Center for the Defence of the Individual - Role Play: CC (Jer.) 8047/99 Badawi v. State of Israel (Judgment of January 1, 2007)
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01.10.2012|Court Watch|Court Watch

Role Play: CC (Jer.) 8047/99 Badawi v. State of Israel (Judgment of January 1, 2007)

The first Intifada pushed Israeli society into an identity crisis. The link between the Bible stories and modern Zionism is exists also in the story of David and Goliath. In this battle, Israel has always pictured itself in the role of David. The popular uprising of the Palestinians, which pitted unarmed civilians, graffiti-spraying youths and stone-throwing children against the strongest military in the Middle East threatened this picture, down to the visual level. The Palestinian child with a stone in his hand took on the role of David, and the Israeli soldier, armed from head to toe, could only be cast as Goliath.

The difficulty coping with the concept of the Israeli soldier as Goliath comes across in many judgments given in civil suits filed by Palestinians for injuries inflicted by Israeli security forces – especially in cases of children who, at most, had thrown stones and were shot by soldiers with live rounds, resulting in death or permanent injury. The judgment delivered by Justice Refael Yacobi in the suit filed by ‘Ula Badawi’, a girl from Nablus, against the State of Israel is an example of how the courts try to cope with this difficulty and how they manage to turn the tables, putting the responsibility for the injury on the Palestinian child.

A major point dealt with in the judgment is ‘Ula Badawi’s gender appearance. The soldier who shot her said the 12-year-old girl looked to him like a “dominant figure, with a masculine build..."

In the Badawi judgment, the national issue is put in a gender context, as shooting a young girl looks even worse than shooting a boy of the same age. At the same time, an act of defiance against the military is perceived as much stronger when carried out by a girl rather than a boy. It is a departure from the passive, obedient role a girl is expected to play – not just as a Palestinian and a minor, but also as a woman.

The incident in which ‘Ula Badawi was shot took place in Nablus on September 4, 1991. The judgment does not specify her age at the time of the shooting, but does give her birthdate as February 3, 1979, meaning she was 12 years old at the time. Early in the judgment, we learn that at the time of the shooting, Badawi was walking down a stairway called “The Jews’ Steps” in Nablus and that the military unit that shot her was making its way to the Roman Cardo. The geography itself casts Badawi and the soldiers in roles rife with symbolic meaning in Jewish culture: a meek and just nation in the midst of an uprising on one hand and a corrupt and oppressive empire on the other, but here, the roles are reversed. The injury left Badawi with a permanent disability, though, (at least according to the court appointed expert), she was lucky compared to other children and her disability was not severe. Other than that, the accounts of the incident are contradictory. According to Badawi, an account the Court fully rejected, she was an innocent bystander. She was on her way to buy medicine for her mother and at the time she was shot, there were no public disturbances in the area. After she was shot, she was beaten by the soldiers who also delayed medical treatment. According to the State, Badawi was an instigator and a dominant participant in an incident in which stones and bottles were thrown at the soldiers. Despite the fact that the soldiers faced danger, they showed restraint, followed the full “suspect apprehension procedure” and only then fired shots aimed at Badawi’s leg.[1]

A major point dealt with in the judgment is ‘Ula Badawi’s gender appearance. In his affidavit, the soldier who shot her said the 12-year-old girl looked to him like a “dominant figure, with a masculine build of a mature adolescent boy. This boy (as I thought at the time) did not only incite the rioters, but he also threw bottles at us”. The judge rules that it was reasonable to identify the Plaintiff as a boy. He relies on the impression drawn by a private investigator working on behalf of the State, according to whom: “[T]he Plaintiff dresses and acts like a boy and … is known in the neighborhood as a girl who looks like a boy”. The Court states that the evidence indicates that “[T]he Plaintiff herself was aware of the fact that she could be mistaken for a boy because of her appearance”.[2] The Court uses Badawi’s gender behavior as one of the grounds for finding her testimony unreliable (on this issue, the Court uses harsh language, including an accusation that the Plaintiff fabricated parts of her testimony and tailored her account of the incident to suit her interests):

