In May 2025 WHO reported that only 19 of Gaza’s 36 hospitals remained operational, seven of which were able to provide only basic emergency medical care. All the facilities were struggling under severe supply shortages, lack of health workers, persistent insecurity and a surge of casualties, and WHO described working conditions as ‘impossible’. At least 94 per cent of all hospitals in Gaza had been damaged or destroyed.
In times of armed conflict, hospitals must be able to continue operating in safety. They need medicines and medical equipment, water and electricity. The wounded and sick and healthcare staff must be able to access them.
All civilian healthcare facilities and all civilian ambulances constitute civilian objects and are therefore protected under the general rules of IHL. Those rules are set out in section 4.1 of this chapter. Medical facilities and medical transports that fall within the definitions in Additional Protocol I are afforded certain additional specific protections; these are discussed in section 4.2.
4.1 Protection under the general rules of IHL
4.1.1 Rules regulating the conduct of hostilities
A number of the rules regulating the conduct of hostilities are of particular relevance to civilian healthcare facilities and transports: the prohibition on directing attacks against civilian objects; the prohibition of indiscriminate attacks, including in particular the rule of proportionality; the rules on precautions in attacks and defence; as well as the broader obligation to take constant care in the conduct of military operations to spare civilians and civilian objects. Other rules, such as the prohibition on looting, and the rules on humanitarian relief operations, are also relevant.
All these rules must be applied bearing in mind the function of the healthcare facilities – i.e. providing care to the wounded and sick – as well as the consequences of such functions – i.e. the wounded and sick, medical personnel and other civilians are likely to be in these facilities or in their vicinity, and must be able to access them.
4.1.1.1 Prohibition of attacks
4.1.1.1.1 Healthcare facilities
Directing attacks against civilian objects is prohibited, including healthcare facilities or locations like pharmacies and dispensaries where medical supplies and equipment are stored.
Healthcare facilities do not benefit from absolute immunity. The protection afforded to civilian objects is lost if, by virtue of its nature, purpose, location or use, an object makes an effective contribution to the military operation and its destruction in the circumstances prevailing at the time offers a definite military advantage. Moreover, even if healthcare facilities retain their civilian status, not all incidental damage is unlawful. What matters is that such damage is appropriately taken into account in proportionality assessments.
Healthcare facilities are most likely to become military objectives by virtue of their use or location, for example if they are used to store weapons or to provide cover to fighters actively engaging in hostilities. Significantly, it is just the part of the facilities where these activities are taking place that becomes a military objective. Determining precisely which part of the facilities constitutes the military objective is key.
Such a determination will have an impact on the choice of means and methods of warfare for neutralizing the objective. It will also impact the application of the rule of proportionality, as attacks against the parts of the healthcare facilities that have become military objectives inevitably affect the functioning of the other parts of the facilities – which remain civilian objects – and put the wounded and sick and medical personnel in the vicinity of the military objective at risk.
The rule of proportionality plays a central role in regulating attacks that adversely impact healthcare facilities. It prohibits attacking a military objective if doing so is expected to cause incidental death or injury to civilians, damage to civilian objects, or a combination thereof that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.
Proportionality is relevant to attacks that can be expected to adversely impact healthcare facilities in two principal ways.
The first of these concerns the damage that an attack on a military objective is expected to cause to the healthcare facility itself. In addition to the death and injury to civilians expected from the actual attack, consideration must be given to the function of the medical facility in preventing other civilian deaths or injury. Proportionality assessments must consider the foreseeable consequences of limitations in their capacity to provide treatment, in terms of death, injury and disease of civilians. This is not limited to the harm that occurs immediately, but includes the foreseeable longer-term harm resulting from the reduced capacity to operate.
Due consideration must also be given to the context in which an attack is being conducted. This includes whether other functioning healthcare facilities exist in the area. Damage to a facility that may have been considered proportionate at the beginning of a conflict might no longer be so at a later stage if the number of functioning facilities is reduced. Consideration must also be given to the challenges that may exist in resupplying and repairing facilities – meaning that damage may cause a long-term interruption in the provision of medical care. These and other contextual factors increase the weight to be given to the expected damage to the facilities in proportionality assessments.
The second way that the consequences of attacks on the availability medical care must be factored into proportionality assessments is when such attacks damage objects and infrastructure necessary for the continued operation of healthcare facilities. This includes power-generation and -distribution infrastructure, water distribution systems, and roads and other infrastructure such as bridges. Damage to these can impact the ability of medical facilities to continue operating, in terms of availability of essential services such as electricity and water, and the possibility for medical supplies and personnel and the wounded and sick to reach the facilities.
For proportionality assessments to be conducted in an appropriate manner, it is essential for belligerents to have as comprehensive an understanding as possible of the interconnectivity of systems and infrastructure, and of how damage to these or interruption of the services they provide can impact the provision of medical care.
4.1.1.1.2 Medical supplies, equipment and transports
The rules also apply to medical supplies, equipment and transports.
Medical supplies and equipment are civilian objects. The fact they can be used to treat wounded combatants does not turn them into military objectives. They only become military objectives if they meet the definition in Article 52 AP I. This could be the case if they are diverted and used by armed forces or groups for other purposes.
The same applies to medical transports such as ambulances. They are not military objectives merely because they are used to transfer wounded combatants to medical facilities. However, they can become military objectives if they are used for other purposes, such as transporting weapons or able-bodied fighters, or if they are stolen and used for military purposes.
