Following Hamas's attack of military bases, Israeli kibbutzim, towns, and the Nova Music Festival, killing 1,139 people—including 375 Israeli security personnel and 764 civilians, of whom 36 were children—and taking 240 people as hostages, Israel launched a genocidal campaign. As of September 2024,, the Israeli military has bombed entire neighborhoods and its infantry and tanks have been occupying the Strip, killing over 40,000 Palestinians, of whom more than 15,000 are children (not including an untold number of people lost under the rubble). More than 85,000 residents have been injured and the vast majority of people have fled their homes; many have since been forced to move repeatedly.[1] As Israel has displaced and killed thousands of civilians it has also destroyed or damaged life-sustaining and lifesaving infrastructures across the Gaza Strip. Hospitals, clinics, and ambulances have been repeatedly targeted.
Since the beginning of its retaliatory response, Israel has carried out almost five hundred attacks on Gaza's healthcare facilities and staff in what can be characterized as “medicide”—which we define as the destruction of a healthcare system in whole or in part with the aim of obliterating or damaging the conditions needed for saving and sustaining the lives of the sick and the wounded. Several thousand civilians have been killed and injured in these attacks, among them doctors, nurses, medics, and ambulance drivers. About two-thirds of the hospitals are no longer operational and those that remain open operate in limited capacity due to lack of fuel, medicine, medical equipment, and food. Dialysis and cancer patients as well as pregnant women have nowhere to go. Moreover, those who are injured are often unable to reach the hospitals that still function because ambulance services have been all but obliterated.[2]
Israel's widespread destruction of medical infrastructure in Gaza is not new and has been an integral part of the warfare strategies it deploys against Palestinians.[3] During the 2008–9 attack on Gaza, the Israeli military damaged or destroyed 58 hospitals and clinics, in addition to 29 ambulances, while also killing 16 medical workers and injuring 25 more.[4] In the 2012 campaign, the destruction was more restricted, with 16 hospitals and clinics, as well as 6 ambulances, damaged or destroyed, and three medical workers injured. Two years later, however, 73 hospitals and clinics and 45 ambulances were damaged or destroyed, and 23 medical workers killed, with an additional 76 injured.[5] In its 2014 military campaign, the Israeli military also used “double-tap” and “multiple consecutive strikes” on a single location, which led to an increase in civilian casualties as well as to the killing and injuring of first responders.[6] Then, in May 2021, Israeli airstrikes damaged 33 healthcare centers, including Gaza's main COVID-19 laboratory, and at least two prominent doctors were killed.[7] Ultimately, between December 2008 and May 2021, Israel carried out 180 strikes against hospitals, medical clinics and ambulances in the Gaza Strip. These attacks took place while hundreds, and at times thousands, of injured Palestinians sought either urgent medical treatment at hospitals and clinics or refuge in their buildings. During the five cycles of eruptive violence from 2008 until 2023, the Israeli military dealt devastating blows to the Palestinian healthcare services already severely weakened by various forms of structural violence going back decades.
Hospitals are protected under the laws of armed conflict (LOAC), with Article 12 of Additional Protocol I—the most robust treaty regulating the deployment of violence during armed conflict—stating that “Medical units shall be respected and protected at all times and shall not be the object of attack.”[8] Analyzing this provision as well as others laid out in the LOAC, a recurring schema of protection followed by an exception to the protection is evident. In the fourth clause of Article 12, for example, the categorical injunction to protect medical units is qualified and two exceptions are introduced: “Under no circumstances shall medical units be used in an attempt to shield military objectives from attack. Whenever possible, the Parties to the conflict shall ensure that medical units are so sited that attacks against military objectives do not imperil their safety.”[9] There are, in other words, two situations in which a medical unit may lose its protections and become susceptible to attacks: if it shields combatants or harbors weapons, and if it is located near a military target (since it might be used to shield a munitions factory, military base, launch site, and so on). The ICRC explains in its commentary that the “deliberate siting of a medical unit in a position where it would impede an enemy attack” is sufficient for it to lose protection, provided the warring party abides by the principles of proportionality, military necessity and precaution.[10]
Article 13 introduces a third exception, stating that “the protection to which civilian medical units are entitled shall not cease unless they are used to commit, outside their humanitarian function, acts harmful to the enemy.”[11] According to the ICRC: such harmful acts would, for example, include the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition dump, or as a military observation post; another instance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack. What constitutes acts “harmful to the enemy” is nonetheless left open to interpretation and can be expanded dramatically by warring parties from the use of the medical facility to conceal combatants, to a patient-combatant making a cell phone call.[12] The ICRC's commentary does note that protections can be “withdrawn only after due warning has been given with a reasonable time limit and only after that warning has gone unheeded,”[13] but it fails to indicate that the notion of “humanitarian function” is not self-evident, and that warring parties also dispute the humanitarian nature of certain acts.
