Two senior Israeli military officials should answer for their actions before a court of justice, Dutch judges in The Hague heard on Thursday.
Human rights lawyer Liesbeth Zegveld told the appeals tribunal that a lower court had erroneously disregarded that there was no alternative way to seek justice for her client Ismail Ziada.
A Palestinian-Dutch citizen, Ziada has been suing Benny 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.
Gantz is currently Israel’s defense minister and deputy prime minister. Ziada’s civil lawsuit seeks hundreds of thousands of dollars in damages from the Israeli commanders.
The Israeli attack reduced the three-floor building in al-Bureij refugee camp to rubble.
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.
But in January 2020, the district court in The Hague shut the door in Ziada’s face by granting “functional immunity” to Gantz and Eshel on the grounds that when they committed their alleged crimes they were acting in an official capacity.
That decision flew in the face of decades of jurisprudence following the Nuremberg trials of Nazi war criminals that those who commit the gravest offenses, including war crimes, crimes against humanity and genocide, cannot hide behind the excuse that they were acting in an official capacity or just following orders.
No other path to justice
Thursday’s hearing was part of Ziada’s appeal of that lower court ruling. The hearing was held in an almost empty room. Only 13 people, including this writer, were allowed to attend.
Many others were disappointed that they couldn’t express their solidarity with Ziada by their presence.
People come to show solidarity with Ismail #Ziada.#EndImpunity #NoImmunity pic.twitter.com/3cBruPiId7
— adri nieuwhof (@steketeh) September 23, 2021
Zegveld, who is renowned in the Netherlands for representing victims of human rights abuses, also told the judges that “Israel maintains an apartheid regime against Palestinians.”
Therefore Ziada’s only viable option is to seek justice in the Dutch courts.
Zegveld made a strong case that it was unjustifiable to grant immunity to the two Israeli military commanders.
She noted that in 2010, the European Court of Human Rights ruled that “in cases where the application of state immunity from jurisdiction restricts the exercise of the right of access to a court, the court must ascertain whether the circumstances of the case justify such restriction.”
Zegveld argued that Israel has completely deprived Palestinians in Gaza of access to justice by declaring the coastal enclave to be an “enemy entity” and its residents “enemy subjects.”
Israeli law prohibits “enemy” citizens from bringing claims for damages against the state in Israeli courts.
In response, defense lawyers for Gantz and Eshel repeated their arguments that because their clients had acted on behalf of the state, their acts were protected by functional immunity.
After Zegveld’s thoroughly formulated plea, the lawyers for Gantz and Eshel did not make a strong impression.
At the end of the hearing, the judges offered Ziada the opportunity to speak.
“I never thought that my vision to seek justice would be denied by providing functional immunity to the war criminals,” he told the court. (...)
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