Claims that medical transports are used in a manner that turns them into military objectives are often disputed. In view of the adverse consequences of directing attacks against such specialized vehicles – which, once they resume their proper use, play a life-saving role for the wounded and sick, and are often in very limited availability – rather than directing attacks against them, belligerents should consider other feasible ways of responding to improper use.
What is feasible is that which is practically possible, taking into account all the circumstances ruling at the time, including humanitarian and military considerations. This includes the threat posed. For example, the threat posed by a vehicle that is being used to transport weapons is different to that posed by a vehicle from which combatants are shooting. In the former case, it may be possible to search the vehicles and remove the weapons. The circumstances are also relevant, including most notably if a party is in control of the area.
4.1.1.2 Precautions in defence
Belligerents must take also precautions in defence. To the maximum extent feasible they must take necessary precautions to protect civilians and civilian objects under their control from the dangers resulting from military operations. One evident way of complying with this obligation is to avoid locating military objectives within or in the vicinity of healthcare facilities. Doing so exposes the facilities, patients and personnel to the risk of incidental harm – and may even lead to the facilities themselves becoming military objectives.
The rules applicable to medical facilities entitled to specific protection expressly prohibit using medical facilities to shield military objects. The general rules prohibit using the presence of civilians in this manner. In practice, in view of the presence of patients and healthcare personnel in medical facilities, the general rule has a similar effect for functioning healthcare facilities.
4.1.1.3 Obligation to take constant care
In the conduct of military operations, belligerents must take constant care to spare the civilian population, civilians and civilian objects. This obligation is broader in scope than the rules on attacks. Most notably, it applies to all military operations. These are a wider range of activities that may have an adverse impact on the continuity of the provision of medical care, and access to that care, than actual combat.
The rule does not specify the type of harm that should be avoided. ‘Sparing’ the civilian population and civilian objects covers a range of adverse impacts that go beyond incidental death or injury of civilians and damage to civilian objects considered in proportionality assessments.
‘Sparing’ the civilian population and civilian objects requires belligerents to adopt all feasible measures to avoid adverse impact, and/or to mitigate it. It requires taking adverse impact into account in all decision-making relating to military operations. Once again, feasible measures are those that are practically possible, taking into account all the circumstances ruling at the time, including humanitarian and military considerations.
4.1.1.3.1 Access to healthcare facilities
Military operations can impact the provision of access to medical care in many ways. The mere presence of military personnel and vehicles in the vicinity of healthcare facilities can dissuade wounded enemy fighters from accessing treatment. Moreover, as they are military objectives that may be targeted by the enemy, their presence exposes the facilities, patients and healthcare providers to harm. Belligerents should avoid locating personnel in close proximity to healthcare facilities.
Military operations can damage roads and bridges, restricting the possible routes for reaching healthcare facilities, impacting the access of people seeking treatment, healthcare providers and necessary supplies.
Efforts should be made to ensure that some access routes to healthcare facilities remain open that are safe to use and as direct as possible. Information on their location should be shared through coordination channels with the actors operating healthcare facilities and, ideally, with the public.
4.1.1.3.2 Essential services
Military operations can also affect availability of electricity and water. Interruption in these services has a very significant impact on the ability of healthcare facilities to continue operating. Supplies to the facilities must not be switched off intentionally. If the electricity or water infrastructure that medical facilities rely on is damaged, the party in control of that infrastructure should use its best endeavours to repair it as soon as is feasible. During periods when electricity is unavailable, the provision of alternative sources of energy – like fuel for generators – should be facilitated. As always, what is feasible depends on the context.
4.1.1.3.3 Movement
Checkpoints and other restrictions on movement can severely impact the ability of the wounded and sick, healthcare personnel, and medical goods and equipment to reach healthcare facilities.
The rules on humanitarian relief operations require the rapid and unimpeded passage of relief consignments, but allow parties to impose measures of control, such as searches. This approach can provide guidance.
Belligerents should elaborate procedures to fast-track the passage of medical personnel, transports and goods destined for healthcare facilities that allow them to address their security concerns without unduly hampering the movement of such persons and goods. Procedures should also be established for facilitating the rapid and safe passage of patients.
These could include ways of identifying medical supplies so that they can be checked and cleared in an expedited manner; lists of goods entitled to transit with minimal search procedures; ways of identifying medical personnel so that their passage can be prioritized; assigning specific lanes at busy locations for the passage of patients, goods and medical personnel; and establishing communication protocols between the various checkpoints that might exist on the routes to medical establishments – including to provide advance notice of transports and patients in transit.
Context permitting, these procedures these should be applied so that searches and other measures of control are not carried out multiple times.
Ideally, belligerents should develop these procedures in coordination with actors providing medical care in their areas of operations. Efficient channels of communication are essential to their functioning.
4.1.1.3.4 Entry by armed and security forces into healthcare facilities
Another type of military operations are those to apprehend people receiving medical care. These are not prohibited, but – like all entry by armed and security forces in healthcare facilities – should only occur in exceptional circumstances, and be conducted in a manner that takes account of the risks these can pose to patients and healthcare providers and the potential damage to medical facilities and disruptions to their operations.
If possible, arrests should be conducted outside healthcare facilities, once patients have been discharged. If entry into facilities cannot be avoided, the timing, nature, duration and scope of the operation must, to the extent possible, take into account the routine and duties of the facility; and the rules regulating the use of force must be adjusted to take into account the context in which such operations are being conducted.
Consideration should be given to adopting standard, specific operating procedures for such operations; and to requiring higher-level prior authorization and the involvement of a legal adviser.
