Photo: 20th July, 2014. Palestinian woman stands in front of the ruins of her house in Gaza that was demolished during Israel's Operations Protective Edge
Credit: Eloise Bollack/ZUMA Wire/Alamy Live News
In this landmark case, Ismail Ziada, a Palestinian who is a Dutch national living in The Netherlands, is bringing a civil suit before the District Court of The Hague (The Netherlands) against two Israeli former military officers for the deliberate bombing of the home of his family in the Gaza Strip in July 2014. Ziada lost his mother, three of his brothers, his sister in law and his nephew in the attack. The bombing took place in the context of Israel’s military offensive in the Gaza Strip, known as "Operation Protective Edge." The claimant asserts that this attack involved the deliberate targeting of a civilian object, was disproportionate to the declared military gain, and conducted without prior warning. Consequently, it was conducted in violation of international humanitarian law and constitutes an unlawful act (a tort) under the applicable law.
Lieutenant General Benjamin Gantz, was the Chief of General Staff of the Israeli army from February 2011 to February 2015 and Major General Amir Eshel, was Air Force Chief of the Israeli army from 2012 to August 2017. As the bombing was carried out under their responsibility, Ziada is holding them liable for his current and future material and immaterial damages. It is the first ever civil claim against Israeli army officials for the killing of civilians during the attacks on Gaza in 2014.
The legal documents below explain the facts of the case and the chief legal arguments for establishing the liability of the two officers. During the first phase of the case, the District Court of The Hague will focus on two questions:
(i) do the two military commanders have immunity from suit, as officials acting on behalf of the State of Israel, and (ii) does a Dutch court have jurisdiction over a case that involves actions taken by Israelis against Palestinians in the Gaza Strip?
The following documents were submitted by Ziada’s lawyer Liesbeth Zegveld to the District Court of The Hague:
1. Notice of Liability
2. Writ of Summons
3. Defense regarding the Preliminary Objections
4. Expert Legal Opinion
5. Press Release of the Military Advocate General of the Israeli Defense Forces
6. Personal Statement of the claimant, Ismail Ziada, during the Court proceedings, September 17, 2019
7. Decision District Court The Hague Netherlands 29 January 2020
8. Media Reports
2017 Notice of Liability
In June 2017, Dutch lawyers Liesbeth Zegveld and and Lisa-Marie Komp sent a Notice of Liability to Benjamin Gantz, former Israel Defence Forces (IDF) Chief of General Staff and Amir Eshel, IDF Air Force Commander. They are held liable for current and future material and immaterial damages suffered by their client Ismail Ziada, for the killing of members of his family during the Gaza military operations in 2014. It is the first ever civil claim against the Israeli army for killing civilians during its attacks on Gaza in 2014.
Ziada, a Dutch citizen resident in the Netherlands, lost six family members during a missile attack on 20 July 2014 launched in the context of the military offensive in the Gaza Strip named "Operation Protective Edge" (OPE). During OPE, Israel carried out thousands of airstrikes on Gaza, including targeted attacks on residential and other civilian buildings. The attack, carried out under the responsibility of the aforementioned military commanders, specifically targeted and destroyed the apartment building in which Ziada’s family members lived. The building was located in the Al Burej refugee camp in Gaza. Ziada claims that the attack was directed at a civilian object, was disproportionate, and conducted without effective prior warning. Consequently, it breached the laws and customs of war and amounts to a war crime. The Notice of Liability lists the international humanitarian laws that have allegedly been violated by this bombardment.
In November 2018, the Israeli military officers submitted a response to the Notice of Liability and appointed a Dutch lawyer to represent them. On 17 September 2019, the District Court in The Hague the court will firstly consider whether the two defendants are protected by functional immunity as State officials, from civil suit before a foreign court, and secondly whether the court has jurisdiction, given that the incident took place in another country and did not involve the Dutch State.
2018 Writ of Summons
In this Writ of Summons, the plaintiff asserts that the bombing of the Ziada residence was unlawful, and constituted a breach of international humanitarian law (IHL) and a violation of the human rights of the deceased and of Ziada himself as their close relative. Ziada contends that, during this Israeli military operation, bombings of residential buildings – causing a high number of civilian deaths - were by no means exceptional but rather reflected a policy of targeting civilians. IHL requires that civilians and civilian properties must be distinguished from combatants and military facilities, and that attacks on them must meet the requirements of military necessity and proportionality in relation to military gains. Attacks on buildings known or likely to contain civilians also entail the obligation to take precautionary measures. None were taken.
