Dutch court grants immunity for Israeli war crimes

Six Ziada family victims (File)

Adri Nieuwhof

The Electronic Intifada  /  January 29, 2020

A court in the Netherlands has denied Ismail Ziada the chance to pursue justice for Israel’s killing of his mother and other members of his family.

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 assault on Gaza nearly six years ago.

The Dutch judges ruled that the two commanders enjoy immunity for their alleged crimes because they committed them while acting in an official capacity.

The Israeli attack on 20 July 2014 reduced the three-floor building in al-Bureij refugee camp to rubble.

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.

Ziada sued the Israeli generals for more than $600,000 in damages plus court costs.

Speaking following Wednesday’s ruling, Ziada condemned the decision.

It is unclear if Ziada will appeal, however in a written statement, he vowed that his effort to achieve justice would go on.

“I owe it to all the Palestinians who have suffered and continue to suffer the same fate, to continue this struggle to achieve what is denied to them: access to independent justice and accountability for the unspeakable crimes committed against them,” Ziada said.

Ruling comforts war criminals

Most Palestinians have no avenue to seek justice for Israeli abuses.

But as a Dutch citizen, Ziada hoped that his country’s judiciary would provide some accountability.

However, the judges of the district court in The Hague accepted claims that Gantz and Eshel are immune from prosecution because they acted in an official capacity.

The court’s ruling acknowledges legal precedents establishing that immunity does not apply in cases of serious international crimes including genocide, war crimes and crimes against humanity.

The Nuremberg Principles, arising from the trials of Nazi leaders after World War II, established that individuals cannot escape accountability for such crimes on the basis that they were acting as a head of state or government official.

The court also cited the Dutch government’s position laid down in a 2016 statement that immunity does not extend to international crimes.

“The commission of international crimes, by definition, cannot be an official function,” according to the Dutch government.

Yet the court swept all this aside and adopted a position that provides comfort and encouragement to states and individuals who have, or plan to commit, serious crimes.

It is a particularly sad irony that the ruling comes after days of senior European officials pronouncing the words “Never Again,” and exhorting people to learn the “lessons” of history during this week’s 75th anniversary of the liberation of Auschwitz.

Such words ring hollow when victims of war crimes find their path to justice blocked.

Palestinian lawyer Hussein Abu Hussein testified as part of Ziada’s case last September that practical and legal obstacles made it impossible for Ziada to seek justice in Israel.

The Dutch judges ignored that as well.

After the hearing, Ziada asked where he could go now that the Dutch court has slammed the door in his face.

No justice for Palestinians

Israel has obstructed every attempt by Palestinians to seek justice for its crimes against them, including in the Ziada case.

A year ago, Israel urged the Dutch court to dismiss the war crimes case against Gantz and Eshel.

Lawyers for the generals revealed their contempt for the victims and their lives when they tried to frame Ziada’s legal action as part of “an anti-Israel campaign.”

And in response to the International Criminal Court’s investigation of Israel’s war crimes in the occupied Palestinian territories, Prime Minister Benjamin Netanyahu smeared the ICC with false accusations of anti-Semitism.

It will likely take years before we know if the ICC will prove to be a road to justice for Palestinians, or another blocked path.

Israel, meanwhile, continues to commit crimes against Palestinians, including the killing of civilian protesters, the colonization of occupied territorytorture and ill-treatment of detainees, demolitions of Palestinian homes and the 12-year blockade of Gaza – collective punishment of two million people.

Gantz, now the leader of Israel’s Blue and White opposition coalition, is seeking to replace Netanyahu as prime minister. Israel will hold its third general election in a year in March, after previous votes led to political deadlock.

During the campaign for last April’s election, Gantz ran ads bragging about how much death and destruction he had perpetrated in Gaza in 2014.

In the campaign for September’s election, Gantz declared that Israel’s brutal military occupation is actually beneficial for Palestinians.

If Gantz wins the next election, he will have the reassurance from Dutch judges that as prime minister he can kill many more Palestinians without fear of being brought to justice.

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