Writer: Carson Phillips
Editor: Cecelia Maillis
4/2/24
Over 30,000 Palestinians and nearly 1,500 Israelis have perished as a result of the Israel-Hamas war. As conflict continues in the Gaza Strip, international law’s statement on the protections hospitals have during armed attacks has become a pertinent topic. Israel has been accused of sending missile strikes to Palestine’s Shifa hospital. Is this not a violation of international law?
According to international humanitarian law, the answer is yes. Generally speaking, international humanitarian law established “hospital shields” which exclude hospitals from the definition of legal military targets. Multiple bilateral treaty agreements include protections for hospitals within their principles, including Article 8 of the Rome Statute. Article 8 states that it is illegal for any warring party to consider, “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected.” Hospitals can, however, lose these protections under extremely specific circumstances; for example, if the hospital is being used to shelter “act[s] harmful to the enemy.” This can be interpreted as the launching of missiles, the housing of military headquarters, or the imprisoning of enemy soldiers.
If a hospital loses its protective status, the aggressor is still bound by international humanitarian law to warn the hospital of its intention to strike, giving the hospital an opportunity to cease its illegal actions or to let civilians and the wounded flee. International humanitarian law’s jus in bello regulations, literally “justice in war,” is applicable to the aforementioned actions of Israel during the war. According to jus in bello, the aggressor must take precautionary measures—take every possible precautionary measure to avoid the conflict—and the aggressor must use distinction by taking into account the difference between military personnel and citizens when attacking, only striking military personnel. Jus in bello also covers proportionality, meaning that if the hospital’s protective status is lost, the aggressor’s attack must result in civilian casualties that are proportional to the military value of the target, not larger.
In the case that the Shifa hospital is not associated with military activities, any Israeli missile strikes targeting the hospital would be illegal under international humanitarian law. However, Israel has alleged that Hamas has based its military headquarters beneath the hospital. If this is, in fact, the case and Israel elects to launch an attack, international law requires Israel to warn Shifa Hospital of its intention to attack. It would also have to be ensured that the number of civilian casualties is proportional to the military value of the hospital. Furthermore, if there is any doubt as to whether Hamas has a military command center based under Shifa Hospital, international humanitarian law states that Israel must assume that there is not. Therefore, unless Israel can surface concrete proof suggesting that Hamas does have military headquarters based under Shifa Hospital, international humanitarian law claims that any Israeli attacks on the hospital are illegal.
The Israeli-Hamas conflict is not the first or only example of hospitals being the target of military strikes during war. In 2015, an American airstrike bombed a Doctors Without Borders hospital, a humanitarian hospital for those in combat zones or areas that suffer from severe disease, killing 22 innocent people. The US later claimed that it received incorrect intel alluding that the Taliban had a military depot inside the hospital. Like many other principles of international law, international humanitarian law’s protections for hospitals are frequently violated during warfare. This concerning phenomenon can be attributed to the vague and interpretative nature of the principles that govern international law.
References
DeBre, I. (2023, November 12). In wars, hospitals have special protection under international
law. How does that apply in Gaza? PBS NewsHour. https://www.pbs.org/newshour/world/in-wars-hospitals-have-special-protection-under-international-law-how-does-that-apply-in-gaza
International Committee of the Red Cross. (2023). The protection of hospitals during armed
conflicts: What the law says. Www.icrc.org. https://www.icrc.org/en/document/protection-hospitals-during-armed-conflicts-what-law-says
Rasmussen, S. E. (2015, October 21). Kunduz hospital attack: how a US military “mistake” left
22 dead. The Guardian. https://www.theguardian.com/world/2015/oct/21/kunduz-hospital-attack-even-in-20-years-we-wont-get-such-a-hospital-again
The Guardian. (2023, November 17). Can hospitals be military targets? What international
Comentarios