Rights and Accountability 15 September 2021
A Dutch court will hear an appeal next week against a ruling that granted immunity to two former Israeli military commanders in a lawsuit related to war crimes in Gaza.
One of those commanders is Benny Gantz, who is currently Israel’s defense minister and deputy prime minister.
Palestinian-Dutch citizen Ismail Ziada has been suing 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.
The Israeli attack 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.
During the 51 days of the 2014 assault on Gaza, Israel attacked residential and other civilian buildings, an independent investigation commissioned by the UN Human Rights Council found.
In total, 2,251 Palestinians were killed, including 1,462 civilians, among them 551 children. More than 11,000 Palestinians were injured.
In January 2020, the district court in The Hague denied Ziada access to justice by granting immunity to the Israeli commanders because the alleged crimes were committed while they acted in an official capacity.
This ruling flew in the face of the Nuremberg principles – established after the trials of Nazi war criminals – that those who commit war crimes or crimes against humanity cannot hide behind their official functions, or the excuse that they were just following orders.
Indeed, in his appeal, to be heard on 23 September, Ziada will argue that there can be no immunity for such grave crimes.
Although Ziada’s lawsuit is a civil action filed in the Dutch national courts, the principle that acting in an official capacity does not shield a person from accountability is now well recognized in international law.
The Rome Statute, the founding document of the International Criminal Court, for instance, declares the “irrelevance of official capacity” of heads of state or other government officials.
The statute affirms that holding an official position “shall in no case exempt a person from criminal responsibility” nor be a reason for them to face a lesser punishment if convicted.
Similarly, the Rome Statute establishes that a military commander “shall be criminally responsible” for crimes “committed by forces under his or her effective command and control.”
Indeed, in its January 2020 ruling, the Dutch district court affirmed the legal precedents that immunity does not apply in cases of serious international crimes including genocide, war crimes and crimes against humanity.
But for unexplained reasons, the court swept away its own legal reasoning and still granted the Israeli commanders a shield against accountability.
Right to justice
Israel has obstructed every attempt by Palestinians to seek justice for its crimes against them, including in the Ziada case.
The Israeli government even urged the Dutch court to dismiss the war crimes case against Gantz and Eshel.
Lawyers for the generals showed their contempt for the victims and their lives when they tried to frame Ziada’s legal action as part of “an anti-Israel campaign.”
By granting immunity to Gantz and Eshel the court protects perpetrators, punishes the victims and gives a green light for more crimes.
Meanwhile, Gantz continues to lead Israel’s war machine as defense minister.
For 11 days in May, under his orders, Israeli forces carried out a massive bombardment of Gaza, killing more than 260 Palestinians, including more than 60 children.
Tens of thousands of people in Gaza were internally displaced as a result of Israel’s bombing.
During the assault, Gantz stated that “no person, area or neighborhood in Gaza is immune.”
He meant it, as Israeli bombs toppled entire apartment buildings, killing sleeping families inside.
On 20 September at 6:30pm Central European Time, Ziada’s lawyer Liesbeth Zegveld and Issam Younis, director of the Gaza-based human rights group Al Mezan, will take part in an online panel to discuss this landmark case to hold Israeli commanders accountable.
A half-hour documentary from Dutch public television available on Youtube also provides background on the effort to bring justice for Ismail Ziada’s family.
Permalink Frank Dallas replied on
Ignoring international law is an old habit of the US. There will be a serious campaign by America, the EU, Canada and so on to protect Ganz. Finally, these people don't respect law in any form. The game is control because, of course, that's the way they keep the wealth flowing into their pockets. It's an interesting question whether there is a crude will to power distinct from the pursuit of wealth, but it's somewhat academic because power has to have some basis. Where wealth is equalised, who can become a bully? Of course, it's possible to a degree, but if you have as much wealth as the next person, you've got a good chance of keeping them off your back. If there is a will to power, its scope is limited by economic equality. In the case of Israel, it's superficially complicated: the belief that god gave Palestine to Abraham and so on; but in truth, that's all flummery. Cast back to Herzl and what do you find? He was troubled by the low status of the Jews throughout history and that low status was grounded in lack of wealth.The way out was to have a land of their own and to make themselves prosperous. Of course, as they chose capitalism they've got good old class distinction; but as enemies of the Arabs they're the friends of the US. That's about control of the resources of the region. So the US's economic interest, ie the interest of its billionaires, will ensure the earth is moved to get Ganz off the hook. What we need of course is international law with teeth and why not prohibition of aggression? Those who instigate violence in international disputes to be brought to justice. After all, if you punch your neighbour that's what happens. But if you're a billionaire....
Well said, Frank. In fact,
Permalink tom hall replied on
Well said, Frank. In fact, your observations called to mind a passage from Nelson Algren's novel "A Walk on the Wild Side". He wrote: "When we get more houses than we can live in, more cars than we can ride in, more food than we can eat ourselves, the only way of getting richer is by cutting off those who don't have enough. If everybody has more than enough, what good is my more-than-enough? What good is a wide meadow open to everyone? It isn't until others are fenced out that the open pasture begins to have real value." Ousmane Sembene put it this way in his novel of anti-colonial revolt: "God's Bits of Wood": "Real misfortune is not just a matter of being hungry and thirsty; it is a matter of knowing that there are people who want you to be hungry and thirsty."
Every Palestinian lives with this knowledge of hunger and thirst, behind a fence cutting off the open pasture from its people. The profoundly sadistic character of Zionism, indeed of capitalism, is forever on display. We have only to open our eyes.
Freedom and Justice for Palestine and all it's peoples
Permalink P D Sutcliffe replied on
Billionaires tend to get away with it. I believe there should be a fair taxation system implemented somehow globally.
Your Honor, my client is being unfairly singled out!
Permalink tom hall replied on
Gantz and Eshel's defense would appear to be, "We were only giving orders."
upholding international law
Permalink Carol Scheller replied on
A case that could become a legal landmark. Immunity has to stop somewhere. Maybe in the Netherlands ? Spot on, Adri !
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