November 19, 2021
From The Real News Network
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In 2017, Ismail Ziada filed a civil suit at the District Court of the Hague against former Israeli military leaders Benny Gantz and Amir Eshel for their role in a 2014 strike—part of the Israeli offensive in Gaza known as Operation Protective Edge—which killed six of Ziada’s family members. In 2020, the court dismissed Ziada’s civil suit, arguing that, as agents of the state, Gantz and Eshel enjoy functional immunity from prosecution, and the court had no jurisdiction over the matter.

Now, the Dutch court hearing his appeal has until Dec. 7 to decide whether the international legal principle of universal jurisdiction will allow him to pursue his case from the Netherlands, an enormous step forward for Palestinians trying to seek justice in Israel, where they’re prohibited from addressing cases or appeals against Israel for war crimes and acts of war. TRNN contributor David Kattenburg talks to Ziada’s lawyer, Liesbeth Zegveld,  about this case and what it could mean for those seeking international justice by way of local jurisdictions.

Post-Production: Adam Coley


Transcript

David Kattenburg:    Hello and welcome to The Real News Network. I’m David Kattenburg. Here’s a story rooted in events back in the summer of 2014. On July 8 of that year, Israel launched a 51-day assault on Gaza, codenamed Operation Protective Edge. Over 2000 Gazans were killed, including over 500 children, and more than 10,000 were injured. And named among those lives the Israeli defense forces extinguished that horrific July day, the mother, three brothers, sister-in-law, and nephew of a Palestinian man named Ismail Ziada. Ismail holds Dutch nationality.

In 2017, he filed a civil suit at the district court of the Hague against those he deemed responsible for the death of his family. Israel’s military chief at the time, Benny Gantz, and Amir Eshel, the man who commanded the fighter jet that demolished the building where Ismail’s family lived. In 2020, the district court of the Hague dismissed Ismail’s civil suit, arguing that Gantz and Eshel enjoy functional immunity from prosecution as agents of the state of Israel at the time of the events in 2014. The court also suggested that it did not have jurisdiction in the matter.

Ismail’s Dutch lawyers are now appealing that ruling in their September 23rd submission to the district court. They argue that immunity cannot be conferred in war cases, war crimes, cases like this, and that the Netherlands does indeed have jurisdiction under the international legal principle of universal jurisdiction. Joining me to talk about this remarkable case is professor Liesbeth Zegveld. Professor Zegveld is the head of the International Law and Human Rights Department and the Dutch law firm Prakken d’Oliveira. She helped found the Nuhanovic Foundation that facilitates justice for war crimes victims. Zegveld holds a professorship at the University of Amsterdam. Liesbeth Zegveld, welcome to The Real News.

Liesbeth Zegveld:    Thank you. Thank you for having me.

David Kattenburg:      Liesbeth Zegveld, who is Ismail Ziada? Tell me about Ismail and how you’ve come to represent him, if you can.

Liesbeth Zegveld:      Well, as you said, he lives in the Netherlands. But he originates from Gaza. And in a way you could say he lives both in Gaza and in the Netherlands, as a big part of his family lives in Gaza. He married a Dutch woman and they have three children here together in the Netherlands. So his livelihood is here. Then this disastrous bombardment happened in 2014 and his mother and brothers and family members were killed. And so the question… As people from Gaza have no access to local jurisdiction in Israel, the question arose of whether his Dutch nationality and him living here would then grant him access to Dutch court.

Because, I mean, this is his place. If he wants to go to court, it seems natural to go to a Dutch court. And so that’s where we kicked off. So I ran into him or he ran into me here in the Netherlands.

David Kattenburg:     So tell me about the facts in the case, professor Zegveld. Operation Protective Edge, you don’t need to go into great background about the operation itself. But tell me about what happened to Ismail Ziada’s family.

Liesbeth Zegveld:       Well, of course the description of the case is different from the Israeli side and from his side. What we know is that many of his family members were in the home on that particular day. Israel claims that Hamas members, even senior members or even maybe one of them were also in the house at that time. Which for them was a reason to bomb the house.

David Kattenburg:     And this was a building, this is an apartment building.

Liesbeth Zegveld:      This was a civilian building. It is known, it has been established by human rights NGOs but also by the United Nations, that Israel bombed many civilian homes during Protective Edge, killing so many civilians. And their house, Ziada’s house was one of them. Ultimately, and we haven’t arrived at that point in court, if it’s true that there may have been let’s say one person that at some distance can be linked to Hamas, I can’t confirm or I can’t deny it at this point. What is a matter of fact is that seven civilians were killed. So in a normal rule of law state, deaths should be looked into by the court.

