France: The Al-Dura Defamation Case and the End of Free Speech. By John Rosenthal, World Politics Watch, 03 Nov 2006

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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.

… 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, 2005, 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 (p. 12). 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” (p. 17) 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” (p. 11). 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.

France: The Al-Dura Defamation Case and the End of Free Speech. By John Rosenthal, World Politics Watch, 03 Nov 2006

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