Could Israel target Hamas fighters inside a hospital, or is it a war crime? Under the laws of war, targeting a hospital is a war crime, however, conducting military operations inside of a hospital is also a war crime. So, within the Israel-Gaza context, when can Israel target fighters hiding in or beneath a hospital? We asked an expert on the laws of war and war crimes to weigh in on this difficult question.
Professor Michael Newton (Vanderbilt Law School) is an expert on the laws of war and helped to negotiate the war crimes definitions for the International Criminal Court.
War Crimes: Israel and Gaza – A longform discussion of the Israel-Hamas conflict through the lens of the laws of war.
War Crime of Attacking Protected Objects – International Criminal Court, Elements of Crimes, Article 8 (2) (b) (ix)
1. The perpetrator directed an attack.
2. The object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives.
3. The perpetrator intended such building or buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack.
4. The conduct took place in the context of and was associated with an international armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
War Crime of Using Protected Persons as Shields – International Criminal Court, Elements of Crimes, Article 8 (2) (b) (xxiii)
1. The perpetrator moved or otherwise took advantage of the location of one or more civilians or other persons protected under the international law of armed conflict.
2. The perpetrator intended to shield a military objective from attack or shield, favour or impede military operations.
3. The conduct took place in the context of and was associated with an international armed conflict.
4. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Joel Cohen (“Host”): One incident that's gotten attention from the Israeli military incursion into Gaza involves this Hospital attack. Now, you mentioned that the evidence suggests that it was actually a misfired rocket from within Gaza, but as a thought experiment… There is an international law prohibiting attacking a hospital. There's also an international law saying you can't conduct military operations in a hospital. What happen when those two combine? Let's say, hypothetically, we're in a world where Hamas is literally staging rocket attacks from a hospital.
Professor Michael Newton: well I mean different hospital different day. There's video Youtube footage of Hamas rockets firing an RPG from the entry walkway into a hospital. So, it's not a theoretical, hypothetical question. The answer, and the same thing happened, by the way, to American forces in Grenada. You're taking fire from a hospital and they return fire. It really becomes a proportionality question and a question of, is there a better way to achieve the military mission? Right? The harm that accrues both morally and psychologically from targeting a hospital. And Israelis would say we never targeted a hospital. We don't target hospitals. What we do is, we target the people or the facilities that are illegally using those hospitals. I still have the duty to take all feasible measures to minimize or eliminate civilian damage. So, that means I might change the angle of attack of a weapon. I might choose a different weapon. I might issue a warning and give a certain amount of time based on this particular weapon and then while that time period is going, and I've warned civilians, change to a different weapon because it was feasible. It was pragmatic. It was achievable. Then lastly, what I think you were alluding to is, the rule of proportionality, which looks like you're targeting civilians because some civilians are dying or being injured, but the idea is that you can never, and I'll quote the language, “intentionally launch an attack in the knowledge,” so it's an intentional thing. I'm saying I know I'm going to kill civilians and I want to kill them, I can never intentionally launch an attack in the knowledge doesn't mean it might not be accidental or unintended, or you know… An easy example – when Hamas was firing rockets and the rocket veered off course and landed in the parking lot of that hospital at al-Shifa and killed civilians, that's not a war crime because they weren't trying to target civilians. They weren't intentionally launching the attack against those protected civilians. It's a tragic accident. So the crime is proportionality – intentionally launching an attack in the knowledge that such attack will cause damage, and here there's this really nifty combination of both treaty and custom. So what I'm about to tell you is part treaty language and part custom. So I can't intentionally launch an attack in the knowledge that that attack will cause damage to civilian lives or civilian property that's “clearly excessive.” You see that room for discretion? You see that room for good faith? “Clearly excessive” in relation to the concrete and direct and the key word is “overall” military advantage. And then, another key word of discretion is “anticipated.” And the law of war never requires you, I mean it sounds weird to say it, but it never places an affirmative duty on someone to try to capture somebody as opposed to when you're entitled to use lethal force. You're entitled to use lethal force. Hospitals and other protected targets, such as schools and mosques, are used by groups like Hamas and, in the past, by insurgents in Iraq, as weapons storage facilities. This presents a challenge: How do I neutralize the ammunition or command bunker in these places? There are various ways to approach this. Even if I could legally target these sites, often I choose not to for pragmatic reasons—there might be a better approach, or the political implications, optics, or potential for human tragedy make it not worth it. Alternatively, I might target it in a different way.
Host: Because there's a better way to do it or the politics or the optics or the human tragedy wouldn't be worth it?
Professor Newton: Exactly. Or I might target it in a different way. Military commanders often operate with imperfect information and battlefield intelligence is frequently wrong, inaccurate, or incomplete. Weapons and technology are not perfect; drones, for instance, can fail. I rely on drones to help make accurate decisions, but what if there's a technical outage or an internet issue? These are the hard decisions that have to be made in real time.
I want to emphasize the absolute duty owed when soldiers or marines are doing their best to comply with the laws of war as they understand them. The law is designed to protect them and grants them combatant immunity. We cannot hastily second-guess their actions. However, if they act in bad faith, or if they have intentionally committed crimes, we must investigate and prosecute them. The Israelis do this. It's imperative that we are clear on both sides: we expect compliance with the law at all times, under all circumstances. Conversely, when they are doing their very best under extremely difficult circumstances to comply with the law, we need to provide them with professional latitude. This is an aspect most laypeople may not fully grasp: the law of war inherently includes a level of discretion that is woven into the fabric of this body of law.