No Longer Turning a Blind Eye to International Atrocities: Reframing Foreign Officials’ Functional Immunity as a Breach of States' International Legal Obligations to Effectively Prohibit Derogations from Peremptory Norms

Abstract

On January 29, 2020, an Israeli air strike proved fatal, taking the lives of an entire family, a twelve-year-old child the youngest among them. The airstrike was carried out as part of Israel's military operation, Operation Protective Edge, in the Gaza Strip, and despite the deaths of numerous civilians, the State of Israel alleged that the strike was committed in pursuance of official duties. Ismail Zeyada, whose mother, brothers, sister-in-law, and nephew all perished in the airstrike, initiated a civil suit in the Netherlands against the two former Israeli military officials involved. In a devastating blow to the victims and their families, the District Court of the Hague dismissed the civil proceeding brought against the former Israeli officers. The Court cited the doctrine of functional immunity as the basis for this decision. The functional immunity, or immunity ratione materiae, of these officials bars the prosecution of them in any state besides Israel, absent a waiver by the Israeli government. As such, the victims of the airstrike, an act that might amount to a war crime, is not one for which victims are being offered redress. Although domestic prosecution of the case before Israeli courts is theoretically possible and is not precluded by the District Court of the Hague's dismissal, domestic prosecution is neither likely to occur nor likely to result in fair redress for the victims of this atrocity. This is not the justice these victims deserve. And it is not the justice that international law assures them.