The Strike on the World Central Kitchen Convoy as a War Crime (ADDENDUM)

[Douglas Guilfoyle is Professor of International and Security Law at UNSW Canberra]

Introduction 

Israel’s strike on the World Central Kitchen (WCK) convoy on 1 April was almost certainly a war crime. Indeed, I struggle to see how any other conclusion is possible. This is true even accepting the ‘misidentification’ version of events the Israel Defense Forces (IDF) has subsequently offered.

At the outset it may be put against me that my focus here shows concern only for a limited number of Western and European workers in the context of the loss of 1,200 Israeli and 32,900 Palestinian lives. 

I’m quite happy to put on record that this is only one of a number of crimes in this conflict that must ultimately be prosecuted. Hamas has plainly committed crimes against Israeli civilians, and foreign nationals, including indiscriminate attack and hostage taking. 

I also agree with others that the threshold for charges for the war crime of starvation (or starvation as the crime against humanity of extermination or ‘other inhumane acts’), has long since been passed based on the denial of aid to Gaza by Israel. The existence of deliberate policy to starve the population of Gaza may be inferred from a number of factors including: the manifestly inadequate number of aid trucks being allowed to enter daily (only 150 admitted out of 600 needed), some of which are turned back on arbitrary grounds; the failure to implement multiple International Court of Justice orders regarding humanitarian relief; the refusal to take effective measures against Israeli civilian protesters who block aid trucks; and the direct comments of government ministers calling for a ‘complete siege’ of Gaza. Alternatively, even if the only policy is to deprive Hamas of supplies, the fact that civilian starvation will now inevitably follow ‘in the ordinary course of events’ is also sufficient to establish the crime.

The case for specific examination of this tragedy, involving some of the very workers attempting to avert famine, is threefold. First, the attack shows a clear violation of distinction. Often complex questions of proportionate or collateral civilian damage are not relevant here. Second, it clearly implicates the interests of non-parties to the conflict, given the death of their nationals, and increases the chances of them launching universal jurisdiction cases. Third, for better or worse, it has captured international attention in a manner that may galvanise broader accountability efforts. 

Distinction

According to The Guardian a convoy of three vehicles ‘belonging to WCK … was attacked on Monday evening [1 April 2024] while leaving a warehouse in Deir al-Balah … Seven people were killed, including Palestinian, UK, Australian and Polish nationals, as well as a US-Canada dual citizen.’

The three vehicles were targeted by a drone using precision munitions at night, one after another over a distance between 1.8 to 2.4 kilometres. WCK had coordinated their movement with the IDF. After the first car was struck, surviving passengers ‘abandon[ed] it and switch[ed] to the other two vehicles’, notifying the IDF they had been hit. The second car was then struck. ‘Passengers in the third car tried to help the wounded’ but were killed, in turn, a mile further south. Horrifically, the second and third vehicles were only destroyed after the survivors of the previous attacks had moved to them.

Israel’s position is that this was ‘a mistake that followed [from] a misidentification’. The ‘misidentification’ allegedly involved is that ‘the war room of the unit responsible for security of the route that the convoy travelled identified an armed man on the truck and suspected that he was a terrorist’. Notably, the same appears to have been responsible for both coordination with WCK and targeting their convoy. The identification of a single combatant in the convoy was, at best, in error. It has since been reported that the suspect never left the WCK warehouse. 

At best, then, the officer making the targeting decision presumed, or considered it possible, that one armed Hamas actor was present in one of the three known aid vehicles. 

It was thus known in advance that of these three vehicles, only one was perhaps a legitimate target. Nonetheless, the choice was made to destroy all three. This was, therefore, a deliberate choice to attack at least two protected civilian vehicles and to kill any civilians aboard. As noted, the vehicles were targeted individually and sequentially, and only after survivors of each attack moved to remaining vehicles. This is only consistent with an intention to kill all members of the convoy.

An argument could perhaps be made, if there had been a positive identification that there was indeed an enemy combatant travelling in only one vehicle containing seven people, that this all represents a tragic case of proportionate civilian death and damage. That is effectively the argument Israel has tried to make.

It is not convincing for at least two reasons. The first is, as noted, there were three vehicles not one. A precision strike on a single vehicle, killing only those civilians travelling with an enemy combatant might pass the proportionality test. As might use of a single weapon which, in destroying one legitimately targeted vehicle, simultaneously and incidentally destroyed two other close-travelling vehicles. Or if there was clear evidence that a high-value combatant had escaped the first vehicle and moved to the second and then the third vehicles. 

