Benny Gantz will already be a member of Knesset or maybe even a government minister when he, or someone on his behalf, asks a court in The Hague to dismiss the civil suit against him for killing six Gazan residents on July 20, 2014.
The plaintiff is Ismail Ziadah, a Dutch citizen born in the Gazan refugee camp of Al Bureij. His claim against Gantz, the army chief of staff during Operation Protective Edge, and against Amir Eshel, the commander of the Israeli Air Force at the time, was filed in late March 2018. It holds them responsible for the bombing of his family’s home in Bureij, and for the deaths of his mother, three siblings, a sister-in-law and a nephew. A guest in their home during the air raid was also killed.
Ziadah’s lawyer, Liesbeth Zegveld from Amsterdam, wrote in the claim that the Israeli army investigates itself when civilians get killed, that the procedures and legislation in Israel deny Palestinians a fair opportunity to file civil compensation claims in the Israeli courts, and that the Oslo Accords prohibit the Palestinians from suing Israelis in Palestinian courts.
Under these circumstances, she writes, Dutch law enables Ziadah to sue in a Dutch court. In the claim, she sets forth the historic and political circumstances preceding Operation Protective Edge, and emphasizes several times that the Gaza Strip is one of the most densely populated areas in the world.
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In July 2018, three months after the lawsuit was filed and right at the end of the period allocated for submitting their response, Gantz and Eshel hired the lawyer Cathalijne van der Plas, also of Amsterdam. In late October that year she motioned the court to reject Ziadah’s claim on the grounds that the Dutch court did not have jurisdiction in the matter, that the Israeli court system is accessible to Palestinians, and that in any case, both officers had immunity because the deaths happened in the framework of fulfilling their state duty.
Zegveld has until the first week of March to answer their arguments, at which time a date is supposed to be scheduled for presentation of the parties’ positions at the district court in The Hague. That hearing should only take a day, Zegveld told Haaretz. In principle the defendants should make an appearance, not just send their lawyers.
The State of Israel is funding the defense for Gantz and Eshel. Ziadah and his family are collecting donations to fund their legal representation.
The killing of the Ziadah family received wide attention after Henk Zenoli, a relative of Ismail Ziadah’s wife, returned his Righteous Gentile award to Yad Vashem in protest. Zenoli and his mother had saved a Jewish child, Elhanan Pinto, during the Nazi occupation of Holland. Zenoli himself was born in 1923 and died in December 2015.
Ismail Ziadah’s lawsuit argues that killing civilians by bombing their houses, without complying with the principle of proportionality or taking precautionary measures to mitigate the risk to civilians, was a pattern in Operation Protective Edge, decided on at the highest levels. Therefore, according to Zegveld, war crimes were committed that are not being investigated in Israel.
A UN inquiry found that 142 families in Gaza lost three or more members, each family’s multiple deaths coming in single attacks. Altogether 742 people died in these attacks (out of 2,220 Palestinian deaths). The Ziadahs were one of these families. The human rights organization B’tselem documented 70 such cases of residential buildings that Israel bombed while their inhabitants were inside, nine of which came on July 20, 2014 alone (not including the Ziadah family). Six hundred and six people were killed in those 70 houses, 70 percent of whom hadn’t participated in the fighting, according to the organization’s research. This included 13 babies less than one year old, 80 toddlers up to age five, 129 children between 5 and 14 years of age, 42 people aged 16-18, as well as 135 women aged 18 to 60 and 37 men and women older than 60. That doesn’t mean that all the rest, all men aged 18 to 60, were “participating in fighting.”
Among the seven who died in the bombing of the Ziadah home were the mother Muftiya, 70, her daughter-in-law, Bayan, 39, and her grandson Sha’ban, 12.
During the Operation Protective Edge campaign the Israel Defense Forces set up an inquiry mechanism to collect information and look into “exceptional incidents” that were thought not to involve criminal misconduct.
According to the Military Attorney General’s (MAG) website, the mechanism collated “information and relevant materials and undertakes enquiries, in order to assess the facts of exceptional incidents” so the MAG could decide – according to its claim, whether to open a criminal investigation and learn lessons for the future. The deaths of the Ziadahs were among the incidents investigated by the mechanism. The MAG decided to close the case.
The IDF says it attacked “a structure that was being used as an active command and control center by the Hamas terror organization” in Bureij. The attack “aimed to neutralize both the command and control center and the military operatives who were manning it and who, according to information received in real time, were involved in terror activity that threatened IDF forces operating in the area.”
The IDF inquiry also found that “the extent of the harm expected to result to civilians as a result of the attack would not be excessive in relation to the significant military advantage that was anticipated to result.”
The army used “a precise munition,” the MAG site says, “in a way which would allow for the strike’s objective to be achieved, while limiting the potential for collateral damage to surrounding buildings.”
They decided against prior warning of the strike because that, in MAG’s words, would have frustrated the objective of the attack.
The army notes that the findings “indicated that among the casualties were three military operatives in the Hamas and Palestinian Islamic Jihad terror organizations, who were members of the Ziyadeh family, as well as the senior military operative mentioned above, Mohammed Maqadma.”
The Israeli army did not name the three “military operatives” but we can conclude it meant Ismail’s three brothers: Jamil, 52, Yousef, 44, and Omar, 31. The people who handed down the order, and the inquiry mechanism, felt that the four deaths (together with Maqadma) justified the deaths of the two women and the child and met the test of proportionality and necessity. But what proof is there that Ismail’s three brothers really were military operatives? According to the lawsuit, only Omar was a Hamas member, but he wasn’t active.
The MAG’s decision is not supported by any evidence or sufficient elaboration of the arguments regarding proportionality and the duty to warn civilians, says Zegveld, adding that the burden of proof lies with the army. Nor is the determination that the house did serve as a command and control center supported by any facts; a phone call doesn’t make it a command center, she writes.
The Ziadah family built the three-story house in 2003, replacing an asbestos shack. It had been the mother’s dream. Before the air raid, it housed the mother and five of her sons, their wives and children – 25 people altogether. Worried, Ismail held daily Skype calls with his brothers, who told him that the army was firing towards the homes in Bureij. On the morning of the air raid, the mother urged the family to leave the camp, which is near the border, and move several kilometers westward to stay with relatives in what seemed to be safer places. That is why only six members were present when the attack was launched.
In their request to dismiss the lawsuit, Gantz and Eshel say, among other things, that Ziadah never submitted his claim to an Israeli court, so his argument that the courts aren’t accessible is purely theoretical. Under Israeli law, they write, official office-holders are immune from prosecution unless the act is “knowingly committed with the intent to cause damage or due to carelessness with regard to the possibility of causing said damage.”
Both Gantz and Eshel dismiss the claim that they carried out war crimes.
“Their response is a world apart from our position,” Zegweld told Haaretz. “They describe a detailed legal system in which there will always be an opening for Palestinians to bring their case. But that approach is possible only if one ignores the overall discriminatory nature of the system. All their examples and analysis deal with law enforcement rather than military action and it is concerned mainly with the West Bank and not Gaza.”
The Justice Ministry told Haaretz that in keeping with the procedure set by government resolution, the State of Israel funds legal representation of office holders and state employees, including retired ones, when they are sued in foreign countries for actions committed while they held office.
“The interministerial committee for legal defense, which operates in keeping with this procedure, approved state funding for representing Mr. Gantz and Mr. Eshel in the civil suit submitted against them in the Netherlands for actions that they are said to have carried out in the framework of their positions,” it stated.