Questions and answers: What protection do hospitals have in a war? Are there any exceptions?

International humanitarian law expressly prohibits attacks on health centers, unless they are used to commit ‘acts harmful to the enemy.’ However, even in this case, an operation that puts the lives of civilians at risk is not lawful

Israel-hamas war
Israeli soldiers walk through the Al Shifa hospital complex on Wednesday during what they say is a delivery of humanitarian aid to the facility. Reuters has not been able to verify the date of the image.IDF (via REUTERS)

This Wednesday, tanks and soldiers with the Israeli army entered Al Shifa hospital, the largest medical center in the Gaza Strip. There were about 2,000 people in the hospital complex, including doctors, patients, and refugees. During the days of the siege, the staff of the health center has reported through Doctors Without Borders (MSF) that it is impossible to evacuate the hospital, since the Israeli soldiers shoot at anyone who tries to leave. The hospital cannot fulfill its humanitarian mission as it lacks the basic means necessary for survival, such as electricity, fuel, water, food, and medicine. The situation has resulted in the deaths of dozens of people — among them, at least seven premature babies who were in incubators — and it was necessary to dig a mass grave in the hospital grounds to prevent the spread of diseases.

Of Gaza’s hospitals, which have been attacked and surrounded by Israeli forces, 26 out of 36 are closed. This has alarmed the World Health Organization (WHO), which this Wednesday denounced the aggression against Al Shifa: “Under international humanitarian law, health facilities, health workers, ambulances, and patients must be safeguarded against all acts of war,” said the director general of the U.N. body. And he added: “Even if health facilities are used for military purposes, the principles of distinction, precaution, and proportionality always apply. Hospitals are not battlegrounds.”

Is it legitimate to attack a hospital during a war?

No. Article 18 of the Fourth Geneva Convention is precise: “Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.”

International humanitarian law (IHL) also prohibits attacking ambulances that are carrying out medical tasks. The text of Article 21 of the same law states: “Convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying wounded and sick civilians, the infirm and maternity cases, shall be respected and protected.”

Is it lawful to besiege a hospital?

Israeli attacks around Al Shifa hospital left the health center without supplies. As Dr. Khaled Abu Hamra described to this newspaper last weekend, the situation has been “complete chaos,” with no internet, electricity, food, water, or medicine. “We need to evacuate the hospital now, but they shoot anyone who tries to escape,” he said. It is an accusation made by other doctors at the center, and quoted by MSF.

Leaving the civilian population without food and medicine is illegal, according to IHL. In accordance with article 23 of the Fourth Geneva Convention, the parties to the conflict will authorize “free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another [...] party, even if the latter is its adversary.”

The agreement establishes as an exception that “consignments may be diverted from their destination,” “that control may be ineffective” or that “the enemy may obtain a clear advantage from them for their war actions.” But Israel has not alluded to any of these assumptions as a reason to prevent the supply of food and medicine to Gaza.

Is there a situation in which hospitals can lose protection?

Yes. Protection of civil hospitals may only cease if they “commit, outside their humanitarian duties, acts harmful to the enemy,” as established in article 19 of the Fourth Geneva Convention. Although international humanitarian law does not define what these “harmful acts” are, it does clarify that in no case will they be considered as such despite the presence of “sick or wounded members of the armed forces [being] nursed in these hospitals, or [...] small arms and ammunition taken from such combatants and not yet handed to the proper service.” For example, medical care for a wounded Hamas member, as long as they are not participating in fighting despite their injuries, is not one of the reasons why a hospital would lose its protection.

In the absence of a definition of “harmful acts,” the International Committee of the Red Cross considers that a hospital does lose its protection when it no longer performs its humanitarian function of caring for the sick and wounded and is used to “interfere directly or indirectly in military operations and, thereby, cause harm to the enemy.” And it cites several examples: “If a hospital is used as a base from which to launch an attack, as a military observation post to transmit information of military value, as an arms or ammunition dump, as a center for liaison with fighting troops combatant troops, or as a shelter for able-bodied combatants.”

What happens if it is certain that the enemy is hiding in a hospital?

“IHL is exhaustive regarding the protection of hospitals in a war and the civilians in them: it is not legitimate to attack them. Article 18 of the Fourth Geneva Convention makes it clear,” says Francisco Rey, co-director of the Institute for Conflict Studies and Humanitarian Action (IECAH) in a telephone conversation. According to the expert, “even if an enemy combatant had been located shooting from the roof of a hospital, if the risk to civilians could not be clearly distinguished in the attack, that combatant could not be attacked.”

Although IHL is not mechanically applicable, Rey recalls that it does have fundamental principles such as the principle of distinction: “The attack is not legitimate if the damage intended to be caused to the enemy cannot be differentiated from that which can be caused to civilians.”

