Jordan Ellis
The Geneva Conventions, which form the core of international humanitarian law (IHL), provide for the protection of civilian hospitals and medical personnel. This protection is based on the fundamental principle of distinction between civilians and combatants. According to IHL, hospitals and medical personnel should not be attacked and must be respected and protected. However, there are exceptions to this rule, such as when a hospital is used for acts harmful to the enemy or when it loses its civilian status by contributing to military action. In such cases, the opposing party must give a warning before attacking, and the response must be proportionate. Despite these legal protections, hospitals continue to be targeted in conflicts, sparking accusations of war crimes.
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What You'll Learn
Hospitals are protected under international humanitarian law
The Geneva Conventions, adopted after World War II, form the core of international humanitarian law (IHL). Mathilde Philip-Gay, an expert in international humanitarian law, states that the Geneva Conventions are "particularly protective of civilian hospitals". She asserts that it is forbidden to turn recognised civilian hospitals into conflict zones, use civilians as human shields, or fight from inside a hospital, with such acts constituting war crimes.
Article 8 of the Rome Statute, which established the International Criminal Court (ICC), defines war crimes as "intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected". However, it exempts military objectives from this classification.
According to IHL, health establishments and units, including hospitals, should not be attacked. This protection extends to the wounded and sick, medical staff, and means of transport. The wounded and sick, regardless of their military or civilian status, have the right to be respected, protected, searched for, collected, and cared for without distinction based on non-medical grounds.
IHL specifies that medical units, which include hospitals, are protected from destruction, attacks, and requisitions. Civilian hospitals organised to provide care for the wounded, sick, infirm, and maternity cases may not be attacked under any circumstances.
In the context of the Israel-Gaza conflict, Israel's attack on Gaza's al-Shifa hospital has sparked accusations of war crimes. However, Israel claims that its actions fall within the boundaries of international law.
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Hospitals lose protection if used for acts harmful to the enemy
The Geneva Conventions, which form the core of international humanitarian law (IHL), are particularly protective of civilian hospitals. Under IHL, health establishments and units, including hospitals, should not be attacked. This protection extends to the wounded, sick, and medical staff.
However, hospitals can lose their protected status under IHL if they are used for "acts harmful to the enemy." This means that the hospital is being used for military purposes outside of its humanitarian functions, directly or indirectly interfering in military operations and causing harm to the enemy. For example, a hospital could be used as a base to launch an attack, an observation post to transmit information of military value, a weapons depot, or a shelter for able-bodied combatants.
If a hospital is used for acts harmful to the enemy, it may become a legitimate military objective and a legitimate target. However, even in such cases, the attacking party must follow the principles of proportionality and precaution. They must take all feasible precautions to spare and protect patients, medical staff, and other civilians, including giving effective advance warnings and allowing for evacuation procedures. The military advantage of attacking such a facility must be carefully weighed against the humanitarian consequences.
It is important to note that in cases of doubt, there is a presumption that a hospital retains its civilian status and is not being used for acts harmful to the enemy. The expression "act harmful to the enemy" is also not explicitly defined under IHL, and certain acts are recognized as not being harmful, such as self-defense or the defense of the wounded and sick.
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Warnings must be given before attacking a hospital
International humanitarian law (IHL) provides special protection to hospitals and other healthcare facilities. According to IHL, hospitals should not be attacked under any circumstances and must be respected and protected. However, this protection is not absolute and there are certain exceptions. If a hospital is used for acts considered "harmful to the enemy", such as launching an attack, transmitting information of military value, or sheltering able-bodied combatants, it may lose its protected status.
In such cases, a clear and effective warning must be issued before any military operation is conducted. This warning must be accompanied by a reasonable time limit, allowing the hospital to respond to allegations and take necessary actions. If the warning is ignored or harmful acts continue, sufficient time must be given to ensure the safe evacuation of patients, medical personnel, and civilians inside who are not responsible for the alleged conduct.
The decision to attack a hospital without prior warning or time for evacuation should be an absolute exception and taken with extreme caution, considering the risks to those inside. Even when a hospital has lost its protected status, the attacking party must still uphold the protection of the wounded, sick, medical personnel, and medical objects inside. They must adhere to the principles of distinction, proportionality, and precautions, minimizing harm to the extent possible.
