An Israeli court ruled Wednesday against the members of a Palestinian family from the Gaza Strip who were seeking Israeli government compensation over the death of their 14-year-old daughter, despite stating that Israeli forces violated international law.
The daughter, Iman al-Hams, was shot and killed by Israeli soldiers in 2004 after she entered a security zone next to the Nirit army post near Rafah in the southern Gaza Strip.
The shooting occurred during the second intifada, the Palestinian uprising against Israeli control in the territories, a year before Israel withdrew from Gaza.
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Be’er Sheva District Court Judge Shlomo Friedlander ruled that the shooting of Al-Hams by Israeli soldiers, after which it was found that an army company commander, identified as Captain R., shot at her again to ensure that she was dead, were in violation of regulations and international law. But the judge also accepted the government’s position that the actions were carried out as part of a “wartime action" and therefore the Israeli government was not liable in the case and could not be required to pay compensation.
The family claimed that the teen had approached the army post because she lost her way en route to school and said that she was carrying a backpack with books at the time. After the soldiers opened fire at her, she took off her backpack and started running away. The government said the soldiers continued to fire at her even as she attempted to flee because they thought she was involved in committing a terrorist attack and that she had left an explosive device behind in her backpack.
The troops killed her, and Captain R. “confirmed the kill,” in army parlance. He did so “due to concern that the deceased [Iman al-Hams] detonated the device,” the government claimed. The backpack was never examined because an armored bulldozer buried it in the ground, the state added.
Captain R. was arrested after the incident and put on trial for illegal use of a weapon. About a year later, an Israeli military court acquitted him of all charges, ruling that the soldiers who testified against him – claiming that he had shot the girl to death – lied to take revenge on him.
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The government’s position in the case was that the soldiers acted according to the “rules of engagement” on opening fire in such cases and said that the court should apply the "wartime action" principle as a defense in part due to the “war-like nature of the second intifada, and the great danger [posed] to the lives of the soldiers in the Rafah sector.”
Friedlander accepted the government’s position and ruled that the claim that Al-Hams approached the army post while on her way to school was “extremely unreasonable” due to the topography of the area and because the school was located in the opposite direction. The judge also found that the soldiers’ claims that they thought Al-Hams intended to attack them were reasonable.
The judge also examined what was being said on the Israeli army's radio communications network at the time of the shooting and noted that nothing heard on the network included any hate. "There is no expression of ulterior motives, including revenge. The remarks reflect the danger entailed in the deceased’s infiltration near the post, from the point of view of the soldiers, and their combat response to this threat until it was completely neutralized,” the judge wrote.
But Friedlander also examined the legality and reasonableness of the soldiers’ actions, and said the soldiers acted in violation of the rules of engagement, the laws on negligence and humanitarian international law. “The killing and the confirmation of the kill were not required to neutralize the danger to the soldiers’ lives, so it was forbidden for them to carry them out.”
The judge said these two acts were committed as one single mistake, or “in other words, in a continuous action due to the same mistake in properly responding to the threat.” Confirming the kill did not compound the "guilt already embodied in the first action,” and did not give the impression that Captain R. did so in any way to abuse the girl's body or out of hatred. Instead, it was simply “following to the end the mistaken view that the deceased was a terrorist” and that she could have been dangerous in a way that only “her death could have neutralized,” the judge stated.
The “Uvda” (“Fact”) investigative television program broadcast an investigation of the incident, focusing on Captain R.’s conduct. He filed a defamation action against the Telad television company, which broadcast the show, and the show’s host, journalist Ilana Dayan. In that case, in Jerusalem District Court Captain R. won total victory. Judge Noam Sohlberg, who is now a justice of the Supreme Court, ruled that Dayan had indeed defamed the army officer, saying that she had “bent the truth” and portrayed the officer’s conduct as “evil and cruel." The officer was awarded a judgment for 300,000 shekels ($92,000) in compensation and Dayan was also ordered to issue an apology.
"Uvda" appealed the decision to the Supreme Court in 2010. The justices granted the appeal in part, but said the promotional commercial for the program did include defamatory material. The court reduced the damage award against Telad to 100,000 shekels.
The court also ordered the broadcaster to issue a correction but it cleared Dayan of liability. An expanded panel of nine justices reheard the case at Captain R.’s request and left the previous ruling in place. But it also established the precedent that journalists who perform their work in a cautious and responsible manner are entitled to the good faith defense accorded by defamation law.