Justifying Attacks on Medical Units
To justify its strikes against medical units, Israel has invoked the legal exceptions, and particularly the ones relating to shielding.[14] It has claimed that Hamas has built what are believed to be hundreds of kilometers of underground tunnels beneath Gaza and that all the people—namely all Palestinians in the Gaza Strip—and civilian sites above these tunnels are in effect human shields. In advance of its first invasion of al-Shifa, the largest hospital in the Gaza Strip, in late October 2023, the Israeli military launched an info-war campaign. This time it tweeted a clip of a three-dimensional model hospital that aims to visualize in a credible fashion how al-Shifa is being used as a shield. The viewer initially sees a regular medical ward, but then the camera travels underground and provides images of “Hamas's main headquarters” as if its command center is located in tunnels directly underneath the hospital (fig X).[15] This clip uses the shielding argument both as justification for bombing the hospital based on the principle of proportionality—the anticipated military advantage must exceed the expected civilian harm—and a preemptive legal defense.[16]
Following the shielding allegations made in the clip and by the military spokesperson, Israeli forces raided al-Shifa Hospital on November 15. At the time, 650 patients were being treated in the hospital and an estimated 7,000 displaced Palestinians were sheltering on its grounds.[17] The Israeli military explained in a tweet that it was “carrying out a precise and targeted operation against Hamas in a specified area in the Shifa Hospital…with the intent that no harm is caused to the civilians being used by Hamas as human shields.”[18]
Israel continued to invoke the “hospital shield” accusation again and again in the subsequent months as it destroyed or damaged most of the hospitals in the Gaza Strip. Al-Shifa was attacked several times and has been destroyed while its grounds have been transformed into a mass grave. Thus, the very infrastructures responsible for saving and sustaining Palestinian life have been transformed into spaces where injured and sick patients are abandoned without care or killed by Israeli F16s, drones, quadcopters, and snipers. Israel has justified the obliteration of Gaza's healthcare system by invoking the provisions dealing with the prohibition of shielding, while ignoring the thousands and perhaps even hundreds of thousands of sick and injured Palestinians who would inevitably die due to the destruction of this system.
In its application to the International Court of Justice requesting the application of the Genocide Convention to Israel's war on Gaza, the Republic of South Africa intimated that Israel's “relentless attacks on the Palestinian healthcare system in Gaza is deliberately inflicting on Palestinians in Gaza conditions of life calculated to bring about their destruction.”[19] In the face of these accusations, Israel's legal defense centered on the human shield playbook. In his opening statement, the attorney representing Israel claimed that Hamas and Islamic Jihad fighters have entrenched themselves within the civilian population, using civilian structures not as shelters but as infrastructures of “the most sophisticated terrorist stronghold in the history of urban warfare.”[20] The Israeli legal team ultimately argued that Hamas was responsible for the civilian deaths and the destruction of civilian sites, including hospitals, clinics, and ambulances, due to its “reprehensible strategy of seeking to maximize civilian harm” by embedding its fighters within civilian spaces, including healthcare facilities. Israel's legal team went on to cast every human being and every civilian infrastructure in Gaza as a potential shield.
This defense is a culmination of legal work spanning decades in which the Israeli legal teams have interpreted the provisions of international humanitarian law in a way that provides the military “humanitarian camouflage” aimed at concealing the war crimes and crimes against humanity that it carries out.[21] In one of its efforts to justify the harm done to civilians and civilian objects, including medical units, Israel's Ministry of Foreign Affairs argued that it “cannot be concluded from the mere fact that seeming ‘civilians' or ‘civilian objects' have been targeted, that an attack was unlawful.”[22] The rationale is straightforward: Palestinian hospitals are not hospitals, clinics are not clinics, ambulances are not ambulances, medical staff are not medical staff, and the sick and the wounded are neither sick nor wounded. They all might “seem” to be, but they are not what they seem. The hospital is not a medical ward but a tunnel pier, the clinic is not an outpatient infirmary but a hideout, the ambulances do not transport the wounded and sick but rather weapons, and the medical staff are not doctors but militants. Within this rationale, no medical unit is immune from attack, and every hospital, clinic, and ambulance can be pulverized by Israel with the cutting-edge weaponry that it receives from the United States, the United Kingdom, Germany, France, and Italy.
