The Electronic Intifada / August 25, 2023
The Dutch Supreme Court confirmed on Friday that two top Israeli military commanders enjoy legal immunity from a civil lawsuit over their role in Israel’s 2014 killings of a Palestinian family in the Gaza Strip.
The decision upholds a 2021 lower court ruling that under customary international law, officials of a foreign state enjoy immunity from civil lawsuits in Dutch courts for any acts perpetrated while carrying out a “public function.”
This so-called functional immunity from civil liability would apply even if the officials could be tried criminally for war crimes for the same alleged acts.
“We are disappointed and angered by today’s ruling,” Ismail Ziada, the plaintiff in the case, told The Electronic Intifada. “The court has once again acted cowardly and shamelessly and chosen to put politics over people and blocked access to justice. Today’s ruling only deepens the injustice we have suffered.”
Ziada, a Palestinian-Dutch citizen, has been suing Benny Gantz, Israeli army chief at the time, and Amir Eshel, then air force chief, for the decision to bomb his family’s home during Israel’s 2014 assault on Gaza.
Since then, Gantz has served as Israel’s defense minister and deputy prime minister and is now a top opposition politician.
Ziada is seeking hundreds of thousands of dollars in damages from the Israeli commanders.
It killed Ziada’s 70-year-old mother Muftia, his brothers Jamil, Yousif and Omar, sister-in-law Bayan, and 12-year-old nephew Shaban, as well as a seventh person visiting the family.
In 2019, Gantz ran an election campaign celebrating the 2014 attack on Gaza that killed more than 2,200 Palestinians, including 551 children.
He boasted to Israeli voters that he had returned Gaza to the “stone age.”
Human rights lawyer Liesbeth Zegveld, who is representing Ziada, has argued that functional immunity is not absolute.
In 2010, for instance, the European Court of Human Rights found that “in cases where the application of state immunity from jurisdiction restricts the exercise of the right of access to a court, the court must ascertain whether the circumstances of the case justify such restriction.”
Ziada argued that a grant of absolute civil immunity to a foreign state and its officials would be a disproportionate restriction of his rights under the European Convention on Human Rights, because as a Palestinian from the Gaza Strip, there is no other legal venue than the Dutch courts where he can seek redress.
However, the Dutch supreme court decision rejects this reasoning, meaning that Gantz and Eshel do not have to answer for killing Ziada’s relatives.
“It is not in dispute that the defendants were involved in the bombing in the exercise of their public function,” the Dutch supreme court states. Gantz and Eshel are therefore “entitled to immunity from jurisdiction, regardless of the nature and seriousness of the conduct alleged against them.”
But the Dutch judges could have chosen another direction, breaking new ground for the protection of human rights.
They could have recognized that the Dutch courts must be open to Ziada as a venue of last resort, and they could have relied on the Dutch government’s own position set out in a 2016 statement unrelated to this case that “The commission of international crimes, by definition, cannot be an official function.”
Israel’s occupation, siege and bombardment of the Gaza Strip involve numerous well-documented flagrant and grave breaches of international law, which are carried out in pursuit of an inherently unlawful purpose: the maintenance of a system of apartheid and racial supremacy over the Palestinian people.
Ziada noted that in May, Dutch Prime Minister Mark Rutte committed the Netherlands to pursuing accountability for war crimes around the world, but especially in Ukraine.
“Today, Palestinians are told that this commitment is neither absolute nor universal,” Ziada asserted. “The Netherlands will apply selective justice and offer immunity when Palestinians challenge Israeli war criminals.”
Indeed, instead of pursuing criminal accountability for Israeli perpetrators of alleged war crimes against Palestinians, the Dutch government has a policy of embracing and rewarding them by signing military cooperation deals with Israel.
Ziada said that his civil lawsuit, which began five years ago, “has been a long and challenging legal battle for the family.”
“However, we are determined to see these war criminals brought to justice,” he added.
Ziada is reviewing Friday’s judgment with his lawyers and considering whether to take the case to the European Court of Human Rights.
“We hope that one day we can achieve justice for the massacre of our family and thousands of other Palestinian families who have suffered at the hands of Israeli war criminals,” Ziada said.
Ali Abunimah is Co-founder of The Electronic Intifada and author of The Battle for Justice in Palestine (Haymarket Books)