What does humanitarian law say about hospitals?
The Geneva conventions, adopted in the aftermath of the second world war, form the core of international humanitarian law and “are particularly protective of civilian hospitals”, according to Mathilde Philip-Gay, an expert in international humanitarian law at Lyon 3 University in south-east France.
She said: “It is forbidden to turn recognised civilian hospitals into a conflict zone. It is also forbidden to use civilian populations, the sick or the injured as human shields, it is a war crime, as is fighting from inside a hospital.”
Article 8 of the Rome statute, which established the international criminal court (ICC) in The Hague, defines a long list of war crimes including “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”.
But it makes an exception if the targets are “military objectives”. Philip-Gay said that “if a civilian hospital is used for acts harmful to the enemy, that is the legal term used”, the hospital can lose its protected status under international law and be considered a legitimate target. Nevertheless, if there is doubt as to whether a hospital is a military objective or being used for acts harmful to the enemy, the presumption, under international humanitarian law, is that it is not.
It is widely accepted that Hamas has an extensive tunnel network across Gaza.
Israel is not a member of the ICC, but the ICC says it has jurisdiction in Gaza and the West Bank because Palestine is a state party to the court, a claim Israel disputes.
Karim Khan, the chief prosecutor at the ICC, wrote in the Guardian: “For those responsible for targeting and firing missiles, I wish to be clear on three points in particular. One: in relation to every dwelling house, in relation to any school, any hospital, any church, any mosque – those places are protected, unless the protective status has been lost because they are being used for military purposes. Two: if there is a doubt that a civilian object has lost its protective status, the attacker must assume that it is protected. Three: the burden of demonstrating that this protective status is lost rests with those who fire the gun, the missile, or the rocket in question.
“In this context, I would also underline that the indiscriminate firing of rockets from Gaza into Israel may represent breaches of international humanitarian law subject to the jurisdiction of the ICC.”
What happens if a hospital loses its protected status?
The United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), says: “Any military operation around or within hospitals must take steps to spare and protect the patients, medical staff, and other civilians. All feasible precautions must be taken, including effective warnings, which consider the ability of patients, medical staff, and other civilians to evacuate safely.”
Philip-Gay said: “The other party must take all precautions to avoid intentionally targeting civilians.” Even if the hospital was used for “acts harmful to the enemy”, Philip-Gay said, the other party “does not have the right to bombard it for two days and completely destroy it”, citing the need under international law for the response to be “proportionate”.
She added that the other party must give advance warning of its response and that evacuation procedures must be put in place for patients and health workers.
Alternatively, they could be asked “to isolate themselves in a part of the hospital”, she said. But during any military operation against the site, “there have to be doctors to take care of the patients”.
With Agence France-Presse