As former Chief of General Staff and Chief Air Force Commander respectivey, Benjamin Gantz and Amir Eshel, the defendants, are held to be responsible (in part) for designing the aforementioned policy, and for the decision to bomb the Ziada residence. The Writ asserts that they are liable for the damage that the plaintiff suffered.
Jurisdiction of the Dutch court
This Writ of Summons posits at the outset that the Dutch District Court has jurisdiction over this case by virtue of necessity, under Article 9 (b) and (c) of the Dutch Code of Civil Procedure (DCCP). This Article provides that a Dutch court will have jurisdiction where (a) a civil case outside the Netherlands appears to be impossible, or (b) the legal proceedings, which are to be initiated by a Writ of Summons, have sufficient connection with the Dutch legal sphere and it would be unacceptable to demand from the plaintiff that he submits the case to a judgment of a foreign court
The writ first lists a number of virtually insurmountable legal and administrative barriers that prevent Palestinians from obtaining reparations by means of a claim before an Israeli civil court. Nor does the plaintiff have any prospect of obtaining reparations through criminal proceedings in Israel. A criminal case would need to be preceded by a thorough and independent investigation of all the facts. By contrast the report on this incident issued by Israel’s Military Attorney General (MAG) asserts (without substantiation) that the Ziada residence housed a Hamas ‘command and control centre’ and that the attack was therefore both necessary and proportionate to the purported military gain. It concluded there was no reason to open a criminal investigation. The Writ recalls that this reflects a pattern in the MAG’s approach to investigations that has been documented by numerous independent observers: the institution of the Military Attorney General, ‘that is responsible for investigating criminal acts of the IDF, is not independent and does not conduct adequate investigations.’ Moreover, numerous acts in breach of international humanitarian law simply cannot be criminally prosecuted in Israel, because the relevant criminal provisions do not exist under Israeli law.
Finally, the Plaintiff cannot submit his claim to a Palestinian court either, as an agreement between Israel and the Palestinian authorities precludes Palestinian courts from having any jurisdiction over Israeli defendants, unless the accused has given his/her explicit permission.
The Plaintiff requests the Hague District Court to declare that the defendants acted unlawfully and that they are jointly and severally liable to him for the material and immaterial damage that he has suffered and will suffer in the future as a result of the unlawful conduct of the defendants.
Lawyers for the Plaintiff submit that the applicable law is the law of the Gaza Strip, which comprises elements of both British law residual from the former British Mandate, specifically the British Civil Wrongs Ordinance from 1944,and Islamic Law. Under the British Ordinance, the bombing of the residential building, in violation of Humanitarian Law would constitute a tort, such that the aggrieved party must be fully compensated for the damage directly resulting from the tort.
Defendants responded by filing an Ancillary Motion (not published here) asserting that the Dutch court lacks jurisdiction, and assert, in addition, their functional immunity. Plaintiff’s response to this motion can be read here. For the MAG’s conclusions in this case, click here.
2019 Defense regarding the Preliminary Objections
In July 2014, in the context of Israel’s military offensive in the Gaza Strip, known as "Operation Protective Edge", the Israeli Defence Force bombed the house of Ismail Ziada’s family, killing six of his family members. For more details about the facts of this case, see the Notice of Liability. For a fuller account of the political context within which this and earlier armed conflicts between Israel and the Gaza Strip have occured, see the Writ of Summons.
This Defense regarding the Preliminary Objections is the response of the claimant, to the arguments put forward by the defendants in this case, former Israeli Chief of Staff, Benjamin Gantz, and former Israeli Air Force Chief, Amir Eshel, (not published here). The defendants have asserted firstly, that they are protected, by functional immunity, from suit before a foreign court, for acts done in their official capacity on behalf of another State. Secondly they assert that a Dutch court has no jurisdiction to adjudicate actions done by Israeli state officials, in the Gaza Strip. They argue that there is no connection between the facts of this case and the Dutch State and, moreover, that the Israeli legal system provides sufficient access to court for Palestinians in general. They submit that Ziada has not availed himself of the legal options that are available to him in Israel. He therefore cannot claim that he has no other options for pursuing justice.
