L’etat, c’est moi – functional immunities of senior military personnel in Dutch courts
Lucas Roorda (University of Utrecht)
Immunities remain a hotly contested issue in international law. On 7 December 2021, the Hague Court of Appeal issued its decision on appeal in a tort lawsuit filed by a Palestinian with Dutch nationality against two former senior officials of Israel Defense Forces, including current Israeli Minister of Defence Benny Gantz. The appellant had held them liable for possible war crimes committed in Gaza, which had resulted in the death of several family members. The Court however ruled that it was not competent to hear the case, because the respondents’ actions fell within the scope of their functional immunity, and that international customary law contains no exception to functional immunity for civil claims concerning international crimes. This blog post will discuss the case, highlight relevant parts the court’s reasoning and analyse it against other recent decisions on State officials’ immunities.
The case revolved around one of many air strikes conducted by Israeli air forces during ‘Operation Protective Edge’, a military offensive in the Gaza Strip in 2014. The appellant had alleged that this airstrike targeted a residential building where his family lived, killing six family members including his mother and three brothers. According to the appellant, the attack was either deliberately aimed at civilians, or had caused disproportionate loss of civilian life and this amounted to a war crime under the Fourth Geneva Convention, which can be actionable as a wrongful act under Dutch law. He sought damages from the respondents, who at the time were the commanders in charge of the Operation Protective Edge. The respondents, supported by the State of Israel in a diplomatic memorandum, had disputed that war crimes had occurred during the offensive. More importantly, they argued that, even if this had been the case, they enjoyed functional immunity from foreign legal proceedings, as their actions had been performed in their official capacity as General Chief of Staff and IAF Commander respectively (paras. 2.5-2.6 of the judgment).
While this case conjures a plethora of legal questions, both the Court of First Instance (CFI) in an admissibility decision of 2020, and the Court of Appeal (CoA) in the decision on appeal focused on the preliminary issue of immunities. Pursuant to art. 13a of the Dutch Code of Civil Procedure (Rechtsvordering), immunities have to be discussed first as they can provide a prima facie bar to the court’s jurisdiction. The Court of First Instance had noted that even if the actions had amounted to international crimes, the case had to be summarily dismissed because (a) the defendants were entitled to functional immunity and (b) there was no recognized exception from functional immunity in cases where international crimes had been committed. While the claimant in his arguments had pointed to Article 7(1) of the International Law Commission’s Draft Articles on Immunity of State officials from foreign criminal jurisdiction (hereinafter ‘Draft Articles’), the CFI had – somewhat controversially – ruled that this exception had not yet been accepted by States as customary law (para. 4.43).
Like the CFI, the Court of Appeal focuses on functional immunities of the defendants, assuming their conduct had indeed amounted to international crimes – while clearly noting that it explicitly reserved its judgment on this issue (para. 3.1). The Court first considers that functional immunity of State officials is closely connected to immunity of the State itself. Citing the International Court of Justice’s (ICJ) decision in Jurisdictional Immunities of the State (Germany v Italy; Greece intervening), the Court holds that international law clearly does not allow States to be sued in the courts of other States for acta jure imperii, even when the impugned conduct may contravene jus cogens and no other remedies are available. It then notes that suing or prosecuting State officials, who carried out said State acts, is tantamount to suing the State itself (paras. 3.4-3.6, citing art. 2(1)(b) of the UN Convention Jurisdictional Immunities of States and Their Property and the UK House of Lords in Ex Parte Pinochet). Functional immunity should thus be read as an extension of State immunity, and any possible exceptions should be read in that light.
Exceptions to functional immunity
The Court then discusses possible exceptions to functional immunity that had been raised by the appellant. It first outlines several cases where courts found no exception to state and official immunity from civil suits: the European Court of Human Rights’ (ECtHR) decision in Jones and others v the UK, where the Court held that upholding immunity of Saudi Arabia in a civil suit concerning acts of torture did not violate art. 6 ECHR, and its recent decision in J.C. and others v Belgium on immunity of the Vatican where it confirmed its decision in Jones. The CoA also lists several national cases in New Zealand, Canada and the United States; and the most recently, the Seoul Central District Central Court decision in the comfort women case against Japan. According to the CoA the only case where such an exception was made, a decision of the US Court of Appeals for the Ninth Circuit in Samantar v Yousuf, concerned immunities of officials of a State not covered by the Foreign Sovereign Immunities Act (paras. 3.8-3.12).
