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.
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!