Uitspraak Nº C-09-554385-HA ZA 18-647 (English). Rechtbank Den Haag, 2020-01-29

Datum uitspraak:29 januari 2020
Uitgevende instantie::Rechtbank Den Haag
 
GRATIS UITTREKSEL

judgment

THE HAGUE DISTRICT COURT

Commerce Team

Judgment of 29 January 2020

in the case C/09/554385 / HA ZA 18/647 of

[claimant] , of [residence] ,

claimant in the principal action,

defendant in the procedural issue,

litigator: mr. L. Zegveld,

acting lawyers: mr. L. Zegveld and mr. L-M Komp,

versus

1 [defendant I] , of [country] ,

2. [defendant II] , of [country] ,

defendants in the principal action,

claimants in the procedural issue,

litigator: mr. C.G. van der Plas,

acting lawyers: mr. C.G. van der Plas and mr. Th. O.M. Dieben.

Parties are referred to as ‘ [claimant] ’, ‘ [defendant I] ’ and ‘ [defendant II] ’.

1 The proceedings
1.1.

The course of the proceedings is evidenced by the following:

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    the summons of 14 March 2018, with Exhibits 1 - 25;

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    the statement of claim in the procedural issue of 31 October 2018, with Exhibits 1 - 6;

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    the statement of defence in the procedural issue of 6 March 2019, with Exhibits 26 - 44;

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    the motion filed by [defendant I] and [defendant II] during the oral arguments containing Exhibits 7, 8, 9 and 10;

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    exhibits 45 (the personal statement made by [claimant] during the court hearing), 45a – 45e (the photos shown of [claimant] ’s relatives) and 46a and 46b (the photos shown at the court hearing of [claimant] ’s ID cards) submitted to the court by [claimant] in a letter dated 18 September 2019 pursuant to an agreement made at the oral arguments.

1.2.

Parties pleaded their cases during the oral arguments of the procedural issue on 17 September 2019. The written summaries of the arguments form part of the procedural documents.

1.3.

Finally, a date was scheduled for delivering the judgment in the procedural issue.

2 The dispute in the principal action
2.1.

[claimant] requests in a provisionally enforceable judgment:

1. a declaratory decision that [defendant I] and [defendant II] acted unlawfully towards [claimant] and that they are jointly and severally liable to him for the damage he incurred and will incur as a result;

2. determination of the damages to be paid to [claimant] by [defendant I] and [defendant II] at

€ 536,603, plus interest;

3. holding [defendant I] and [defendant II] jointly and severally liable to pay the costs in these proceedings.

2.2.

[claimant] is from the Palestinian territories (the Gaza Strip). He holds [defendant I] and [defendant II] – who at the time had supreme command of the Israeli army and the Israeli air force as Chief of General Staff and Air Force Chief – liable and liable for compensation for the consequences of an air strike on 20 July 2014 (hereinafter: ‘the air strike’) in the context of the Israeli military operation in the Gaza Strip, Operation Protective Edge (OPE). The air strike destroyed the residence of his relatives living there and killed six relatives of [claimant] . [claimant] holds [defendant I] and [defendant II] responsible for both the air strike and the policy – as alleged by [claimant] – of the Israeli armed forces to target civil residences during OPE. According to [claimant] the involvement of [defendant I] and [defendant II] in the air strike can be qualified as an international crime, namely a violation of international humanitarian law. [claimant] holds [defendant I] and [defendant II] individually liable for this in these proceedings.

2.3.

[claimant] bases the jurisdiction of the Dutch court in this case on Section 9, preamble, and under b and c Rv.1 He argues that it is impossible for him or at least that it cannot be required of him to institute proceedings in Israel. [claimant] argues that Israeli law, as applied by the Israeli courts, raises all sorts of legal and practical obstacles to Palestians from the Gaza Strip. [claimant] believes that the principal action is sufficiently closely connected to Dutch jurisdiction since he holds Dutch nationality and lives in the Netherlands with his wife and children.