Israel's interpretations of the laws of war serve its indiscriminate way of combat. The country's legal-military thinking has developed over the past two decades and has now succeeded in transforming all civilians and all civilian objects into targets in a way that perfectly aligns with the genocidal statements made by Israeli political and military leaders—and particularly the notorious claim that there are no uninvolved civilians in Gaza. Israel has not only defied the humanitarian norm that calls upon actors to protect medical units during armed conflict, but also appears to have specifically targeted medical units. It is important to emphasize that it has not suspended the law but activated the exceptions within the law.[23] Indeed, Israel interprets the laws of war—which are formulated as provisions offering protections, followed by a series of exceptions that allow the attackers to target protected persons and sites—as if the exceptions are the rule. Its military has, as mentioned, targeted health facilities in Gaza about 500 times in the eight-month period between October 7, 2023, and June 6, 2024, striking all thirty-six hospitals and scores of clinics and ambulances often multiple times. Before and after each attack it invoked shielding provisions, using the shielding exceptions spelled out in the laws of war to justify the assault. The seemingly endless multiplication of the human shielding accusation and its extension to the entirety of Gaza reveals how easily legal exceptions can be invoked in a way that abolishes the protections offered to medical units.
Israel's legal justifications, and particularly its shielding accusation, threaten the very architecture of the international legal order, which following World War II was developed as part of the effort to bolster the vision and resolution of “Never Again.” If the post-World War II Geneva Conventions can be invoked as Israel does—to legalize acts which can destroy a people, “in whole or in part”—then the international rule-based order that was created to regulate war according to humanitarian principles becomes the tool for undoing that very order. Israel invokes and mobilizes the Geneva Conventions' clauses pertaining to hospitals to undermine the protections the Geneva Conventions offer to medical structures. Its tool of choice has been the “hospital shield” which it has been using to justify and legitimize attacks that appear to have been calculated to bring about the physical destruction of Palestinians as a group.
Reforming the Law[24]
If international law is to provide medical units the protections they actually need, the wording of the law must be modified to insist that the prohibition of attacking medical units is established under customary international law (i.e., jus cogens) and that no derogation is permitted. Even though we are aware that armed groups have, on some occasions, used medical units for military purposes, much more frequent and alarming is the way different governments are increasingly invoking the “hospital shield” argument as justification for the deliberate and widespread attack on healthcare. Considering the widespread attacks on medical units, it is safe to infer that the shielding claim is being used not only to legitimize specific assaults, but to justify wholesale strategic bombings aimed at destroying the distribution of healthcare in a given region or country. As recent research has shown, health destruction can be part of a strategy of: a) punishing a targeted population;[25] b) systematic weakening of a targeted population to induce either submission (e.g., when carried out by a state against its own population)[26] or resistance (e.g., when carried out by a state against a population of another state in the hope of spurring an uprising against the regime);[27] c) facilitating forced mass eviction;[28] and even d) enhancing genocide.[29] Therefore we recommend a complete ban on attacking medical units; not unlike the protection against sexual attack and torture, medical immunity should be absolute.[30]
The torture prohibition constitutes a peremptory norm of customary international law, which binds all states even in the absence of treaty ratification.[31] Whether the conflict is international (between countries) or internal (within a single country) all parties have to refrain from subjecting anyone in their hands to torture and other ill-treatment, including combatants taking part in the fighting. An act of torture committed in the context of an armed conflict is a war crime.[32] The argument against the absolute prohibition of torture has been the ticking bomb scenario, whereby security services catch a terrorist who has planted a bomb or knows where a bomb has been planted and—as the argument goes—they need to use torture to swiftly obtain information about the bomb's location in order to save the lives of many potential victims.[33] While it would be very difficult to find a single “ticking bomb” case where torturing a suspect led to the revelation of a bomb, this scenario has been repeatedly invoked to justify the torture of thousands of detainees and innocent people.[34]
Both the ticking bomb exception and the hospital shield exception provide legal justification for a violation. Empirical evidence not only from Gaza, but also from Syria and Yemen, has shown that due to this and other exceptions the law has done little if anything to prevent a culture of hospital bombings. Reforming international law to include an absolute prohibition of bombing medical units and staff could help prevent the systemic and egregious violations we are currently witnessing and the disturbing logic informing them. With an absolute prohibition of bombing hospitals, medical staff would acquire absolute protection, allowing them to continue carrying out their function of saving lives according to their ethical code and with less risk of being targeted. While global health actors, human rights organizations, and numerous other institutions are claiming that belligerents are not being held accountable for bombing hospitals, we have shown that LOAC actually provides these belligerents a toolkit with which they can claim that the bombing was legitimate. We have therefore argued for an absolute ban. Even though we know that a ban has not stopped the use of torture, it has helped create a normative framework against torture, driving those who deploy it to “black holes” and other secret interrogation cells. A ban on attacking medical units will, we maintain, make it more difficult to bomb hospitals with impunity.
