How international law views military action in a hospital

The Israeli army has seized it the largest hospital in the Gaza Strip, Al Shifa. Israel says it had to capture the hospital in Gaza City to destroy a Hamas command center and underground facilities it says exist there. Hamas and doctors at Al-Shifa deny Israeli accusations that Hamas fighters are using the hospital as a base.

Here’s what the Geneva Conventions and international criminal law say about hospitals and what protection they enjoy, based on a series of interviews with experts in the law of war and a reading of the major treaties enshrining these laws.

• Hospitals enjoy special protection under international humanitarian law. It is illegal to attack hospitals, ambulances or other medical facilities under virtually any circumstances, or to impede their ability to provide care to the injured or sick. That’s true even though some of their patients are both wounded warriors and civilians.

  Attacking a protected hospital is a war crime that can be prosecuted the International Criminal Court. The use of civilians, such as those in a hospital, as human shields for combatants is also prohibited.

• But there is an exception where hospitals lose that protection: A hospital or medical facility may lose its special legal status if it is used for a military purpose “harmful to the enemy,” rather than just for medical care. For example, if an armed group uses a hospital building as its headquarters, it cannot use the special hospital protection as a shield for that military operation.

  The exception must be interpreted narrowly, according to the Red Cross, considered a leading authority on the interpretation of humanitarian law. If there is any doubt whether a hospital is being used for military purposes, this should be assumed, the Red Cross says.

• Even if the exception applies, an attacking force must give civilians the opportunity to evacuate. The Geneva Conventions state that before attacking a military target in a hospital, the attacking force must warn the doctors and patients inside that the hospital will be a target, and then give them a reasonable amount of time to escape.

  Israel has regularly issued warnings to hospitals in northern Gaza that they must be evacuated. However, doctors have said some patients are too vulnerable to be moved, or there is no safe or practical evacuation route, raising questions about what can be considered a reasonable warning.

• Even if the exception applies, there are still strict rules limiting how force can be used. Doctors, patients and other citizens who remain in the hospital after a warning to evacuate are still protected citizens. International humanitarian law says that civilians can never be directly targeted.

  The exception only applies under “very limited circumstances,” he said Tom Dannenbaumassociate professor of international law at Tufts University.

• Proportionality requirements are particularly strict when medical care is at stake: Even if a hospital loses its special protection and becomes a military target, the civilians within it are still protected by the rule of proportionality: if the harm to civilians caused by an attack is disproportionate to the military benefit it provides, then illegal.

  That is a decision that depends on the specific facts of the situation. However, the proportionality test is much more difficult to meet if the target is a medical facility, because the likely harm includes the loss of medical care for the civilian community, as well as any direct casualties from the attack itself, Professor Dannenbaum said.

Efrat Livni And Gaya Gupta reporting contributed.