אני מעקבת ומשתדלת לשוחח עם מרלין היום.
From: Vered Shpilman
Sent: Sunday, May 31, 2020 11:48 AM
To: Sarabeth Weisel; Esther Mendelsohn
Cc: Yarden Rubinshtein
Subject: FW: Israeli counterparts
אסתר ושרהבת'– אנא עדכנו ושמרו זאת – מי מכן עוקבת אחר הנושא?
כמו כן אנא שאלו את מרלין – ייתכן ותרצה להעביר את המייל לידיעת רועי.
ורד
From: Davidson, Jeanne (CIV) <Jeanne.Davidson@usdoj.gov>
Sent: Thursday, May 28, 2020 9:13 PM
To: Marlene Mazel
<MarleneM@justice.gov.il>; Itai Apter
<ItaiA@justice.gov.il>
Cc: Rajan, Nahla (CIV)
<Nahla.Rajan@usdoj.gov>; Brennan, Christine D. (CIV)
<Christine.D.Brennan@usdoj.gov>
Subject: FW: Israeli counterparts
Dear Marlene and Itai, Below is the link to the
Mutond brief filed by the US Solicitor General in the Supreme Court. We hope you find it helpful. Any developments in the Ziada case? You mentioned that there might be an appeal. Hope all is well (and I have not forgotten our quest for a video conference;
just busy!). Jeanne
From: Davidson, Jeanne (CIV) <JDavidso@CIV.USDOJ.GOV>
Sent: Monday, February 17, 2020 12:36 PM
To: Civ-C-For Lit-ALL <Cforlitall@CIV.USDOJ.GOV>
Subject: FW: Ziada Decision in the Netherlands
From our counterparts in Israel:
From: Marlene Mazel <MarleneM@justice.gov.il>
Sent: Monday, February 17, 2020 10:31 AM
To: Yelin, Lewis (CIV) <LYelin@CIV.USDOJ.GOV>; Davidson, Jeanne (CIV) <JDavidso@CIV.USDOJ.GOV>
Cc: Brennan, Christine D. (CIV) <chbrenna@CIV.USDOJ.GOV>
Subject: Ziada Decision in the Netherlands
Dear Jeanne and Lewis,
Following our previous emails, I'm pleased to share with you the ruling recently issued by the district court in the Netherlands in the case below.
The decision addresses in detail functional immunity of state officials and ultimately adopts the position that customary international law does not recognize a
jus cogens exception to functional immunity. We thought this case would be of potential interest to you, as the decision could be relevant to other States engaged in litigation abroad.
Civil proceedings were initiated in March 2018 before the District Court in the Hague (C1091554385
Ziada v. Ganz et. al.) by a Palestinian plaintiff who is also a Dutch national, against two former senior Israeli officials: Lt. Gen. (Res.) Benjamin Gantz, former Chief of General Staff of the Israel Defense Forces, and Maj. Gen. (Res.) Amir Eshel,
former commander of the Israeli Air Force.
The plaintiff challenged the legality of an air strike in the course of the 2014 conflict in the Gaza Strip between Israel and Hamas, which resulted
in the death of several of his family members. The Plaintiff argued that official immunity from foreign jurisdiction should not apply in this case because defendants allegedly committed
jus cogens violations. Plaintiff contended that an exception to functional immunity in instances of
jus cogens violations had already been recognized in criminal cases, and that there was no sound argument for applying immunity in the civil proceeding.
The plaintiff raised an additional claim that the Dutch court should assert jurisdiction over the case under the Dutch civil procedure rule of
forum necessitates, which allows for jurisdiction if the plaintiff has some connection to the Netherlands and it is unreasonable to require litigation in the forum state.
Defendants filed a motion to dismiss the case for lack of jurisdiction in October 2018,
arguing that functional immunity applied to the alleged acts, which were conducted in the defendants' official capacity, and that the Plaintiff had not substantiated his claim regarding a
jus cogens exception to immunity. Defendants also briefed the Court on Israel's legal system, challenging Plaintiff's assertion that he lacked access to courts in Israel to pursue his legal claims.
Oral arguments on the motion to dismiss were held on September 17 2019, during which both sides briefed the court extensively. On 29 January 2020,
the Court published its decision dismissing the case exclusively based on the immunity of defendants. The Court did not address the forum necessitates claim at all.
