertise d’une mise en scène [re-examination of a staged scene].” Are you justified in concluding that it was staged?

A: Yes. My investigation supports that conclusion.

After each witness testifies, the judge asks Maître Amblard if she wants to cross-examine. She declines. And presents no witnesses for the accusation.

A ten-minute recess is allowed before the plaintiffs [partie civile] present their case. Though Arlette Chabot is included in the partie civile, there are almost no references to her role in covering the al-Dura affair and no defense of her good faith…as if the plaintiffs preferred to forget about her.

Maître Amblard comes forward, begins to speak, her voice is inaudible. Her small hands, too, are inaudible, gesturing like little mice paws as she attempts to convince the court of the sincerity of her clients. Finally a microphone is brought over but she still manages to speak to the side of it. Fortunately for me, perhaps unfortunately for her clients, I have heard most of these arguments before. They are pathetically circular. Charles Enderlin is a distinguished prize-winning journalist, author of several books. He is an Israeli citizen, he served in the army. France 2 is a national television channel, reputable, reliable. On 30 September 2000 TAR is caught in a crossfire, trapped. He takes refuge behind a panel truck, risks his life, films a scene that the other reporters could not film, they ran for cover, he filmed the death of a child, sent the images to Charles Enderlin, they were viewed by countless members of the press corps [at the Beth Agron Press Center in Jerusalem]. The images were validated. Talal Abu Rahmeh is a reliable cameraman, he has been working with France 2 since 1990.

In other words, the al-Dura scene cannot be a falsification because France 2, Charles Enderlin, and TAR are above suspicion. Whereas, Philippe Karsenty and his so-called witnesses…

Karsenty makes terrible accusations. A faux is a criminal offense [yes, in the legal sense of “forgery” but Karsenty was not using legal language; in common speech, in this context, a faux is a falsification], there is no justification for this accusation. There is no proof of intention, no proof of motive. The day after the broadcast everyone agreed that the gunfire came from the Israeli position. Several days later other hypotheses were expressed; Charles Enderlin refuted them.

Karsenty’s argument is based on the Ména’s documents. Esther Schapira’s film is also based on information from the Ména. Casting doubt on the death of the child is surrealist. It all comes from that Israeli government commission [implying that an Israeli government commission is by definition partial and invalid]. The Ména film is ridiculous. The Schapira film is a bit more modest. But full of false information. It is not true that the Israeli soldiers didn’t have automatic weapons, they had M-16s and Kalashnikovs. She claims she interviews soldiers who were at the post that day, but they have Hebrew names, the soldiers were Druze.

To claim that Charles Enderlin was swindled by his cameraman is to hold him up for ridicule.

Then Maître Amblard proceeds to hold the witnesses up for ridicule. Who are these so-called professors and journalists, what do they know about war reporting and death scenes? It’s not true that France 2 didn’t investigate. Direct witnesses were questioned, none of them contradicts TAR’s version. They all say the same thing. Only the Ména disagrees. What of the so-called staged scenes in the outtakes? None of them appear in the al-Dura news report. And what proves they are really staged? We have a deposition from a journalist from l’Express: in this kind of situation with bullets flying people often lie down and play dead to save their lives, they may remain that way for hours until it is safe to get up.

Luc Rosenzweig admits himself, it has been several years since he wrote about the Middle East. Besides, he works for la Ména. Professor Landes, hmph, what does he know about these matters? Gérard Huber? Aha!!! He is not simply psychoanalyst and author, he is the Paris correspondent of the Ména!!!! [Apparently she didn’t listen to his testimony: he was their Paris correspondent, and said so in his testimony. He resigned several years ago.]

Item: The Israeli commission that investigated the al-Dura affair was disavowed by the judgment of a Tel Aviv court, not known for its pro-Palestinian positions. The commission was judged partial, unscientific, incompetent, unqualified. Harrumph!

Item: Chief investigator Nahum Shahaf claims to possess a dramatic photo that changes the version of Rabin’s assassination. Harumph!

Item: The Israeli daily Haaretz wrote, “It is hard to find words to describe the stupidity of this investigation [of the al-Dura affair].” Harumph!

Item: The defamation was inspired by personal animosity. She reads a message from Karsenty to X, promising to bring down Enderlin.

Item: There is no legitimate aim. What could be legitimate in this relentless attack pursued for six years! For what? To destabilize Enderlin. Why?

Item: This campaign spread beyond our boarders, beyond the limits of sites and blogs—she cites the WSJ article—look at what they say about France… and it is all based on one source, one disqualified investigation, the Ména.

Item: The vocabulary—falsification, hoax, masquerade—is insulting, and goes way beyond what is permissible.

My client is asking for 1 euro of symbolic damages; we want to put an end to this shameful campaign that has been going on for years, spreading untruths.

