Was Israel’s strike a ‘tragedy’ or a war crime?

Sam Hawley: Around the world there’s been widespread condemnation over Israel’s killing of Australian aid worker, Zomi Frankcom, and six others. They died when their convoy of aid vehicles was struck by Israeli missiles in Gaza. Israel says it was a mistake, but is that good enough? Today, host of ABC TV 7.30, Sarah Ferguson, on what we learnt from her interview with an Israeli military spokesman and whether what unfolded is a war crime. I’m Sam Hawley on Gadigal land in Sydney. This is ABC News Daily. Sarah, the killing of Zomi Frankcom and six other aid workers last week in Gaza, it really did send shockwaves around the world. And everyone wants to know what happened, how it happened. And you interviewed an IDF spokesman on this issue, an Israeli Defence Force spokesman.

Sarah Ferguson: Lieutenant Colonel Peter Lerner is a spokesperson for the Israeli Defence Force. Lieutenant Colonel, welcome to 7.30.

Lt. Col. Peter Lerner, IDF spokesperson: Thank you, Sarah.

Sam Hawley: And you started with a pretty simple question, didn’t you?

Sarah Ferguson: In this case, it seemed like there was one single thing that we needed to know. So yes, I started with the question, who killed Zomi Frankcom? His response to that was to talk about the fact that they had obviously launched this quick investigation that had revealed a series of failures.

Lt. Col. Peter Lerner, IDF spokesperson: In decision making, in misidentification, and of course, the not abiding to the standard operating procedures as expected for the officers on the ground.

Sarah Ferguson: But at the same time, Sam, he went to the language of tragedy, which had been used by other Israeli voices in the wake of the killing of the aid workers.

Lt. Col. Peter Lerner, IDF spokesperson: It’s a tragedy, precisely because we understand that the humanitarian operations need to be able to conduct it, to be conducted.

Sarah Ferguson: You use the language of tragedy. I want to ask you some questions about whether this reaches to the level of a war crime.

Lt. Col. Peter Lerner, IDF spokesperson: I don’t expect that that will be the situation. And I don’t agree with your conclusion that that is the situation based on intent, understanding and the professional reality. There can be mistakes in the state of war, in the condition of war.

Sarah Ferguson: And I think if I wanted to do anything in this interview, and indeed, what I was seeking to understand myself is how this related to the rules of engagement, because to call it a tragedy, in a sense, is a banal description. It’s an awful event. It is unquestionably a tragedy. There’s no disputing that it’s an awfully sad event with tragic consequences. But tragedy isn’t enough. What we need to examine is what the rules of engagement were and how this particular event reveals the current culture and the rules that the IDF is operating under in Gaza, which have been very hard to establish. So this gave us a way to talk about specific things that then raise the question of crime. So something much more complicated than tragedy or not.

Sam Hawley: Yes. So when you talk about rules of engagement, you also questioned the IDF spokesman about whether or not a war crime had been committed.

Sarah Ferguson: We are in the zone of the law of war and whether or not war crimes are committed. And those laws are, they’re quite clear. It doesn’t mean that the fog of war isn’t a thing, because it absolutely is a thing. And for people who’ve never been in combat, I understand from the Israeli’s point of view, it’s frustrating to answer questions in a very specific, stepped out way. But that’s exactly what the law is for. And that law basically is that all feasible precautions have to be taken to establish whether or not these are civilian or military targets. And of course, that relates to all of the questions about the conduct of the war because of the very, very high level of civilian casualties. So it’s incredibly important for this event, for the justice and for the facts of this event. But it also goes to the conduct of the wider war.

Sam Hawley: And you did, Sarah, manage to ascertain that the officers who were responsible for the strike on these aid vehicles have been removed from their positions.

Sarah Ferguson: Yes. Now, the Israelis had said that action had been taken against four people. Two remained in their positions. But the two who had been removed, again, as always, it’s a, the devil is most certainly in the detail. He said that one of them, a reservist, had been removed from the IDF entirely. I’m presuming that’s just a function of being a reservist, that if you’re stood down, then you no longer hold your post. But then the strike officer, the major, he’s the one who is now potentially under investigation, and he hasn’t left the military. And in relation to the reservist, actually, I should point out that there’s nothing, I don’t think there’s anything to prevent him from being called up again. So again, you know, they say that action has been taken and these two people have been removed, but that’s not, the detail shows that it’s not as simple as that.

Sam Hawley: You mentioned that the Israelis have conducted an investigation, a quick investigation. What did Lieutenant Colonel Peter Lerner have to say about that, about what they found?

Sarah Ferguson: The initial investigation was quick. And in some ways, I think what we had access to was very brief. So it was a, it was a couple of, a couple of pages. And they talked about, obviously, about the failure to communicate the fact that the aid convoy had done all the right thing and had told the IDF that they were making this journey, the route they were taking, and so on. They’d done all the right thing. That information had not got back to the people who were making the decisions, who were conducting the drone surveillance over that area. But in some ways, that is a clear-cut error. It’s unforgivable, but it’s a clear-cut error. I think where people wanted to know more was about how the decisions were made in relation to the first strike, and then the two subsequent strikes on the cars as they were driving down the coast road.

Sam Hawley: Because they were quite a distance from each other, weren’t they? That’s, that’s important to remember.

Sarah Ferguson: That’s right. There is a sort of separation between the strikes. So the first strike relates to the fact that the, the commanders, the strike, the drone operators were operating, as they say, and we only have the, obviously the IDF’s version of this, but they were operating under the assumption that these were Hamas fighters in the car.