Israel has looked into it because the case got high profile, and wrote a report about the case and said, listen, it’s Hamas linked and that says it all. But that was a non-judicial review. We are asking for judicial review, and we stumbled upon immunity and other jurisdiction questions. And that’s where we got stuck so far.

David Kattenburg:    But even if there were Hamas operatives in that building, under international humanitarian and human rights law, under the laws of war, Israel doesn’t have the right to just go bomb a civilian structure if there are Hamas operatives inside of it. Is that the case?

Liesbeth Zegveld:       I mean, people were bombed while they were in their underwear. I mean, if that’s true, and I say again the details of that case have to be established at a later date. But in any case, Israel is able to conduct bombardments with such precision that if they want to target a specific person, they wait until he leaves that building and then target him. But you don’t target a building with everyone inside it without any warning whatsoever. So, I mean, from the point of view of proportionality and distinction between military and civilian targets, this seems wholly out of proportion.

David Kattenburg:     And I think Israel’s position, you may not be an authority on this, but Israel’s position is that everybody in Gaza, all of Gaza’s 1.8 million residents, are in fact or effectively the enemy and terrorists, to put it extremely.

Liesbeth Zegveld:      Oh, that’s it. And then of course, we all know that there’s no one to check anything. So any act of war cannot be put before a court in Israel, they’re excluded from a judicial review. Then people from Gaza are also, legally speaking, enemy citizens. And that also excludes them from legal review. The territory of Gaza is enemy territory, which means that it cannot be legally reviewed. So basically it’s an area where anything goes, so Israel is free to do whatever it wants and it’s their decision that will be the final decision.

And I mean, it’s really… We began the case for justice, but the big part of the justice that we’re aiming for is access to justice, access to a court. And then the outcome of that court procedure is the next step. But Palestinians having no legal review of anything that happens in Gaza whatsoever is fundamental.

David Kattenburg:      And you presented to the court an expert legal opinion from a gentleman named Abu Hussein, saying that Ziada’s prospects of securing justice in Israeli courts are essentially nil. Can you tell us a little bit about this? Because this is one of the arguments of the district court in Hague or some other Dutch court would put that, well, I mean, Ismail Ziada hasn’t exhausted his opportunities to seek justice in Israel. Can you go into some detail on this?

Liesbeth Zegveld:     Yeah. Mr. Hussein, who’s a lawyer himself in Israel, helped us immensely. He used to represent Palestinians in civil lawsuits in Israel. He quitted this because there was no chance for them to win a case. He wrote down his experiences in a legal situation in an opinion and expert opinion to the court. And as I said, the most important elements of protection, legal protection, or rather we should say the lack of legal protection, are these free concepts are an act of war, falls outside court review.

David Kattenburg:     In Israel.

Liesbeth Zegveld:        In Israel. People from Gaza are enemy citizens, and enemy citizens are excluded from court review. Gaza itself as a territory is enemy territory. Which means that it cannot be legally assessed. Bombardments or any act whatsoever that has been conducted on that territory falls outside the scope of examination of an Israeli judge. So that’s the situation, that’s what we presented to court. And which is of course fiercely denied by lawyers for Israel, the Dutch lawyers for Israel. So that’s what Mr Hussein said. But even before, this is the jurisdiction of the Israeli courts in view of the question, is there another avenue available?

But before the question, we faced a question of immunity. And that’s the argument that was put forward and is put forward by Israel, saying Mr. Gantz chief of the defense staff and Mr. Eshel as commander of the air force were acting in command of the state of Israel. So basically, it was a state of Israel that conducted those bombardments, and Israel as a state enjoys immunity. Which is a fact, which is legally also an accepted rule. We cannot, in a Dutch court, sue Israel or any other state for that matter, for any act whatsoever, because national courts in states are equal to each other.

So one court equal to another court or to another state cannot exercise jurisdiction over another state. So that’s a matter of fact. Now, the question is whether Gantz and Eshel only acted in their capacity for the Israeli states or whether, since they committed war crimes, they also acted as individuals and committed, as individuals, war crimes. And our argument in court has been in first instance and in appeal, that war crimes, as we already know from Nuremberg trials after the Second World War, are committed by individuals and not by states. And in their individual capacity, they’re responsible for these bombardments. That’s this stage we’re currently in, and it has to be decided on by the court of appeal before we enter into the two other big questions in this case.

