World Central Kitchen Strike, Part I: Investigation and Possible War Crimes

Posted in: Human Rights

The Israeli Defense Force (IDF)’s attack on a World Central Kitchen humanitarian aid convoy has rightfully garnered international attention and significantly increased already growing external criticism of Israel’s behavior. The attack raises questions both narrow, such as whether Israel is providing sufficient accountability for this incident, and broad, such as whether this attack is systematic of larger problems with Israel’s approach to the laws of war? Is Israel taking sufficient steps to prevent similar harms and address other significant civilian harms? If not, what might such accountability look like and how might it be encouraged?

In this post, I want to describe what Israel has currently disclosed about the World Central Kitchen investigation, the conclusions it drew, and the steps it has taken to provide accountability. I identify some concerns with that limited accountability and additional actions that might be undertaken. I then raise some more systemic issues about Israel’s possible non-compliance with the laws of war as regards civilian casualties. In a second post, I want to address the failures as regards the specific victims in this case as well as civilian victims in the conflict more generally. In a final post, I plan on addressing deconfliction, promised aid crossings, and the various tools third-party states are considering to encourage better compliance.

The World Central Kitchen Strike and Its investigation

On April 1, at approximately 11 p.m., Israel struck a marked armored vehicle carrying World Central Kitchen aid workers on their way back from depositing food at a Gazan warehouse. After the aid workers fled for a second armored vehicle, Israel struck that as well. Survivors from the second strike got into a third unarmored vehicle. Israel struck that vehicle leaving no survivors. In all, the Israeli military killed seven aid workers, six of them foreigners. How did this happen? After an immediate international outcry and a forceful communication of U.S. expectations, Israel’s military deployed a fact-finding and assessment mechanism which it describes as an “independent, professional, and expert body outside the chain of command” to conduct an inquiry.

In discussing the investigation, the IDF acknowledged that the World Central Kitchen, like most aid groups, provided its deconfliction plan including its coordinates to an Israeli defense agency who was in turn to share the information with the Israeli army. For those unfamiliar with the term deconfliction, it means “the exchange of information and planning advisories by humanitarian actors with military actors in order to prevent or resolve conflicts between two sets of objectives, remove obstacles to humanitarian action, and avoid potential hazards for humanitarian personnel” such as direct attacks and the incidental effect of attacks on others. By providing notice of planned routes, vehicles, and coordinates, it should reduce confusion as to possible identification of the convoy as either civilian or as a potential target. The IDF further revealed that the defense agency had approved the route, but had not communicated this to the relevant drone team. The IDF claims over the course of these events described below, it tried to directly reach the aid workers. First, it attempted a call that was not answered. The IDF then informed World Central Kitchen headquarters who was subsequently also unable to reach the workers.

During the aid convoy’s travel to a warehouse, an Israeli officer on the drone team believed he spotted a Hamas gunman on top of one of the aid trucks firing a weapon. While such action could also be consistent with a security guard deterring a rush on the truck, the IDF says Hamas fighters often engage in shootings like this to signal their position to others. In addition, the IDF indicated that militants had recently been commandeering aid convoys using trucks similar to those of the World Central Kitchen which led the IDF to believe that was what was happening here.

Israel said that when the convoy arrived at the warehouse, their team identified the presence of between two to four armed men, though journalists who saw the same footage could not corroborate. When three World Central Kitchen vehicles left the facility to return aid workers to their accommodations, the Israelis watching believed they were no longer watching an aid convoy. The soldiers monitoring the convoy were unfamiliar with the deconfliction plan revealing that the convoy would include civilian cars, and one drone operator believed he saw someone enter a World Central Kitchen vehicle with a gun (which has later been suggested instead to be a bag). Since it was almost 11 p.m., the drone soldier could not see the World Central Kitchen emblem and since he believed the convoy had at least one armed member of Hamas as well as potentially other members, Israel struck the first vehicle 16 minutes later.

In reporting these findings, Israel highlighted serious operational failures, errors in decision-making, and violations of the rules of engagement. In response, it undertook three main actions. First, it dismissed two officers, a reserve colonel (the brigade chief of staff) and an active commander and reprimanded three others (the brigade commander, the 162nd Division commander, and the commander of the Southern Command) for mishandling the deconfliction information and for violating rules of engagement requiring “multiple reasons to identify a target.” Second, as part of its promise to improve deconfliction efforts, it set up a war room which allows NGOs, the Israeli defense agency on Palestinian Affairs, and the military to work together to improve the deconfliction process in real time. Third, it promised to reopen the Erez crossing in Northern Gaza, to allow use of the Ashdod port, and increase aid through the existing Kerem Shalom land crossing to address aid shortages.

Accountability Issues

After being briefed on the IDF’s initial investigation, World Central Kitchen issued a statement demanding an independent investigation because it believes “the IDF cannot credibly investigate its own failure in Gaza.” Australia, the home country of one of the killed aid workers, was similarly dissatisfied, promising the appointment of its own special adviser to assess Israel’s inquiry. While the Biden administration did not demand an independent investigation, it reservedjudgment on the question rather than ruling it out. From an outsider’s perspective, it is difficult to know whether Israel in fact conducted a thorough and unbiased investigation. What we can say is that on the one hand the laws of war and international law acknowledge states’ ability to investigate their own as a default, and invoking international criminal court jurisdiction only when states are unwilling or unable to conduct such investigations. On the other hand, war crimes are subject to universal jurisdiction because all states have an interest in their compliance, and violations of grave breaches provisions offend all states. Not surprisingly, states zealously guard their ability to investigate and are often reluctant to allow and facilitate independent investigations, as doing so might both require access to classified information and might suggest a lack of faith in its own processes.

The complaints about transparency and neutrality of investigations are reminiscent of charges leveled against the United States during the war on terror. In particular, think of the complaints lodged after other mistaken identity targets such as the Kabul drone strike of an aid worker and his family and the Kunduz strike on a Doctors Without Borders hospital. In both instances, the U.S. declined to pursue criminal accountability after conducting its own investigations. After the Kabul strike, the Department of Defense made some structural changes, such as requiring the Secretary of Defense to personally sign off on strikes in Afghanistan. While the U.S. has defended its investigations as thorough and its punishments as sufficient, many pushed back on the lack of independence as well the failure to include the interview material or detailed reasoning, which prevented outsiders from assessing the quality of the decision-making, whether criminal proceedings are justified, or whether any of the proposed recommendations would meaningfully reduce errors in the future.

If Israel wants to satisfy these concerns (to a greater extent than the United States did), two mutually reinforcing options come to mind: seriously pursuing criminal accountability, and undertaking a systematic review of actions taken during the Israel-Hamas conflict.

First, Israel could seriously pursue criminal accountability. Israel has not yet made clear whether a war crimes investigation will take place. Rather, at the end of the World Central Kitchen investigation in the fact-finding and assessment mechanism, the findings are handed off to a prosecutor who will decide whether to pursue further action. Skeptics point to the recent past as a reason to be doubtful Israel will choose this path. Of the over 1,200 accusations of military misdeeds against Palestinians between 2017 and 2021, only 11 resulted in criminal indictments. One human rights group, B’Tselem, concluded the military law enforcement system was so systematically unlikely to conduct full and fair investigations that the group stopped forwarding complaints to it.

Yet given what has been publicly reported, it seems a prosecutor ought to be open to the possibility of two different types of criminal claims. The first would be related to the grave breach of failing to discriminate. While mistakes about an individual’s targetability are not per se illegal, the Geneva conventions dictate that when one has (or should have) doubt about an individual’s targetability, that is to be resolved in favor of civilian status. If the sole basis for determining that an individual was a Hamas fighter was the suspected presence of a weapon, that should not be sufficient. This goes both for the allegation of someone shooting on top of the convoy and the person entering the vehicle with something that appeared to be a gun (but was probably a bag). Relatedly, a prosecutor might conclude the other individuals spotted in the vehicles, in the absence of other information, also ought to have been granted default civilian status and that the failure to do so rose to the level of criminal liability. Several legal scholars have suggested the description of the events along with the evidence provided, suggest that an investigation is appropriate.

Even if Israeli soldiers did not reach a criminal level of responsibility by assigning the individual with a bag a targeted status, the laws of war require a proportionality analysis as well. While the laws of war allow for collateral civilian damage that is not clearly excessive to the expected concrete and direct military advantage, the determination that one armed Hamas actor, in the absence of other evidence of the level of threat he posed or the military benefit of eliminating him beyond his simple armed participation, the loss of six civilian lives seems at least plausibly disproportionate and potentially criminally so. While the Israeli investigation concluded that the military assumedeveryone in the vehicle were militants, a more thorough criminal investigation might reach a different answer.

The second path of accountability would involve a more systematic review of actions taken during the Israel-Hamas conflict. For instance, the UN Secretary General has requested an independent investigation for all aid workers killed in Gaza, the vast majority of whom are Palestinians. European Union foreign policy chief Joseph Borrell has suggested the errors plaguing the World Central Kitchen strike might be more structural and ignored because they involved the local population. Even within this particular episode, much less attention has been given to the local driver than the killing of the six World Central Kitchen workers from Britain, Poland, Australia, Canada, and the United States. And certainly within the conflict more broadly, the death of the other 192 aid workers that have been killed received substantially less attention. Indeed, the laws of war themselves contemplate this sort of bias, which explains why protected persons who fall into the hands of the enemy receive additional protection, but nationals of neutral countries are ineligible for such protection because it is anticipated their states will negotiate a diplomatic solution for them.

In addition, Israeli NGOs, Palestinian NGOs, and other experts say a broader investigation calling into to question the rules of engagement themselves are needed, noting widespread problems and patterns of behavior that extend beyond the specific aid worker context, such as targeting those who appear to be non-perfidious, non-threatening individuals carrying white flags, particularly children and elderly individuals. From the outside, it is hard to know whether these incidents are one offs, insufficiently protective rules of engagement, or commanders who are willfully disregarding the laws of war. Israel ought to give serious thought to identify the steps Israel is taking and could additionally take in the future to ensure compliance with the laws of war and in particular to identify targets, reduce risks to civilians, and that any civilian casualties are thoroughly investigated as well as comprehensively review the last seven months of lethal force policies. Time is of the essence with the Rafah offensive already underway.

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