This result, though, isn’t completely shocking, as the French legal system in many ways barely resembles its U.S. counterpart. Unlike in American defamation lawsuits, French courts do not attempt to grant defendants maximum “discovery” of evidence held by plaintiffs.
The good news for Karsenty is that the trial court judge last year found significant evidence supporting the criticisms of France 2—and that was without the judge or Karsenty even viewing the raw footage. The network’s credibility is even shakier given that France 2 no longer stands by its original claim that Israeli soldiers were responsible for killing the boy.
Unfortunately for Karsenty, French law is stacked against him. The judge explicitly rejected at least one key claim made by Enderlin, and he did not endorse as true the entire contents of the original report—including the claim that the Israeli military killed the boy. Unlike in an American defamation case, though, a tie does not go to the defendant in France.
And not only did Karsenty bear the burden of proving the truth of what he had written, but he had to do so without the “rushes.” All he could do is rely on people who had seen the footage.
In the hopes of deflating the budding controversy, France 2 allowed three critics—though not Karsenty—to view the “rushes.” The result was that two of them continue to criticize the network and Enderlin, but now believe that Mohammed al-Durra did, in fact, die.
The third person present at that screening, however, Luc Rosenzweig, former editor in chief of Le Monde, under questioning from the court answered, “the theory of the set up [of Mohamed al Dura’s death] has a greater probability of being true than the version presented by France 2,” according to the trial court judge’s written opinion.
What led Rosenzweig to this conclusion was 23 minutes’ worth of footage that has never been available for public inspection. The unaired video “basically consisted of young Palestinians acting out fictitious war scenes,” according to the paraphrasing of his testimony, contained in the written opinion.
The other two people who attended the same screening, despite claiming that the boy’s death was not staged, nonetheless agree with Rosenzweig’s characterization of the secret footage.
So how is that anyone who has viewed footage, 85% of which ““basically consisted of young Palestinians acting out fictitious war scenes,” conclude that the only non-fictitious “war scene” was the shooting of Mohammed al-Durra?
Until the “rushes” are shown publicly, one can only speculate. Perhaps no one wants to suffer the same fate as Karsenty. Or perhaps it is out of fear of being branded an anti-Arab or Islamophobic conspiracy theorist.
Mohammed al-Durra’s dying image has become a powerful symbol across the Arab world. “Postage stamps bearing his crouched image have been issued in Jordan, Egypt and Tunisia, a street in Baghdad and a square in Morocco bear his name, while many schools across the Arab world are named after him,” notes Morton Klein, president of the Zionist Organization of America.
Recent Palestinian history certainly suggests a hoax is possible.
During an April 2002 funeral procession, the stretcher carrying the “victim” was dropped. Thankfully, the “victim” sprung up quickly and shook it off.
The West was fooled, though, for at least a few days earlier that month following an intense battle at the Jenin refugee camp, a known terrorist hotbed. Palestinians immediately accused the Jewish state of systematically committing war crimes, and the Western press parroted the claims uncritically. That no massacre actually occurred—even the United Nations found no evidence to suggest one had—received only a fraction of the earlier coverage.
Possibly to be added to that ignominious list is Mohammed al-Durra. But unless the unaired footage is released to the public—and available on the Internet—only people in the French courtroom may know for sure.
Joel Mowbray, who got his start with Townhall.com, is an award-winning investigative journalist, nationally-syndicated columnist and author of Dangerous Diplomacy: How the State Department Threatens America's Security.
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