Zomi Frankcom did not deserve to die. She and her six colleagues were traveling in a clearly marked humanitarian convoy to distribute food to starving Palestinians on a route that had been communicated well in advance to the Israel Defense Forces (IDF). It bombed them deliberately and repeatedly. Israel’s prime minister, Benjamin Netanyahu, announced the next day that the attack was a “mistake” and a few days later its two commanders were forced to retire, and three others were disciplined. An internal inquiry followed, but this week – well over two years later – the IDF announced that there would be no further investigation because there could be no suspicion that any crime had been committed: it was merely a mistake. This is a serious misunderstanding of the law of war.
Mistakes may have fatal consequences and, if they are the result of gross negligence or reckless or irresponsible conduct, they are culpable and deserving of punishment. The crime of manslaughter in Australian and English law reflects this grave level of criminality. In war law, under article 8 of the statute of the international criminal court (ICC) “intentionally launching an attack in the knowledge that such an attack will cause loss of life to civilians” and “directing attacks against personnel or vehicles involved in humanitarian assistance” are serious war crimes which may be committed by mistakes made through negligence or blind eyes turned to their foreseeable consequences. The IDF decision not to investigate Zomi’s killing on the grounds that it was merely a “mistake” is not a legitimate reason and the Israeli government’s refusal even now to apologise is despicable.
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Not that an investigation by the IDF is likely to lead to an indictment of those who ordered the attack. According to statistics provided by a UN inquiry into “Operation Cast Lead”, the 22-day war in 2009, more than 1,000 Palestinians were killed, but no indictments were brought against those responsible for this exercise in urban military aggression (provoked by Hamas rocket attacks). There were many war crime allegations including attacks on hospitals and mosques, and the IDF commenced 400 investigations against individual soldiers but only two were ever brought to trial and the only prison sentence – of seven months – was imposed on a soldier for stealing a credit card.
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The refusal to act over Zomi’s case and on two other atrocities involving the killing of workers for Médecins Sans Frontières was seemingly balanced by the decision to allow investigations into two other killings to go ahead – the murder of two doctors in a Red Crescent ambulance while they were tending to victims of an IDF strike, including five-year-old Hind Rajab, and another attack on ambulances that killed 15 medics. What was the difference that required an investigation in these two cases but not in the others? There is one simple explanation: the lies told by the IDF (that the ambulances were advancing without lights or markings) had been authoritatively refuted by phone footage and the evidence of survivors. Since there was unequivocal evidence that these were war crimes, the IDF was forced to agree that the inquiries would continue – but not necessarily to a court.
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So what can Australia do to vindicate the memory of the murder of a good citizen? It could fund her family to hire lawyers in Israel to sue the IDF in courts with judges who are not biased in favour of the Israeli government, but they are likely to find that access to justice against the IDF is too difficult because of time bars (hence the delays) and immunities. It could ask the ICC to investigate – although Israel is not a member, Palestine is and this court has held that it has jurisdiction over war crimes committed in Gaza (since the current proceedings against Netanyahu and his war minister for actions that have led to starvation and attacks on civilian residences).
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But invoking international justice for Zomi and her colleagues will be opposed by our major ally, the United States. Only last month the state department announced a campaign to “disable the court’s ability to operate” by putting pressure on its 125 national members to withdraw. Marco Rubio has falsely accused it of “maliciously abusing its authority” and has authorised sanctions against its chief justice and those of its judges to have ruled on Netanyahu’s case. Australia, like many other decent democracies, has been a stalwart supporter of the ICC but has vulnerabilities (especially over Aukus) if these irresponsible threats were carried out.
The government has called for disclosure by Israel of the evidence on which the IDF has decided not to proceed, but this is unlikely to be forthcoming. The Israeli ambassador has been quoted as claiming that “a court came to a decision that there’s no criminal liability” but there is no evidence that any court – certainly not a court that is open and independent – has ever been involved. The secretly and illegally mistaken way in which her arbitrary killing has been covered up will have to be commemorated here, in a tribute to her compassion and her work for a better world.
