What do the island of Java in Indonesia, FIFA, a false accusation in Libya and the Bureij refugee camp in the Gaza Strip have in common? They share a Dutch lawyer, Liesbeth Zegveld, who challenges claims of statute of limitations and national boundaries when it comes to crimes that harm human life committed by the powerful.
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Last Tuesday, she sent a notice of liability to former Israel Defense Forces Chief of Staff Benny Gantz and Israel Air Force Commander Amir Eshel, asking them to inform her within six weeks whether they accept responsibility for killing six family members of Ismail Ziada, a Dutch citizen, during Operation Protective Edge in Gaza in 2014, and whether they are willing to compensate him for the damages.
The notice informs them that if they are not, she and her client will file a civil lawsuit accusing them of war crimes in a Dutch court. The judge will first discuss the question as to whether a Dutch court has jurisdiction over the case.
Zegveld will mention in court the case of a Palestinian doctor, Ashraf al-Hajuj: In 2000 he and five Bulgarian nurses, who were working in a Libyan hospital, were falsely accused of infecting children with the HIV virus. Only international pressure saved them from a death sentence. After Hajuj moved to the Netherlands, he turned to Zegveld, who sued 12 senior Libyan officials for torture and inhumane treatment.
She relied on the principle of universal jurisdiction – in other words, due to the gravity of the crime, the court has a right to judge regardless of where the crime took place. She also claimed that Hajuj had no chance of a fair trial if he filed a lawsuit in Libya. Her opinion was accepted. In March 2012, the court awarded him 1 million euros in compensation.
In the case of Ziadah, Zegveld intends to prove to the Dutch judge that Palestinians have no chance of a fair trial in Israel and that there is no real investigation there of claims of war crimes.
Zegveld, of the Amsterdam-based Prakken d’Oliveira human rights law firm, specializes in liability for human rights violations and representing war victims. The goal is not financial compensation but far more, she says. The Indonesian case will attest to that: In 2008 Zegveld demanded compensation from the Dutch government for several widows and children of the roughly 400 Indonesians murdered by the Dutch army on December 9, 1947, in the village of Rawagede on the island of Java. At the time, the killings were regarded as legitimate policing activity against opponents of Dutch colonial rule, and their guerrilla and terrorist activities.
First Zegveld overcame the statute of limitations. She and her colleagues then discovered that what happened in Rawagede was not an isolated incident. Indeed, in 1968 a government-sponsored investigation exposed some massacres of Indonesian civilians committed by the Dutch army, portrayed as exceptions.
Thus, for decades the Netherlands retained its pure self-image. The lawsuit on behalf of the victims 60 years after the crime helped create cracks in the public’s amnesia. It also spurred a trend of conducting academic studies of those years, when the Netherlands refused with lethal stubbornness to let go of its profitable colony. In his doctoral dissertation, historian Rémy Limpach came to the conclusion that there was structural and systemic violence.
That paved the way for the Netherlands to award the victims compensation and apologize for its crimes in Rawagede. At the end of 2016 the Dutch government announced funding for a study of the army’s conduct in those years.
But there are failures, too: In January, a Swiss court rejected a lawsuit filed by Zegveld on behalf of two trade unions – one in Bangladesh and one in the Netherlands – against FIFA for choosing Qatar to host the 2022 World Cup games. She claimed that because the international soccer governing body did not demand a reform of Qatar’s labor laws, it was responsible for the systemic damage to the construction workers.
The court ruled that the reference to changes in the labor laws is vague and nonlegal. But Zegveld isn’t giving up: “We will limit the case to the assignment of the World Cup to Qatar and leave out FIFA’s obligation after that moment to control the human rights situation in Qatar,” said Zegveld. “In the eyes of the Swiss court, FIFA is not in a position to control the situation in Qatar (which is far from reality unfortunately, but the court was clearly not willing to delve into the facts). Our argument will therefore be: As the human rights situation in Qatar is appalling, which was known to FIFA, it should not have gotten involved in the first place.”
Zegveld is planning on approaching the Ziadah family lawsuit using the same principles, determination and stubbornness. On July 20, 2014, a bomb struck their house in Bureij and killed seven people: Ismail Ziadah’s mother Muftiah, 70, her sons Jamil, Yousef and Omar, Jamil’s wife Bayan and their 12-year-old son Shaban. Another man visiting the house was also killed: Muhammed Maqadma, a member of Iz al-Din al-Qassam, the military arm of Hamas. Another visitor was seriously wounded.
During the 2014 Gaza war, Israel adopted a policy of bombing houses along with their inhabitants. In 70 cases investigated by the human rights group B’Tselem, the vast majority of the 606 people killed were not members of armed Palestinian organizations. Over 70 percent were either under 18, over 60 or women.
On July 20 the Israel Air Force bombed eight populated houses in various places in the Strip. The death toll in these bombings was 76. That same day, the IDF killed in total 214 people throughout Gaza. According to a B’Tselem investigation, 73 of them belonged to armed organizations (those that took part in the fighting, as defined by B’Tselem) and 140 did not. The status of one man was unclear. Twenty-seven of the victims were toddlers up to the age of 5, 35 were aged 6 to 17, 29 were women and 12, including Muftiah Ziadah, were 60 and older.
If Zegveld overcomes the hurdle of judicial jurisdiction, the court will address the substance: Was the Ziada home a legitimate target? If Gantz and Eshel decide not to respond, the trial will take place in their absence, and the facts presented by the lawsuit will be accepted as is: harm to innocent people, disproportionate, in contradiction of international humanitarian law, a war crime. If the two decide to defend themselves in some way, the discussion will begin with the facts.
Several weeks after the family was killed, Iz al-Din al-Qassam released the previously filmed last will of Ismail’s brother Omar. In Gaza they say this was the custom members of the organization followed when they believed war was about to break out. “I’m the living shahid,” he said in front of the camera, saying goodbye to his family, his wife and sons and his friends in Iz al-Din al-Qassam and encouraging them to continue with prayer and the resistance.
For about seven minutes he reads his will with an expressionless face and dry eyes. He is choked by tears only when he mentions the names of the friends he will soon meet in paradise. His body, wearing shorts, was found beneath the ruins of the house. The notice on the website of the Military Prosecution regarding the decision of the Military Advocate General to close the investigation on the killing of the Ziada family stated that there was an active command and control center in the house, and in addition to Maqadma, three “military activists in the Hamas and Islamic Jihad terror organizations” from the Ziada family were among the dead.
“You kill a whole family and then you put something on the internet, similar to many other statements,” said Zegveld. “It’s like a press release. What about the substance? The evidence? Transparency? Making a phone call from a private home, even it’s a Hamas member, doesn’t turn the house into a command and control center. The law says: In case of doubt, everyone is a civilian.
“If they come up with evidence that there were active military members of Hamas, then we enter the real debate of humanitarian law, which is proportionality and distinction and precautionary measures. It’s about time that a court debate it.”
And is she optimistic about the lawsuit’s chances?
“The dysfunctioning of international law is proven excellently in Israel and Palestine,” says Zegveld. “Israel has a very subtle discriminatory system that from the outside looks like a functioning system. There are so many rules, and you think that it MUST be a great system but it’s meant to confuse and betray. To convey that to the court will be a big deal. I just can’t wait to make that argument. Even if we lose, it has to be made.”