The Israeli army’s raid on Gaza’s largest hospital, Al-Chifa, which Israel accuses Hamas of using as a strategic and military center, sparked a wave of condemnation, with Qatar even citing “a war crime.”
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What does international law say?
The hospital, a safe place
“The Geneva Conventions protect civilian hospitals in particular. It is prohibited to use civilian hospitals that are designated and recognized as conflict areas. It is also forbidden to use civilians, sick and wounded as human shields, it is a war crime,” as is “fighting from a hospital,” Mathilde explains to AFP. Philip-Gay, professor of law at the French University of Lyon-3.
The Geneva Conventions, which define international humanitarian law, were adopted in 1949 after World War II.
In a long list of war crimes, Article 8 of the 1998 Rome Statute, which governs the International Criminal Court (ICC), states, among other things, that it is forbidden to “deliberately direct attacks on buildings devoted to religion, teaching, art , serve science or other purposes”. Charity events, historical monuments, hospitals and places where the sick or injured are collected.
Unless…
However, this Article 8 states: “provided that these buildings are not military objectives”.
“If a harmful act – these are the legal provisions – is carried out from a civilian hospital, the hospital may lose its protection at that point,” explains Ms Philip-Gay.
But there are still conditions
“But the other belligerent must take all precautions to avoid deliberate attacks on civilians,” a constant requirement of international humanitarian law, emphasizes the international law expert and author of “Can We Judge Putin?”
“If a harmful act has taken place from a hospital, we cannot bomb it for two days and completely destroy it,” she says as an example. “The response must be proportionate”: “The complicated thing about international humanitarian law is that it is decided on a case-by-case basis.”
In addition, “a summons must be issued with notice: be careful, we will intervene in such a service, please evacuate, please surrender.” There must be means to evacuate staff and patients (ambulance, etc.) or they must be requested will be asked to isolate themselves in a part of the hospital. “And doctors and nursing staff must be available at the same time as the procedure.”
What about al-Chifa?
In connection with the Al-Chifa hospital, where hundreds of Palestinian civilians have sought refuge in addition to patients and nursing staff, the Israeli army accuses Hamas of having set up a strategic and military center there, which is repugnant to the Islamist movement.
She says she found weapons, grenades, ammunition and bulletproof vests with the insignia of Hamas’ armed wing during her raid there. This information is again denied by the Hamas Ministry of Health, asserting that the presence of weapons in its facilities is “unauthorized.”
The AFP could not independently verify these claims.
Hamas, in turn, accuses the Israeli authorities of using bulldozers to partially destroy “the southern entrance” “near the maternity hospital,” which had already been damaged by tank shells in recent days.
What prosecution measures are there in the event of war crimes?
The ICC only intervenes when the national justice system cannot or does not want to do so. Universal jurisdiction applies to war crimes, which are sacrosanct under a 1968 UN convention that came into force in 1970.
Israel is not a member of the ICC, but the ICC ruled in 2021 that its territorial jurisdiction extends to Gaza and the West Bank. In any case, the ICC can be seized by any state party to the Rome Statute.
In several recent conflicts, hospitals and clinics have been hit by bomb attacks in Syria, Yemen, Afghanistan and Ukraine. In March 2022, a Russian bomb attack in Mariupol killed three people, including a child, on a building housing a maternity and children’s hospital. Kiev and Western powers called this attack a war crime.