3 The dispute in the procedural issue
3.1.

[defendant I] and [defendant II] request – summarized and in essence – in a provisionally enforceable judgment that the court declares that [claimant] has no cause of action or that the court declares that it lacks jurisdiction to take cognizance of the claims brought by [claimant] in the principal action, ordering [claimant] to pay the costs of the proceedings.

3.2.

[defendant I] and [defendant II] allege that as former foreign office holders they have official immunity from jurisdiction, as the air strike was carried out in the performance of the public function of the State of Israel and their involvement fully took place in the performance of their duties, in their official capacity for the State of Israel. With a Diplomatic Memo dated 18 October 2018 to the Dutch Ministry of Foreign Affairs produced by [defendant I] and [defendant II] , the State of Israel explicitly asserted official immunity from jurisdiction for [defendant I] and [defendant II] . According to the State of Israel, these proceedings against [defendant I] and [defendant II] are nothing more than an attempt to circumvent the immunity of the State of Israel.

3.3.

[defendant I] and [defendant II] also allege that [claimant] paints an inaccurate picture of the law and its application in Israel. In their view, there are sufficient options for [claimant] to litigate the claims in the principal action in Israel. [defendant I] and [defendant II] are of the opinion that the principal action is in no way connected to the Netherlands, considering that all specific features lead to Israel and Gaza.

3.4.

[claimant] has put up a defence in the procedural issue. He asserts that he does not invoke liability or secondary liability of the State of Israel in the principal action, but rather the individual responsibility of former office holders for international crimes, as internationally accepted in criminal-law and civil-law proceedings.

4 The assessment
4.1.

In this procedural issue two subjects are raised: immunity from jurisdiction and the jurisdiction of this court. The assessment of these two separate subjects leads to the decision whether or not this court has jurisdiction to take cognizance of the claims in the principal action. [defendant I] and [defendant II] , who have only appeared in court to contest the competence of the Dutch court, emphasize that they present their legal argument with sympathy and respect for the suffering of [claimant] ensuing from the loss of his relatives. However, [defendant I] and [defendant II] believe that the debate on their liability and liability for compensation in connection with the air strike can and should not be conducted before a Dutch court.

4.2.

Customary international law does not prescribe how the national legal order should apply immunity from jurisdiction. If no convention rule applies, the national laws of the court before which the case is brought determines the manner in which immunity from jurisdiction is applied. This means that Dutch law determines how this should take place.2

4.3.

There is no convention or regulation that regulates jurisdiction in this case. Therefore, the jurisdiction of the Dutch court must be assessed based on Part 1 Chapter 1 1 Rv.3 Section 1 Rv determines – insofar as relevant here:

notwithstanding Section 13a of the General Provisions (Kingdom Legislation) Act the jurisdiction of the Dutch court is governed by the following provisions.”

Section 13a of the Wet AB4 determines that the jurisdiction of the court is limited by “exceptions recognized in international law.” One of these exceptions is the immunity from jurisdiction, which is recognized in customary international law and elsewhere.5

4.4.

From this it follows that under Section 1 Rv in conjunction with Section 13a Wet AB the jurisdiction of the Dutch court is only governed by Part 1 Chapter 1 Rv, if it is not limited by an exception recognized in international law within the meaning of Section 13a Wet AB. First and foremost, the court will have to assess whether or not in these proceedings [defendant I] and [defendant II] enjoy functional immunity from jurisdiction. If this is the case, the court must declare itself incompetent. If this is not the case, the court must assess whether or not the Ditch court has jurisdiction in this case pursuant to Section 9, preamble, and under b and c Rv, contained in Part 1 Chapter 1 Rv.

4.5.

The court will first assess whether or not [defendant I] and [defendant II] enjoy functional immunity from jurisdiction in these proceedings. In the absence of a relevant convention rule regulating functional immunity for incumbent or former officer holders which is binding on the Netherlands, the court must assess whether or not [defendant I] and [defendant II] enjoy immunity from jurisdiction in these proceedings under customary international law. To answer this question, the court assumes the following facts as having been established:

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    i) [claimant] is from the Palestinian territories (the Gaza Strip). He has not lived there since 2005. He has Dutch nationality and lives in the...

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