The Plaintiff’s lack of credibility was discernible even in the clothes she chose to wear on the day of her testimony in court. Contrary to her usual boyish appearance […] which is a matter of significance in this case (as explained further on), on the day of the testimony the Plaintiff wore the clothes of a devout Muslim woman.[3]

A gender researcher would find a direct link between Badawi’s rejection of gender roles and the dismissal of her suit on the claim that her actions constituted “assumption of risk”,[4] meaning that she brought the injury on herself and is responsible for any damage she sustained. Crossing gender boundaries is dangerous and those who do so can expect punishment. Using the “assumed risk” doctrine in this context is not a triviality. This is a doctrine that is normally reserved for rare and extreme cases. A finding that a person “voluntarily risked herself” is much farther reaching than a finding that that same person’s negligence caused the damage (the “contributory fault” doctrine). “Assumed risk” means that the injured party consciously assumed all the physical and legal risks associated with her actions, consciously exposed herself to those risks and waived the legal right to compensation in advance. Hence, under Section 5(c) of the Damage Ordinance (New Version), this doctrine cannot be used with respect to children under the age of 12. Badawi was only seven months past that mark at the time of the incident. How can the Court’s use of this doctrine in this matter be explained? Perhaps it was the fact that Badawi defied boundaries. She did not behave in the manner expected from her gender and nationality. In terms of gender, she adopted a masculine look and took part in “manly” activities. In terms of nationality, she challenged Israel’s control over the Palestinians. Maybe the Court felt it was important to use the strongest legal tool available to point the accusing finger at the injured girl and undo the role reversal that cast her as “David” and the people who hurt her as “Goliath”.

Justice Yacobi does not stop at attributing “assumed risk” to Badawi as grounds for rejecting the claim, but also finds that the shooting was justified irrespective of this, as it formed part of a “wartime action”. How does shooting a 12-year-old girl (or even an “older boy” for that matter), who at most threw stones and bottles at soldiers, without hitting them, turn into a wartime action? The Justice supplements reality with the soldiers' suppositions and expectations. First, the Court accepts the statement given by the soldier who shot Badawi that “incidents such as the one in which the Plaintiff was shot could sometimes simply be a cover for an ambush or a much more serious attack and could persist for a long time if not stopped at the start”.[5] Second, it finds the soldiers could not have known whether the bottles thrown at them were empty or contained acid. Therefore, according to the Court’s line of thought, the soldiers were permitted to act on the presumption that the bottles were not empty bottles but extremely dangerous ones filled with acid. Third, as mentioned, the soldiers' presumption that this was a male youth rather than a girl was not baseless. The Justice quotes extensively from the soldiers' descriptions:

The area was not only a focal point for large scale rioting, which included throwing acid bottles, Molotov cocktails, stones, steel posts, cinderblocks and anything else they could find (which caused soldier injuries as detailed below). The area was also a focal point for hostile elements’ frequent use of guns and explosive devices…[6]

And thus, the factual picture of a 12-year-old girl standing out in a group of adulterant boys who are throwing bottles (and perhaps also stones) at a unit of armed, trained group of soldiers are replaced with the (imagined – albeit possible) picture of acid bottles being thrown, a dangerous ambush, gunshots, explosive devices and mortal danger.

The Court thus completes its own role reversal: David, descending the Jews’ Steps, becomes part of a dangerous, violent mob armed with guns and explosive devices, defying the roles assigned by gender and nationality. Goliath, walking towards the Roman Cardo, armed with automatic rifles, turns into a group of youngsters fighting for their lives, and yet do so responsibly and with restraint. The accusing finger is not pointed at Israel but at the Palestinian plaintiff. The claim is dismissed and trial costs in the amount of ILS 20,000 are awarded against the girl (now a young woman) with the boyish looks.

Adv. Yossi Wolfson

The author is a lawyer and an activist for human and other animals' rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.


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