Claims about the presence of Hamas fighters in hospitals in Gaza under siege by Israel’s military have been “grossly exaggerated”, a top prosecutor at the international criminal court (ICC) has said.
Andrew Cayley, who is leading the ICC’s Palestine investigation, questioned the reliability of claims about military activity in Gaza’s hospitals which have been made to justify Israeli attacks on healthcare facilities in the territory.
Speaking at an event last week, Cayley provided a rare glimpse inside the ICC prosecutor office’s investigation into war crimes and crimes against humanity by Israeli forces and Palestinian militants.
Cayley – who reports directly to the ICC’s chief prosecutor, Karim Khan – is overseeing the inquiry which was launched in 2021 but accelerated after the Hamas-led 7 October attacks and Israel’s subsequent bombardment of Gaza.
Last month, Khan secured arrest warrants against the Israeli prime minister, Benjamin Netanyahu; the country’s former defence minister, Yoav Gallant; and Hamas’s military leader, Mohammed Deif, as part of the inquiry. Israel has claimed Deif was killed in a July airstrike, but the court has been unable to determine whether he is dead or alive.
The allegations against the three suspects are only one aspect of the investigation. Cayley’s team is continuing to examine a range of alleged crimes across the occupied Palestinian territories.
ICC prosectors are understood to have reviewed incidents in which hospitals have been damaged or destroyed in Israel’s military offensive in Gaza.
According to the latest figures published by the World Health Organization (WHO), of the 35 hospitals in Gaza it has evaluated only 17 are described as “partially functioning”. Five are “fully damaged” and 13 are categorised as “non-functional”.
The Israel Defense Forces (IDF) has repeatedly justified operations against medical facilities in Gaza with claims that they were being used by Hamas militants.
Cayley said the ICC faced “great difficulty assessing” the level of Hamas militant presence in hospitals “because clearly there are lies being spoken, but that is really something we do need to get to the bottom of as a prosecution office”.
He added: “I think that has been grossly exaggerated, but we need to be able to demonstrate very clearly what the level of military presence was, if at all, in these hospitals because I think we’ve been misled about that in the press.”
Cayley indicated that Israeli operations against Gaza’s healthcare facilities would be examined. “Looking at damage to health facilities, destruction of health facilities, we will be coming on to that probably later next year. We’re having to do this in stages simply because of the resources that we have,” he added.
Cayley, a British barrister and former UK chief military prosecutor, made the remarks at an event in The Hague about attacks on healthcare facilities in Sudan, Ukraine and Palestine held on the sidelines of the annual conference of the ICC’s member states.
He said Gaza’s health system is now barely functioning. “Airstrikes, sieges, raids on hospitals. Add to that lack of fuel, electricity, food, medicine. That’s why the system has collapsed.”
Hospitals, as well as medical infrastructure and personnel, have specific protections under international humanitarian law. Attacks against them are prohibited, but there are certain circumstances in which medical facilities can lose their protected status if they are used for combat activity.
Asked about Cayley’s remarks, a spokesperson for the IDF said it acts in accordance with legal obligations and aims to “minimise harm and disruption as much as possible” when conducting operations involving medical facilities.
They claimed that Hamas has chosen to “methodically abuse the protection of medical facilities for its deplorable goals” and has embedded tunnels, infrastructure and arms caches within such facilities.
“Time and again the IDF has encountered Hamas presence in medical facilities, despite ample opportunities for Hamas to once and for all distance itself from such locations,” they added.
Speaking last week, Cayley said his team had met and interviewed medical personnel who had returned from working in the territory.
Cayley said that the ICC has access to “exceptionally good satellite imagery” that showed “on a daily basis how these [hospitals] are destroyed”, but said investigators are seeking accurate imagery “showing either the truth or the falsehood of the usage of these facilities as military combat facilities”.
