IDF officer wins NIS 300,000 suit over Gaza war crime allegation

Captain R., now Major R., won a legal victory Tuesday. Not just a victory - a knockout. It was the culmination of an affair that began in the fall of 2004, when R., then a company commander in the Givati Brigade, became embroiled in the death of Palestinian teenage girl, Ayman al-Hams, in Rafah - an incident that became known as the "confirmed kill affair."

Just over a year later, R. was completely exonerated by a military tribunal, after his lawyers dismantled the military prosecution's case, highlighting serious shortcomings in the way the prosecution, and particularly the military police investigators, had conducted themselves.

Yesterday marked another milestone in the affair, after R. won his libel suit against investigative journalist Ilana Dayan for her presentation of the incident on her Channel 2 show "Fact."

Jerusalem District Court Judge Noam Sohlberg also awarded R. NIS 300,000 in damages.

Sohlberg's 131-page ruling will become a landmark decision in the history of journalism in Israel, due to the case's extensive publicity and Dayan's prominence. It will also be remembered because Sohlberg, considered a specialist in libel suits and strict when it comes to the media, went too far in dealing not only with the facts of the program, but also going into great detail about the editing process. (For the purposes of proper disclosure, it should be noted that I have been interviewed by Dayan on the radio and on television, and two of my reports on the affair are quoted in the ruling.)

R.'s attorneys, Yoav Meni and Elad Eisenberg, presented a chart to the court which attempts to break down almost every word and frame of the report. Sohlberg excoriated Dayan for inserting certain footage, such as of jeeps driving, while she relates that the company commander "rushed at" and also "ran" toward the girl.

Sohlberg even went so far as to say that he cannot rule on the question of whether the public should have been given the information in the report, because the affair was then under investigation by the military police. That was a surprising argument, as it somewhat limits the discussion of whether or not there was confirmation of kill. However, Dayan had clearly sought discuss the IDF's conduct in the Gaza Strip and damage to the Palestinian population in military operations, an argument Sohlberg accepted in part.

Some of the other shortcomings the judge found and the weight he attached to them, will certainly result in another round in court. Had R. been so clearly damaged, in the mind of the reasonable viewer, by the scene with the jeeps? Was Dayan's leaving 10 months off the age of the 13-year-old victim, as the judge ruled, a flaw or a technical matter? Is the combination of an image of Palestinians removing the girl's body from the scene of the shooting, and a segment of field radio communication recorded on another occasion unacceptable, as the judge found?

Yesterday, watching the report again, I saw it differently than the judge. I saw that it was edited and broadcast somewhat hastily, in quite a dramatic and exaggerated tone. I also noticed mistakes, for example footage of machine-gun fire that was not taken during the actual incident. (Dayan admitted to this mistake, a week after the program aired.) Is the bottom line that the report deviated from the truth, as Sohlberg ruled? With all due respect, I am not convinced.

Dayan declined to comment yesterday. Her program "Fact" said in a statement that the ruling "does not conform to the values of free journalism and a democratic society." One thing is certain: Dayan will appeal and the final ruling will rest with the High Court of Justice.