A Tragic Mistake? Yes. A War Crime? No | Opinion

On March 23, the Israel Defense Forces committed a fatal mistake in Gaza, leading to the death of nine humanitarian aid workers, as well as six others. Hamas terrorists who had blended in with them. investigation into the incident The investigation was promptly initiated, and the officers deemed culpable faced disciplinary action shortly thereafter.

However, even though every war represents a tragedy, not all tragic events qualify as war crimes.

That incident occurred during a battle as a result of an operational mistake rather than being classified as a war crime. The investigation leading to this determination did not happen arbitrarily; instead, it followed a thorough, unbiased inquiry conducted by high-ranking external specialists unconnected with the military hierarchy. This probe was subsequently examined by the Chief of the General Staff and underwent additional legal assessment.

Indignation – accompanied by deceptive or entirely fabricated visuals – now dominates social media platforms. This worldwide herd behavior has emerged. Thankfully, the distortions perpetuated by social media cannot replace international legal standards. Deeming an act a war crime lacks legitimacy without concrete proof of intent; such determinations aren’t based solely on virally shared clips, emotionally charged commentaries, or snap judgments made by celebrities and commentators assuming judicial roles.

Clearly, international humanitarian law stipulates that acts constituting war crimes include deliberately targeting individuals or objects such as facilities, supplies, troops, or conveyances engaged in providing aid, so long as these maintain their protected civilian character.

To put it differently, for an action to qualify as a war crime, there needs to be deliberate intention to violate the law—something completely lacking in this instance.

The IDF’s internal inquiry determined that the deaths occurred due to multiple tactical mistakes and professional lapses. The IDF units were functioning within an “adversarial and perilous battlefield” where they perceived a significant danger. The soldiers incorrectly identified the vehicle procession as one being utilized by Hamas militants, which this faction had consistently used since October 7, 2023.

Hamas routinely conflates the roles of combatants and civilians by deliberately using ambulances, hospitals, and aid icons for military gain. This strategy places soldiers in excruciatingly difficult instantaneous choices when under attack—a complexity that global laws address yet which online commentators often overlook.

International humanitarian law acknowledges that unfortunate errors may occur amidst intense fighting, particularly when groups such as Hamas employ safeguarded sites and vehicles for launching or concealing assaults. This behavior erodes the safeguards afforded to civilians and aid workers.

No army—not American, not British, nor Israeli—is exempt from making mistakes during warfare. The crucial aspect lies in what comes next: openness about these errors, thorough investigations, appropriate consequences, and lessons learned institutionally. This is how one gauges whether an armed force operates professionally within a democracy.

During the IDF event, intelligence showed that five vehicles were moving swiftly towards their position and halted close to where the IDF forces were stationed. Shortly after stopping, people got out of these cars very fast. The second-in-command determined this to be a genuine danger from Hamas and instructed his team to open fire. Although subsequent events revealed that this assessment was mistaken, it appeared justified at the time due to various factors such as low light conditions during the night, which highlighted that the IDF adhered to the principle of distinction according to international laws governing warfare.

The investigation into the event was carried out by the IDF General Staff Fact-Finding Commission, an experienced group independent from the usual military hierarchy. This commission submitted their conclusions to Chief of General Staff Lt. Gen. Eyal Zamir, which highlighted operational lapses, non-compliance with directives, and shortcomings in documentation. Consequently, the deputy head of the Golani Brigade was removed from his position, and the leader of the 14th Brigade faced severe disciplinary action. Additionally, this matter is under consideration by the IDF Military Advocate General’s Office as part of a possible legal process.

The IDF voiced profound sorrow over the damage inflicted upon civilians and highlighted that the investigation is a component of their continuous dedication to glean insights from tactical missteps with the aim of diminishing the likelihood of such incidents happening again.

Briefly put, the IDF behaved precisely how a military within a democratic nation should: they conducted an investigation, admitted their mistakes, and ensured individual accountability.

It is crucial to clearly differentiate between mistakes occurring during lawful military actions and deliberately targeting non-combatants, an action that represents Hamas' typical behavior and constitutes a severe violation of international law.

Israel grieves for each innocent soul taken. For Hamas, every innocent demise is seen as a triumph. This isn’t merely a distinction of morals; it’s the gap between adhering to laws and embracing lawlessness, turning a sorrowful event into an unlawful act.

Arsen Ostrovsky is a human rights lawyer serving as the CEO of The International Legal Forum and as a senior fellow at the Misgav Institute for National Security. Follow him on 'X'. @Ostrov_A .

John Spencer chairs the urban warfare studies program at the Modern War Institute (MWI) at West Point and hosts the "Urban Warfare Project Podcast." He co-authored "Understanding Urban Warfare." Follow him on 'X'. @SpencerGuard .

Brian L. Cox serves as an adjunct professor of law at Cornell Law School, having previously worked as a U.S. Army judge advocate. He is also currently pursuing studies in journalism at Carleton University. Follow him on 'X'. @BrianCox_RLTW .

The opinions stated in this article belong solely to the writer.

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