Palestinian human rights defender VS. Israeli army
By Etay Mack (Badee Dwaik’s lawyer)
A tort lawsuit by a Palestinian human rights activist from Hebron was rejected following an “warning visit” at his home by IDF soldiers:
Badee Dwaik has been a human rights activist in Hebron for about 20 years, working within a group called “Human Rights Defenders”. Among other things, as part of his activities, Badie provides information and documentation to international human rights organizations and diplomats from the European Union and the United States.
On August 3, 2017, around 10:00 PM, soldiers arrived at Badee ‘s house in order to prevent him from participating in a protest event scheduled for the next morning in Khursa in Area A. Badie testified in court that he felt disturbed, threatened, humiliated and uncomfortable when the soldiers arrived at his family home at night. An IDF officer “talked” to him and used physical force on him, and one of the soldiers began to sing. Badie understood that the army was interested in sending him a message that he should stop his public activity. Fortunately for Badie, his family members support him and his activities as a human rights defender. But as his wife and son also testified in court, the IDF “visit” aroused their fear.
According to Badee: An IDF officer forcibly grabbed him by the hand, while he was barefoot and wearing pajamas, and said in Arabic, “I want to talk to you.” The officer forcibly dragged Badie down a flight of stairs down to the entrance to the building, pushed Badie to a corner and pinned him to the wall. The officer conducted a physical search on Badie, gave him small blows to the back, and twisted his left hand fingers, even though Badie did not oppose him in any way. According to Badee , the officer said, “I’m talking about Khursa and you know what I’m talking about.” Badie replied, “I am a human rights activist and I document the Israeli occupation and the whole world knows me. If you have a legal reason to arrest me, you can arrest me now.” The officer responded, “I am not interested in the law, I will decide when to arrest you and if you come to this demonstration you will be arrested”. Immediately afterwards, the officer released Badie and the soldiers left, with one of them singing loudly as he left the building. Despite the officer’s threat, Badie came to the protest event in Khursa to document it. IDF soldiers identified Badie in the protest and even watched him, but did not arrest him.
The state argued in its defense that it had carried out military activity that was not enshrined in an IDF ordinance or procedures, called a “warning visit,” and argued that it was a reasonable and proportionate activity in Badie’s case. The state denied that any force was used on Badee.
In his cross-examination in court, Major A.H. could not refer to any obligation to issue a license to participate in a protest in Area A or to hold a protest in Area A. The state and the only witness on its behalf justified the “warning visit” by claiming Badie is a “dangerous person”,”central instigator” and “involved in violations of public order in the Hebron area”, without presenting actual evidence to support these claims, other than general statements in the affidavit and oral statement of Major A.H.
From his 20 years of human rights activism, the state has referred to only one arrest incident Badie was involved in, which occurred in March 2017. The police investigation material submitted by the state revealed that Badie was questioned then for violating a temporary closed area order issued and an illegal demonstration (not for assault), while Palestinians came to plant olive trees where they were allowed on Land Day. The police report submitted to the court read “intention to plant trees in the area that received approval.” Then came a settler who used to harass and threaten Palestinians (the poice report claimed “several Jews arrived but there was no friction”). According to police officer Julia, none of the detainees attacked police officers or soldiers. The military court decided to release Badee from detention due to lack of evidence.
Badee does not know of any criminal case against him and no indictment has been filed against him in this case or any other case in the last 20 years; In his ruling, Senior Registrar Aharon Orenstein accepted the state’s claims and ruled that this demonstration in March 2017 ended violently and in arrests and that Badie’s call, as a person of public influence, to participate in the demonstration, was significant, even if he was not the organizer of the demonstration, did not lead and did not deliver a speech in it.