Ziada claims that the attack on his family’s residence was carried out in violation of the rules and customs of international humanitarian law and was part of a policy of targeting residential buildings such that this bombing would qualify as a war crime. In this Conclusion of Response, he emphasises that the attack was a wrongful act (a tort) of such seriousness that the State officials responsible for it are not protected by the immunity from civil suit that normally attaches to the conduct of State officials before foreign courts. The claimant points to rulings of the European Court of Human Rights and the International Court of Justice demonstrating that more and more weight is given to the seriousness of crimes at the expense of functional immunity. Indeed, the International Law Commission (ILC) recently declined functional immunity for international crimes. In addition, Dutch courts are bound to respect the constraints of international law, and Dutch case law shows that the Netherlands does not assume immunity from jurisdiction for individual office-holders who are alleged to have committed international crimes. Accordingly, he claims that the defendants, are individually liable for his current and future material and immaterial damages. Individual civil liability of State officials can exist independently of, or in parallel with, the responsibility of the State itself, as also when the State Immunity is still intact, as it does not impinge upon it. Civil liability can also arise independently of a criminal investigation or conviction. The claimant posits that the cases that the defendants have advanced as contrary to this position are somewhat dated and do not reflect the current shift in the international consensus on immunity.
Jurisdiction of the Dutch court
Secondly, Ziada argues that the Dutch court has jurisdiction to receive this claim against the two Israeli officials, for acts done in Israel that did not involve the Dutch State in any way. He bases his argument on Article 9 of the Dutch Code of Civil Procedure (DCCP). Article 9 paragraphs (b) and (c) DCCP create jurisdiction for the Dutch court when litigation in another country proves to be impossible, or when, in matters with a sufficient relation to Dutch legal environment, it is unacceptable to require from that plaintiff that he submits the matter to a foreign court. The legal basis for jurisdiction ensues from the principle of Article 6 from the European Convention on Human Rights: every person must have access to justice. Ziada argues that sufficient connection to a foreign jurisdiction is created by the seriousness of the wrongful conduct: ‘universal jurisdiction’ for international crimes is already supported by a broad consensus and there are both international and national courts that contemplate universal jurisdiction for civil tort recovery as well.
Ziada discounts the defendants’ argument that the Israeli legal system provides access to court for Palestinians. He argues that the existence of various legal provisions that are available to Palestinian claimants in theory, as asserted by the defendants, is in fact negated in practice for by a suite of legislative and practical impediments including the following: (i) a specific provision of Israeli civil law precludes liability for persons living in ‘enemy territory’ (whereas Gaza has been designated as enemy territory); (ii) the so called ‘wartime action exception’ renders a wide range of military actions immune from civil claims (whereas there is no question that the bombing of the residential building happened was a wartime action; (iii) Israel’s evidence requirements generally disadvantage Palestinian plaintiffs due to the impossibility of showing up at the required location in Israel, with the right documentation, within the time allowed. The claimant points out that he and his witnesses have been refused permission to enter Israel. Ziada argues that the Israeli legal system is inherently discriminatory towards Palestinians and that Palestinians effectively do not have access to fair and impartial civil or criminal legal proceedings before Israeli courts. He urges the court to be attentive to the fact that individual instances of Israeli courts treating Palestinian claims with due concern for fairness, notwithstanding existing security risks, as posited by the defendants, do not set aside the underlying situation in which Israel regards and treats the Palestinian occupants of Gaza (and the occupied West Bank) as its enemies, and structurally supresses and discriminates against them. This applies equally to its legal system. Ziada posits that the general nature of Israel’s regulation of the daily lives of Palestinians in both the West Bank and Gaza are well known. As a result, Ziada submits that he has no access to justice in Israeli courts.
In support of his claim, Ziada has submitted a Expert Legal Opinion on the legal status and the practice of Israeli courts with respect to civil claims brought by Palestinian claimants, particularly residents of the Gaza Strip, for damages caused by actions of the Israeli military and/or security forces. Its author, Hussein Abu Hussein was the first lawyer in Israel to bring tort cases to the Israeli courts, in the name of residents of the Occupied Palestinian Territories and the Gaza Strip against the Israeli army, on the basis of unlawful use of power by the Israeli authorities, against the Palestinians.
This Expert Legal Opinion describes and analyses the legal status and practice of Israeli courts with respect to civil claims brought by Palestinians, particularly residents of the Gaza Strip, for damages caused by actions of the Israeli military and/or security forces. It was submitted by Ismail Ziada in support of his civil suit against Israel’s former military commanders Benjamin Gantz and Amir Eshel.
Since Israeli military orders issued in 1967 preclude Palestinian courts from considering disputes where one party is Israeli, Palestinians who suffered such damages, have sought remedies before Israeli courts. This involves many practical difficulties for Palestinian claimants, such as cultural differences and language barriers, as well as legal ones. Due tothe high number of Palestinians filing action in Israeli courts as a result of the outbreak of the Second Intifada in 2000, the Israeli parliament has amended Israel’s Civil Tort Act (Liability of the State) – 1952 (CTA) several times, each amendment further impinging on the right to access to justice for Palestinians. In 2000 Amendment No. 4 to the CTA was adopted, placing procedural and substantive obstacles to making claims. Its section 5a, among others, reduces the period for notifying the Ministry of Defence of the damages that were suffered to 60 days. But even more significantly, it introduced a definition for the term ‘wartime action’ which gives the Israel immunity from civil liability claims.
