Australia, the United Kingdom and Canada should consider launching an MH17-style joint criminal investigation into the fatal Israeli drone strike that killed aid worker Zomi Frankcom and her World Central Kitchen colleagues in Gaza, some of the nation’s top international law experts have argued.
The Israel Defence Force’s military advocate general last week cleared the military personnel involved in the 2024 drone strike of criminal wrongdoing, infuriating the Albanese government.
The UK, Canada and Australia branded the decision not to pursue criminal charges “shameful” in a joint statement over the weekend.
“The victims of this incident and their families deserve justice and accountability, and we will continue to seek answers on their behalf,” the nations said.
As well as Frankcom, the seven aid workers killed in the attack included humanitarians from the United Kingdom and a dual Canada-US national.
Don Rothwell, an international law expert at the Australian National University, pointed to the joint investigation into the downing of MH17 over Ukrainian airspace as a model that could be followed to try to seek accountability over the killing of Frankcom and her colleagues.
“That is an example of a precedent that could be applied in the case of alleged Israeli war crimes committed by IDF members if Israel refuses to prosecute the persons involved,” he said.
That probe was led by the Netherlands with support from Australia, Belgium, Malaysia and Ukraine.
It led to criminal prosecutions in the Netherlands before a Dutch criminal court, trials in absentia of the accused Russian and Ukrainian nationals, and convictions of three people in 2022.
The Malaysia Airlines flight was shot down in July 2014 while in flight from Amsterdam to Kuala Lumpur and travelling over eastern Ukraine, where separatists backed by Russia were fighting Ukrainian forces following the Russian invasion of Crimea.
While the Australian Federal Police could launch its own war crimes investigation, Rothwell said a joint probe could provide cover at a time the Australia-Israel relationship is at a “deeply low ebb”.
“Australia would feel more comfortable at a diplomatic and political level joining with other nations to seek justice and accountability rather than going it alone,” he said.
The material gathered during former defence force chief Mark Binskin’s 2024 probe into Israel’s response to the drone strike could be used for the inquiry, Rothwell said.
Ben Saul, the Challis Chair of International Law at the University of Sydney, said there were “definite advantages” to the idea of launching a joint investigation, including greater resources and sources of intelligence.
While the nations would face a formidable task to extradite any soldiers or officers from Israel, he said launching an external investigation would send an important signal to Israeli soldiers that they were not above the law.
Staggeringly few Israeli soldiers are ever charged with wrongdoing let alone convicted in the Israeli military justice system, Saul said.
The Frankcom family said they were “deeply disappointed” by the military advocate general’s decision and urged the Australian government to “pursue all available legal avenues for an independent and credible investigation to be conducted”.
Prime Minister Anthony Albanese and Foreign Minister Penny Wong branded Israel’s decision an “outrage” and said they would consult the Frankcom family on next steps.
The Israeli military investigation “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”.
In his 2024 inquiry, Binskin found the strike on the aid convoy was the result of a failure of Israeli military controls “leading to errors in decision-making and a misidentification”, and that the strike violated the Israeli military’s standard operating procedures and rules of engagement.
He found the strike “was not knowingly or deliberately directed against” the World Central Kitchen convoy, but called for an official apology to Frankcom’s family.
Israeli ambassador Hillel Newman has floated the idea of Binskin returning to Israel to follow up his initial investigation, and said compensation could be paid to the Frankcom family following an official request.
“Israel is open to discussions on the legal aspects,” Newman said last week.
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