In brief
- Israel has ruled out criminal charges over the strike that killed Zomi Frankcom and six colleagues.
- Frankcom's family is urging the government to keep pressing Israel for accountability.
The family of slain Australian aid worker Zomi Frankcom say they will continue their fight for justice, with missing drone audio remaining one of the central unanswered questions about her death.
Israel this week announced it would not prosecute those responsible for the killing of Frankcom and six of her World Central Kitchen colleagues in Gaza in April 2024, despite conceding "serious failures" that led to the mistaken-identity drone strikes by the Israel Defense Force (IDF) .
On Thursday, Foreign Minister Penny Wong said the decision was an "outrage", and she had no confidence in the IDF's Military Advocate General's two-year investigation "given the many unanswered questions".
Among the unresolved issues is a missing piece of drone footage audio, which Israel refused to hand over to Australia's independent inquiry, headed by retired Air Chief Marshal Mark Binskin, despite requests by the federal government.
According to his report — which found the killing was due to mistaken identity and procedural failings but not a deliberate targeting of aid workers — Binskin was given access to 90 minutes of unedited drone footage, but it did not include an audio track.
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Prime Minister Anthony Albanese renewed calls for the audio to be released in parliamentary Question Time on Thursday, saying it's part of the transparency Australia has called for "from day one".
Israeli ambassador to Australia Hillel Newman on Friday told ABC radio the audio may contain "intelligence information" and there was nothing in it to cast doubt on the findings which cleared the IDF of criminal misconduct.
A day earlier he said he hadn't accessed it.
In a statement on Thursday, Frankcom's family called on the government to continue pressing Israel to release the audio and to "pursue all available legal avenues for an independent and credible investigation to be conducted".
However Dr Emily Crawford, an international law professor at the University of Sydney, said Australia's options were limited.
"In all states, the scope to argue that national security grounds required for information not to be released, they're fairly paramount," she told SBS News.
"There's not anything they could really do beyond kind of diplomatic measures.
"We've seen that the Netanyahu government is reluctant to assist in these kinds of things, so I can't imagine there's really going to be any movement on that."
The missing audio is just one of the unanswered questions surrounding the strike, with Wong saying the IDF had failed to explain how two strikes occurred after the initial strike, in breach of the IDF's rules of engagement.
She said questions also remained about why the strike occurred in a humanitarian fire control zone, and about the role of a senior brigade officer who had signed a letter urging restrictions on aid entering Gaza.
"The Australian government will continue to keep pressing Israel for justice for Zomi and her colleagues and we will consult with Zomi Frankcom's family before we announce further steps," Wong said.
Albanese labelled the findings as a "nothing to see here" report.
"Australia deserves better," he told ABC's 7.30 program.
"There's a need for a far more transparent and clear explanation from the Israeli government."
What other options are available?
Israel's decision not to pursue criminal charges does not close every avenue of justice.
Newman, speaking on ABC radio on Friday, said discussions were underway about Binskin returning to Israel to speak again with those involved in the strikes, and that the findings could potentially be appealed, though he was unfamiliar with the process.
"Israel is open to discussions of a legal aspect, we can share information with legal teams of Australia," he said.
He also did not rule out reparations, but noted a formal request needed to be made.
Albanese also raised the prospect of an independent investigation, but Crawford said it would be "very difficult" without the cooperation of Israeli authorities.
"Obviously, the difficulty is that they don't have access to any of the evidence because the act took place overseas," she said.
The case could potentially form part of the International Criminal Court investigation into alleged war crimes in Palestinian Territories.
But Crawford said there would have to be evidence of who ordered the attack and that they knew it was illegal before an arrest warrant could be issued.
Another option would be for Australia to bring a diplomatic protection claim against the Israeli government, she said, though it was unlikely, given that action hadn't been taken in similar circumstances in the past.
"Basically, you're saying that Australia has been injured because one of its nationals has been injured," she said.
Crawford said that diplomatic measures remained the most likely avenue for further action, with Hillel already summoned for an explanation. Wong on Thursday ruled out expelling Hillel, saying it would reduce Australia's ability to press for its interests.
"There might be some move for suspension of limited trade arrangements or those kinds of things that could express the displeasure that this is not proceeding with any kind of seriousness," Crawford said.
Asked whether the federal government was planning to take any further action, a spokesperson for the Department of Foreign Affairs and Trade referred to Wong's comments on Thursday, which stated the government would consult with Frankcom's family before announcing further steps.
While Israel may have closed the case, Frankcom's family will continue to search for answers.
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