Dutch court dismisses Gaza war crimes case against Israel's Benny Gantz

Israeli Defence Minister Benny Gantz cannot be sued in The Netherlands for potential war crimes during the 2014 war on Gaza, a Dutch court ruled on Wednesday.

Gantz, who was military chief of staff at the time, is immune to prosecution because he was carrying out government policies, the Dutch appeal court said, ruling in favour of The Hague’s decision in 2020.

The case was brought by Ismail Ziada, a Dutch-Palestinian man who lost six family members in the airstrike, against Gantz and Amir Eshel, who was the Israeli air force commander at the time. Ziada sought damages from Gantz and Eshel for his loss.

Ziada told the media that the ruling was “in contradiction with any sense of justice”, and called the judges “cowards” for their decision.

"A military massacre in Gaza and a legal massacre in The Hague, that's how it feels," Associated Press reported Ziada as saying.

The 2014 Israeli war on Gaza lasted 51 days, during which over 1,000 Palestinians were killed, including 208 children, while more than 6,000 were wounded. The war also destroyed much of the infrastructure in the Gaza Strip, already damaged by previous Israeli attacks.

'Universal jurisdiction'

Ziada’s case relied on the “universal jurisdiction” principle, by which any country which accepts it can prosecute international crimes committed outside their territory and by non-nationals in their domestic courts.

The same principle led to the arrest of notorious figures accused of war crimes and crimes against humanity, including that of Chilean dictator Augusto Pinochet in 1998.

Several Israel figures faced legal cases against them in international courts under the principle, including former Israeli Prime Minister Ariel Sharon, who was accused for his role in the Sabra and Shatila massacre in 1982 in Belgium courts. The case was eventually dismissed by Belgian courts on the grounds that Sharon enjoyed immunity because he held a state position at the time of the investigation.

Similarly, a Spanish court shelved a case brought by Palestinian and Spanish jurists in 2010 against Israeli official Dan Halutz, for his role in an air strike on Gaza that killed 20 civilians, which he personally executed. The court ruled that Spain had no jurisdiction in the case because an Israeli court was already investigating it. Halutz was never prosecuted in Israeli courts.

Roger Waters: Why I support war crimes case against Israel's Benny Gantz https://t.co/7Y48Y3qgzq

— Tibou (@Tibou33969029) December 8, 2021

Changed laws 

Tahseen Alian, legal expert at the Palestinian human rights organization Al-Haq, told The New Arab that the “universal jurisdiction” principle is “an international legal tool for justice. However, some countries have changed their laws on their courts’ ability to use this tool, to avoid challenging Israeli policies, for merely political reasons”.

Alian explained that “in the cases of the case against Sharon and the case against Halutz, the appeal courts had affirmed the courts’ jurisdiction to investigate and prosecute the charges against both Israeli officials. However, both countries changed their legislation on universal jurisdiction, which led to the dismissal of the cases in their supreme courts”.

Rania Muhareb, legal researcher at the Irish Center for Human Rights at Galway University, told The New Arab that “the Dutch court’s decision enhances Israeli impunity”.

“The process remains highly political because states inevitably don’t want to challenge Israeli impunity,” Muhareb said.

Muhareb noted that “universal jurisdiction, however, is built into the Geneva conventions framework, which means that nearly all states have the obligation to prosecute war crimes in their courts”.