David Kattenburg:     And your argument was that the Dutch courts have jurisdiction based on the principle of universal jurisdiction in cases of grievous war crime.

Liesbeth Zegveld:       Well, there are two types of procedure: There’s a criminal procedure and there’s a civil procedure. Now we choose civil procedure in this case. The reason is that the Dutch prosecution will never go after too high a military having committed war crimes. Civil procedure means that we’re not dependent on the prosecutor’s office, but we can initiate civil priorities like Ismail Ziada can initiate civil proceedings himself. And we have universal jurisdiction, both in criminal and in civil law. Now in criminal law, it’s well accepted.

So around Europe we see people from Afghanistan, from Ethiopia, from Syria, very much so since the war, being prosecuted for crimes committed in their own states. Then they flee to, be it Germany, be it France, be it Switzerland, be it the Netherlands. They’re being faced with their victims, and a criminal lawsuit is filed against them, and they’re convicted. That’s universal criminal jurisdiction. That’s very well accepted. Now on the Dutch law, we have a similar rule for civil law, rarely used for human rights sections. And we say, if it can be used in criminal law, why then not in civil law?

And that’s the legal, let’s say the key part that it’s all turning around is, can indeed the same principle be used in a civil case? And Israeli say, Israeli officials say, no, you cannot. Because the prosecution is a state instrument that will be very cautious by initiating criminal law procedures, while civil law is Mr. Ziada can act as he wishes. So civilly, we have to be much more careful.

And the court was very interested when we were in the courtroom on the 23rd of this September, last month. Asking to the lawyers of the two Israeli officials, where exactly do you see lies the difference between this criminal law and this civil law procedure? And that’s in fact, the answer the court will have to give when it will issue its ruling on 7th December. Is there indeed such a fundamental distinction between prosecution of Syrian criminals, and suing these criminals in a civil court basically for damages? Because that’s what we do.

And we say, listen, criminal law means that some someone can disappear behind bars. In civil court, it’s about damages. It’s much less interruptive, it’s much less severe. So if you accept the more far reaching instruments, namely criminal law, then you should also accept the less intrusive instruments, namely civil law. And so yes, universal criminal jurisdiction is or can be put at the same level as universal civil jurisdiction.

David Kattenburg:     So briefly, Liesbeth Zegveld, why did the district court in the Hague dismiss the civil suit back in 2020? In a nutshell, what was their basis for their dismissal?

Liesbeth Zegveld:    Well, I think they took the wrong direction by dismissing universal criminal jurisdiction. And basically then saying, I mean, the MH17, this plane with nearly 200 Dutch citizens that was shot down above Ukraine. Now we’re prosecuting Russian nationals in the criminal courts in the Netherlands. The district court said, there’s no such thing as criminal universal jurisdiction. And we said, listen, look at all these cases that are being conducted. And I think they haven’t realized that they’re really interfering with the prosecutorial action in the Netherlands. They took that direction.

Criminally, it doesn’t exist, and so civilly it doesn’t exist either. That will be repaired, the appeal court for 99% certain in my view will decide, yes, there is such a thing as universal criminal jurisdiction. And then it will all hang on the question, what will they do with civil jurisdiction? But that’s why the district court differed and said it doesn’t exist in the first place for criminal cases. To everyone’s great surprise. And it was simply wrong. But they had a way out.

And I always have said, David, don’t forget, it’s a sad thing to say, but I’ve said it repeatedly. If it weren’t for Israeli generals, military generals, if it were for Ethiopian generals, high military, if it were for Afghani high military, if it were for Syrian high military, we would’ve won this case. I’ve won a similar case against 12 Libyan state nationals. Officials, military officials. It’s Israel with its political pressure, with its position in Europe, but also in the Netherlands. It’s pressure on our government that makes, also I’m afraid, courts, institutions, more sensitive, more cautious to take the step that, in my view, they should be taking.

David Kattenburg:     Well, this is a question that I was going to ask. Of course, the courts are independent in the Netherlands. But with all due respect to the district court of the Hague for asking this question, do you think it was swayed by the prevailing political climate that kind of grants immunity to Israel to do whatever it wants? I mean, the European Union is absolutely categorical as are, I think, most EU member states including Germany, that Israel was in grievous violation of the fourth Geneva convention and so on and so on and so on. But they gladly support and defend Israel no matter what.

So do you think that the judges were able to just forget about all that and come to a decision that you disagreed with, but at least it was rational, arguable? Or do you think that they were somehow swayed by the climate, influenced by the climate?