4.1.2 Looting
While some of the rules protecting medical care are not absolute prohibitions, or are subject to feasibility, the prohibition on looting is absolute. Despite this, according to the ICRC Health Care in Danger Study, looting of medicines and medical equipment is possibly the most common form of violence committed against healthcare facilities. It can leave facilities without the resources necessary to continue operations, depriving communities of medical care.
4.2 Specific protection of medical facilities and transports
IHL grants additional specific protection to medical facilities and transports that meet certain conditions. These can be military or civilian.
4.2.1 What are ‘medical facilities’?
IHL treaties use the expression ‘medical units’, but this paper uses the term ‘medical facilities’ as more current. Article 8(e) AP I defines ‘medical units’ as:
It is generally accepted that this definition reflects customary international law, and that it also applies in non-international armed conflicts. Most aspects are clear and uncontroversial, including the range of medical services that may be provided. Two elements warrant closer attention:
4.2.1.1 Organized for medical purposes
The Fourth Geneva Convention requires civilian hospitals to be ‘organized for medical purposes’. Factors that indicate such organization include the existence of staff – medical, technical and administrative – and medical equipment and supplies.
This does not exclude the possibility that facilities serving other purposes in peacetime, like schools or churches, are turned into medical facilities during a conflict, including on a temporary basis, to respond to needs. If this occurs, the use for medical purposes must be exclusive: for example, if a school has been converted into an emergency hospital, classes may no longer be held in it.
The requirement also means that locations used spontaneously to provide medical treatment, like apartments in areas of active hostilities, do not fall within the definition. In any event, they would not have been ‘recognized and authorized’, as discussed below. While not entitled to specific protection, such facilities nonetheless benefit from general protection under IHL as civilian objects, albeit recognizing that belligerents may not be aware of their presence and activities.
4.2.1.2 Recognized and authorized by a party to the conflict
As far as civilian medical facilities are concerned, they must fall within one of three categories. The first two are of greatest relevance in contemporary conflicts: the facilities must either belong to a party to the conflict; or be recognized and authorized by the competent authority of a party to the conflict.
Like the requirement that medical personnel be ‘assigned’, this requirement establishes a continuing link between the facilities entitled to specific protection and a party to the conflict. The rationale is the same: requiring that states retain some control over facilities entitled to specific protection, to ensure they are used exclusively for medical purposes, as well as a responsibility to prevent abuse. If it functioned as envisaged, the system could also serve as an arrangement for reporting allegations of abuse and requiring corrective measures.
The first category – ‘belonging’ to a party to the conflict – covers state medical facilities. The party to the conflict is itself responsible for their administration and for preventing abuse of the specific protection.
The second – facilities ‘recognized and authorized’ by the competent authority of parties to the conflict – covers a range of facilities, including those of national Red Cross/Crescent societies of parties to the conflict or third states, or of humanitarian organizations or private commercial actors, provided these have been ‘recognized and authorized’.
4.2.1.2.1 How has the requirement been applied in practice?
IHL treaties do not specify who the ‘competent authority’ is, or the procedures and criteria for recognizing and authorizing medical facilities. The expectation was that states would adopt domestic legislation to give effect to these provisions.
The requirement that medical facilities be recognized and authorized is clearly stated in Additional Protocol I and repeated in numerous military manuals. It is also a prerequisite for entitlement to display the protective emblem – a separate set of rules. Even so, there appears to be limited awareness of what this requirement means in practice. It is different from, and distinct to, the consent to conduct relief operations required by Article 70 AP I. It is unclear how the requirement applies to facilities operated by humanitarian organizations. Often, specialized medical organizations operate on the basis of a memorandum of understanding with ministries of health. Arguably, this constitutes the recognition and authorization required by Article 12 AP I. As far as non-international armed conflicts are concerned, it is generally agreed that the definition of medical units in Article 8(e) AP I also applies to such conflicts, as does the requirement that medical facilities belong to or be recognized and authorized by a party to the conflict’.
Recognition by state authorities continues to cover authorized medical facilities that end up in areas under the control of organized armed groups. As far as organized armed groups are concerned, an implicit reference to their entitlement to recognize and authorize medical facilities can be found in Article 12 AP II on authorization of the use of the distinctive emblem.
IHL treaties clearly make specific protection of particular medical facilities conditional on those facilities belonging to or being recognized and authorized by a party to the conflict. Despite this, it has been difficult to identify any significant practice. In parallel, states appear to have been willing to extend some aspects of specific protection as a matter of policy to all healthcare facilities, regardless of recognition and authorization.
Such a policy benefits the protection of medical care. However, the treaty rules established a system of checks and balances, whereby the party granting authorization had a continuing responsibility to minimize the risk of abuse of medical facilities, to prevent abuse, to respond to allegations of abuse, and to put an end to them. This important dimension has been lost. In fact, in many conflicts it is the very party with the responsibility for playing this role, or groups affiliated with them, that are abusing the protection afforded to medical facilities.
4.2.2 What are ‘medical transports’?
Article 8(e) AP I defines ‘medical transports’ as:
It is generally accepted that this definition reflects international customary law, and that it also applies in non-international armed conflicts. Most elements are clear and uncontroversial. Two aspects warrant closer attention:
4.2.2.1 Exclusively assigned
Vehicles must be assigned exclusively to medical transportation. They must only contain the wounded and sick, medical personnel, equipment or supplies, and, during such assignment, may not be used for any other purpose. The assignment can be permanent (i.e. for the duration of the conflict) or temporary.
4.2.2.2 Under the control of a competent authority of a party to the conflict
Transports must be under the control of a competent authority of a party to the conflict. This requirement aims to ensure that specific protection is extended only to vehicles that meet the relevant conditions, and that they are not used for improper purposes. Control must be exercised both at the time of assignation of the vehicle and, importantly, throughout its operation.