Some of the main issues addressed by the Court in its ruling, which are of interest:
1.
The Court provided a comprehensive overview of the principle of functional immunity of State officials under customary international law, as well as relevant jurisprudence (see paragraphs
4.9-4.11).
2.
The Court rejected the Plaintiff's claim that functional immunity is subject to a
jus cogens exception under international law in domestic courts, and ruled that such an exception had not yet matured into a customary international norm. Moreover, according to the Court, "unlike for international courts, functional immunity from jurisdiction
is the starting point for national courts" (see para. 4.35),
3.
The Court also ruled that: "The individual responsibility as it applies in international courts must be distinguished from and exists alongside the personal immunity from jurisdiction
as it applies in national courts", referring to the Al-Bashir case in the ICC (see para. 4.28).
4.
The plaintiff was ordered to pay 7,763 euros in legal costs.
The decision is attached for your convenience. Thus far, the plaintiff has not filed an appeal but they have about another 2 months to do so.
Would it be possible to set up a call with you both to discuss the decision? We think it’s a great precedent and would like to consider how it can be used to further the interests of States
in this regard.
Warm regards,
Marlene
From: Davidson, Jeanne (CIV) <Jeanne.Davidson@usdoj.gov>
Sent: Sunday, December 22, 2019 4:50 PM
To: Marlene Mazel
<MarleneM@justice.gov.il>
Cc: Yelin, Lewis (CIV)
<Lewis.Yelin@usdoj.gov>; Brennan, Christine D. (CIV)
<Christine.D.Brennan@usdoj.gov>; Itai Apter
<ItaiA@justice.gov.il>
Subject: RE: Dogan telcon & other issues
Thanks, Marlene. We are very interested and appreciate your sharing the materials with us. Happy holidays, Jeanne
From: Marlene Mazel <MarleneM@justice.gov.il>
Sent: Sunday, December 22, 2019 8:43 AM
To: Davidson, Jeanne (CIV) <JDavidso@CIV.USDOJ.GOV>; Marlene Mazel <MarleneM@justice.gov.il>
Cc: Yelin, Lewis (CIV) <LYelin@CIV.USDOJ.GOV>; Brennan, Christine D. (CIV) <chbrenna@CIV.USDOJ.GOV>; Itai Apter <ItaiA@justice.gov.il>
Subject: RE: Dogan telcon & other issues
Dear Lewis and Christy,
Further to our discussion regarding the Lewis case, I've attached the expert opinions we received from Sir Michael Wood (pdf, opinion beginning on pg. 24) and Guido den Dekker (word document) in the case we are handling in Holland. Given
that this is an interesting issue (i.e., whether victims who allege that they were harmed during the course of military operations should have the legal right to sue civilly for damages in European courts) that might affect other states as well, we thought
these might be of interest to you.
For background, oral arguments in the case on the motion to dismiss were held on September 17, during which both sides briefed the court. We expect that a decision will be issued on January 29, 2020. We are hopeful that the case will be
dismissed, but in any event it is likely that the plaintiffs may try to appeal. As the Dutch government does not weigh in on immunity in the first instance, we obtained expert opinions from Sir Michael and den Dekker to support our claim to immunity.
Given that these are part of an ongoing case, we would appreciate it if you would retain these opinions for your internal use only and that they not be circulated. We will keep you posted as to further developments in this case.
I'll follow up with separate emails about the dialogues.
Warm regards and best wishes for happy holidays,
Marlene
From: Davidson, Jeanne (CIV) [mailto:Jeanne.Davidson@usdoj.gov]
Sent: Tuesday, December 10, 2019 4:06 PM
To: Marlene Mazel
Cc: Yelin, Lewis (CIV); Brennan, Christine D. (CIV); Itai Apter
Subject: Re: Dogan telcon & other issues
Hi Marlene. We can discuss any topics of interest to you. When are you coming in January? Good news about Dogan! I probably won’t be able to call in tomorrow, unfortunately. Best, Jeanne
Sent from my iPhone
On Dec 10, 2019, at 2:11 PM, Marlene Mazel <MarleneM@justice.gov.il> wrote: