Dutch court won’t hold Israeli military brass liable for Gaza War deaths

THE HAGUE, Netherlands (CN) — Ruling on Tuesday that Israeli military leaders are immune from civil lawsuits over war deaths, The Hague Court of Appeals sided against Ismail Ziada, a Palestinian-Dutch man seeking 500,000 euros ($560,000) for a fatal airstrike during the 2014 Gaza War. 

Ziada’s family home was reduced to rubble in the attack, and six of his family members, including his 70-year-old mother and a 12-year-old nephew, were killed, along with a family friend who was visiting at the time. 

Palestinians are unable to bring cases in Isreal accusing the military of war crimes, but Dutch civil law allows people to file complaints about events that happened outside of the Netherlands if the claimant has strong ties to the Netherlands and is unable to sue in the other country.

In 2018, Ziada filed a civil complaint against Benny Gantz, now Isreal’s minister of defense, and another top Isreal military leader, Amir Eshel. During the conflict, Gantz was serving as the chief of staff of the Israeli Defense Forces and Eshel as the commander of the Israeli Air Force. 

“There is no exception to functional immunity,” presiding judge Bas Boele wrote for a three-judge panel this morning.

The ruling affirms rejection of the case last year by the trial court, which concluded that both Gantz and Eshel would be immune from prosecution as they were government officials. 

Lawyers for Ziada argued during a 2020 hearing that immunity cannot be given in cases involving war crimes and, under universal jurisdiction, the Netherlands has jurisdiction to prosecute. "I can’t stop war crimes," Ziada told the judges during the hearing. "You, honorable judges, can. So, please: Do not fail me. Do not fail justice."

Rejecting the appeal Tuesday, the three-judge panel said national courts must remain neutral when the national interest of other countries is in question. In this way, national courts are unlike the International Criminal Court, for example, which is also based at The Hague.

“Although the state of Israel is not a party to these proceedings, its interests are indirectly indeed at stake,” the judges wrote. 

It is unclear if Ziada plans to appeal.

“The judgment is conservative to the extreme, halting justice for human beings and supporting diplomatic relations between states. The Dutch supreme court will without any doubt confirm the ruling, but the most important question is whether Ismail Ziada will hold his ground and continue claiming rights that should not be denied in a court of law,” his lawyer, Liesbeth Zegveld, said in an email to Courthouse News. 

Gantz told Reuters news agency he was happy with the outcome. "I was always confident as an Israeli soldier, commander, general and now politician, that we have been working according to international law and I am very happy that now other people have said the same,” he said.

The ruling, an English translation of which is not available, does not address whether the activities untaken by the Israeli government constituted war crimes. 

The 2014 Gaza War, referred to by Isreal as Operation Protective Edge, lasted less than two months but left thousands dead. Following the kidnapping and murder of three Israeli teenagers, Jerusalem launched a series of airstrikes and ultimately a ground invasion. A 2015 United Nations investigation concluded war crimes were likely committed by both sides. 

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