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France: The Al-Dura Defamation Case and the End of Free Speech

Friday, Nov. 3, 2006

In the title of an article that appeared in the French weekly Valeurs Actuelles in December 2005, the journalist Michel Gurfinkiel asked "Is Freedom of Speech under Threat in France?" Gurfinkiel's question was prompted by threats of legal action against French philosopher Alain Finkielkraut. In an interview with the Israeli paper Haaretz, Finkielkraut had made observations on last fall's riots in the French banlieues that his detractors denounced as racist "incitement." Nearly one year on, and following the judgment of a Parisian court in a high profile defamation case, there is no longer room for doubt. Public discourse in France is increasingly subjected to restrictions incompatible with a free society.

On Oct. 19, the 17th chamber of the Parisian county court (Tribunal de Grande Instance de Paris) found Philippe Karsenty, director of the French media watchdog organization Media-Ratings, guilty of having defamed the French public television channel France2 and France2's star Middle East correspondent, Charles Enderlin. The litigious texts concern France2's famous and by many accounts -- not only Philippe Karsenty's -- infamous news report of Sept. 30, 2000, apparently showing a defenseless Palestinian boy being shot dead in a hail of Israeli fire. This is at least how viewers would have been led to interpret the scene by the voice-over of Enderlin:

Three PM. Everything has begun to degenerate near the Netzarim settlement in the Gaza Strip. The Palestinians have fired with live ammunition. The Israelis respond. Ambulance teams, journalists and simple passers-by are caught in the cross-fire. Here Jamal and his son Mohammed are the target of fire coming from the Israeli position. Mohammed is twelve years old. His father tries to protect him. He signals. But there is a new burst of fire. Mohammed is dead and his father is badly wounded.

Note the phrase identifying Jamal and Mohammed as "the target of fire coming from the Israeli position": a formula that implies that the shooting of the man and the boy was deliberate. (The original France2 report can be viewed here; click "streaming video".)

The 50 some odd seconds of footage -- provided free of charge by France2 to international networks -- would be broadcast around the globe. The boy would become known to world public opinion as "Mohammed Al-Dura": a symbol of Israeli infamy and Palestinian victimhood and to date still the most famous icon of the 2nd Intifada.

Soon, however, doubts began to arise about the France2 report. It would turn out that Charles Enderlin had not been at Netzarim that day and that his narration had been based on the account given by France2 cameraman Talal Abu Rahma: the sole known witness of the events. No autopsy was performed. No bullets were recovered. When asked by the German television journalist Esther Shapira about the latter point, Rahma would insist that France2 had collected the bullets -- before realizing the implausibility of the claim, chuckling, and remarking enigmatically "we have some secrets." (Shapira/Rahma footage available here; click on "streaming video.")

At the very least, it seemed that the attribution of the fatal fire to the Israeli Army must have been erroneous. The man and the boy were huddled behind a concrete barrel from which they could not have been hit on a direct line from the army post where the Israeli soldiers were barricaded. Only one gunshot is distinctly visible in the France2 footage publicly available: striking a wall behind the two figures, perhaps a meter above their heads. A ballistics study commissioned by the Israeli Army concluded that it originated not from the direction of the Israeli post, but rather from a location behind the camera: where, as it happens, Palestinian gunmen had taken up positions.

The famous 50 seconds, moreover, was composed of a series of short discontinuous segments. Material that could be crucial to understanding what transpired had seemingly been edited from the sequence. Most notably, although Charles Enderlin's narration pronounced the boy dead and the final shot in the sequence depicts him motionless on the ground, there was no evidence of the kind of suffering one would expect to precede such a death. According to Palestinian sources, the boy was supposed, after all, to have been struck in the stomach. In an interview with the BBC, Rahma has said that he bled for some 15-20 minutes while continued fire prevented an ambulance from approaching.

Interviewed by the French magazine Télérama in October 2000, Enderlin claimed to have cut the images of the child's death throes. "It was intolerable," he said, ". . . It would not have added anything." Prima facie, the explanation seemed reasonable enough and Enderlin would repeat it as recently as 2005. However, the slightly longer version of the sequence provided by France2 to international broadcasters includes a final segment in which the boy can clearly be seen moving after the point at which he had been pronounced dead by Charles Enderlin in the France2 report. He takes his hands from his eyes, appears to look toward the camera, and rolls -- oddly, given where he is supposed to have been shot -- onto his stomach. (See here, for instance; click "streaming video".)

In a sworn statement to the Palestinian Centre for Human Rights, Talal Abu Rahma claimed to have filmed 27 minutes of the incident. In conversation with Shapira, he claimed to have filmed 6 minutes. France2, however, steadfastly refused to allow Shapira and other investigators to view the unedited rushes filmed by Rahma at Netzarim. Indeed, already in a March 2002 interview on Germany's 3Sat television, Shapira noted that the French news organization "threatens to sue anyone who says there is something strange going on here, anyone who poses questions."