While the Geneva Conventions form the core of IHL and offer protections to civilian hospitals, they do not explicitly prohibit attacks on hospitals. There is no standardized procedure for issuing warnings, and the terms "proportionality" and "precautions" are not defined in detail, allowing for interpretation and debate. This lack of clarity has led to calls for stronger protections for healthcare facilities in international law, with organizations like the UN and WHO urged to step forward and address this issue.
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The principle of proportionality must be followed
The Geneva Conventions of 1949 and their Optional Protocols of 1977 form the core of international humanitarian law (IHL) and set a range of minimum standards for the conduct of hostilities. The conventions are particularly protective of civilian hospitals. It is forbidden to turn recognised civilian hospitals into conflict zones or to use civilian populations, the sick or the injured as human shields. Article 8 of the Rome Statute, which established the International Criminal Court (ICC), defines a long list of war crimes, including "intentionally directing attacks against buildings dedicated to [...] charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected".
However, a hospital may lose its civilian status if it is used for acts harmful to the enemy, such as launching an attack, transmitting information of military value, storing weapons, or sheltering able-bodied combatants. In such cases, the principle of proportionality must be followed.
The principle of proportionality is a central notion in IHL, appearing in many provisions of the Geneva Conventions and their Additional Protocols. It requires that the expected incidental harm is not excessive in relation to the anticipated military advantage. This is one of the most difficult rules of IHL to apply, as it requires balancing two seemingly unrelated factors. The principle of proportionality applies even if an attack is allowed, and some civilian harm may be acceptable, but only if it is carefully weighed against the military advantage to be gained.
For example, an attacking party must consider the humanitarian consequences of damaging or destroying a hospital, which could have significant incidental second- and third-order effects on the delivery of healthcare in the short, medium, and long term. Even if a hospital has lost its protected status, the attacking party must still abide by rules on precautions in attack, such as giving advance warning and putting evacuation procedures in place for patients and health workers.
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Hospitals are a legitimate target if used for military purposes
The Geneva Conventions of 1949 and their Optional Protocols of 1977 form the core of international humanitarian law (IHL) and set a range of minimum standards for the conduct of hostilities. Article 8 of the Rome Statute, which established the International Criminal Court (ICC), defines a list of war crimes, including "intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected". However, it is essential to note that this article makes an exception if the targets are "military objectives".
Mathilde Philip-Gay, an expert in international humanitarian law, states that "it is forbidden to turn recognised civilian hospitals into a conflict zone". She adds that "if a civilian hospital is used for acts harmful to the enemy, that is the legal term used", and the hospital can lose its protected status under international law and be considered a legitimate target. This determination must be unequivocal, and in cases of doubt, the presumption is that the hospital retains its civilian status.
According to international humanitarian law (IHL), health establishments and units, including hospitals, should generally not be attacked, and this protection extends to the wounded, sick, medical staff, and means of transport. However, a hospital can lose its protected status and become a legitimate military objective if it is used for acts harmful to the enemy or in direct or indirect interference in military operations. Examples of such acts include using the hospital as a base to launch attacks, an observation post to transmit information of military value, a weapons depot, a centre for liaison with fighting troops, or a shelter for able-bodied combatants.
In such cases, specific measures should be taken to minimise the impact of an attack on healthcare services, such as preparing a contingency plan, evacuating patients and medical personnel, interrupting the attack if the facility no longer meets the criteria for losing protected status, and facilitating the rapid restoration of healthcare services. Additionally, the principle of proportionality must be considered, where the military advantage gained from the attack must be weighed against the humanitarian consequences of damaging or destroying the facility.
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Frequently asked questions
Yes. The Geneva Conventions, which form the core of international humanitarian law (IHL), are particularly protective of civilian hospitals. Article 8 of the Rome Statute, which established the International Criminal Court (ICC), defines a long list of war crimes, including "intentionally directing attacks against buildings dedicated to [...] charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected".
An act harmful to the enemy may render a hospital liable to attack if it seriously endangers the wounded and sick entrusted to its care, and/or engenders distrust of the work of medical establishments or units in other cases, thus lessening the protective value of IHL. Examples include using a hospital as a base from which to launch an attack, an observation post to transmit information of military value, a weapons depot, a centre for liaison with fighting troops, or a shelter for able-bodied combatants.
Under IHL, the presumption is that the hospital retains its civilian status and is therefore protected.
Indiscriminate or targeted attacks on hospitals, medical units, and medical personnel functioning in a humanitarian capacity are never admissible. Such attacks are considered war crimes and incur legal consequences, such as accusations and trials at the International Criminal Court.