IHL treaties do not specify who the competent authorities should be. For military medical transports they will be the relevant branch of the armed forces. For civilian medical transports it is left to states decide which authority is responsible for exercising this control. It is likely to be the same as those that recognize and authorize medical facilities.
While organized armed groups also appear entitled to assign medical transports, it has not been possible to find examples. Nor was it possible to find examples of how the relevant state and organized armed groups authorities exercised their oversight roles during armed conflicts.
4.2.3 What does specific protection entail?
Medical facilities and transports must be respected and protected. The obligation to respect refers to prohibited conduct, and the obligation to protect requires positive measures. For some conduct, it can be difficult, artificial and unnecessary to separate these two aspects. The underlying objective is to ensure that the operations of medical facilities and transports are not intentionally and unduly impeded.
4.2.3.1 The obligation to respect
IHL treaties give two specific examples of prohibited conduct: directing attacks against medical facilities and vehicles; and using medical facilities and vehicles in an attempt to shield military objectives from attack.
The obligation to respect also covers conduct that is prohibited or regulated by other rules of IHL, such as the prohibition on looting, and unlawfully requisitioning medical facilities in situations of occupation. Other restrictions are found in the general rules regulating the conduct of military operations. Most notably, expected damage to civilian medical facilities and vehicles must be taken into account in proportionality assessments; and all feasible precautions must be taken to avoid and, in any event, minimize, their incidental damage. More generally, in the conduct of military operations constant care must be taken to spare them.
Article 12(4) AP I requires a specific precautionary measure: whenever possible, belligerents must ensure that medical facilities are sited so that attacks against military objectives do not imperil them. Although this is framed in terms of the location of medical facilities, the converse is as relevant: military objectives should not be placed in the proximity of medical facilities.
Medical facilities and vehicles may not be used in an attempt to shield military objectives from attack. Belligerents must not abuse their specific protection to obtain a military advantage – i.e. counting on their enemy to refrain from attacks that could damage them. The prohibition covers only the deliberate placement of military objectives within or in the proximity of medical facilities or vehicles with the intent of preventing attacks against these objectives.
Such intention may be difficult to infer, but systematic conduct may be indicative. In any case, the obligation to respect medical facilities and vehicles also prohibits conduct that amounts to ‘acts harmful to the enemy’ that would lead to the loss of their specific protection – like storing military equipment – or that would turn them into military objectives. This prohibition also covers situations where it is not possible to infer an intention of shielding military objectives.
If one party violates the prohibition on using medical facilities and vehicles to shield military objectives, or uses them to carry out acts harmful to the enemy, this does not release its opponent from its own obligations to respect the facilities and vehicles and to take all feasible precautions to spare them.
Belligerents must not intentionally prevent medical facilities from operating – for instance by intentionally denying them essential supplies such as electricity or water. Intentionally ‘switching off’ electricity or water is different from situations when such supplies are interrupted in the course of military operations. Those situations are governed by the general rules regulating the conduct of hostilities. For example, when planning an attack on a military objective, proportionality assessments must include the expected consequences of damage to the electricity and water infrastructure on medical facilities’ ability to operate. If the damage to the infrastructure occurs as a result of military operations other than attacks, all feasible precautions should have been taken to minimize the impact on civilian objects, including civilian medical facilities.
4.2.3.2 The obligation to protect
The obligation to protect medical facilities and medical vehicles requires belligerents and other relevant parties to take feasible measures to facilitate their operations and, as a minimum, not to intentionally and unduly impede them.
IHL does not specify measures that must be taken. They can include measures that facilitate the provision of goods and services necessary to the operations of medical facilities and transports. Examples include refraining, to the extent possible, from conducting military operations in the vicinity of medical facilities, as these can impair the ability of the wounded and sick, medical supplies, personnel and vehicles to reach the facilities; and keeping access roads open or, when if this is not possible, facilitating the operation of alternative routes.
As far as the supply of medicines and equipment and the movement of medical vehicles are concerned, the rules regulating humanitarian relief operations can provide guidance. Belligerents must allow the rapid and unimpeded passage of medical consignments and medical vehicles, but are entitled to adopt measures of control. These include conducting searches or requiring the use of particular routes. Any such technical arrangement must be applied in a manner that ensures as swift and efficient a passage as is possible.
While the obligation to respect medical facilities and vehicles sets out absolute prohibitions, the obligation to protect them is an obligation of means. Belligerents and other relevant actors, like neighbouring states, must take the measures that are feasible in the circumstances.
Context is important. The belligerent with control over the territory where medical facilities are located is likely to be in a position to take more significant measures to facilitate their work. However, its opponent may also have a role to play – for example by facilitating the passage of medical supplies and equipment.
The obligations of occupying powers are more onerous. To the fullest extent of the means available to them, and with the cooperation of national and local authorities, they must ensure and maintain medical and hospital establishments and services, as well as public health and hygiene in the occupied territory.
The obligation applies to all medical facilities and vehicles – those belonging to, or recognized and authorized by one party, and those belonging to, or recognized and authorized by, its opponent. Inevitably, a party is likely to take more significant measures to protect its own facilities, including from the effect of hostilities. This includes important preparedness measures taken before the outbreak of conflict.