Suspicions prompted by the inconsistencies and gaps in the original story -- and nourished, above all, by the unforthcoming attitude of France2 -- would be radicalized when another salient fact came to light. Even if France2 refused to release its rushes, rushes filmed by the cameramen of other news services at Netzarim on the same day were available. Now, these rushes depict a remarkable multitude of Palestinian youngsters milling about in front of the Israeli post seemingly unperturbed, despite constant efforts at provocation, and an equally remarkable number of cameramen and photographers -- and ambulances -- circulating in their midst. More importantly, they also reveal numerous instances of staging of battle zone "events": including scenes of Palestinian youngsters apparently feigning being wounded from Israeli fire.

It was, above all, this fact that led some investigators to suggest a more startling hypothesis than that of a mere misattribution of the fatal fire by France2. For the Israeli physicist Nahum Shahaf, who had participated in the IDF ballistics study and assembled a collection of the Netzarim footage, there had not been any "fatal fire." The Al-Dura episode was also staged. Following viewing of the video evidence and discussions with Shahaf, Stéphane Juffa and Gérard Huber of the Israeli-based French-language Metula News Service (Mena) would rally to his hypothesis and attempt to make it known to the broader French-speaking public in various forms.

Without access to the France2 rushes, however, the Shahaf/Mena hypothesis could not be subjected to its most important and obvious test. Then, in October 2004, to paraphrase Charles Enderlin, "everything began to degenerate for France 2." Following years of stonewalling, France2 agreed to allow Luc Rosenzweig, a retired former editor of Le Monde and Mena contributor, to view the rushes. Rosenzweig would be accompanied by France2 news director, Arlette Chabot, and two other well-known French journalists: the documentary filmmaker Daniel Leconte and Denis Jeambar, at the time editor of the weekly L'Express.

On Oct. 24, two days after the meeting at France2 offices in Paris, Mena editor-in-chief Stéphane Juffa made public Rosenzweig's most crucial findings from this viewing: The 27 minutes of rushes contained virtually no additional footage of the Al-Dura episode. There was neither the full 27 minutes of the episode to which Talal Abu-Rahma had attested under oath, nor the six minutes of which he spoke to Esther Shapira. The images of the death throes of Mohammed Al-Dura, which Enderlin claimed to have cut for reasons of decency, did not exist. What the remaining footage did contain, however, were several instances of Palestinian youngsters obviously feigning being hit by Israeli fire.

Although Leconte and Jeambar would later demonstratively take their distance from the Shahaf/Mena hypothesis, at the same time they publicly confirmed those of Rosenzweig's observations that most obviously militated in its favor. Indeed, in both a jointly authored article published in the daily Le Figaro on Jan. 25, 2005, and a subsequent interview with the Parisian radio station RCJ (Jewish Community Radio), they would go into great detail concerning the evidence of what they called "mise-en-scène" [staging] in the France2 rushes. In the RCJ interview, Jeambar would go so far as to say that during fully 24 minutes "one sees nothing but [my emphasis - JR] mise-en-scène":

. . . young Palestinians . . . faking being wounded. One sees them fall. When they have the impression that nothing is happening, they get up. . . . You see boys who look at the camera, they pretend to fall, they fall, and when they see nothing is happening, they get up and run off. . . . They completely fake [simulent] being wounded. One sees ambulances coming and going, which evacuate people who have not been wounded at all.

As for the "death throes" of Mohammed Al-Dura, Leconte and Jeambar likewise confirmed that they were nowhere to be found. "The viewing of the complete rushes," they wrote in Le Figaro, ". . . demonstrates that at the moment that Charles Enderlin says that the child is dead, . . . there is nothing that would permit him to know that the child is dead."

Nonetheless, in a bizarre nuance, they would continue to insist that "nothing permits one to affirm" that the Al-Dura episode was staged either. Such assurances appeared especially gratuitous, since the prevalence of "mise-en-scène" in the remainder of the footage to which they attested was itself obviously a major reason to believe -- if not "affirm" -- just that. It should be kept in mind in this connection that -- unlike their retired colleague Rosenzweig -- Jeambar and Leconte are both mid-career French media insiders with an evident interest in not burning their bridges to the rest of the French journalistic establishment. Above all, it should be kept in mind that on Nov. 5, two weeks after the viewing, France2 announced in a communiqué that it "reserved the right" to sue anyone endorsing the Shahaf/Mena hypothesis.

It is in this context that Philippe Karsenty on Nov. 22, 2004, picking up the gauntlet thrown down by France2, published a text on the Media-Ratings Web site titled "France2: Arlette Chabot and Charles Enderlin Should be Relieved of their Functions Immediately." In both it and a subsequent press release, he would declare: "In consideration of the elements at our disposal, we affirm that the Jerusalem correspondent of France2, Charles Enderlin, did, in effect, broadcast a fake report on 30 September 2000." In support of this allegation, Karsenty draws on some ancillary evidence uncovered by the Mena, but largely relies on an internal analysis of the publicly available France2 footage. The texts further refer to a "masquerade that dishonors France and its public television", as well as a "hoax" [supercherie] and a "fraud" [imposture]. It was these texts and this language that the Parisian court ruled defamatory. The court fined Karsenty 1000 euros and ordered him to pay one euro each in symbolic damages to Enderlin and France2, as well as to reimburse 3000 euros in court costs.

Two points of detail are particularly noteworthy in the court's written judgment (which I here cite from a copy transmitted to the parties). Firstly, the court states that the incriminated texts accuse Charles Enderlin of having "produced" [réalisé] a "fake report." But, as Karsenty has himself pointed out in a public response to the judgment, the term used in the texts is in fact "broadcast" [diffusé]. On the Mena hypothesis, the presumptive "author" of the fake is rather the cameraman Talal Abu Rahma. The hypothesis leaves open the possibility that Enderlin and France2 management broadcast the report without themselves realizing its fraudulence.

Secondly, the court assimilates Karsenty's use of charged language like "masquerade," "hoax," and "fraud" to his more matter-of-fact affirmation that the France2 report was a "fake" [faux]. But in the given context, it is more plausible to interpret such language as largely inspired not by the report itself, but rather by the behavior of France2 and Charles Enderlin in defending the report against its critics in the intervening years. This context -- for instance, a Nov. 18 press conference by Arlette Chabot -- is repeatedly invoked in the texts. Indeed, Chabot could hardly be held responsible for the report itself, since she was not France2's news director at the time of the Netzarim incident. Most notably, Karsenty alludes to Charles Enderlin's claim that images of the child's "death throes" had been edited from the rushes. Symptomatic of the general tenor of the judgment, in the court's opinion this claim becomes an "imprudent affirmation" on the part of Enderlin. On the assessment of Karsenty and many others who had long followed the Dura affair, it had, in plainer language, been exposed as a lie.

As for the rest, apart from a few paragraphs on technical legal matters, the court's judgment is largely devoted to citing opinions hostile to the Shahaf/Mena hypothesis and calling into doubt the credibility and "seriousness" of the Mena and its collaborators, who -- despite their plurality -- are stylized into the "sole source" of Karsenty's claims. The court thereby manages to evade the primary evidence upon which the controversy -- though not the court's judgment -- in fact hinges: namely, the video evidence. The ultimate "source" of this evidence is not, of course, the Mena. It is France2, with crucial supporting evidence being provided by the rushes of the other news organizations.

It is a remarkable fact and symptomatic of the character of the court proceedings, that France2 was not required to make available its rushes for the trial. It is equally remarkable and symptomatic that the judgment completely ignores the testimony of defense witness Richard Landes. A Professor of History at Boston University, Landes has made available a large collection of video material relevant to the Dura affair on his The 2nd Draft Web site, where the material is subjected to minute analysis. Although neither Jeambar nor Leconte testified, the court cites their feeble gestures of "dissent" in Le Figaro and on RCJ in order to cast in doubt the testimony of Luc Rosenzweig. The concurring testimony of Richard Landes -- who testified under oath to having viewed the original France2 rushes and in the presence of Charles Enderlin no less -- is not even mentioned.

It must also be said that the judgment displays a conspicuously shaky grasp of the details of the controversy. For example, in his 2003 book on the Netzarim incident, "Contre-expertise d'une mise en scène," Gérard Huber writes of being overcome by a feeling of unease while watching an "avalanche of rushes." The judges find this metaphor "nothing less than deceptive" in light of the fact that the only rushes available of the Al-Dura episode are those of France2. They are seemingly unaware -- although the fact can hardly be overlooked on a minimally attentive reading of Huber's book -- that he is referring to the rushes filmed by the other film crews elsewhere at the Netzarim site on the same day. In a still more puzzling gaffe, they refuse to consider in evidence an article published in the Wall Street Journal Europe among other reasons because "it merely provides an account of the controversy." They seemingly fail to notice that the author of the piece is none other than the editor-in-chief of the Mena, Stéphane Juffa. Far from "merely providing an account of the controversy," by its third paragraph Juffa's editorial, titled "The Mythical Martyr," has declared the Al-Dura report a "hoax."

But what is most notable about the court's ruling against Karsenty is that such a matter has come before the courts at all. It should be recalled that neither Charles Enderlin, nor, needless to say, the France2 executives in Paris, were present in Netzarim to witness the events at issue. They are thus no more in a position definitively to "affirm" that the scene was authentic than the Mena and its supporters are in a position definitively to affirm that it was staged. In both cases, we are dealing with just more or less plausible hypotheses. In a free society, such controversies are the stuff of public debate: with individuals being at liberty to form -- and express -- their convictions as they see fit. In France in 2006, this is evidently not the case.

France2 has two further cases pending against supporters of the Shahaf/Mena hypothesis. Philippe Karsenty has announced that he will appeal the judgment.

John Rosenthal writes on European politics and transatlantic relations. His work has appeared in English, French and German in publications such as Policy Review, The Claremont Review of Books, The New York Sun, Les Temps Modernes, Le Figaro and Merkur. He maintains the Transatlantic Intelligencer Web site, where a dossier of materials on the France2/Al-Dura affair can be found.

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