Ben Saul
Israel’s swift investigation into the killings of seven aid workers by Israeli forces in Gaza has rightly not satisfied the victims’ families, their employer World Central Kitchen, or the Australian government.
The Israeli investigation has admitted the killings were a ‘‘grave mistake’’ involving ‘‘mistaken identification, errors in decisionmaking’’ and breaches of orders and rules of engagement. It claimed information about the convoy was not shared within the Israel Defence Forces and that aid logos on the vehicles were not visible. Two officers will be dismissed, another two reprimanded, and the case will be referred to military prosecutors.
Australia declared Israel has not appreciated the gravity of the killings and called for full accountability and transparency and ‘‘appropriate action’’ on the ‘‘utterly inexcusable’’ deaths.
Foreign Minister Penny Wong has appointed Air Chief Marshal Mark Binskin as Australia’s special adviser to review the investigation. Wong insisted that evidence be preserved, telegraphing the government’s lack of confidence in the Israeli military justice system.
Whether Israel takes Australia’s concerns seriously depends on what happens in the criminal investigation. At least three possible war crimes must be examined: First, even if the aid workers were not intentionally targeted, it is a war crime to recklessly kill civilians.
Second, it is a war crime to launch an indiscriminate attack, meaning one that fails to differentiate between military targets and civilians. Attacking the vehicles without verifying their occupants may fall into this category.
Third, it is a war crime to launch an attack expected to cause excessive civilian casualties relative to the military advantage anticipated. Attacking three presumptively civilian vehicles, which could potentially carry up to 15 people, to kill only two unknown Hamas fighters would likely be disproportionate if the vehicles were carrying civilians.
Israel’s duty of care was heightened because humanitarian workers enjoy special protection under international law, additional to their protection as civilians. Israel is required to ensure their safety and freedom of movement. Doing so is particularly critical because of the humanitarian needs in Gaza resulting from Israel’s persistent obstruction of relief.
The 2.3 million people in Gaza are facing either catastrophic or acute hunger. People have been eating weeds and animal food. Almost 30 children have died from malnutrition. Israel has killed almost 200 humanitarian workers, fired on civilians receiving aid, and flouted multiple binding orders of the International Court of Justice to allow more aid and the demand of the UN Security Council to cease fire to facilitate aid. The starvation of civilians is a war crime.
The appointment of a special adviser is sensible in light of decades of impunity for Israeli violations. The NGO Yesh Din found that between 2019-2020 only 2 per cent of Palestinian complaints against Israeli soldiers led to criminal prosecutions. The special adviser, however, could check if the Israeli investigation properly applies international law, meets international standards of independence and impartiality, and collects and assesses all relevant evidence.
It should not have taken the deaths of foreign aid workers for Western countries to take Israeli violations more seriously.
Numerous violations have been extensively documented, including deliberate, indiscriminate and disproportionate attacks. Few have led to investigations, let alone war crimes prosecutions. Palestinian lives should not matter less.
Some Western governments, too long apologists for IDF violations, are finally awakening to the bleak nature of Israel’s fighting, which dehumanises Palestinian lives and disregards the rules of war. Double standards in enforcing international law, which undermine the law everywhere, must stop.
Ben Saul is the UN Special Rapporteur on human rights and counterterrorism and Challis Chair of International Law at The University of Sydney.