But that is not what happened, and nor are any of these scenarios alleged by the IDF. 

Thus, even accepting the IDF version of events, it was known at the time that at least two vehicles were not legitimate targets. The only possible consequence of this is that the commander who ordered the three strikes knew he was deliberately and separately targeting two civilian vehicles and killing the persons inside. This is a straightforward war crime: intentionally attacking civilians ‘not taking direct part in hostilities’.

Tolerance of Civilian Casualties

The second reason the IDF account is unconvincing is that we know that Israel has relaxed its standards of what constitutes proportionate civilian damage to a point that most professional militaries would not accept.

This introduces the concept of ‘non-combatant casualty cut-off values’ (NCV) or ‘collateral damage degrees’, representing the maximum number of civilian deaths a military will tolerate in targeting decisions. +972 Magazine reports that during the first weeks of the present war this number was routinely as high as 15-20 for low-level Hamas targets, but for high-level targets ‘the army on several occasions authorized the killing of more than 100 civilians in the assassination of a single commander’. The NCV figure was reportedly later dropped to 5, but then was raised again to an unreported figure. Such high numbers were not previously tolerated by Israel and, for comparison, US and NATO forces operating in Iraq and Afghanistan typically had a NCV of zero to single digits. Only in the case of an extremely high value target might the US NCV rise as high as 30.

This use of NCVs or collateral damage degrees helps explain how the present tragedy may have come about. Such measures risk sending a signal not that this number is a maximum, but instead that there will be no consequences if you kill X civilians provided you kill at least one enemy target. This is one reason the US officially stopped using NCVs in 2018. The seven civilian deaths in the WCK strike would appear to fall within what we know of IDF parameters.

A further potential factor is the seeming breakdown of command in Gaza. While IDF ‘regulations say that final approval for any action against sensitive targets like aid organizations must be given by senior officers’ Israeli Army intelligence sources have told Haaretz ‘in Gaza, everyone does as he pleases’.

Accountability and Foreign Nationals

The states of foreign nationality of those killed – including Australia, the UK, Canada and the US, and Poland – have grounds to insist on criminal accountability and to open their own universal jurisdiction investigations. Some of these countries are already demanding ‘full accountability’. Poland has reportedly opened a criminal investigation of its own.

In terms of any criminal prosecutions, identification is obviously important. The IDF knows who ordered the drone strike but may not give that information to countries seeking justice for their nationals. This concern is answered in part by command responsibility. Both the President of Israel and chief of the IDF have accepted state responsibility for these deaths and accepted that this is an incident requiring investigation. If ‘all necessary and reasonable measures’ to investigate and punish the underlying crime are not taken, they are both potentially criminally liable as responsible superiors.

We can only hope those states which have lost nationals, including Australia, are contemplating similar action to Poland. Whether or not universal jurisdiction cases come to pass in any of these cases, pressure must be maintained upon Israel to honour its legal duties to investigate war crimes, protect civilians, and respect and protect humanitarian workers.

Addendum: According to Haaretz, on Thursday night, 4 April, an IDF military commission of inquiry presented its findings to ‘the leadership of WCK and ambassadors from the countries of the seven victims of the strike’. The core finding of this report remains that there was a mistaken belief that one person in the convoy was thought to be carrying a weapon but ‘he was probably carrying a bag’. Critically, Haaretz reports ‘the first missile strike was “based on a mistaken identification, and the second and third strikes were carried out against standard operating procedures,” as army protocol mandates that after a first strike there needs to be another “incrimination” of the target, instead of automatically assuming that the original target had moved to the other vehicle.’

This is not the logic of a mistake of fact, or a tragic violation of procedure, but of a war crime. As noted above, unless there was some basis to believe the other two vehicles had lost their civilian status, then the intention was to deliberately attack at least two civilian vehicles and kill all those within. The military commission finding will be further reviewed by a ‘Military Advocate General… to see if there are grounds for a criminal investigation’. Two junior officers have been dismissed and three reprimanded according to an IDF press release.

The Foreign Minister of Australia continues to call for ‘accountability’ and is apparently coordinating with other countries who lost nationals in the WCK strike.