Foreign state official immunity back in Strasbourg: will sovereign rights trump human rights?

On 22 December 2023, lawyers acting on behalf of Dutch-Palestinian citizen Ismail Ziada filed an application against the Netherlands before the European Court of Human Rights (ECtHR). They submitted that the Netherlands violated Mr Ziada’s right of access to justice as a result of its courts granting functional immunity to Israeli generals in a civil case concerning the killing of his family in the context of Israeli attacks in Gaza in 2014. The application is obviously very relevant in light of the ongoing Israeli military operation in Gaza. It is a long shot, however: in 2014, the ECtHR upheld functional immunity in the factually and legally similar case of Jones v the United Kingdom. Ziada’s lawyers nevertheless argue that the circumstances of the current case are different, and that State practice – and thus customary international law as well – have evolved since 2014. In this post, I argue that the Jones judgment indeed leaves some space to make such arguments, although if it is far from certain that they will sway the ECtHR. I start with a brief overview of the Dutch legal procedures which gave rise to the application.

The Israeli Army Commanders case before Dutch courts

In the Netherlands, the case brought by Ziada is known as the Israeli Army Commanders case, as it was brought against the Chief of the General Staff of the Israeli Defense Forces or IDF (Benny Gantz, currently a minister in the Israeli government), and the Chief of the Air Force (Amir Eshel). The case, which is of a civil (i.e., non-criminal) nature, was filed in Dutch courts to obtain redress for the killing of Ziada’s family during Operation Protective Edge, conducted by the IDF in Gaza in 2014-2015. This killing allegedly occurred in violation of international humanitarian and human rights law. According to Ziada, filing a civil claim in the Palestinian Territories or Israel was not possible, owing to various physical, financial, legal, and procedural barriers. Therefore, he filed the claim before courts in the Netherlands, where he is a citizen and resident. He invoked the doctrine of forum of necessity (Article 9 Dutch Code of Civil Procedure), which grounds the jurisdiction of Dutch courts in case the applicant faces a denial of justice elsewhere.

The case was successively decided by the District Court of The Hague (2020), the Court of Appeal of The Hague (2021), and the Supreme Court (2023). I have earlier commented in Dutch on these decisions (NJB and NJ – subscription required). In essence, the Dutch courts threw out the case on the ground that the Israeli commanders enjoy functional immunity from jurisdiction under international law, regardless of the nature of the underlying (alleged) violation. It is of relevance that at least the Court of Appeal and the Supreme Court limited this finding to civil cases, and consciously avoided addressing functional immunity in criminal cases. In fact, in criminal cases, there is sizable case-law confirming the non-applicability of functional immunity in relation to international crimes, leading the UN International Law Commission (ILC) in 2022 to propose codifying a customary rule excluding functional immunity in such cases.

Distinguishing Israeli Army Commanders from Jones

Before the ECtHR, the Ziada claims that the Dutch Supreme Court’s confirmation of functional immunity of the defendants constitutes a flagrant violation of his right of access to justice under Article 6 of the European Convention of Human Rights. For Ziada, it will be key, however, to distinguish his case from the aforementioned Jones case.

At first sight, the facts and legal issues pertaining to the ECtHR application brought by Ziada look quite similar to the facts of the aforementioned Jones case. Jones was a civil case initially brought before UK courts concerning allegations of torture, suffered by a British citizen at the hands of agents of Saudi Arabia in a detention facility in that country. In its judgment in Jones, the ECtHR held that the grant of functional immunity to foreign State officials in a civil case does not amount to an unjustified restriction on the applicant’s access to a court, as such grant of immunity to State officials ‘reflected generally recognised rules of public international law’ (Jones, par. 215).

At the end of the Jones judgment, the ECtHR nonetheless observed that ‘[i]nternational opinion on the question may be said to be beginning to evolve, as demonstrated recently by the discussions around the work of the International Law Commission in the criminal sphere’ (par. 213), and that ‘in light of the developments currently underway in this area of public international law, this is a matter which needs to be kept under review by Contracting States’ (par. 215). Thus, according to the ECtHR, the law could change, and functional immunity may, going forward, perhaps no longer apply in case of allegations of international crimes.

A core argument in the Ziada case then is obviously that the law has changed in the meantime, namely that, in respect of international crimes, an exception to functional immunity has crystallized – an exception that would also apply to civil cases.

