On April 1, 2024, the IDF mistakenly killed seven international food aid workers working for the World Central Kitchen (WCK).
Last week, the IDF probe admitted that its surveillance officials misidentified the WCK security officials as Hamas members.
While acknowledging the gravity of its error, the chief military prosecutor of the Military Advocate-General (MAG) Corps determined that, notwithstanding serious failures in the process that led to the assessment that Hamas operatives were traveling in the vehicles, the decisions of the commanders did not raise reasonable suspicion of criminal misconduct.
The IDF therefore decided not to open a criminal investigation.
Following this announcement, in a joint statement the foreign ministers of the UK, Australia, and Canada said the decision not to pursue criminal investigations was “shameful.”
“They just say it’s a shame that Israel hasn’t brought criminal charges – they don’t specify what is shameful about it,” Dr. Brian L. Cox told The Jerusalem Post on Monday.
A very thorough assessment, no evidence of war crime
Cox retired from the United States Army in 2018 after 22 years of service, including seven years as a military lawyer. He is now a senior fellow at Macdonald-Laurier Institute in Canada, and he taught international law at Cornell Law School from 2019-26.
Cox told the Post that it makes sense for Israel to not pursue criminal charges because they have done a “very thorough assessment based on all the evidence they can gather, and they’ve reached the conclusion that this wasn’t a war crime.”
From an International Humanitarian Law (IHL) perspective, this case is “really straightforward,” he noted.
“If the personnel involved believed they were attacking Hamas fighters and not WCK humanitarian workers, then it wasn’t a war crime. And that’s just a doctrinal application of the Law of Armed Conflict (LOAC) distinction rule.”
Cox added that militaries can prosecute for violation of use of force policy, but then it would have to be “really egregious, a wanton disregard” of policy, which was not the case here.
While the IDF chose not to open criminal investigations, it did remove several officers from their positions, and others were formally reprimanded, an outcome that Cox said would have been exactly the same if the incident had involved the Australian, UK, or Canadian military.
Cox pointed out that a “double standard” is being applied to the IDF here.
“Just because there was an allegation that has been leveled against Israel, the expectation is that the IDF will initiate a criminal prosecution. That expectation doesn’t exist for any other military, including the three countries that signed this joint statement.”
Some interesting legal questions do arise from this incident. One is whether, if soldiers mistakenly believe civilians are legitimate targets, as in this case, they can still be guilty of a war crime if the mistake was caused by negligence.
Cox explained that while some scholars have argued that recklessness should be taken into account when considering the mens rea of a war crime, this is actually a “misrepresentation of international law.”
He told the Post that he had traced this argument “back to the International Committee of the Red Cross in their Customary IHL study,” which says that war crimes “could be committed with intent. And that includes dolus eventualis, which is like the civil law equivalent of recklessness.”
However, the IHL study cites just one source: a decision of the International Criminal Tribunal for the former Yugoslavia (ICTY) that claims that war crimes can be committed recklessly. Nevertheless, the ICTY was not actually capable of establishing international law on its own.
After the ICTY decision was published in the mid-1990s, multiple countries, including the UK, Australia, and Canada, ended up negotiating and then ratifying the Rome Statute. When the 160 state delegations came together in 1998, they rejected efforts to include recklessness as part of the Rome Statute’s mental element for war crimes.
“If you go to the Rome Statute and look at Article 30, which is the mental element – and then Article 32, which is mistake of fact, it’s clear that recklessness is not included as part of the mental element for war crimes.”
Cox said that, as far as he was aware, there had never been a criminal prosecution for an incident in which the personnel involved were found to be reckless.
It is worth noting that, in any case, neither Israel nor the US has ever ratified the Rome Statute. Despite that, Cox explained, it still provides a useful framework, in this case because the IDF’s doctrinal application of the law of armed conflict, specifically when it comes to war crimes, is almost identical to that in the statute.
Another question is whether the wider combat context should be considered. While this WCK convoy had not been hijacked, is it relevant that other, previous convoys had?
'They weren't operating in a vacuum,' they were in a combat scenario
“This really gets to the essence of how LOAC is applied to combat operations,” Cox said. “This is often what’s missed in public discourse, the fact that the personnel who are responsible for this outcome are not solely responsible for the process that led to this strike.”
“They weren’t operating in a vacuum. If they’re in a combat scenario where they know that their adversary deliberately and routinely hides among the civilian population, deliberately doesn’t wear a uniform that would differentiate between them and the civilian population, then of course [the IDF is] going to make a determination based on their knowledge of the battlespace, and not just what they’re seeing in the drone/video feed.”
What Cox said is so often overlooked is that Hamas is responsible for how it fights.
“With militaries of countries that respect and care about implementing international law, the reason we wear uniforms, the reason we differentiate ourselves from the civilian population is that we are focused on military objectives.
“So when Hamas and PIJ and various insurgent factions don’t do this, then of course, there are going to be examples of essentially mistaken identity.”
This is taken into account when assessing whether the IDF’s determination of the nature of the convoy was reasonable under the circumstances, he added.
“A lot of public commentary ends up either inadvertently or deliberately finding a way to blame Israel when they’re completely ignoring Hamas’s responsibility,” he emphasized.
In general, Cox said, most foreign affairs departments are “so far removed” from conflict and armed conflict, especially the law of armed conflict, that they “really can’t be trusted.”
“There’s this constant struggle between military personnel and foreign affairs personnel, where foreign affairs will just jump in without realizing how ignorant they are when it comes to armed conflict.”
Another element to this discussion, he said, is that international law is “very often utilized as a convenient excuse to denounce Israel.”
“This has been happening since October 7, where foreign ministries or prime ministers are looking for an excuse to criticize Israel, and the convenient, expedient way to do that is to rely on international law.”
Cox also pointed out that, sadly, war crimes are committed by almost every army in almost every conflict.
The condemnation of Israel’s handling of the WCK incident links back to one of two things, Cox said: ignorance or “deliberate disinformation where people are looking for a reason to criticize or condemn Israel, and then they “work backwards from there, and international law is a tool that they use.”
While some commenters and critics of Cox have accused him of a pro-Israel agenda, he said that he disputes this.
“If I genuinely believed, based on my understanding of the factual circumstances that have been conveyed to the public, that the WCK convoy attack was a war crime, I would say so.
“This isn’t me trying to be pro-Israel; this is me trying to be pro-law,” he said.
“My bias, if anything, is that I’m trying to protect the integrity of international law involving armed conflict and how it actually works in practice. So if I have a bias, that’s it.”