The court arrived at this decision in a civil action instituted by a resident of the Netherlands holding Dutch nationality, but originating from the Gaza Strip in the Palestinian territories. Six relatives of the claimant were killed in the Gaza Strip on 20 July 2014 when their home was hit in an air strike during the Israeli military operation Operation Protective Edge. At the time the defendants were the commander in chief of the Israeli armed forces and the commander of the Israeli air force. The claimant accuses them of having violated international humanitarian law with the air strike. The claimant believes that he cannot file his claim anywhere else and that the case has sufficient ties with the Netherlands, because he holds Dutch nationality and lives in the Netherlands. The district court applied the rules of customary international law to determine whether it has jurisdiction and arrived at the conclusion that it is not competent to hear the case.

EXPLANATORY NOTES

The district court has ruled that the Dutch court is not competent to hear the case, because the former Israeli officials have functional immunity from jurisdiction. This form of immunity, a legal concept in customary international law derived from state immunity, applies to acts carried out in the performance of a public duty. The air strike in the Gaza Strip, in which six of the claimant's relatives were killed, is an example of an act carried out in the performance of a public duty.

State immunity means that a state cannot be subjected to the jurisdiction of another state against its will. This concept follows from the principle of equality of states, meaning that equals have no authority over one another. States function through the acts of their officials, who – like states – can only be sued in domestic courts for acts carried out in the performance of their public duty. Only if the state in question, in this case Israel, waives this immunity can incumbent or former officials be sued in proceedings before a domestic court of another state, in this case the Netherlands. That is not the case here, as the State of Israel asserted the functional immunity from jurisdiction for the defendants via the Dutch Ministry of Foreign Affairs.

The claimant invoked individual responsibility, which is the responsibility of individuals for international crimes, such as war crimes, genocide and crimes against humanity. Individual responsibility is applied by tribunals and the International Criminal Court. When applied, it comes with a limitation of functional immunity from jurisdiction. It can therefore be viewed as an exception to, or as a special rule for, functional immunity from jurisdiction.

The district court functions in the horizontal relationship between states, to which the customary international law rule of equality of states applies, which underlies the concept of state immunity. Therefore, the district court has a fundamentally different position than the tribunals and the International Criminal Court. The district court can only apply individual responsibility if it is a customary international law rule which applies to the court. That is not the case here. Opinions on this matter are greatly divided and there is no general state practice in this respect. According to customary international law the defendants have functional immunity from jurisdiction. This means that the district court cannot hear the claims initiated against them.