The Electronic Intifada / September 24, 2021
Two senior Israeli military officials should answer for their actions before a court of justice, Dutch judges in The Hague heard on Thursday.
A Palestinian-Dutch citizen, Ziada 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.
Gantz is currently Israel’s defense minister and deputy prime minister. Ziada’s civil lawsuit seeks 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.
But in January 2020, the district court in The Hague shut the door in Ziada’s face by granting “functional immunity” to Gantz and Eshel on the grounds that when they committed their alleged crimes they were acting in an official capacity.
That decision flew in the face of decades of jurisprudence following the Nuremberg trials of Nazi war criminals that those who commit the gravest offenses, including war crimes, crimes against humanity and genocide, cannot hide behind the excuse that they were acting in an official capacity or just following orders.
No other path to justice
Thursday’s hearing was part of Ziada’s appeal of that lower court ruling. The hearing was held in an almost empty room. Only 13 people, including this writer, were allowed to attend.
Many others were disappointed that they couldn’t express their solidarity with Ziada by their presence.
Zegveld, who is renowned in the Netherlands for representing victims of human rights abuses, also told the judges that “Israel maintains an apartheid regime against Palestinians.”
Therefore Ziada’s only viable option is to seek justice in the Dutch courts.
Zegveld made a strong case that it was unjustifiable to grant immunity to the two Israeli military commanders.
She noted that in 2010, the European Court of Human Rights ruled 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.”
Zegveld argued that Israel has completely deprived Palestinians in Gaza of access to justice by declaring the coastal enclave to be an “enemy entity” and its residents “enemy subjects.”
Israeli law prohibits “enemy” citizens from bringing claims for damages against the state in Israeli courts.
In response, defense lawyers for Gantz and Eshel repeated their arguments that because their clients had acted on behalf of the state, their acts were protected by functional immunity.
After Zegveld’s thoroughly formulated plea, the lawyers for Gantz and Eshel did not make a strong impression.
At the end of the hearing, the judges offered Ziada the opportunity to speak.
“I never thought that my vision to seek justice would be denied by providing functional immunity to the war criminals,” he told the court.
Earlier this week, an online panel discussed Ziada’s landmark effort to hold Israeli commanders accountable.
Issam Younis, director of the Gaza-based human rights group Al Mezan, underscored the destructive effect of impunity.
Israel’s four major assaults on Gaza since 2008 demonstrate that “the worst is yet to come” unless the international community seriously addresses accountability, Younis said.
“It is really mission impossible for victims to pursue justice through Israel’s legal system,” Younis stated, after explaining the myriad obstacles Israel places in the face of Palestinians in Gaza who seek to access its courts.
That is why national courts in other countries should provide an avenue for justice for victims of serious international crimes, Younis said.
Utrecht University law professor Cedric Ryngaert noted that Dutch law “offers a forum of necessity” to “avert a denial of justice” when a case cannot be heard anywhere else and is sufficiently linked to Dutch jurisdiction.
Ziada’s Dutch citizenship potentially provides such a link, Ryngaert said.
Ryngaert added that the Dutch lower court’s immunity ruling overlooked the imperative of accountability for international crimes.
Individuals can be held responsible for international crimes not only at the International Criminal Court but also in the domestic courts of other states.
Ziada’s closing words to the Dutch judges on Thursday emphasized that his demand for justice was not just about accountability for past crimes, but preventing further violations.
“The crimes didn’t stop in 2014,” he said. “In May, when Israel again heavily bombarded Gaza, I feared that I would receive a message that my family was in danger.”
Ziada said that during the Israeli attack on Gaza earlier this year, his niece had to flee her home barefoot with two young children because the residential building next door was bombed.
“She lost her parents in the 2014 bombing of our family home. I cannot stop the crimes,” Ziada said. “You, your honors, you can stop it. Don’t fail me, don’t fail justice.”
The judges are expected to issue their ruling on 7 December.
Adri Nieuwhof is a human rights advocate based in the Netherlands and former anti-apartheid activist at the Holland Committee on Southern Africa