4.2.3.3 Measures by medical care providers
It is belligerents who have the primary responsibility for ensuring respect for the rules protecting medical care. However, the actors who operate medical facilities and vehicles also have an important role to play. For example, they can adopt internal measures regulating key aspects of their operations to minimize the risk that medical facilities and vehicles will be used to conduct acts harmful to the enemy, as well as to minimize the risk of allegations of such use. Possible measures may include prohibiting bringing weapons into medical facilities or transports. Depending on the context, prohibitions could extend to communication devices. Limits could also be set on the number of family members who may accompany patients.
In many contexts, medical organizations share the coordinates of their facilities with belligerents to facilitate the identification of those facilities. Experience has shown that the coordinates should indicate the entire perimeter of the premises rather than a single central spot. Information may also be provided on the specific markings used to identify medical premises and transports.
Certain organizations strive to conclude written agreements with all parties involved in hostilities in particular contexts. These agreements set out the shared understanding of their obligations, and of the measures they will take to give effect to them, and identify focal points for liaising on their implementation. For example, in Afghanistan in 2016 and 2017, MSF concluded separate agreements with the Taliban and with the Ministry of Foreign Affairs on measures to be implemented by the National Defense and Security Forces.
MSF’s experience indicates that even where it is not ultimately possible to conclude such an agreement, the process of negotiation can be extremely valuable, as it allows in-depth discussion of likely problematic areas, and of good practices to attempt to address them. It also allows the identification of key interlocutors to engage with if problems arise.
While many of the measures addressed in such agreements, and adopted in the internal regulations of medical organizations, are also relevant for state hospitals, in practice the latter may face pressure from state armed and security forces that make it harder for them to resist conduct that can put the facilities and patients at risk.
4.2.3.4 The limits of specific protection – not absolute immunity
The obligation to respect and protect medical facilities and transports does not grant them ‘absolute immunity’ from any type of damage; nor does it prohibit all conduct that could affect their capacity to operate.
For example, not all incidental damage to medical facilities or vehicles caused by an attack directed against a military objective in their vicinity is prohibited. Such damage must be assessed in accordance with the ordinary rules on proportionality – with due weight being given to the functions carried out by the facilities and vehicles.
Belligerents may, furthermore, lawfully respond to hostilities directed at them from within medical facilities, provided the requisite warning has been given and remained unheeded. Nonetheless, in returning fire in such circumstances, heightened precautions must be taken to minimize risks to the wounded and sick, healthcare providers and the medical facilities themselves.
Similarly, it is not prohibited to carry out operations within medical facilities to detain enemy combatants receiving medical treatment or other persons in relation to the conflict. When conducting such operations, belligerents must take all feasible measures to minimize their adverse impact on the wounded and sick, healthcare providers and the medical facilities. ‘Feasible’ should be understood as that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations. In view of the disruptions and dangers they pose, military doctrine should indicate that such operations should be exceptional and should require higher-level authorization.
Similarly, although searching medical vehicles or requiring them to take particular routes is not prohibited, such conduct must not constitute intentional and unwarranted interference with their capacity to operate. Moreover, it must take into account the imperative of moving the wounded and sick as swiftly as possible to medical facilities where they can be treated.
4.2.4 Loss of specific protection
Medical facilities and vehicles lose specific protection if, outside their humanitarian functions, they are used to commit acts harmful to the enemy. Importantly, specific protection ceases only after a warning has been given, setting whenever appropriate a reasonable time-limit for putting an end to the harmful conduct, and where this has remained unheeded. Allegations of such use are frequently contested.
4.2.4.1 Acts harmful to the enemy
IHL treaties do not define or provide examples of acts harmful to the enemy, but they do give examples of acts that are not considered harmful to the enemy: equipping facility personnel with light individual weapons for their own defence or for that of the wounded and sick; guarding facilities with sentries – as could be necessary to prevent looting, for example; the presence of small arms and ammunition taken from the wounded and sick, and not yet handed to the proper service; or the presence of combatants receiving treatment.
Acts harmful to the enemy comprise any use of the facility or vehicle for military purposes. Examples include: conducting combat action from the facilities or vehicles; using them to shelter or transport able-bodied combatants; using them to store or move arms, ammunition or other military equipment; using them for confining or moving hostages; or using them for military observation and information gathering. Other harmful acts include locating access points to tunnel systems used by fighters in the medical facilities; or using medical vehicles to gather tactical intelligence – such as information on the presence of troops – and conveying it to a party to the conflict, or to hinder military operations.
It is generally considered that ‘acts harmful to the enemy’ is a broader concept than conduct that results in a civilian object becoming a military objective. The latter requires the object to make an effective contribution to miliary action by virtue of its nature, location, purpose or use; its destruction in the circumstances at the time must offer a definite military advantage.
The notion of ‘acts harmful to the enemy’ covers not just the infliction of direct harm on enemy forces – by firing at them from medical facilities, for instance – but also conduct that is intended to interfere with military operations directly or indirectly, or that has this effect.
One important consequence of this difference in scope is that not all acts harmful to the enemy turn a medical facility or vehicle into a military objective. For example, tapping into the facilities’ electricity and telecommunications networks and using them in tunnels under the facilities is an act harmful to the enemy, but probably not of a nature that would turn the relevant parts of the facilities into military objectives.
Moreover, not all operations by a belligerent within a medical facility constitute acts harmful to the enemy that can lead to loss of specific protection. For example, entering facilities to arrest combatants or others who are receiving treatment would not have this effect; but operations to capture able-bodied fighters sheltering in the facilities would.
