Dutch court upholds war crimes immunity for Israel’s Benny Gantz

Gaza destruction (Ashraf Amira - APA Images)

Adri Nieuwhof

The Electronic Intifada  /  December 7, 2021 

Dutch judges ruled on Tuesday that two top Israeli military commanders cannot be sued for killing a Palestinian family in the Gaza Strip.

The appeals court in The Hague decided that the commanders enjoy “functional immunity” because they were acting on behalf of the Israeli state.

The decision is a slap in the face for Ismail Ziada and all Palestinians who once again find their path to justice obstructed.

Speaking to supporters outside the courthouse, Ziada called the decision “shameful” and “cowardly.”

“Today is not easy for me because in Gaza we are subjected to military slaughter and in The Hague we are subjected to a legal slaughter,” Ziada added.

“It is just because of Israel. Nothing else. It is not about justice,” Ziada said of the ruling.

The 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.

Gantz is currently Israel’s defense minister and deputy prime minister.

Ziada is seeking hundreds of thousands of dollars in damages from the Israeli commanders.

The Israeli attack completely destroyed the three-floor building in al-Bureij refugee camp.

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.

No place for justice

In January 2020, the district court in The Hague granted immunity to Gantz and Eshel.

Tuesday’s decision was the result of Ziada’s appeal of the lower court ruling.

Human rights lawyer Liesbeth Zegveld argued in the appeal that it was unjustifiable to grant immunity to the two Israeli military commanders.

Israel has completely deprived Palestinians in Gaza of access to justice by declaring the coastal enclave an “enemy entity” and its residents “enemy subjects,” Zegveld asserted.

Moreover, Israeli law prohibits “enemy” citizens from bringing claims for damages against the state in Israeli courts.

In Tuesday’s ruling, the Dutch appeals court dismissed those arguments. It accepted that when it comes to criminal responsibility for war crimes, state officials have no guarantee of immunity.

But the judges found that when it comes to civil matters, officials of foreign governments cannot be sued in domestic courts for their official acts due to the long-established principle of state immunity.

The ruling accepts all the precedents upholding this immunity while rejecting all the arguments and precedents offered by Ziada for why those accused of war crimes or crimes against humanity should also face civil liability.

In a 2012 case cited by Ziada, the district court in The Hague permitted a civil lawsuit for torture against 12 unnamed Libyan officials. It did so under a provision of Dutch law that, according to one summary of the case, “allows Dutch courts to exercise jurisdiction over civil claims where bringing those claims outside the Netherlands is impossible, either legally or practically.”

The complainant – a Palestinian doctor who had lived in Libya – was granted a default judgment against the Libyan officials of one million euros.

In Tuesday’s ruling, the Dutch appeals court dismissed that precedent without a coherent explanation of why the same rationale – the lack of another forum for Ziada to seek redress – would not apply.

“Very high-ranking”

The decision in Ziada’s case underscores the urgency of the International Criminal Court’s investigation of war crimes in the occupied West Bank and Gaza Strip.

The ICC is a court of last resort, which steps in when national courts are unable or unwilling to act, as is clearly the case when it comes to Israel’s violations of Palestinian rights.

“The court is not blind to [Ziada’s]’s suffering. Nor is the court blind to developments in criminal law with regard to the immunity from functional jurisdiction,” the Dutch judges nonetheless state.

They acknowledge a recent decision in Germany which affirms that a low-ranking Afghan soldier could face criminal trial in a German court for war crimes.

“To the extent that there is any reason to extend this development to civil law,” that would not apply in Ziada’s case, “in which very high-ranking military personnel are involved,” the Dutch judges assert.

In other words, the Dutch court is saying that even if it had decided to remove the immunity of foreign officials being sued civilly for war crimes, it still might not do so in the case of Gantz and Eshel precisely because of their senior rank.

That seems to fly in the face of any natural notion of justice, in which those with the most responsibility should bear the most accountability.

Indeed, the ruling acknowledges that because of the high positions occupied by Gantz and Eshel, “a judgment on their conduct would necessarily also be a judgment on the conduct of the State of Israel.”

During the hearing on his appeal in September, Ziada called on the judges to “not fail justice.”

But for him that is exactly what they did.

“My lawsuit was not about me or the Ziada family,” he said Tuesday. “I don’t want anyone on this earth to suffer what we suffered and are still suffering.”

“This is your case as much as my case,” Ziada said, addressing supporters around the world. “Without you I would not have been able to do any of what we have done until now.”

He said he would discuss the next steps with his lawyers but would “continue the fight.”

“My mum gives me the strength to go on,” Ziada said. “She is inside me and gives me that spirit to fight. We will not let these cowardly judges stop us from fighting for Palestine.”

Ali Abunimah contributed research.

Adri Nieuwhof is a human rights advocate based in the Netherlands and former anti-apartheid activist at the Holland Committee on Southern Africa