Liesbeth Zegveld:      Well, whether someone is swayed by and influenced by something that they’re not fully conscious of and not fully aware of, that can always be the case. I mean, judges are people. I do not think and I refuse to believe that there was something that interfered with their impartial or independence in a clear way, something that we could pinpoint to. So I think it was in that sense, it was a fair trial. What I do think is that unconsciously, they feared the consequences to issue such a ruling towards a friendly state. As the lawyers of Israel repeatedly said, just imagine that Israel would prosecute Dutch nationals in their courts.

To which I responded, listen, they don’t have to, because we’ll do it ourselves. You don’t do it. But the image exists that Israel has a rule of law. It does not. But since it has such an equipped system, which doesn’t function but keeps giving the impression that it functions, I think it’s difficult for judges. I mean, they presented over 100 pages with rules of the Israeli legal system, giving thereby the impression that it is a functioning democracy with a rule of law. And I think perhaps unconsciously, the consequence of going along with Ismail Ziada was a step too far.

And in their view, the ultimate goal of attaining justice was not then gained. Because they didn’t feel that Israel was to be put in the realm of injustice. You see this very fundamental, where do you want to end with a judgment? And all judges start and we all start with, what is right and what is wrong? And Israel is still in the box of right in our country. And that’s the problem. Syria is in a box of wrong in our country. And then the law always gives these loopholes and these rules that open up gray areas like reasonableness and justness. And there you can play with these rules.

And I don’t say they play with it in a rejection of the way, but it gives them leeway to end with a decision that they feel is just. And I think for Israel, that’s much easier to plead than, for example, Syria.

David Kattenburg:      Liesbeth Zegveld, when do you anticipate that the appeals court will render a decision? And if it renders a decision in Ziada’s favor or if it renders a decision against Ziada, what would be the next steps? And what would be the consequences for Benny Gantz and Amir Eshel if the court decides that Ismail has a case?

Liesbeth Zegveld:       The appeals court has set its judgment for 7th December. So that’s in one and a half months from now. I hope and expect that they will deny immunity. That means that the two men can be charged in civil lawsuits in the district court, in the Hague. The court will be referred back to the district court, because this is only part of a case. And then we’ll be dealing with the question whether Ziada should go to an Israeli court to have his question examined or whether it can be done by Dutch court, because there’s no such thing as access to courts in Israel. That will then be the next hurdle, which was, in fact, the reason to begin all this.

To have an independent foreign court establish that Israeli courts do not afford justice or access to justice at all to Palestinians. That’s fundamental. And that will be the next step. And after that, if we would win that, we would come at the question of whether the bombardment was right or wrong under the laws of war. And if we win that, it will be about damages for killing his family members.

David Kattenburg:    Financial damages.

Liesbeth Zegveld:      Financial damages. Compensation.

David Kattenburg:      Compensation, huh… What’s at stake in this case, Liesbeth Zegveld? Why should the world be watching?

Liesbeth Zegveld:     Israel has and will continue to fight fiercely against judicial review of its actions in its country on occupied territory and in Gaza, which is also occupied in a sense. They don’t want foreigners to look with them. So I think there’s a lot at stake for them, both politically and legally. If we succeed, other Palestinians may follow with dual nationality or with foreign nationality, with family members in Gaza and perhaps in the West Bank. They will lose their, let’s say their being on the equal footing with other Western states in many political areas of –

David Kattenburg:     And I mean, a system of impunity. There’s a system of impunity in place which benefits Israel of course, it would seem, and many argue. And many others, if you’re powerful in the world or if your friends or a client is somebody who’s powerful, you can violate international law with impunity. And this is a whole structure. So winning in this case, I would presume, would put a dent in this system of impunity. Your thoughts on this?

Liesbeth Zegveld:       Yes. And I mean, the international legal institutions are quite weak. I’ve always put my bet more on national courts, I believe very much in local justice. So to follow local justice in the places where Palestinians who have fled is a real way and a real means for people to find justice and to fight this impunity. So yes, that local courts are something to look out for in these cases. And that can be and will be a real trouble for Israel.

David Kattenburg:      You’ve been listening to a conversation with Dutch lawyer Liesbeth Zegveld. We’ll keep Real News viewers and listeners posted on Ismail Ziada’s case. Decision is expected from the district court of the Hague in early December. Before you go, please, don’t forget to subscribe to The Real News YouTube channel, and head on over to therealnews.com and go to the support area to become a monthly Real News sustainer. Your contributions help ensure we keep bringing you important coverage and conversations like this one. For The Real News, I’m David Kattenburg. Thank you so much for watching and listening.




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