In addition to being harmful to the enemy, the acts in question must occur outside the ‘humanitarian functions’ of the facilities or vehicles. Activities that could be harmful to the enemy but that fall within medical facilities’ humanitarian functions include, most obviously, providing medical care to wounded and sick combatants; or instances when electronic equipment used in medical facilities interferes with military communications systems. As regards medical vehicles, there may be circumstances when their legitimate use impedes military operations, for example if a vehicle temporarily shields a military objective, or blocks the passage of military vehicles. Whether such conduct is outside the humanitarian function must be determined on a case-by-case basis, according to whether the adverse impact on the enemy’s military operation was deliberate or incidental to the movement of the vehicle.
4.2.4.2 Warnings
Even if acts harmful to the enemy have been committed, specific protection is only lost once a warning has been issued and has remained unheeded.
The general rules of IHL regulating conduct of hostilities require warnings of attacks that may affect the civilian population, unless circumstances do not permit. The obligation in relation to medical facilities and vehicles is broader. A warning is required for any action that could undermine their specific protection. But not every operation has this effect. For example, entering medical facilities to arrest patients is not incompatible with specific protection and so does not require a warning.
Although the requirement to give a warning is framed in absolute terms in IHL treaties, some military manuals state that the obligation does not apply when troops are responding to fire from medical facilities.
The purpose of the warning is to draw attention to the conduct in question, so that it can be investigated and – if the claim proves to be well-founded – ended. The warning must identify the alleged conduct in sufficient detail for it to be investigated. Referring in general terms to the conduct of ‘acts harmful to the enemy’ or ‘military operations’ in the facilities is not sufficient. The warning should provide information on the location of the conduct, and when it occurs, as this could help identify the actors responsible for it – for example, which military units are present in the area.
IHL treaties do not specify who warnings must be issued to. A number of different actors can play a role in taking the necessary remedial action: the management of the medical facility; the state authorities that have ‘authorized’ the facility and that retain responsibility for ensuring it meets the criteria for specific protection – frequently the ministry of health; and the party to the conflict that is carrying out the harmful acts.
Who the most appropriate party is depends on the circumstances. There may be instances when the management of the medical facility can put an end to the conduct in question – for example, by requiring able-bodied combatants to leave the premises.
In Yemen, for example, a belligerent informed a medical organization that members of an armed group had gathered in the vicinity of one of the organization’s facilities. The managers of the facility contacted the members of the group and persuaded them to relocate, explaining that their mere presence in such proximity to the hospital was putting it at risk. Key to success in this instance were the organization’s channels of communication with both sides, and the receipt of information on the presence of the group. The fact that the group was not deliberately using the facilities to shield themselves contributed to their willingness to relocate.
In other instances, the management of the medical facility may simply be unable to terminate the hostile acts, much as they would like to. An example might be where forces are using the premises or the affiliated vehicles to store weapons or conduct military operations. In theory, if these are the forces of the belligerent to which the medical facilities belong or that has authorized them, the entity that issued the authorization should be able to liaise with its military counterpart requesting the conduct to be terminated. In practice, if the conduct is intentional, it is unlikely that the health ministry would be able to demand its termination. The position is even more complicated in practice if it is enemy forces – including organized armed groups – that are responsible.
For medical vehicles, similarly, warnings can be issued to different actors who might be able to take the necessary remedial action. They include: the managers of the entity with which the vehicles are affiliated – a medical facility or a private organization; the party that has assigned the vehicles and has a continuing obligation to control them; and the party to the conflict carrying out the harmful acts.
The contents of the warnings issued to different actors do not need to be the same. For example, warnings to managers of the medical facilities should be as detailed as possible, to allow them to investigate the situation. It is acceptable to send to the belligerent responsible for the conduct a more generic warning, to avoid sharing information that could reveal the extent of the intelligence at the disposal of its opponent and its sources, or to maintain some tactical element of surprise should the warning remain unheeded and operations have to be conducted to end the hostile acts.
A warning must be issued even if the party giving it considers that there is little likelihood that the harmful acts will be terminated. For maximum effectiveness, the warning should be issued to all of these actors – including the management of the medical facilities, who are the ones most directly affected.
IHL treaties do not specify the modalities for issuing warnings. What matters is that they are effective in conveying the information to the actors in a position to end the conduct, or who would be affected by loss of specific protection. Warnings can be communicated by whatever channels exist – such as email, phone call, text message, radio, leaflets or social media, or a combination of any of these – in a language that is understood by the intended recipients.
Ideally, direct channels of communication should be established between belligerents conducting operations in particular areas and the managers of medical facilities, in order to enable constant exchange of information to minimize the adverse impact of military operations on the functioning of medical facilities. These channels can also be used to share allegations of harmful acts and to discuss how to address them. Such arrangements must allow the swift exchange of information, and must not constitute a bottleneck.
For example, the admission of numerous wounded combatants to a medical facility following a military engagement can give rise to a cluster of mobile phone signals that the opponent is tracking, suggesting that there is a communications unit in the facility. Dialogue with the belligerent relying on such methods to track enemies would allow the hospital managers to explain the circumstances.
Ideally channels of communication should also be established with government departments responsible for medical facilities. This may be difficult as they are likely to be those of the opponent. A neutral intermediary could play a role in facilitating exchanges.
Warnings must set, whenever appropriate, a ‘reasonable’ time limit for remedying the situation. What constitutes a reasonable time limit depends on the circumstances, and on the nature of the acts harmful to the enemy. For example, it is reasonable to give a longer deadline for the removal of weapons stashed in a hospital when there are no military operations in the area than is the case when responding to fire from within the premises.
