International law questions abound as Israeli forces attack Gaza hospitals

For more than a week, Al-Shifa Hospital in Gaza City was the center of the Israeli military offensive. Outside, gunfire raged and tanks got closer. As the electricity went out, medics reported sniper fire, bomb explosions and deteriorating living conditions as trapped civilians piled up on bloodstained floors, as food and water was lacking and premature babies died after the incubators shut down due to lack of fuel. . Last Wednesday, Israeli soldiers raided the compound in search of a Hamas “command center” and hostages.

The Israeli army has since taken control of at least two other hospitals in the north of the besieged and bombed enclave. On Monday, the Indonesian hospital was attacked, with the Israeli army saying it responded after “terrorists opened fire from inside”, while maintaining it did not bomb the hospital in return.

These raids raised the possibility that the IDF may have violated international humanitarian law, as hospitals, including patients and medical staff, receive special protection during armed conflict.

And while medical facilities, like hospitals, can lose protection from military attacks under certain conditions, experts say, the law sets a high bar for justifying such attacks.

“If Israel is correct about the tunnels under the hospital, and in particular that a Hamas command and control center is located there, then the IDF would be acting within the law, at least in principle , by conducting its military operations within the framework of the law. hospital,” Marko Milanovic, a professor of public international law at the University of Reading in England, told NBC News, speaking about the IDF raid on Al-Shifa last week.

So far, there isn’t enough evidence to determine one way or the other, he said.

“Judging solely by what the IDF has shown so far, we are nowhere near the level of evidence we would need to reasonably justify the attack on the hospital, both in legal terms and even more so in terms of public relations,” Milanovic said.

Furthermore, experts point out that if it were to go to an international court, Hamas would undoubtedly be found guilty of violations international humanitarian law after deliberately killing civilians during their terrorist attack which left 1,200 dead in Israel on October 7.

Using civilian locations, including hospitals, as “war sites” would also violate the law, said Omar Shakir, director of the Israel and Palestine division of Human Rights Watch. The use of human shields, if proven, is considered a serious violation of the Geneva Conventions.

“Humanitarian law applies equally to all parties,” Shakir said of Hamas’ potential culpability. “International humanitarian law is not an agreement between combatants. It is an agreement with humanity.

(In 2019, Shakir was expelled from Israel on the grounds that he had violated an Israeli law by supporting boycotts against the country. He and Human Rights Watch deny this accusation.)

Israeli and US officials say Hamas secretly sheltered military infrastructure beneath hospitals, focusing on Al-Shifa in Gaza City. Hospital staff and Hamas officials deny allegations that the hospital housed a headquarters for the fighters and sheltered hostages.

Since beginning its raid on Al-Shifa last Wednesday, the Israeli army has sought to demonstrate that Hamas is using Gaza’s main hospital as a military base. Videos and images released between then and Monday showed AK-47s, ammunition, grenades, uniforms and computer equipment, which the IDF says belong to Hamas, inside the hospital.

Al-Shifa’s disclosure of information culminated with a video released on Sunday purporting to show a 55-meter-long “terrorist tunnel” beneath the medical complex leading to a blast door and firing hole. The Israeli military also released videos and photos showing hostages taken to Al-Shifa on October 7. Hamas said the injured hostages received medical treatment at hospitals before being taken to custody elsewhere..

NBC News is unable to independently verify Israel’s descriptions of what the footage shows, nor the claims made by either side.

In a comment to NBC News about the raid on Al-Shifa, an IDF spokesperson said: “The Israeli army categorically rejects the claim that it acted in violation of international humanitarian law or that it attacked the hospital. »

According to the spokesperson, the Israeli army “has taken numerous measures to ensure that the impact of its ongoing operations on civilians at the hospital and on hospital activity is minimal.”

Amid active fighting and as searches by Israeli forces continue, It is not possible at this time to determine with certainty whether international humanitarian law was violated, legal experts said.

Milanovic stressed that two conditions must be met for medical facilities, such as hospitals, to lose their protection against military attacks. First, they must be used “to commit acts harmful to the enemy,” including sheltering able-bodied combatants and storing ammunition, he said.

Warnings to stop “acts harmful to the enemy” must be issued within a reasonable time and remain a heedless letter, he said, adding that Israel had issued such warnings on several occasions.

Even if the IDF provides definitive evidence that Hamas is operating under the hospital, the Israeli raid on Al Shifa remains a possible war crime, said Shakir of Human Rights Watch, in the form of repeated warnings with no guarantee of passage. safe for personnel and injured people. not shouldering the burden of evacuation under international humanitarian law when there is “no safe place to go in Gaza.”

And even if a hospital has lost its protection against attacks, that does not mean that the civilians there have lost their protection.

“They must be protected at all times,” Milanovic added.

Dr Ahmed El Mokhallalati, a plastic surgeon at Al-Shifa, said last week that the facility had become “a war zone”, with vital resources dwindling, including food and water. He said staff buried 180 people in a mass grave inside the hospital because they were too afraid to venture outside during the fighting.

El Mokhallalati told NBC News on Friday that the hospital, where there was no electricity or water, had been surrounded by Israeli troops and no one had been allowed in or out.

The Israeli army on Saturday issued evacuation orders to 2,500 displaced people seeking refuge inside the country. Al-Shifa, but 25 health workers and 291 patients remained in the complex on Monday, according to the World Health Organization.

William Schabas, professor of international law at Middlesex University in London, warned that even if a hospital lost its protected status, that would not give the attacking party “blanket permission” to destroy it. A hospital also cannot be attacked if there is a serious risk of harm to non-combatants – patients, doctors and other civilians who might be there.

“This problem is resolved through the notion of proportionality,” he said. “Obviously, when it comes to a hospital, the balance is heavily tilted in favor of great restraint in any attack, considering the consequences for non-combatants. »

Disproportionate attacks are considered violations of the rules of armed conflict and war crimes, said Paola Gaeta, a professor of international law at the Geneva Institute of Advanced Studies who specializes in armed conflicts. This could involve criminal liability for those who participated in the attack, she said.

Rather than examining the legality of a specific military attack, which could be a difficult exercise, Gaeta said one could also try to assess whether an attack on the hospital could be part of a widespread attack. or systematic attack against the civilian population of Gaza and could be considered a crime against humanity.

“Crimes against humanity are not linked to violations of the laws of armed conflict, as is the case with war crimes, but to serious and flagrant violations of human rights that shock our sense of “humanity – in times of peace and in times of war,” she said. .