How international law considers military action in a hospital | ET REALITY


The Israeli army has taken over the Gaza Strip’s largest hospital, Al-Shifa. Israel says it needed to capture the hospital, in Gaza City, to destroy a Hamas command center and the underground facilities it says are there. Hamas and Al-Shifa doctors deny Israeli accusations that Hamas fighters use the hospital as a base.

Here’s what the Geneva Conventions and international criminal law say about hospitals and the protections they have, based on a series of interviews with experts on the laws of war and a reading of the major treaties that establish those laws.

  • Hospitals have special protections under international humanitarian law. Is illegal in almost all circumstances attack hospitals, ambulances or other medical facilities, or interfere with their ability to provide care to the wounded and sick. This is true even if some of his patients are wounded combatants as well as civilians.

    Attacking a protected hospital is a war crime that can be prosecuted in the International Criminal Court. Using civilians, such as those in a hospital, as human shields for combatants is also prohibited.

  • But there is an exception according to which hospitals lose that protection: A hospital or medical center can lose its special legal status if it is used for a military purpose that is “harmful to the enemy,” rather than simply for medical care. For example, if an armed group uses a hospital building as its headquarters, it cannot use the special protection of the hospital as a shield for that military operation.

    The exception is supposed to be read strictly, according the Red Cross, considered a leading authority in the interpretation of humanitarian law. If there is a question about whether a hospital is used for military purposes, it should be assumed that it is not, the Red Cross says.

  • Even if the exception applies, an attacking force must give civilians the opportunity to evacuate. He Geneva Conventions They state that before attacking a military target inside a hospital, the attacking force has to warn the doctors and patients inside that the hospital is going to be a target, and then give them a reasonable time to escape.

    Israel has issued frequent warnings to hospitals in northern Gaza to evacuate. However, doctors have said that some patients are too fragile to be transported, or that there is no safe or practical evacuation route, raising questions about what could be considered a reasonable warning.

  • Even if the exception applies, there are still strict rules limiting how force can be used. Doctors, patients, and other civilians who remain in the hospital after an evacuation warning remain protected civilians. International humanitarian law says that civilians can never be attacked directly.

    The exception applies only under “very limited conditions,” he said. Tom Dannenbaumassociate professor of international law at Tufts University.

  • Proportionality requirements are especially strict when medical care is at stake: Even if a hospital loses its special protection and becomes a military target, civilians inside are still protected by the rule of proportionality: if the civilian harm caused by an attack is disproportionate to the military advantage it confers, then it is illegal.

    This is a balancing test that depends on the specific facts of the situation. However, the proportionality test is much more difficult to satisfy when the target is a medical facility, because the likely harm includes the loss of medical care for the civilian community as well as any immediate victims of the attack itself, Professor Dannenbaum said. .

Efrat Livni and Gaya Gupta contributed with reports.

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