The appellant had pointed to several cases where immunity was not a bar to cases proceeding, but the Court dismisses these arguments. For one, the Court points out that in El-Hojouj v Unnamed Libyan Officials, a Dutch civil suit against Libyan officials for torture committed against the claimant, immunity had not been raised by defendants – they were not present – and thus not adjudicated by the court in that case. The Court also dismisses that appellant’s reliance on the first decision in the comfort women case, pointing out that a subsequent decision had reinstated the immunity of Japan. The applicant had furthermore relied on a 2014 Italian Constitutional Court decision in a civil suit against Germany, where it had held that recognizing the sovereign immunity of Germany would violate the Italian Constitution. The CoA however notes that this holding was purely a matter of Italian domestic law, and did not concern the ICJ’s reasoning in Jurisdictional Immunities as discussed above (paras. 3.13-3.15).
Lastly, the Court discusses developments in immunity from criminal prosecution, and possible exceptions to that immunity in cases of international crimes, which had been raised by the appellant. Without engaging in-depth with the question of whether such exceptions are already established under customary international law – as the CFI had done – the Court holds that at least a distinction should be made between civil and criminal cases. It notes that the ICJ, the ECtHR, as well as domestic courts in most of the relevant cases, had recognized the relevance of such a distinction; i.e., even if an exception would crystallize for domestic criminal prosecutions of international crimes, that would not automatically imply the existence of a similar exception for civil suits concerning the same acts. The Court notes that the conclusion might hypothetically be different had it concerned individual actions or actions of lower-ranked officials. The Court, in conclusion, rejects the appellant’s arguments, and upholds the respondents’ functional immunity.
Some critical remarks
As noted in the beginning of this blogpost, this decision comes at a time when State and State officials immunities are a contested topic, subject to domestic and international litigation, legislative and codification developments, as well as academic discussion. Regardless of whether one agrees with the outcome, the Court of Appeal should at least be commended for its extensive inquiry into the foundations of immunities under international law, and its awareness of the literature and developments in the practice.
The appeals decision is also an improvement over the CFI’s admissibility decision in how it approaches immunities in civil and criminal law. The CFI had somewhat painted itself into a corner by basing its decision to a large extent on the customary status of article 7(1) of the ILC’s Draft Articles. As Ryngaert points out (in Dutch), this is mostly irrelevant as this article explicitly applies to criminal prosecution, and not to civil suits; the CoA takes the more appropriate approach and, by following the ECtHR’s conclusions in the Jones v UK case, distinguishes between civil and criminal law. Therefore, it holds that without prejudice to whether or not an exception to immunity from criminal prosecutions exists for international crimes, as far as now, there is no internationally recognized exception to functional immunity in civil suits. In that respect, the CoA’s decision is more in line with other domestic and international cases on immunities, at least insofar as it concerns immunity for civil suits.
Of course, it can be debated whether that distinction itself should be made, and what consequences it should have for immunities. Ryngaert (aforementioned) and Akande and Shah have all pointed out that civil suits and criminal prosecutions can have some overlapping purposes, such as just satisfaction for victims. Indeed, in the Netherlands victims can claim damages via the criminal trial, and do not have to file a separate civil suit against the defendants. In other countries, such as Belgium, private parties can even instigate criminal prosecutions, as happened in the recent ECtHR case of Hussein v. Belgium. The line between ‘civil’ and ‘criminal’ can thus in some cases be blurry. That in and of itself may not justify a fully integrated approach to immunities in civil and criminal procedures, but it does raise the question how civil and criminal procedures affect the fundamental interests that immunities are supposed to protect: the sovereign equality of States.
The CoA, while not dealing extensively with such an issue, suggests that criminal prosecution of foreign officials can be less impactful because it is instigated by prosecutors, who first make a policy consideration which can include foreign States’ interests; no such ‘screening mechanism’ exists in civil cases (para. 3.19). This can be questioned: would an order to compensate a private individual for damages suffered affect foreign State sovereignty so much more than the finding that said State committed an international crime, that more expansive immunities are necessary in civil cases? Possibly, but this conundrum does highlight the need for more specific rules on civil immunities, as the analogy with immunities from criminal prosecution can only go so far.