In 2005, the Knesset passed Amendment No. 7 to the CTA. The major change was the addition of Sections 5b and 5c, exempting Israel’s civil liability for damage caused in a conflict zone as a result of the acts of security forces. The change was applied retroactively. The Supreme Court, however, ruled that this Amendment violated the constitutional rights of Palestinians. In response, the Knesset adopted Amendment No. 8 in 2012, expanding the definition of ‘wartime action’ to encompass an extremely wide array of actions that become immune for civil claims, including cases of damages caused by errors or negligence.
A review of Israeli courts’ interpretation of the term ‘wartime action’ in the period August 1, 2012 - January 1, 2019 shows that all claims were dismissed on the basis of the finding that the military action had been a ‘wartime action’. Moreover, after Israel’s unilateral disengagement from the Gaza Strip in 2005, Israeli courts have almost unquestioningly accepted Israel’s legal position that Gaza is no longer under its occupation. As a result, Gaza residents have no clear legal status, and there is no system of law that grants them rights.
The right to file civil claims for Palestinians further deteriorated in 2014, when the Gaza Strip was declared ‘enemy territory’ and its residents ‘enemy subjects’. As a result, Israel is not civilly liable for damage caused to Palestinians in the Gaza Strip. Israeli courts have ruled that ever since Hamas rose to power in 2006, the Gaza Strip has been at war with Israel and Gaza residents are subjects of an enemy entity.
The author concludes that Israeli courts’ consistent dismissal of Palestinian claims and the Amendments to the CTA have effectively precluded Gaza residents from bringing claims against Israel, in breach of their basic right to access to justice.
2016 Press Release on the Decisions of the IDF Military Advocate General regarding Exceptional Incidents that Allegedly Occurred During Operation 'Protective Edge', Update No. 5, 24 August 2016
This Press Release gives an indication of the number of ‘exceptional incidents’ considered for investigation following the operation. It also describes the procedure by which Israel’s Military Advocate General's (MAG) arrives at his decision as to whether or not to open an investigation into alleged criminal misconduct by IDF personnel. Finally there is a sample of cases that were closed by the MAG following examination by the General Staff Mechanism for Fact-Finding Assessments (FFA Mechanism), providing a brief explanation for each.
The MAG only handles allegations that have been deemed ‘prima facie credible and sufficiently concrete’ following a preliminary investigation. He may decide to open up a criminal investigation without further examination, or refer them to the FFA Mechanism, for a prior factual examination before making a decision on whether to open a criminal investigation. Over the relevant period, the MAG received complaints about 360 cases of IDF misconduct. 24 out of the 360 incidents lead to the opening of a criminal investigation without prior examination of the FFA Mechanism (6,5%). 3 of those 24 incidents resulted in indictments against IDF soldiers. The vast majority of the incidents was closed without leading to any criminal or disciplinary proceedings.
Among the sample of cases closed by the MAG, is the case of the bombing of the residential building that was home to the Ziada family. The press release states that the structure was being used as a command and control center by Hamas, and was thus a lawful military target, and that an assessment had been made that the expected civilians harm would be proportional in relation to the significant military advantage anticipated to result from the strike. Accordingly, the MAG concluded that the attack was carried out in accordance with the rules of International Humanitarian Law and domestic law.
Ismail Ziada, a Palestinian residing in the Netherlands, opposes this conclusion. In his view, the bombardment of his family’s residential building was in violation of international humanitarian law. Ziada has instigated civil proceedings in the Netherlands against the military commanders Benjamin Gantz and Amir Eshelunder whose responsibility the airstrike was launched. Ziada claims their liability for his damage suffered.
6. Personal Statement of the claimant, Ismail Ziada, that was delivered during the Court proceedings, September 17, 2019
Read full statement here.
In response to Mr. Ismail Ziada’s claim in the principal action, former Israeli Chief of Staff, Benjamin Gantz, and former Israeli Air Force Chief, Amir Eshel (the defendants) requested the Dutch court to hold that it lacks jurisdiction to decide the claim. They assert (i) that they are protected by functional immunity from jurisdiction (ratione materiae) for acts done in their official capacity on behalf of Israel and (ii) that Mr. Ziada is not precluded from litigating his claim in Israel and therefore has no need to bring his claim before a foreign court, in a state having no connection at all with the case.