It is certainly arguable that, in light of recent State practice, as the ILC has observed in its 2022 draft articles, courts should be able to disregard functional immunity in criminal proceedings concerning core international crimes. The classic precedent is obviously the Pinochet case (1999), in which the UK House of Lords rejected the former Chilean president’s functional immunity in criminal proceedings regarding torture. Specific practice regarding civil proceedings, even if cited in support of the criminal law rule by the ILC, is few and far between, however. Extending the criminal law rule to civil proceedings will ultimately require an argument that there is an overarching principle of both criminal and civil individual accountability for international crimes. The doctrine has so far grounded the non-applicability of functional immunity in respect of international crimes on the Nuremberg-based principle of individual criminal accountability only (see advisory report Dutch Advisory Committee on Public International Law 2023).

Ziada also tries to distinguish his case from Jones insofar as the nature of the alleged wrongs differs: Jones concerned a single case of alleged torture, whereas Ziada concerns war crimes.  At first sight, this distinction may not seem relevant, since both torture and war crimes violate jus cogens. Because jus cogens prohibitions are substantive in nature, and the international law of immunity is procedural, there is arguably no conflict between immunity and jus cogens; thus, allegations of violations of jus cogens, regardless of the exact underlying international crime, do not affect the immunity rule (ICJ, Jurisdictional Immunities, par. 92-97; UK House of Lords, Jones v Saudi Arabia, per Lord Hoffmann, par. 44-45). Nevertheless, it may possibly be relevant that war crimes are core crimes against international law, i.e., the ‘most serious crimes of concern to the international community as a whole’, over which the International Criminal Court has jurisdiction (preamble Statute of the International Criminal Court), whereas crimes of torture do not qualify as such (unless they happen to meet the requirements of core crimes). The claim is that there is a hierarchy of crimes, that could have consequences for the applicability of immunity. Arguably, in Jones, the ECtHR limited its finding of functional immunity to the claim of torture – i.e., the case before it – thereby possibly leaving open the question of immunity in relation to ‘more serious’ core crimesagainst international law.

Ziada finally also attempts to distinguish his case from Jones in light of the ‘complete inability to pursue justice for Palestinian victims’. In essence, the argument here is one of ‘contingent immunity’, meaning that immunity should not be granted in case the victims have no alternative remedies whatsoever at their disposal. The principle of contingent immunity is well-known in the case-law of the ECtHR on the immunity of international organizations (Waite and Kennedy, par. 68), but the ECtHR has so far not applied it in cases against States (or State officials). Some domestic courts, however, have done so, e.g., a South Korean court in a case against Japan concerning ‘comfort women’. Also, it is striking that in two recent immunity cases, one involving  a State (Burundi) and another a quasi-State (the Holy See), the ECtHR did inquire whether the victims had alternative remedies at their disposal (Ndayegamiye-Mporamazina v Switzerland, par. 64; J.C. et al. v Belgium, par. 71). This inquiry was arguably only done obiter dictum, but it nevertheless points to a cautious willingness on the part of the ECtHR to apply a contingent immunity test to foreign States. Ziada could productively use this willingness also in relation to foreign State officials.

Concluding observations

Victims of serious violations of international human rights and humanitarian law have the right to adequate, effective and prompt reparation for harm suffered. Unfortunately, forcing responsible States and State officials to make reparation is challenging, to say the least. Sometimes, victims may consider filing a civil lawsuit before foreign (bystander) courts to be their only viable option to obtain reparation. Before such courts, however, immunity from jurisdiction may apply, thereby rendering the right to reparation illusory.

Accordingly, it is understandable that victims such as Ziada invoke, before the ECtHR, the right of access to a court to assail jurisdictional immunities granted by domestic courts. The case may appear as a long shot in light of the ECtHR’s decision in the Jones case. Still, the arguments advanced by Ziada’s lawyers to distinguish their case from Jones are creative, and deserve to be taken seriously by the ECtHR.

Regardless of this ECtHR case, the question remains how a fair reparations programme for victims of war crimes, or victims of the adverse consequences of war more generally, could be designed. Encouragingly, for crimes committed in Ukraine, a Register of Damage has recently been inaugurated. It remains to be seen whether a reparations mechanism for crimes committed in the Israeli-Palestinian conflict will also be established.