It is doubtful that Ilana Dayan, journalist and anchor of the news magazine Uvda ("Fact") and Doron Galezer, the editor of the program at the time, imagined that the incident of Captain R. would take them as far as it did. When they sat in the editing room back in 2004, excitedly trying to weave a worthwhile, interesting piece of journalism using the rare footage that they had just received , it is doubtful whether they could have imagined that almost eight years later, they would still be dealing with this story.

They certainly never imagined that this story would lead to an important and significant Supreme Court ruling that affects freedom of press, the practice of journalism, and libel law in Israel. When they sat in the dimly lit editing room with the recordings of the radio transmissions between the soldiers, the documentation from the observation tower, the photographs of the soldiers celebrating at the military post, and the video footage of Captain R. during the military police investigation, they could not have imagined that they were creating one of the most fascinating case studies in Israeli journalism—one that impacts every aspect of the issue that is at the very foundation of investigative journalism and the act of editing: the question of fair representation.

Any discussion of this story must start with the undisputed facts: On October 5, 2004, early in the morning, a Palestinian girl named Iman Al-Hams was shot to death when she entered the "Closed Military Zone" of the Israeli Girit outpost in the southern part of the Gaza Strip, close to her home in Rafiah. She was 13 years and 10 months old, and was carrying a school bag on her shoulders.

At the time, the post was manned by soldiers of the Shaked battalion of the Givati brigade. The soldiers had repeatedly received warnings about the possibility of infiltration, and were in a constant state of high alert and tension. The entrance of the girl into the closed military area was only noticed at a late stage, due to a failure of the soldiers who were supposed to be at the lookout point that morning.

When the girl approached the gate of the observation post, the siren went off and the soldiers opened fire at her. Al-Hams, who started running toward the east, was injured by the shots. She threw down the school bag she had been carrying on her back, and hid behind a mound of sand.

Captain R., the commander of the squadron, was alerted by his soldiers. He ran toward the gate of the outpost and when he came closer to the girl, he fired two bullets at her from close range in order to "verify the kill." He then shot another volley around the area where the girl lay, and also shot at the bag that she had dropped. The bag did not explode. During the course of Captain R.'s court martial, it became clear that he did not hear the radio transmission reporting that it was "a girl of about ten years old." This was the basis for his acquittal by military law.

The story of Al-Hams‘s death quickly turned into the story of Captain R. Why did this happen? Primarily because Captain R.‘s soldiers, who had been hostile toward him and refused to accept his authority in disciplinary matters for some time, were the ones who made sure that the story reached the press.

The questions that they raised were questions about his ability to function and the quality of his judgment as a commander. The main question under discussion was whether he had acted appropriately when he shot two bullets at the girl at close range. In so doing, did he successfully balance the security directives in effect at the time with the professed ethical principle of the IDF known as "purity of arms"? No one stopped to ask aloud whether this type of balancing was even remotely possible in the situation at hand.

The questions about Captain R. were answered in two fundamentally different ways: Captain R.‘s soldiers painted a picture of a macho, trigger-happy officer, who had no qualms about pumping two bullets at close range into the body of a girl who lay bleeding. Captain R., however, as emerged in his military investigation, believed that he had acted correctly that morning in taking action to "neutralize the threat" – an expression that he used repeatedly – and that his behavior was in accordance with the guidelines and principles of the IDF. Ilana Dayan's television show Uvda plunged into this dispute and jumble of information when it aired its report in November 2004, on the same day as the Military Advocate General served an indictment against Captain R. The journalistic material was so exceptional, the soldiers were delighted to cooperate with the reporters, and the story was harsh and disturbing. The body of a Palestinian girl lay at its core.

When Captain R. was acquitted by the military tribunal, he felt that he had received incontrovertible proof that he had been the victim of a grave injustice, which was also perpetrated by the report that had been broadcast on Uvda. If he was found innocent by the military court‘s judges, how could he be portrayed differently by Ilana Dayan? His decision to file a lawsuit for libel introduced a complex and interesting issue into the legal arena: How does one determine whether the editing of a program that utilizes multiple sources (soundtracks, photographs, voiceover narration, and interviews), is fair or not?

This was the background to the controversial decision of Jerusalem district court judge Noam Solberg, who ruled in December 2009 that Dayan and Uvda were liable for slander against Captain R. It seems that Solberg got confused. For a moment, he believed that he was the one sitting in the television editor's chair and that Ilana Dayan (or in fact, any journalist), was serving as a judge in a court of law and was bound by the same standards.

He failed to differentiate between the "rules of the game" in court and those in the media. This is a distinction that must be part of a judge's awareness. With the diligence of an industrious student, Solberg broke down the segment into its different parts and sources, weighed each one of them, and tried to construct a solid claim that Ilana Dayan‘s report strayed from the truth.

The important ruling of the Supreme Court, which overturned the ruling of the lower court and acquitted Ilana Dayan of libel in the case of Captain R., brings the players back to their natural positions. It reminds Solberg that "One must refrain from legal intervention in journalistic creation and in the autonomy of the editor." Although the Supreme Court found some editing errors in the reportage, the decision states that these errors "fall under the category of the breathing space‘ that one must allow the editor, without intervention of the court." The judges—appropriately—bounced the ball back into the court of the journalists, and wrote in detail about the concept of "responsible journalism" and the ways in which it should be examined, basing their responses primarily on principles of ethics.

In this arena—the journalistic arena—the heart of the problem in the item about Captain R. was the narrative that guided the editors of the story. According to this narrative, Captain R. was the protagonist of the episode, and the question of "verifying the kill" was the main issue at hand. Any sharp-eyed journalist will understand what prompted the show's editors to adopt this narrative. There were sources—soldiers who wanted revenge—who told the story this way. There were exceptional journalistic materials, which also put Captain R. at the center of the incident. And there was the basic journalistic need to tell a story with a human hero, a central hero, a hero engulfed in controversy.

But, in fact, the story of Iman Al-Hams is a story about a situation—an impossible, human situation in which armed soldiers, frightened and exhausted, are stationed in untenable, physical proximity to a population that is under occupation, that is poor, and that is full of hatred. A situation in which, in a second, a girl with a school bag can find herself in the sights of rifles and can be seen as an existential threat, a real danger.

Captain R. was turned into the hero of the story against his will, and perhaps this is the injustice that was done to him by the media (and not just by Uvda). The truth is that he was an actor in a situation that was much larger than him, that perhaps was too big. These are the types of biases that journalists frequently face, not only on Uvda. And they are not a matter for the courts, but subjects for professional discussion by journalists, in and among themselves.

Interestingly, Ilana Dayan was among the first to admit this, long before Solberg‘s ruling. In an interview for Globes in 2005, she said: "Is our problem really whether the commander shot or did not shoot another volley into the body of the girl? […] Does the question of the IDF‘s "purity of arms" stand or fall on this? And perhaps the more significant question is whether an army is capable of sustaining this kind of action within a population over time? […] It seems that we have crucified the commander and his soldiers when we really just wanted to point out: Look what this situation is doing to all of us".

This Article was first published on The Seventh Eye. Read it in Hebrew here