Although Badie was known to the State of Israel and Major A.H. prior to the incident that is the subject of the lawsuit, Badee’s phone number was in the hands of the State of Israel and the IDF, and Major A.H. testified that he could find out the mobile phone number without difficulty — No attempt was made to call Badie and no alternatives to the physical “warning visit” were considered. Major A.H. argued that the physical “warning visit” was preferable to a phone call because it was more “effective,” but even when asked by Senior Registrar Orenstein he did not elaborate on what he meant by “effectiveness” and ruled out the possibility that he intended to intimidate Badie. Since Major A.H. did not explain what “effect” or “effectiveness” he meant, Badie claimed that it had been proven that the purpose was to humiliate and intimidate him and his family; Senior Registrar Orenstein accepted the state’s claims and ruled that “even if the warning had been carried out in alternative way, which would have harmed the plaintiff less, such as a telephone call, it is highly doubtful that the social benefit would have remained unaffected, and in spite of a “warning visit” at his home in the evening, the plaintiff still attended the demonstration the next day. Therefore, it is clear that a more moderate measure would not have achieved the result expected by the security forces … The time of arrival of the military force in these circumstances does not exceed that which is reasonable. The arrival of a military force in a residential neighborhood in the middle of the day could have significantly damaged public order. The social cost involved in arriving at the plaintiff’s home in the evening should not be underestimated. However, the public interest in maintaining the security of the area as well as public order in the hands of the military commander outweighs these considerations. The video shows that the plaintiff’s family members were awake at the time of the visit, so the disturbance caused to them was minimal.”
In this context, it should be noted that in the photographs submitted to the court it can be seen that Badie and the other family members were wearing pajamas.
Badee described in detail in his testimony in court the content of the “conversation” and how it was carried out and even demonstrated twice. Badie explained that the force exerted on him was minor compared to other events, but the very use of force was for his understanding an integral part of the desire to intimidate, threaten and humiliate him. Major A.H. confirmed in his interrogation that he held Badie in his hand and took him downstairs. He did not deny that he was pulled by force (“I am a big-bodied man and do not know what force is”).
Although Badie understood that Major A.H. also was touching his body as part of a physical search, Major A.H. denied that he performed a physical search. Major A.H. claimed that apart from pulling Badie down the stairs, he did not remember that there was any more physical contact between them and that Badee had his hands behind his back.
In contrast, in an affidavit filed by Major A.H. he wrote that during the “conversation” downstairs with Badie he held him (“I, in response, held him so that he would not go towards the stairs”). It should also be noted that Major A.H. admitted that he prevented Badie’s family members from filming the “conversation” between them, and did not make sure that one of his soldiers took pictures; Regarding the controversy over whether Major A.H. used force on Badee, the state argued that it was a matter of memory and since Badee did not submit a written notice to the Ministry of Defense within 60 days of the incident, about his intention to file a lawsuit, weight should not be given to the absence of testimony by Maj. A.H. in a matter which he did not remember; Senior Registrar Orenstein ruled that since the lawsuit was filed within 47 days of the incident, the very filing of the lawsuit obviates the need to file a written notice to the Ministry of Defense within 60 days of an intent to file a lawsuit, but he accepted the state’s claims that Badie did not prove that Major AH’s conduct was negligent nor did he prove that mental harm was inflicted (it should be noted that the lawsuit was not filed for mental harm, but only for harassment and distress).
At the end of the evidentiary hearing, Senior Registrar Orenstein offered the state to pay the Badee low compensation only for the manner in which the “warning visit” was conducted. The state refused the offer. On January 7, 2021, Senior Registrar Orenstein dismissed the lawsuit for the above reasons and ordered Badee to pay the IDF’s legal expenses in the amount of NIS 5,000 (all the amount was donated immediately by Israeli human rights activists).
It is important to note that although Badie has not stopped or changed his activities in the three years that have passed since the incident, since the filing of the lawsuit in September 2017, the Israeli security forces have not come to his home for a “warning call” or any other need. We very much hope that following the dismissal of the lawsuit the “visits” to the Al-Dwaikk family home will not be resumed.