“It would be very important, in any case, for all types of evidence regarding these events to be collected so that, preferably, they can be used by the various investigative commissions and, where appropriate, the International Criminal Court,” Rey says.

What if Hamas used patients as human shields?

Israel has accused the Islamist militia of using patients and civilians sheltering in hospitals as human shields. “Not even” in that case would the attack be legitimate, according to Rey. “The data provided by humanitarian organizations is that there are numerous civilian victims in horrific situations in the hospitals in Gaza. The entry into hospitals by the Israeli army is a serious violation of IHL and a possible war crime.” And he adds: “On the other hand, if Hamas used the hospital patients, doctors, and civilians sheltered there as human shields, it would also seriously violate IHL.” According to article 8.2.b.XXIII of the Rome Statute, which regulates the operation of the International Criminal Court, “using the presence of a civilian person or other protected person to render certain points, areas, or military forces immune from military operations,” is a war crime.

What if there are Hamas tunnels under hospitals?

According to MSF, although health centers could lose their special protection status if they are used to commit acts harmful to the enemy outside of their humanitarian function, “allegations that tunnels exist under a hospital do not deprive the hospital itself of its protection status under IHL.” “Even if the destruction of underground tunnels were legitimate, it should not affect the hospital itself and would require all necessary precautions to avoid and/or minimize any incidental damage to the hospital, medical staff, patients and civilians,” added sources from the NGO.

What if an evacuation notice has been given previously?

Although Israel ordered the evacuation of hospitals in the northern part of the Gaza Strip at the beginning of the conflict, the only case in which a hospital loses its protection is if it is used to “commit acts harmful to the enemy.” Despite this, the workers at the Al Shifa hospital were willing to leave the center last weekend as long as the evacuation of the patients, around 600, could also take place. Israel did not facilitate an evacuation and, according to doctors quoted by MSF, Israeli forces shot anyone who tried to leave the hospital. The Israeli army has denied this accusation and claims that civilians and patients could enter and exit through the “east” side of the hospital.

What evidence has Israel provided so far that Gaza hospitals are a military target?

Israel claims that Hamas uses hospitals as a base for its operations. In the specific case of Al Shifa, MSF states that it has not received information to support this accusation. “MSF workers on the ground are medical professionals, not military experts. However, what we can say is that we are attentive to these accusations and we have not received any report or indication from our staff working at the hospital that supports the accusations that it is being used as a Hamas base,” sources from the NGO explained in an email.

An advisor to Israeli Prime Minister Benjamin Netanyahu assured the American network MSNBC this Wednesday that during the attack on the Al Shifa hospital the soldiers found weapons. “We entered the hospital based on our intelligence,” said Mark Regev. The army, for its part, has stated that weapons, technological material, and other military equipment have been found in the operation at that health center.

A few days ago, the Israeli military communications department released an infographic that could not be independently confirmed, which showed an entire network of tunnels and supposedly Hamas military infrastructure under the medical complex.

In a video released this Monday on the Israel Defense Forces’ (IDF) official account, military spokesman Daniel Hagari explains the “evidence” that, he claims, demonstrates that Hamas used Al Rantisi Children’s Hospital, as a base for military operations. First of all, it shows that, next to the hospital, there is an entrance to a tunnel that it claims is part of the so-called “Gaza metro,” the underground network of Hamas communications, shelters, and command posts. He then enters the hospital premises and displays a set of weapons for a “major fight,” such as Kalashnikov assault rifles and explosive belts, to demonstrate that the hospital was being used as a weapons depot.

Video capture by the Israeli forces that supposedly shows the list of names of Hamas militants in charge of looking after the Israeli hostages each day in the Al Rantisi hospital. The "names" in each box are the days of the week.
Video capture by the Israeli forces that supposedly shows the list of names of Hamas militants in charge of looking after the Israeli hostages each day in the Al Rantisi hospital. The "names" in each box are the days of the week.

Hagari also points to an alleged list written in Arabic, which, he says, reads “we are in an operation against Israel, which began on October 7.” “This is a list of guards, where each terrorist writes his name and each terrorist has his turn, watching over the people who were here,” he says. The title written on the paper Hagari points to is Al Aqsa Flood, October 7, the name Hamas gave to its unprecedented attack in southern Israel, where it killed about 1,200 people. However, it does not contain the names of guards, but is a calendar in which the days of the week are written, starting with Saturday, October 7.

According to Hagari, other items of evidence that are proof that the hostages were in the basement of this children’s hospital are a package of diapers, a baby bottle, a toilet that he says was built “improvisedly,” and some curtains that cover a wall instead of a window.

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