[So, that’s it, they don’t have a shred of proof, not a hairpin of an argument. Questioning the veracity of a patently dubious report is an insult to the honor of France 2 and Charles Enderlin because they are honorable and those who question them are dishonest, confused, shabby, worthless hecklers who don’t know when to stop. Guillaume Weill-Raynal, her volunteer coach, turns around and glares at the people in the courtroom as if they are all right wing Zionists. Elisabeth Schemla (journalist and director of the recently bankrupt site proche-orient.info) sat in the bleachers, listening with eagle ears, whispering, sending signals. At one point a note was passed from behind (I think from E.S.) to Maître Amblard) via me and a friendly colleague. Drats, are we real journalists? Why didn’t we keep it? Maybe it was meaningless scribble, or nasty gossip, nothing that could help their case, they had no case, they thought they didn’t need to have a case, the legal work was as shabby as the al-Dura broadcast itself. We, the collective accused, work our heads off, work our fingers to the bone, double check, cross check, search our conscience and they, the perpetrators of the blood libel, don’t even bother to build plausible lies. They believe they live in a world where their word is good no matter how bad it really is. That’s what we are dealing with: slipshod blood libel.]

The procureur stands and I can finally see her, or at least her head, in profile. Her long red hair is piled in a youthful mass. Her cheeks are round and her lips are full and pinkly lipsticked. She speaks for a society that doesn’t seem to know it needs her firm voice of integrity, she speaks to our Jewish people who have not turned out en masse to witness the trial of 21^st century blood libel, she speaks to Israel that does not know how to reply to these pernicious accusations, she speaks to the press that did not bother to come to hear a magisterial lesson on their responsibility. She speaks, bless her heart, of “verifiable facts.” Hear ye hear ye French journalists, madame la Procureur du 17e correctionnel reminds you that you are supposed to be dealing with verifiable facts.

All the more so, according to the procureur, in the tense climate that prevailed when this report was broadcast and given the grave consequences that followed on publication of this image. The media have a responsibility to the public. We are asked to judge the statements made by the accused to denounce a situation and, on the other hand, the image and commentary broadcast by the plaintiff.

Is this a case of defamation? Yes, the article does cast a shadow on the honor of the person. But the accused is asked to offer proof of the truth of his statements and we have here an order of proof that is convincing if not total. Staged scenes are effectively included in the footage provided by the cameraman. The alleged scene of the child’s death throes does not appear in the raw footage as alleged. If that scene doesn’t exist, this is pertinent to the debate. As is the debate on the ballistics, the angle of the Israeli position, the type of weapons used, the possibility of seeing the man and boy from the Israeli position. All of this should be taken into consideration.

There is a war of images. Al-Dura was a symbol. I saw a serious documentary on television that showed this kind of staging. The fact that these are scenes of war does not excuse the absence of verification. It was not done. Charles Enderlin was not at Netzarim Junction when the incident occurred. The plaintiffs initiated this procedure, they should have brought witnesses, they should have presented proof to sustain their affirmations, the outtakes should have been shown here during this trial.

The procureur concludes in answering, one after the other, the elements of decision that should guide the court.

Was the information contained in the incriminated article justified? Yes. The public has a right to be informed about this controversy.

Was the article inspired by personal animosity? No. The plaintiff has not given proof of personal animosity. Monsieur Karsenty directed his criticism at Charles Enderlin in his role as journalist.

Was the tone of the article acceptable? Yes. Freedom of tone in such a controversial subject is authorized.

Was the accusation based on a serious investigation? Yes. It cannot be dismissed out of hand, as France 2 has done. The accused made a serious effort to test hypotheses, verify information, engage in honest debate with France 2.

The plaintiff’s arguments are weak. Why were these journalists excluded from the press conference?

The procureur concludes in recommending that Karsenty be acquitted.

Maître Dauzier makes his closing arguments. Philippe Karsenty reads a statement. [elements to follow] The session is adjourned. The verdict will be announced on October 19.

My verdict is announced here: on the face of things, Karsenty won this case hands down. The judge is free to follow or ignore the procureur’s recommendations; I think he will follow them, though he may not have the same level of lucidity and conviction. He too recognizes that France 2 failed to argue its case. Honest observers may disagree on the authenticity or falsification of the al-Dura scene but no honest observer could fail to recognize that France 2 did not verify, has no proof, should have opened the question to public debate and made the outtakes freely available years ago. If there is any acrimony, it is on the side of France 2. I think the court does not appreciate being exploited by France 2 to silence opposition and avoid the issue. I think the court has enough genuine independence to implicitly condemn France 2 by acquitting Philippe Karsenty. Will France 2 appeal? Will France 2 drop the other two cases? I don’t know.

[Click here to read part 4]
[Click here to read part 2]
[Click here to read part 1]