Andreea Manea on the legal complexities around Israeli attacks that hit hospitals

OF THE ATTACKS launched by Israeli forces in Gaza since October 7th, none have caused more international consternation than those that have hit hospitals and ambulances—even as Israel insists it takes care to target Hamas, not civilians. Attacks on medical facilities and a lack of supplies have brought Gaza’s health-care system to “a point of no return”, the International Committee of the Red Cross (ICRC) has warned. The World Health Organisation says that al-Shifa hospital, the territory’s main hospital, the area around which has seen intense fighting, “is not functioning as a hospital any more”.

Outright attacks on medical facilities are morally reprehensible but, from the perspective of the law of armed conflict (LOAC), they are, sadly, not always unlawful. That depends on targeting.

Selection, approval and execution of targets under this law is a complex exercise. LOAC seeks to strike a balance between the military necessity of achieving the enemy’s surrender and humanitarian considerations of minimising destruction and human suffering to what is necessary to achieve lawful military objectives. Those directing attacks must be guided by several interconnected principles. Chief among them are distinction, proportionality and precautions in attack.

Start with distinction. Under LOAC, fighting forces must try to avoid attacking civilian objects. When it comes to medical infrastructure such as hospitals and ambulances, the law goes further and deems them as objects of special “respect and protection”.

But this protection is not absolute. It may be lost if three conditions are all met: the medical infrastructure is used to commit acts harmful to the enemy; enemy forces issue an effective warning; and, following a reasonable time limit, the warning remains unheeded.

On November 3rd the Israel Defence Forces (IDF) stated that “a Hamas terrorist cell” had been identified using an ambulance and in response an IDF aircraft “neutralised” those inside the vehicle. This statement, if true, has legal significance. The same is true where Israel claims that Hamas has been using hospitals as command centres.

In these instances, Israel is attempting to make two points. The first is in relation to its own forces. If the ambulance were used to transport uninjured Hamas troops, or even just to transmit military intelligence, then the first condition listed above—use to commit acts harmful to the enemy—would possibly be met. The same rationale applies to hospitals allegedly used by Hamas as command centres. Second, Israel is trying to show that it is Hamas, not Israel, that has violated LOAC, by using a protected object for military purposes.

Yet misusing ambulances and hospitals (which Hamas has denied) is not enough to strip them of protected status. In addition, LOAC requires Israel to warn Hamas fighters to stop the misuse. Where Hamas continues to misuse hospitals, Israel must allow for safe evacuation of the wounded and sick. According to LOAC, only if the warning remains unheeded after a “reasonable” time has elapsed is this protected status truly lost.

What is “reasonable” varies with circumstances. According to the ICRC, it must be enough time to allow the unlawful acts to be stopped, or for the wounded and sick to be removed to a safe place. Under the law, advance warnings are generally mandatory and must be “effective”. ICRC commentary on the law and some state practice (such as that of America, Australia and, for that matter, Israel) point towards some very limited exceptions to this rule of “due warning”, namely “overriding” military necessity and self-defence.

It is not clear whether Israel has consistently complied with this obligation to warn. In the ambulance case, no warning appears to have been issued. However, at al-Rantisi children’s hospital, Israel dropped leaflets warning people there to evacuate because of “Hamas terror activity…inside the premises”. The leaflets also warned that the hospital was in a war zone and that the crossing to southern Gaza was open for evacuation. The al-Shifa hospital, beneath which Israel believes Hamas’s main command post is located, also seems to have received warnings to this effect.

Notwithstanding this, Israel’s warnings place doctors in an extremely difficult situation from a humanitarian perspective: abandon their patients or risk moving highly vulnerable individuals (such as those in neonatal units) to southern Gaza—an area whose hospitals are already full and short of supplies. Here, a case can be made that duties as they relate to precaution, and the obligation to protect the wounded and the sick, compel Israel—subject to feasibility—to facilitate the safe evacuation of patients.

On November 11th Israel said it had offered to evacuate newborns at al-Shifa. By that point, however, the hospital had already been heavily affected by fighting. In legal terms the Israeli commitment may therefore be seen as too little too late, if the evacuation could feasibly have happened earlier. The key word here is “feasibly”: what is practically possible at a given moment is open to argument.

In short, the task of assessing Israel’s compliance with LOAC in relation to medical infrastructure is riddled with complexity. What is clear is that, even if Hamas is misusing hospitals and ambulances in a way that turns them into “military objectives”, any attack must not be indiscriminate. And Israel must comply with the principles of proportionality and precautions in attack even where—as seems to have mostly been the case—its targets are not directly medical facilities but Hamas command posts and fighters in, around or beneath them.

On the other side, if Hamas is using medical infrastructure for military purposes, it is breaking LOAC. This applies both to using hospitals as command posts or as shields to protect subterranean posts, and to using ambulances to move around uninjured fighters, weapons or other military supplies.

No matter which side may have violated LOAC first, the rules apply with equal force to both. When it comes to how the world perceives their adherence to law, however, the picture is less balanced. Unlike Hamas, Israel is a democracy that purports to follow international law in military matters. IDF attacks at medical sites have damaged Israel’s reputation abroad and made even its staunchest allies uneasy. For Israel, sparing civilian lives and protecting hospitals is not only a legal imperative, but also a political one. For many millions witnessing the intense human suffering in this war, it is, most importantly, a moral one.  ■

Andreea Manea is a lecturer in public international law at the Hague University of Applied Sciences.