Dutch Appeals Court: No right to Sue Gantz for Alleged 2014 War Crimes

An appeals court in the Netherlands upheld a lower court ruling that there is no jurisdiction to sue Defense Minister Benny Gantz for alleged war crimes in the death of six Palestinians during the 2014 Gaza war.

The appeal has been pending since Gantz and former Israel Air Force chief Amir Eshel won at the lower court in January 2020.

According to the appeals court, Gantz – who was then chief of the IDF – and Eshel had merely carried out Israel’s policies, and that “a judgment on their conduct would necessarily also be a judgment on the conduct of the State of Israel,” something over which a Dutch court lacks jurisdiction.

During the 2014 Gaza war, six members of Ismail Ziada’s family were killed along with one other person during an IDF strike.

The judges said that they were “not blind” to Ziada’s suffering.

It was unclear if Ziada would seek a further appeal.

Deputy Attorney-General (International Law) Roy Schondorf said the ruling “was a great victory” setting “a crucial legal precedent that would protect the IDF’s commanders from similar attempts” in the future to sue them.

The lawsuit started when a “Notice of Liability” was received by Israeli defense officials in Holland. It wasn’t even a civil lawsuit, let alone a criminal probe, just a notice from Holland that a party might be seeking to sue Gantz and Eshel.

This was part of the Netherlands’ confusing pre-lawsuit civil procedure that Israel had not dealt with before. Until now, foreign cases against Israelis had all been criminal.

Government lawyers were in direct touch with Gantz and Eshel to let them know that they would be facing a civil-damages case for alleged wrongful deaths of Palestinians.

Ziada alleged that the strike was a war crime, that the IDF did not objectively probe it, and that the Dutch court should grant him wrongful death damages.

In fact, the IDF legal division probed the incident and found that four out of the seven persons killed were terrorists involved in combat in a 24-hour period, when around 120 rockets were fired from Gaza on Israeli civilians.

The IDF legal division admitted that three of the seven were civilians. However, it said that while the civilian deaths were tragic, the terrorists had made the location targetable under the laws of war, including any proportional collateral harm to civilians, by bringing their military activities there.

Israel’s state lawyers assisted Gantz and Eshel with whatever they needed in finding their own local counsel in the Netherlands, providing any documents they needed, strategic advice from past experience in dealing with lawsuits worldwide, and some undefined amount of financial backing.

“After the Palestinians’ criminal war crimes cases against Israelis in foreign countries failed for a number of years one after the other, they came up with a new strategy... filing civil cases against the IDF and government officials,” according to Schondorf.

He said that based on the multiple terrorists being targeted, “the attack was completely legal.”

If Gantz and Eshel had still been in the IDF, they would have been given assistance mostly from the IDF. However, because they had retired from the IDF, the Justice Ministry worked with them along with the IDF.

Two weeks before the September 2019 hearing, both sides filed legal briefs.

The court held a hearing on the case in mid-September 2019. At the end of the hearing, the court set January 29, 2020, as the date it would issue its decision.

Gantz and Eshel, and essentially the State of Israel (because of the wide implications for other soldiers), said the court had no jurisdiction to take the case. They made two main arguments: 1) that Gantz and Eshel had immunity since they were acting not as individuals, but on behalf of defending Israel; and 2) debunking the plaintiffs’ claim that there is no fair court system to do justice in Israel.

The idea of the first immunity argument is that international law bars states from judging other states. No country knows when it might be on the wrong end of such an issue, so there is broad immunity for state actions from civil-damages lawsuits. This also would apply to officials, including military officials, acting on behalf of their states.

Anticipating that they might lose their case because of this legal obstacle, the plaintiffs asked the court to find that this case met an exception. There is a possible exception allowing civil cases against foreigners acting on behalf of a foreign state if they committed war crimes and if the foreign state will not prosecute its own officials’ war crimes.

Ultimately, the Netherlands court did not give any deep analysis of the second issue, finding the immunity argument decisive when it ruled for Gantz and Eshel last week, and the appeals court endorsed the lower court’s decision on Tuesday.

Israeli officials viewed the court decision as very important for several reasons. First, it was issued by a European court, where Israel often feels it is fighting an uphill battle. The case does follow some other Israeli victories over war crimes charges in Europe, such as in Germany, England and Spain.

Second, the court’s approach to interpreting international law was what Israeli officials consider “mainstream,” and not rogue interpretations used by more biased UN bodies to politicize the process against Israel.

Schondorf said the decision showed that the court recognized that Israel has “an independent, professional and trustworthy” legal system to review alleged war crimes incidents, and that “it shows that the Netherlands understands that Israel was acting to deal with terror.”