Will charges follow Israel’s strike on aid workers in Gaza?

International law is supposed to protect civilians in war zones, but the enormous death toll in Gaza suggests rules aren’t being adhered to.

Since Israel’s invasion of Gaza last October, more than 200 aid workers have been killed. But it was the April 8 Israeli drone strike which hit a convoy of aid workers from the nonprofit World Central Kitchen, killing seven people, which has outraged world opinion.

Israel took responsibility for the deaths of the World Central Kitchen workers, which included three British nationals and Australian Lalzawmi Frankcom, citing “a mistaken identification, errors in decision-making and an attack contrary to the standard operating procedures”.

But, as University of Sydney Professor Emily Crawford tells 360info, the evidence suggests that Israel has been “pretty cavalier, possibly bordering on negligent” in its attacks leading up to the World Central Kitchen strike.

Contrary to the strictly defined laws of armed conflict, which prioritises the protection of civilians, Israel’s activity in Gaza has brought about considerable harm to non-combatants.

Gaza’s Ministry of Health reports over 33,000 people have been killed by the Israeli army, including more than 13,800 children, with the precise number likely higher on account of missing people and bodies buried under rubble.

What happens next rests with a domestic Israel Defence Forces (IDF) investigation and the response from world leaders. On chances of the strike leading to prosecutions, Prof Crawford says it “doesn’t look good”.

“Normally, the only option available when it appears that aid workers are being targeted ring is for the aid organisation to withdraw from the field,” she said.

See the full Q&A below.

When an aid worker or what could be perceived as a non-combatant enters an area of engagement, what are the rules protecting them? What kind of protection should they expect?

Any person who is not classified as a combatant under the laws of armed conflict is considered a civilian. Under these laws, civilians are entitled to a raft of protections, chief among them that they are immune from targeting by parties to the armed conflict. Any intentional targeting of civilians amounts to a war crime in both international and non-international armed conflicts.

Parties to the armed conflict are also obligated to minimise, as far as possible, any collateral damage to civilians and civilian objects, and to protect civilians from the effects of the conflict. This includes rules on not targeting civilian objects or other protected objects like hospitals, cultural property, food and water supplies.

What are the processes for identifying targets and authorising a strike? Does this involve considering whether it is lawful and if it meets a specific military objective? 

Under laws of armed conflict, parties to an armed conflict, prior to and during an attack, must take steps to ensure that any object or person identified for targeting is a military objective and not civilian. Essentially, this involves the parties to the conflict assessing, based on their intelligence, whether the person targeted is clearly a combatant or otherwise directly participating in the hostilities as a fighter.

When targeting an object, the parties to the conflict must ensure that it is clearly a military objective. Any targeting exercise must also meet additional requirements of necessity and proportionality — that the attack was necessary to achieve a concrete military advantage that the means and methods of attack were proportional to achieving that advantage and it did not disproportionately impact the civilian population or civilian objects.

Any attack that does not meet these legal standards should not go ahead and, if it becomes clear during the attack that the civilian impact would outweigh the military advantage, the attack should be cancelled or suspended.

How does the application of the rules of engagement differ between the variety of roles being undertaken by combatant forces? To what extent do the rules of engagement vary between different methods of warfare?

Rules of engagement are set for each conflict and shouldn’t vary  as they are based on laws of armed conflict, which is the minimum set of applicable rules.

Essentially, there is no difference between someone on active patrol to someone guarding a base to someone operating a drone: don’t target civilians, only launch an attack when positive the target is military, don’t target persons who are hors de combat (out of combat due to illness, injury or because they have surrendered or been captured).

Rules of engagement aren’t meant to vary, even in different circumstances.

How do NGOs and aid organisations seek to engage with combatant forces to ensure they can operate in the same environment to ensure their safety? Is it common to see these failures like the deaths of the World Central Kitchen workers?