Lt. Col. Peter Lerner, IDF spokesperson: This was the conclusion that the operator and the forces understood. We have a gunman on the truck. We have four vehicles that look like the Toyota pickups. They came to a conclusion that this must be Hamas.

Sarah Ferguson: Lerner in the interview said that terrorists got onto the roof of the truck. In fact, what they were, as far as we know, they’re saying that a single person got onto the truck and fired a gun into the air. They didn’t produce to us, and we don’t know what’s in their investigation, any evidence about who that was and whether it was indeed a Hamas fighter. So that’s the decision to make the initial strike, which obviously there are a lot of questions about that. But then there’s a second and third decision, which is to strike at the car. As people struggle to get out of the first vehicle, they then strike the second vehicle. Then people struggle to get out of that car into the third. And under the rules of engagement, you can’t make those subsequent strikes unless you have, using their language, re-incriminated the vehicle. So you have to have proof that you have to have additional proof. You can’t just keep chasing the first target.

Sarah Ferguson: But to be clear at this stage, because under international law, to prevent this from becoming a war crime, it’s necessary for the attacker to take all feasible precautions to verify that a target is military. And so I want to come back to that question. Unless you have evidence about the people inside the trucks, was this a war crime?

Lt. Col. Peter Lerner, IDF spokesperson: So I would absolutely say we need to wait to see if the military advocate general suggests that there needs to be a criminal investigation into this. Based on what we know today, the understanding of the operators on the ground, they came to the conclusion that these are Hamas terrorists. There are terrorists in the vehicle.

Sarah Ferguson: So how they saw the first target obviously relates to the decisions that came after that. But they are, in a sense, they’re not separate crimes, but they are somewhat separate from each other. The question is, what evidence are they using to make that decision at the time, bearing in mind it’s night time, it’s drone operators looking in the dark, they certainly can’t see the logos on the roof of the cars. Is that fog of war or is that rules of engagement that are so loose, where the margins are so broad, where the possibility of civilians being in those cars are not part of the decision making or is it something else?

Sam Hawley: All right. So Israel, part of what it’s saying is that it thought there was a Hamas fighter on one of the vehicles. But the Australian government, it isn’t convinced by this explanation, is it? Because it’s appointed a special advisor to look into Israel’s response.

News report: Air Chief Marshal Binskin will examine the Israeli investigation of the attack and advise the Australian government if further action needs to be taken.

Sarah Ferguson: You’re right, because the language, the government’s language has been quite strong. They’ve used that language that the explanations have not been satisfactory. And Australia is the only country to have appointed an independent advisor to look at the investigation, to liaise with the people doing the investigation and to also to follow how justice is meted out if it needs to be. Now, of course, one of the areas where we’re in the dark, Sam, is that we don’t have, it’s not traditionally done for the Australian government to give readouts of calls with foreign leaders, which is much more common in the US. So we know that obviously Biden had a call, Rishi Sunak in the UK had a call, the Poles had a call. So the Australians were saying they were very tough on their call. But actually, we don’t know the text of that call. We don’t know what the other countries said. But certainly, I mean, I don’t doubt that they were strong in the call. But between all of those different countries and what they’re all demanding, we don’t know exactly what they were saying. We know that obviously the Australians are the only person to appoint an advisor. And certainly, Albanese’s language, the prime minister’s language and then the foreign minister’s language seem to get stronger towards the end of last week.

Anthony Albanese, Prime Minister: We don’t find the explanations to be satisfactory to this point. Almost 200 aid workers have lost their life during the conflict that has occurred between Hamas and Israel. And that is unacceptable.

Sarah Ferguson: I think the big question now is how the Israelis are responding. They’ve given no undertakings about cooperating with Binskin. And I think they’ve made it clear that they’re not going to make the perpetrators available to him. So I think we’re at the moment very much in the dark about how to what extent they will cooperate and whether they will have to be muscled into cooperating or how that’s going to work.

Anthony Albanese, Prime Minister: We expect full cooperation from the Israeli Defence Force and their authorities, because it is in Israel’s interests as well for there to be transparency around these incidents. They have shaken the world.

Sam Hawley: Peter Lerner has also said that he doesn’t know if the IDF will cooperate. And Sarah, Australia can’t really force transparency on the Israelis, can it?

Sarah Ferguson: No, it absolutely can’t, which is, I guess that’s the question about how much muscle we can apply. I mean, we are a friend. We have a very good, Australia has a very good relationship with Israel. It’s obviously extremely complicated at the moment. This is very much now in the domain of politics, not just, if you like, in the domain of military talking to military. The rest of the country wants to know what the answers are. So this is a very interesting point of this story, I think.

Sam Hawley: I guess the question is, what does Australia actually do if Israel doesn’t cooperate? It doesn’t allow an independent look at what happened to these aid workers, to Zomi Frankcom. She’s an Australian citizen. What can it do? Where will it go?

Sarah Ferguson: Well, that’s a very good question, because I don’t know that it can go anywhere. There’s a limit to the leverage that we have. This is a country at war, and it’s incumbent on all of us not to forget at any point in trying to understand Israel’s perspective that the attack in October was violent, enormous, traumatic for the country and a trauma for which the country has by no means recovered. We’re looking at it from the outside. They are conducting a war in response to that. And I think that puts us in a difficult position if they leave the shutters down and refuse to cooperate. I don’t know what Australia does at that point.

Sam Hawley: Sarah Ferguson is the host of 7.30 on ABC TV. Catch it live Monday to Thursday or on iView. This episode was produced by Nell Whitehead with audio production by Sam Dunn. Our supervising producer is David Coady. I’m Sam Hawley. To get in touch with the team, please email us at [email protected]. Thanks for listening.