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.

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
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.

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.

Functional Immunity

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.

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.