World Central Kitchen convoy attack is a tragedy, not a crime

There is no doubt that the attack on the World Central Kitchen convoy in Gaza last April was a tragedy. The question that has been circulating in the court of public opinion since then is whether it was also a crime.

According to a recent statement published by Israel’s Military Advocate General’s Corps, the answer is no. The decision not to initiate criminal prosecution was later denounced in a joint statement from the governments of Australia, Canada, and the UK as “shameful.”

The World Central Kitchen attack,” laments the statement, “is one of countless incidents in Gaza where there has been no accountability.”

In reality, it is the double standard expected of Israel created by narratives such as that reflected in this joint statement that is “shameful.”

Rhetoric demanding accountability based on the perceived outcome of attacks during the conduct of armed hostilities has become standard practice for human rights NGOs and other advocates with no responsibility for implementing in practice international law as it exists in doctrine. After all, many NGOs and similar special interests “typically exist for purely humanitarian purposes,” which means their perspective on the application of international law “is far from neutral.”

The popular effects-based approach to applying the law of armed conflict often adopted by humanitarian activists is misguided because it doesn’t align with how foundational rules such as distinction and proportionality function in practice. For governments to espouse this approach in public messaging is absolutely inexcusable.

Yet, this is precisely what the joint statement from Australia, Canada, and the UK does.

The message claims, “Israel must comply with its obligations under international humanitarian law,” yet it fails to explain how these governments believe Israel failed to do so. Although the joint statement correctly notes that an inquiry by Israel characterised the “incident as a serious mistake and failure,” the “serious failure” occurred “due to a mistaken identification, errors in decision-making, and an attack contrary to the Standard Operating Procedures.”

Failures involving compliance with relevant use of force policy do not necessarily involve violations of international law, nor are they inherently criminal.

Indeed, the Fact-Finding and Assessment Mechanism carried out by the Israel Defense Force considered the “totality of the operational circumstances” and determined that “notwithstanding serious failures in the process that led to the assessment that Hamas operatives were travelling in the vehicles, the decisions of the commanders did not raise reasonable suspicion of criminal misconduct.”

This conclusion was reached by evaluating the process that led to the attack, rather than the perceived outcome based on information that came to light after the incident.

That is how the law of armed conflict is actually applied in practice.

The joint statement, by contrast, declares that the “victims of this incident and their families deserve justice and accountability.” This represents a demand to hold personnel accountable —by initiating criminal prosecution for an incident that does not constitute a crime — based on the effects of the attack.

By this logic, it was shameful for the United States not to prosecute anyone responsible for the 2015 attack on the Médecins Sans Frontières trauma centre in Kunduz, Afghanistan, even though the official inquiry determined, correctly, that the incident was not criminal in nature despite the “human error” that contributed to the incident. The same can be said for the decision by the German government not to pursue criminal prosecution following a separate 2009 civilian casualty incident in Kunduz, or by the Netherlands following the tragic 2015 airstrike in Hawija, Iraq.

According to the precedent set by the Australia/Canada/UK joint statement, it is now shameful for any government not to prosecute troops responsible for civilian casualty incidents when human error is involved, including the governments responsible for this statement, even if an official inquiry determines relevant personnel did not violate applicable law.

Foreign minister Penny Wong went a step further by declaring “Australia is outraged by the Israeli Government’s decision to not pursue any criminal proceedings against those responsible for” the attack.

Yet despite all the indignant geopolitical rhetoric, none of the governments behind the joint statement have explained what provision of the law, whether international or domestic, they believe was violated.

This effects-based construct completely contradicts how international law actually functions in practice.

That the lone predominately Jewish state in the world is the only one expected to abide by this fabricated paradigm is truly worthy of outrage, especially since this misguided expectation is inconsistent with the standard to which these governments hold others — including their own military personnel — to account in practice.

Dr Brian L Cox is a Senior Fellow at the Macdonald-Laurier Institute, a former professor at Cornell Law School, and a retired US army judge advocate. You can follow him on X @BrianCox_RLTW.