The laws of armed conflict bind both state and non-state armed groups and seek to limit the inhumanity of war by, among other provisions, giving protection to healthcare personnel, medical facilities (including ambulances and hospitals) and the passage of medical personnel.
There is no doubt that Hamas in its incursion into Israel on 7 October committed grave breaches of the Geneva Conventions. Israel accuses it of continuing to do so in the current war. What though of Israel’s response and what are the implications for future conflicts?
The UN has accused both sides of war crimes and says a Commission of Inquiry is gathering evidence, and (incomplete) data from Insecurity Insight covering the period 7 October to 5 November record 219 incidents of violence against or obstruction of access to healthcare facilities in Gaza and 10 in Israel.
Does this data suggest Israel is not complying with the laws of armed conflict? Unfortunately, there is not a clear-cut answer.
Protection for medical facilities and personnel is not absolute. The requirement to respect and protect them in all circumstances can be lost if protections are abused by, for example, using ambulances to carry ammunition or non-wounded combatants or basing a command post or logistic base within or near to a hospital.
Israel has claimed that Hamas set up a command post under Al-Shifa hospital in Gaza City and are using the hospital as a place of sanctuary for its fighters. Israel also accuses Hamas of using ambulances to carry combatants.
Hamas has denied that it is using the hospital for military purposes, but were it to do so, it would be acting contrary to the laws of armed conflict and it would remove the protection of the hospital, making it a military objective that can be lawfully targeted.
However, Israel must have clear evidence of Hamas’ misuse. For example, the mere presence of military equipment which had been removed from injured fighters, security personnel with light arms or injured Hamas fighters is insufficient.
Assuming, though, Israel does have clear evidence of misuse, it has to give due warning, which it has done in respect of Al-Shifa, but any attack must also comply with other rules.
If Israel’s claim is accurate, Hamas must be given the opportunity to deactivate its command post and even if it does not, any attack must be ‘proportionate’ and must not be indiscriminate. Once it has occupied the hospital it must also respect clinical autonomy by, for example, not removing or abusing injured Hamas fighters contrary to medical advice.
Many factors must be considered when assessing proportionality, including the importance of the alleged command post and the number of civilian casualties expected.
Israel has ordered the evacuation of the hospital, though the actual ability to comply with such an order, particularly for severely injured patients, is hugely problematic. Many people are simply too weak or unwell, and the World Health Organisation is among groups with staff on the ground citing reports that those trying to leave have been shot at, even killed.
Israel’s order to evacuate the Al-Shifa hospital might turn out to be justified. But any order to evacuate all 22 hospitals in Gaza must be accompanied by sufficiently strong evidence that each one has lost its protection. It cannot simply be an extrapolation from one proven incident.
It is also incumbent on Israel to facilitate the evacuation, directly or indirectly via third parties – which will otherwise be impractical or accompanied by an unnecessary loss of life of the most severely injured patients.
Search and rescue
An aspect of the care of the injured involves searching for and collecting the wounded. The attacks on Gaza have resulted in significant destruction of buildings akin to the damage caused in an earthquake.
Where a party is in control of territory they have a duty to take all possible measures to search for and rescue the wounded and sick (both combatants and civilians) where circumstances permit.
These search and rescue operations require significant resources, both human and technical. Hamas has responsibility where it is in control of territory, but there is also a duty on Israel to facilitate these operations and once they gain control of the destroyed territory, to take responsibility for them as far as feasible.
Currently Israel accuses Hamas of flouting the laws of armed conflict in relation to medical facilities – stating that Hamas is using hospitals as military positions from which it launches attacks.
Meanwhile the Palestinian Health Ministry claims that Gaza’s hospitals have suffered direct and indirect attacks by the Israeli military. In the confusion of war, the truth is hard to establish and judgements on Israel’s targeting decisions impossible to make. What must happen next?
Currently, Israel claims to be in control of Northern Gaza and Gaza City. In this area therefore, Israel has the duty to undertake search and rescue where necessary and assume responsibility for medical care.
This duty may in practice be limited by ongoing activities of Hamas and, in respect of search and rescue, by limited availability of appropriate resources which will no doubt be complicated by the presence of unexploded munitions, although arguably Israel should have planned for what is the predictable outcome of their bombing campaign.
However, once medical facilities are under Israeli control, they arguably have a duty, and the capability, to fully support them and, if they are overwhelmed, to make alternative arrangements probably in conjunction with third parties such as the World Health Organization and the ICRC. Hamas has a complementary duty to respect and protect medical facilities.
The recent announcement by Israel of ‘tactical local pauses for humanitarian aid, which are limited in time and area’ may provide some relief for the civilian population although the detail of these pauses is not yet clear.
In the rest of Gaza, the responsibility remains with Hamas, although they probably do not have the means to effect systemic search and rescue.
This is instead left to the local population. The issue as to whether Hamas are exploiting medical facilities contrary to the laws of war remains.
Questions for the future
The battle for Gaza raises many questions for how medical facilities and personnel will be protected in future wars.
Increasing urbanization and new technologies (in particular surveillance capabilities) mean that combatants in these wars have sought to disperse their facilities and hide them amongst civilian infrastructure including medical facilities. The counter-response has been to undertake blanket destruction of whole urban areas, as seen in Syria and in Gaza.
This poses questions for how militaries defending urban areas respond to the increased requirement for medical care to civilians and to concurrently both defend and undertake search and rescue activities in contested areas. It may be that existing legal instruments could be strengthened or new approaches tried.