Another point of discussion is the CoA’s coupling of functional immunities of State officials and State immunity. Webb notes that while paragraph 91 of the Jurisdictional Immunities case had left some room to consider a different scope for the immunity of State officials, the ECtHR in Jones v UK realigned the immunity of State officials to that of the State itself. The CoA does mention Jurisdictional Immunities in this respect (para. 3.4) but still follows the approach of Jones v UK. It does suggest that it could distinguish between officials executing official State policy and ‘individual actions of a single official’ (para. 3.19) but does not further elaborate on where the boundaries would lie. This holding seems to be somewhat at odds with attribution under the law of State responsibility, under which ultra vires conduct of State organs would also be attributed to the State.
Similarly, the Court also suggests on several occasions that actions of lower-ranked officials such as military personnel may not qualify for functional immunity, even if their actions were in furtherance of official State policy. It refers here to a 2021 decision by the German Bundesgerichtshof, which had ruled that Afghan soldiers did not enjoy functional immunity in a war crimes case, although the CoA distinguishes that case from the present by noting that this concerned immunity from criminal prosecution, not civil suits. Still, this consideration too is interesting in the light of the law of attribution, as even lower ranked military personnel should be considered state agents, and their actions are attributable to the State. It implies that there are certain levels of State actors whose actions can imbue the State with international responsibility, but whose actions are not so closely linked to the State that they cannot be exempt from functional immunity.
On the flipside, one should be reminded that this case concerns actual, almost immeasurable, harm done to the claimant, for which outside of this case he will likely not find any sort of remedy. In discussing cases where immunity was upheld, the CoA mentions several instances where alternative remedial mechanisms negated the need for civil suits (e.g. para. 3.12, citing the South Korean ‘comfort women’ case). No alternative remedy is available for Palestinians harmed by Israeli military actions, including ‘Operation Protective Edge’; they will have to go through Israeli courts. However, according to the claimant, it would be difficult if not impossible for a Palestinian to bring a suit in Israeli courts against Israeli military personnel, meaning that no domestic remedy would be available to him for his losses. The CoA however did not address these difficulties beyond expressing its sympathy for the appellant’s plight, nor did it apply a test of whether an alternative but equal remedy should be available. It could be argued that it is not really the place for the CoA in this case to fully examine the merits and deficiencies of the Israeli legal system as it is available to Palestinians, but it still leaves somewhat of a gap in the Court’s reasoning.
In that respect, there is a last issue that the Court did not consider. The CoA, like the CFI did not discuss personal jurisdiction. This is somewhat unfortunate as the jurisdictional basis for the appellant’s claim is interesting: he had argued that because the aforementioned difficulties to bring the case in Israel, Dutch courts should assume jurisdiction under the forum necessitatis or forum of necessity heading (art. 9(b) and 9(c) of the Dutch Code of Civil Procedure; also relied upon in El-Hojouj mentioned above; not to be confused with universal civil jurisdiction). In general, Dutch courts can exercise necessity jurisdiction if it is impossible to bring a legitimate claim in its ‘natural’ forum, or it is unreasonable to require the claimant to do so and the case has a connection to the Netherlands (for example, through the claimant’s residence). As Ryngaert and myself have discussed elsewhere, forum necessitatis is exercised rarely and the precise criteria for fulfilling these conditions (impossibility, unreasonableness and connection) are not fully clear. The case could have been an opportunity for the Court to explore these conditions further, in particular whether it would have been unreasonable to require the appellant to pursue his claim in Israeli courts, but it did not do so.
In conclusion, the Court of Appeal’s decision is arguably what could be expected, a relatively conventional interpretation of the law of functional immunities that resonates with the case law of other courts, both domestic and international. Whether this conventional, positivist interpretation is also desirable is a matter of debate. The ruling at least shows that the analogy with immunity from criminal prosecution only goes so far, and that specific rules for functional immunity that are tailored to civil suits against state officials may be in need of further development.