In the case of medical vehicles, if an ambulance poses an immediate threat – for example, if it is being used to conduct an attack – the warning will be issued to the staff on the vehicle, and the time limit for ceasing the hostile act will be minimal. If the threat is not immediate – if a vehicle is transporting the wounded and weapons, for instance – it should be allowed to finish its journey.
The deadline must also give the relevant authorities sufficient time to verify the accusations and to attempt to put an end to the harmful acts. It is not necessary, however, for any response to continuing harmful acts to take place within a particular time of the issuing of the warning, provided the acts in question are still ongoing when the response is undertaken.
Some literature suggests that if it is not possible to end the hostile acts, the time limit should allow the evacuation of the facilities. This option is not mentioned in the treaties. Such an approach suggests that evacuating medical facilities is the only option if the situation cannot be remedied. Most frequently this is not the case, as it is likely to be only part of a medical facility that loses specific protection. Moreover, in view of the difficulties of evacuating hospitals and the risk this poses to the well-being of patients, alternative responses should be considered that allow facilities to continue operating.
Although the obligation to issue a warning is very clear, and is set out in military manuals and doctrine, it has been extremely difficult to find instances when warnings have been issued in recent conflicts. None was reported as having been issued before attacks against medical facilities variously in Ukraine, Sudan, Yemen or Myanmar. The warnings made public in relation to Israel’s operations in Gaza did not identify the purported harmful acts sufficiently clearly.
Far more frequent than warnings are allegations by belligerents that medical facilities are being used to carry out hostile acts. No arrangements exist for independent verification of such claims. Frequently it is the word of the belligerent – at times after an attack has been conducted – against that of affected medical personnel and patients. Such claims are sometimes addressed in accountability proceedings, but at that stage the harm has occurred. Solutions should be sought for investigating in real time allegations that harmful acts are being conducted. Neutral parties acceptable to all sides can play an important role in verifying allegations and in liaising with relevant parties to put an end to them.
This is a role that could be played by third states in a role akin to that of protecting powers, or by an international body like the International Humanitarian Fact-Finding Commission. As always, the challenge is not establishing modalities for the activities of such a body – including in terms of confidentiality – but finding an entity that is acceptable to all parties.
4.2.5 Consequences of loss of specific protection
If, despite the warning, the acts harmful to the enemy continue, the medical facility or vehicle loses its specific protection and must be treated like any other civilian object. The general rules applicable are set out in section 4.1.
Importantly, loss of specific protection does not necessarily mean that attacks may be directed against a medical facility or vehicle. This is only permissible if the harmful act is of a nature that would turn them into military objectives. This will be the case only if they meet the relevant criteria: if ‘by their nature, location, purpose or use’ they make an effective contribution to military action, and ‘their total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’.
As always, it is necessary to identify precisely what becomes a military objective. Obviously, this depends on the nature of the conduct. There may be circumstances whereby an entire facility becomes a military objective – for example, if armed forces take over a hospital. In most cases, however, it will be the specific parts where the relevant conduct is occurring that become military objectives – for example, the rooms where weapons are hidden or where openings into tunnels used by combatants are located.
Even if a medical facility or a vehicle becomes a military objective, the rule of proportionality and the requirement to take constant care to spare civilians and civilian objects continue to apply. In applying these rules, consideration must be given to the function of the medical facility, if it continues to operate, or of the vehicle, and to the presence and activities of the wounded and sick and of medical personnel – who continue to benefit from specific protection even if the facilities or vehicle have lost it.
Thus, for example, if a vehicle is used to transport weapons, attacks against it must comply with the rule of proportionality. That is to say, the expected death or injury of civilians, such as the wounded and sick or medical personnel it may be transporting, and the damage to the vehicle, must not exceed the concrete and direct anticipated military advantage – in this example from seizing or from destroying the weapons. Furthermore, in view of the often life-saving services provided by medical vehicles, operations against the vehicle in response to hostile acts should, to the extent possible, be conducted in a manner that minimizes adverse impact. If possible, searches should be conducted and weapons removed, rather than destroying the vehicle. As always, what is feasible depends on the prevailing circumstances.
As regards an attack on a hospital of which a part has become a military objective, only a very limited military operation is likely ever to be lawful. This is in view of the foreseeable extent of the incidental harm that such an attack would be expected to cause, in terms of death and injury to the wounded and sick and medical personnel, and damage to the facility, with foreseeable longer-term consequences for the provision of medical care.
Once a facility or vehicle has lost its specific protection, the additional rules that flow from that protection no longer apply. The consequences are particularly significant as regards the obligation to respect the facilities or vehicles.
These include, first, the obligation to issue a warning. That said, the general rules regulating the conduct of hostilities require belligerents to give effective advance warning of attacks that may affect the civilian population, unless circumstances do not permit.
Second, the obligation to respect medical facilities and medical vehicles prohibits using these in a manner that turns them into a military objective. Once specific protection is lost, this prohibition no longer applies, as ‘ordinary’ civilian objects do not benefit from it.
Third, the prohibition on using medical facilities or vehicles to shield military objectives from attack also no longer applies. The general rules regulating the conduct of hostilities prohibit using the presence of civilians for such purposes, but not civilian objects.
4.2.6 Regaining specific protection
Treaty provisions do not specify whether, following a warning that remains unheeded, specific protection is lost temporarily or permanently. Arguably, medical facilities and vehicles should only lose specific protection temporarily, for the duration of the harmful act, in the same way that civilian objects can become military objectives by virtue of their use or location at a particular moment and then revert to being civilian objects once this use has ceased, or where the dynamics of hostilities is such that their location is no longer a factor that makes them a military objective.