Functional immunity from jurisdiction
Dutch law determines that a Dutch court’s power to entertain a case is subject to certain restrictions recognized by international law (paras. 4.2-4.3). Functional immunity of state officials is typically such a restriction. At the outset, the District Court of The Hague (the court) goes into the rationale behind, and the scope of, functional immunity from jurisdiction. The presiding judge explains that it derives from State immunity, a fundamental principle of customary international law, ensuing from the equality of states, that precludes the imposed jurisdiction of a foreign state upon any other state (paras. 4.6-4.7). The court also sets out that (former) state officials enjoy functional immunity from jurisdiction for all conduct based on the sovereign authority of the state in whose name they acted (acta iure imperii).
Since, in the principal action, Mr. Ziada does not invoke the defendants’ ‘secondary’ liability as state officials, but rather their individual responsibility for alleged war crimes in Gaza, the court assesses whether the defendants can be held individually liable in these civil proceedings (para. 4.18). The court observes that individual criminal responsibility does override functional immunity from jurisdiction in international criminal courts (para. 4.22). However, the court then points to a crucial difference between international and national courts: whereas international courts have a vertical relationship with states that, after all, have accepted an international court’s adjudicating power, national courts, function within that horizontal relationship between states, that is ordained by international law. The consequence of this distinction is that, where functional immunity from jurisdiction is set aside under the founding articles of international courts, national courts must take functional immunity as the starting point (para. 4.35).
The court acknowledges awareness of developments moving in the direction of rejecting functional immunity from jurisdiction of state officials prosecuted for international crimes before national courts, in particular, Article 7 of the Draft Articles on Immunity of State Officials from Foreign Criminal Jurisdiction. However, it concludes that, to date, there is insufficient state practice to establish a change in current international customary law (paras. 4.41, 4.48). The court does not rule out that, in time, these developments will lead to national courts rejecting functional immunity in civil proceedings as well as well as in criminal ones (para. 4.49).
The court concludes that the defendants enjoy functional immunity from jurisdiction under customary international law as it stands today, and declares itself incompetent to hear the case in principal action (paras. 4.54-4.55, 4.61)
An interesting reflection on this judgment by Cedric Ryngaert, Professor of Public International Law at Utrecht University, is posted on the website of EJIL: Talk!
You can find Ismael Ziada's response to the court's decision here.
- Cedric Ryngaert: EJIL: TALK! 2 March 2020
Functional immunity of foreign State officials in respect of international crimes before the Hague District Court: A regressive interpretation of progressive international law
- Rechtspraak.nl, 29 January 2020
Nederlandse rechter niet bevoegd in zaak tegen voormalig Israëlische militairen over bombardement Gazastrook
- Adri Nieuwhof: Electronic Intifada, 29 January 2020
Dutch court grants immunity for Israeli war crimes
Israel's Benny Gantz was being sued for killing Ismail Ziada's family.
- Arjen van der Ziel: Trouw, 28 January 2020
Doden in Gaza. Recht in Nederland?
- Amira Hass: Haaretz, 21 June 2017
Dutch-Palestinian Begins Civil Proceedings Against ex-IDF Chief of Staff Over Gaza Family's Deaths
- Amira Hass: Haaretz, 27 June 2017
Dutch Lawyer Determined to Pursue Justice for Gazans
- Allard de Rooi: Mondoweiss, 23 June 2017
Dutch citizen files suit against Israeli commanders for attack on family home during 2014 Gaza war
- Adri Nieuwhof: Electronic Intifada, 29 March 2018
Israeli generals sued in Dutch court for killing Gaza family
- Adri Nieuwhof: Electronic Intifada, 14 January 2019
Netanyahu challenger Benny Gantz faces Dutch war crimes case
- Ali Abunimah: Electronic Intifada, 21 January 2019
Israeli election ad boasts Gaza bombed back to “stone ages”
- Josef Federman: Associated Press, 11 February 2019
Israel wants Dutch case against ex-army chief dropped
- Amira Hass: Haaretz, 3 February 2019
Gantz, Son of Holocaust Survivor, Mentions Bergen-Belsen but Ignores the Camp That Is Gaza
- Naomi Zeveloff: The Nation, 5 April 2019
Is Israel’s Benny Gantz Guilty of War Crimes?
- Adri Nieuwhof: Electronic Intifada, 18 Septembre 2019
Dutch court hears war crimes accusations against Israel's Benny Gantz
- Jaap Hamburger: The Rights Forum
- Interview with lawyer Liesbeth Zegveld