Justice denied in The Hague

For those who contemplate ideas vague and theoretical in nature, ‘The Hague’ and ‘Den Haag’ readily conjure up notions about justice and the rule of law. Indeed, Vrede en Recht (Peace and Justice) are emblazoned on the Dutch capital’s municipal coat of arms.

Sadly, yesterday morning here in The Hague, Ismail Ziada was left stone-faced and empty-handed.

Ismail, Mondoweiss readers will recall, is the Palestinian man whose family was slaughtered in an Israeli airstrike on Gaza, back in July 2014, in the midst of that IDF “Operation” with the Orwellian name — “Protective Edge.”

Over 2,000 souls perished in that frightful, ultra-violent, 51-day assault on Gaza, including over 500 children, and more than 10,000 were injured and maimed.

Among those left dead or dying beneath a smoking pile of rubble at Al-Burej refugee camp: Ismail Ziada’s 70-year-old mother Muftia, his brothers Omer (32), Yousef (43) and Jamil (53), Jamil’s wife Bayan (39) and their eldest son Shabaan (12).

Almost eight years later, on a fine, sunny December day, three justices of the Netherlands Court of Appeal told Ismail, now 46 and a Dutch citizen, that the law has nothing to offer him. That, under Dutch civil law, he has no right to seek justice from the two Israeli military officers most directly responsible for the horrific death of his family back in 2014 — Benny Gantz, Chief of the Israeli “Defense” Staff at the time, and Amir Eshel, the man who commanded the fighter jet that demolished the building where Ismail’s family resided.

The building where Ismail Ziada’s family lived, along with numerous other Palestinian civilians, was a legitimate target for high performance Israeli jet fighters, and “Israel has the right to defend itself,” the Israeli government and IDF argued at the time. They still do.

EU, UK, Canadian and American officials agree.

All the more reason for Ismail Ziada to pursue justice. Citizen of the land where modern international law was born, back in the 17th century, he filed a civil suit against Gantz and Eshel at the District Court of The Hague. That was in 2017. The court took three years to dismiss his suit.

Friends of Ismail Zaida and the rule of law at Den Haag court house
Friends of Ismail Zaida and the rule of law at Den Haag court house.

As senior agents of the state of Israel, Gantz and Eshel enjoy “functional immunity” from prosecution, the District Court of the Hague argued. And, in any case, the Netherlands doesn’t have jurisdiction when it comes to alleged Israeli war crimes and crimes against humanity.

Ismail’s lawyers appealed. In their court submission, this past September 23, Dutch lawyer Liesbeth Zegveld argued that immunity cannot be conferred in war crimes cases of such gravity, and that the Netherlands does indeed have jurisdiction, under the international legal principle of universal jurisdiction.

This morning, Appeals Court justices S.A. Boele, E.M. Dousma-Valk and R.J.B. Schutgens informed Zegveld and her client, and the dozen others attending the session, masked and distanced, that the court disagreed.

Dutch courts are “not competent to rule” on Ismail’s claims, Justice Boele said, his voice barely audible (Google translated from Dutch).

“Customary international law means that [Israeli military officers] can invoke immunity from jurisdiction in this civil case. No exception is made if it is alleged that crimes against humanity or war crimes have been committed. The Court of Appeal of The Hague therefore has no jurisdiction to adjudicate on the claim of the claimant.”

While acknowledging Ismail’s “suffering,” Justice Boele and his colleagues ordered Ismail to pay 3,837 Euros to the court, and to Benny Gantz and Amir Eshel’s lawyers (US $ 4,300), a sum to be increased by 85 Euros if payment is not made within fourteen days.

Although today’s ruling likely didn’t come as a surprise, Benny Gantz, who boasted about killing lots of Gazans during his 2019 Israeli leadership bid, is reportedly pleased.

For Ismail Ziada and his attorney — both believers in justice and the rule of law – the ruling was definitely a downer.

Attorney Liesbeth Zegveld described it as “extremely conservative,” and the product of “old school” thinking.

For Ismail Ziada, the pain was palpable. A few of his comments to this reporter:

“When I wake up in the morning, I say ‘Good morning mom, good morning brothers.”

“We were subjected to military slaughter in Gaza, and now we are subjected to a legal slaughter in The Hague! This is painful.”

“The decision today goes against the essence of justice. What is justice? There is a crime, there is a victim, there is a criminal. And you decide as a court, cowardly – and I have to say cowardly – to shield the criminals?”

“Those people murdered my family, and they’re being received in the Netherlands.”

“They cannot bring my family back. They cannot mend my heart.”

“Justice is against the weak, and in the service of the powerful. And those people are powerful.”

Prospects for appealing today’s decision, either to the Netherlands Supreme Court or the European Court of Human Rights, appear daunting.

“Our Supreme Court is also the old school,” said Zegveld. The European Court of Human Right would be “interesting.”

For the time being, Ismail’s GoFundMe campaign continues.  

For those who continue to think lofty thoughts about justice and the rule of law, further details and reflections on today’s court ruling in The Hague will be presented at a webinar session this coming Thursday evening. Stand by for details.

David Kattenburg
David Kattenburg is a university science instructor and radio/web journalist based in Breda, North Brabant, the Netherlands.

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