This said, consideration should be given to the nature of the harmful acts, and in particular their frequency. If certain conduct occurs repeatedly – for instance, if able-bodied combatants repeatedly shelter in certain facilities, or if they are systematically used to hide weapons – this could be an indication that those responsible for the facilities are unable to prevent their misuse. In such circumstances, the various individual incidents could be considered as ongoing conduct, and some more significant measure could be required for specific protection to be reinstated. Similarly, if vehicles affiliated with a particular institution are systematically used to carry out harmful acts, such as transporting weapons or able-bodied fighters, this is likely to undermine trust in all the fleet and thus lead to increased movement restrictions and searches. These are likely to continue until the improper use ceases.
There is a divergence of view as to whether following loss of specific protection a formal ‘re-authorization’ of medical facilities by the relevant authorities is required. It has been suggested that, in such circumstances, the side that was harmed by the acts that led to loss of specific protection could be responsible for issuing the equivalent of an authorization. There have not been any instances when this has happened.
If belligerents were to agree to the involvement of a neutral third party in verifying allegations that medical facilities are used to conduct harmful acts, this entity could also play a role in identifying the steps to be taken to prevent their recurrence, and in ‘certifying’ that specific protection can be reinstated.
4.3 Good practice
- States should adopt measures under their domestic law, clearly indicating who is responsible for recognizing and authorizing medical facilities and for assigning medical vehicles. The measures should clearly elaborate the role of the entity in preventing abuse and responding to allegations of abuse.
- Armed forces must ensure that their policies, doctrines and operating procedures clearly give effect to the protections afforded to medical facilities and transports. These should be flowed down into mission-specific operating procedures and instructions, and should be disseminated and included in training programmes. Specific issues to be addressed include:
- The prohibition of directing attacks against medical facilities and vehicles. To facilitate compliance with this prohibition, armed forces should map the location of medical facilities in the areas where they intend to conduct military operations, and regularly update this information. Medical facilities should be placed on a ‘no strike’ list.
- The obligation to take into account incidental damage to medical facilities and vehicles, and the death or injury of medical personnel and of the wounded and sick, when conducting proportionality assessments. This should also include the foreseeable longer-term consequences of interruptions in the services offered by the facilities and vehicles for the availability of medical care.
- The obligation, in the conduct of military operations, to take constant care to spare medical facilities and vehicles – including by refraining from, to the extent feasible, carrying out operations in the proximity of medical facilities, or locating military assets in their vicinity.
- The prohibition on using medical facilities and vehicles to shield military objectives.
- The circumstances under which forces may enter medical facilities to detain persons receiving treatment, and the measures that should be taken to minimize the adverse impact of such operations on other patients, medical care providers and the functioning of the facilities.
- The potential requirement for higher-level authorization of attacks and military operations expected to cause damage to medical facilities, or to affect their operations.
- Measures to facilitate the expedited passage of medical supplies and equipment. Such measures should cover initial entry into the relevant country – for example, by agreeing expedited customs procedures, and lists of pre-approved items – as well as subsequent movement within the country. These could include procedures to expedite searches at checkpoints.
- For medical vehicles, arrangements to expedite passage through checkpoints. These could include, for example, establishing dedicated lanes or, if this is not feasible, giving priority to medical vehicles; ensuring communication between successive checkpoints to give notification of the arrival of medical vehicles; expedited search and identification procedures; ensuring curfews include exceptions for medical vehicles; and requiring a higher level of authority for denial of movements.
- States should adopt exceptions for medical supplies and equipment in international and domestic export controls, sanctions and other relevant measures.
- Armed forces should map the ‘operational environment’ relevant to the continued functioning of medical facilities, including: infrastructure on which medical facilities depend, such as electricity and water infrastructure; access and supply routes; and alternative healthcare facilities in the area. This mapping should be regularly updated.
- Armed forces should establish channels of communication and coordination with civilian medical authorities and humanitarian organizations that provide medical care in their areas of operations. This is essential for elaborating and implementing these measures in a context-specific manner, and for addressing problems that may arise as swiftly as possible.
- Procedures should be agreed for identifying medical vehicles by means of registration numbers, logos, call signs and identification of staff, along with procedures for notifying movements.
- Modalities should be agreed with civilian medical authorities and humanitarian organizations to address situations where armed forces consider that acts harmful to the enemy are being conducted within, or in close proximity to, medical facilities, or in the use of medical vehicles.
- Organized armed groups should elaborate and implement similar measures to all those outlined above.
- Armed forces and groups should develop guidance that identifies activities that must not be carried out within or in the vicinity of medical facilities, and acts that must not be carried out via medical vehicles, as these activities could lead to loss of specific protection or allegations thereof.
- Actors operating medical facilities should identify practical measures to minimize the risk that acts harmful to the enemy will be conducted in the facilities. These can include: procedures for controlling admission; rules restricting weapons and the number of family members or visitors; and conducting routine checks of the perimeters. These measures can be set out in internal regulations for personnel, with relevant parts displayed at the entrance of the facilities.
- Armed forces and groups should require their personnel to follow any regulations adopted by medical facilities regarding armed entries, including respecting no-weapons restrictions.
- Organizations operating medical facilities could conclude written agreements with belligerents identifying the measures both sides will take to avoid the conduct of acts harmful to the enemy and to convey and address allegations of harmful acts.
- Channels of communication should be established between belligerents and the managers of medical facilities in the areas where they are conducting operations, and with relevant government departments, to enable a constant exchange of information to minimize the adverse impact of military operations on the functioning of medical facilities. These channels can also be used to raise concerns about possible acts harmful to the enemy and to address such allegations.