Aid workers and other NGOs usually follow the practice of getting permission to be in the field and then engaging in constant dialogue with all parties to the armed conflict to let them know where they will be operating (known as ‘deconfliction’).

Medicins Sans Frontieres operates hospitals in war zones. They liaise with parties to the armed conflict, giving them, for example, the coordinates of where they are located (or transponders for vehicles/helicopters) so that the parties know that the site is civilian in nature and not to be targeted.

However, this dialogue and transparency can lead to intentional or accidental misuse.

In the case of Medicins Sans Frontieres, their hospital in Kunduz, Afghanistan was bombed by the US in 2015. There were conflicting claims about why and how this happened.

Initially, the US claimed that Taliban militia were using the hospital as a base (which, if true, might have rendered the hospital a legitimate target). However, there were later reports that US forces had the wrong coordinates and that the bombing was a mistake.

Is there any publicly available evidence that might suggest that the deaths of the World Central Kitchen staff were something other than an accident? What factors suggest it was or wasn’t?

The Israeli Defence Forces’ (IDF) position is that a “series of mistakes and miscommunications” led to the convoy being targeted. However, the bulk of  the evidence suggests that IDF targeting policy has been pretty cavalier, possibly bordering on negligent.

As noted by co-director of the Oxford Institute for Ethics, Law and Armed Conflict, Janina Dill: “If you have a humanitarian assistance vehicle that is clearly marked, that had communicated its route to the IDF and that was taking a route the IDF allegedly designated as safe, and you still misidentify that vehicle as a military objective, it is a very safe inference that your precautions in attack are insufficient, that the IDF’s procedures for target verification are insufficient.”)

If the killings were accidental or negligent, what sanctions could be expected? 

If it was found that the IDF failed to properly observe the rules on proportionality and precautions in attack, anyone who ordered or carried out the attack could be found guilty of a war crime.

However, this would have to be prosecuted domestically in Israel under Israeli criminal law (or in a military court). IDF investigators are apparently preparing a report which, when finished, will be handed to military prosecutors to see if there are grounds to start proceedings.

For a potential case to be brought before, say, the International Criminal Court, there are jurisdictional hurdles to be overcome, such as Israel not being a member state to the Court. Although there is an open investigation in the ICC, including with regards to the events which have transpired since Hamas’ October 7 attacks.

What sanctions or potential prosecution may be available against the individuals in this case? What have been the consequences elsewhere where aid workers have been targeted?

While domestic prosecution or action in the ICC are possibilities, there is a poor track record of prosecutions for the targeting aid workers. Normally, the only option available when it appears that aid workers are being targeted is for the aid organisation to withdraw from the field.

What impact would this have on aid agencies and their ability to continue operations in the region?

This clearly has a massive impact on the ability of aid agencies to continue to operate. World Central Kitchen, among others, has paused operations in Gaza. At the moment, Gaza is one of the most dangerous places in the world and it’s not uncommon for aid agencies in war zones to decide that it’s too risky for their personnel to remain.

Given the amount of aid worker deaths in Gaza in the past six months, what can be done to protect aid workers better, and what culpability is there for those who have killed them?

Obviously, a ceasefire would be the ideal outcome for aid workers.

Given how unlikely that is, the best thing that could be done is for all parties to the conflict to continually review and assess their rules of engagement to ensure that laws of armed conflict in regards to civilians are being scrupulously observed.

All sides also should ensure that any targeting procedures do not take a negligent, cavalier or biased view of what renders someone lawfully targetable.

Parties to the conflict should also ensure they stay in constant contact with aid agencies and respect their civilian status.  In terms of culpability – honestly, it doesn’t look good. There haven’t been many prosecutions that have resulted from the deaths of aid workers.

The latest information suggests that the IDF has fired two senior officers who authorised the attack, but whether they face further sanction remains to be seen.

Emily Crawford is a Professor of International Law and lecturer at The University of Sydney. She is also co-director of the Sydney Centre for International Law (SCIL).

Originally published under Creative Commons by 360info™.