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.
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.