Background of the case
In 2014 the Israeli army carried out an airstrike on a building in the Gaza Strip. The airstrike was part of an authorized military operation conducted under the code name "Protective Edge" by the Israeli Defense Forces (IDF). The objective of "Protective Edge" was to protect the Israeli civilian population by ending the intense and continuous rocket fire from the Gaza Strip towards Israel at that time. The airstrike was directed at an active command and control center of Hamas and the aim thereof was to neutralize this center. Three military operatives and a senior figure of Hamas were killed during the airstrike. Among the causalities of the airstrike were also several close relatives of the plaintiff. In civil proceedings commenced in the Dutch courts, the plaintiff sought that the defendants, who held senior positions in the Israeli army at the time of the airstrike, personally compensate him for the damages suffered as a result of the airstrike. The plaintiff alleged that the airstrike was unlawful and constituted a war crime.
The defendants submitted a motion to dismiss arguing that the Dutch courts lacked jurisdiction: i) because they enjoyed functional immunity from jurisdiction in relation to the airstrike and ii) because the requirements of art. 9 of the Dutch Code of Civil Procedure (DCCP) which the plaintiff relied on and which permits Dutch courts to act as a forum necessitatis under certain conditions had not been satisfied. The defendants disputed that the airstrike was unlawful and qualified as a war crime. At the same time, they also argued that a violation of international humanitarian law does not justify an exception to the principle of (functional) immunity from jurisdiction.
The District Court of the Hague granted the motion to dismiss because the defendants enjoyed functional immunity (in English). The plaintiff appealed this judgement. The Court of Appeal rejected the appeal and confirmed the ruling of the District Court (in Dutch; for an unofficial translation click here).
Summary of the CoA judgement
According to the CoA, it followed from the ‘Jurisdictional Immunities’-judgement of the International Court of Justice (ICJ) that even if it is established that war crimes have been committed, there is no exception to the immunity from jurisdiction of the State being sued. This is not altered by an appeal to jus cogens or by the absence of an alternative remedy (see para. 3.4 of the judgement).
The CoA subsequently found that functional immunity derives from the immunity of the State itself. The rationale of functional immunity is therefore also the same, namely that the courts of one State should not rule on the actions of another State (par in parem non habet imperium). Against this background the CoA held that it is difficult to see why, since no exception to immunity from jurisdiction applies to the State itself in civil proceedings in the event of international crimes, such an exception would apply to the (former) officials of that State. Although the State of Israel was not a party to the dispute, its interests were indirectly at stake. In the circumstances of the specific dispute, it was, according to the CoA, therefore also not obvious that a difference should be made between the immunity of the State of Israel on the one hand and the defendants on the other hand (see para. 3.6-3.7 of the judgement).
The CoA went on to hold that national and international case law also do not support the proposition that in civil cases an exception should be made to the immunity from jurisdiction of (former) government officials in case of war crimes or crimes against humanity (para. 3.8). It referred in this regard to judgements of the European Court of Human Rights (ECtHR) (Jones v. United Kingdom and J.C. and Others v. Belgium), the High Court of New Zealand (Sam Fang et al. v. Zemin Jiang et al.), the Canadian Supreme Court (Kazemi Estate v. Islamic Republic of Iran) and various courts in the United States (Doğan v. Barak, Matar v. Dichter and Doe 1 et. Al. v. Tukur Yusuf Buratai et al.) (see para. 3.8-3.11 of the judgement)
The CoA found case law from other courts which pointed in a different direction not in point or not authoritative. This because of conflicting case law within the same jurisdiction (South Korean “comfort women” judgements of the Seoul District Court), because the issue of functional immunity was not specifically addressed and probably overlooked (The Hague District Court in the Al Hajoub case) or because the judgement hinged on national constitutional provisions (Italian Constitutional Court) (see para. 3.12-3.15 of the judgement).
The CoA then held that developments and authorities in the field of criminal law were not decisive for the question at issue in the proceedings before it which were of a civil nature. Referring to various judgements of national and international courts, it found that in the vast majority of cases, courts have not recognized an exception to (functional) immunity for international crimes in civil cases. There was therefore insufficient reason to look to criminal law for the scope of the rule on functional immunity in civil cases. The fact that a distinction between the two fields of law may perhaps not be considered in all respects satisfactory from the point of view of legal coherence did not alter this, according to the CoA. In any case, the CoA held that there are such differences between criminal law and civil law that a difference in treatment of functional immunity between criminal law and civil law was justified (in any event in the case at hand) (see para. 3.16-3.19 of the judgement).
Arguments to the contrary by the plaintiff were all rejected by the CoA. This because these arguments failed to appreciate the importance of a public prosecutor’s office acting as a filtering mechanism to prevent “vexatious charges” (see para. 3.19 of the judgement) or because they referred to lex ferenda rather than lex lata (e.g. the 2009 IDI resolution, see para. 3.21.2 of the judgement; and the 2015 IDI resolution, see para. 3.21.3 of the judgement).
Finally, the CoA rejected the plaintiff’s argument that the right of access to a court as guaranteed by art. 6 of the European Convention on Human Rights (ECHR) required that immunity was denied in the case. Referring to Jones v. United Kingdom and J.C. and Others v. Belgium the CoA held that it was consistent case law of the ECtHR that functional immunity in civil proceedings constituted a clear rule of international customary law and granting such immunity did therefore not impose a disproportionate restriction on the right of access to a court. This was not altered by the plaintiff’s claim – disputed by the defendants - that he did not have any alternative remedy because he could not expect a fair trial in Israel. The CoA held that an alternative remedy was not required pursuant to the case law of both the ECtHR and the ICJ. It furthermore held that addressing the plaintiff’s “lack of alternative remedy”-claim would necessarily require an assessment of the legal system of the State of Israel. This would in and out of itself not be in line with the purport of immunity of a foreign State which is that it is not up to the court of the forum to give an opinion on this. (see para. 3.22 of the judgement)
The CoA concluded that there is no reasonable doubt – and that to this extent there is also no ‘grey area’ – that international customary law implies that in civil proceedings against a government official no exception to functional immunity should be made because of the seriousness of the facts underlying the claim. Although it was not blind to developments that take place in criminal law with respect functional immunity of low-ranking soldiers (as shown by the judgement of the German Bundesgerichtshof of 28 January 2021) these developments could not be extended to the present case which concerned very high-ranking military officers who carried out the official policy of the State of Israel. A judgment on their actions would therefore necessarily also be a judgment on the actions of the State of Israel (see para. 3.24 of the judgement).
The CoA therefore confirmed the judgement of the District Court dismissing the case for lack of jurisdiction and also ordered the plaintiff to pay the costs of the appeal as the unsuccessful party (see par. 4.1-4.2 of the judgement).
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