[1] United Nations Office for the Coordination of Humanitarian Affairs, Reported impact snapshot | Gaza Strip (19 June 2024). See also Bram Wispelwey, David Mills, Yara M. Asi, et al, “Civilian Mortality and Damage to Medical Facilities in Gaza,” BMJ Glob Health 2024;9:e014756.
[2] WHO, “Gaza Hostilities 2023/2024 - Emergency Situation Reports, June 6 2024”.
[3] Yara M. Asi, Osama Tanous, Bram Wispelwey, Mohammed AlKhaldi, “Are There ‘Two Sides' to Attacks on Healthcare? Evidence from Palestine,” European Journal of Public Health, 31, no. 5 (October 2021): 927–28; Marwan Mosleh, Koustuv Dalal, Yousef Aljeesh, and Leif Svanström, “The Burden of War-Injury in the Palestinian Health Care Sector in Gaza Strip,” BMC Int Health Hum Rights, 18, no. 1 (2018): 28; Theresa Farhat, Sarah Ibrahim, Zahi Abdul-Sater, Ghassan Abu-Sittah, “Responding to the Humanitarian Crisis in Gaza: Damned If You Do… Damned If You Don't!” Ann Glob Health, 89, no 1 (August 21, 2023): 53, PMID: 37637468; PMCID: PMC10453976.
[4] Health under Occupation, Medical Aid for Palestinians (MAP), September 2017, 16.
[5] Health under Occupation, MAP.
[6] Bachmann et al., Gaza 2014: Findings of an Independent Medical Fact Finding Mission 34–35.
[7] Elisabeth Mahase, “Gaza: Israeli Airstrikes Kill Doctors and Damage Healthcare Facilities,” BMJ 373, no. 1300 (2021); “A Band-Aid Won't Heal Gaza's Wounds,” Medical Aid for Palestinians, 2021..
[8] Additional Protocol I, Article 12.
[9] Additional Protocol I (emphasis added).
[10] Jean Pictet et al., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, International Committee of the Red Cross, 1987, 175.
[11] Additional Protocol I. Emphasis added.
[12] Neve Gordon, “The Moral Norm, the Law, and the Limits of Protection for Wartime Medical Units, in Everybody's War: The Politics of Aid in the Syria Crisis, ed. Jehan Bseiso, Michiel Hofman, and Jonathan Whittall (Oxford University Press, 2021), 58–85.
[13] International Committee of the Red Cross, “Respecting and Protecting Health Care in Armed Conflicts and in Situations Not Covered by International Humanitarian Law,” March 2012.
[14] Nicola Perugini and Neve Gordon, “Medical Lawfare: The Nakba and Israel's Attacks on Palestinian Healthcare,” Journal of Palestine Studies (2024): 68–91.
[15] https://twitter.com/IDF/status/1718010359397634252.
[16] For more on how civilians are cast as human shields to justify military strikes, see Neve Gordon and Nicola Perugini, Human Shields: A History of People in the Line of Fire (University of California Press, 2020).
[17] https://www.amnesty.org.au/israel-opt-israels-raid-of-al-shifa-hospital-is-a-devastating-attack-on-human-rights-in-gaza-crisis/.
[18] Ibid.
[19] Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel) Document Number 192-20231228-APP-01-00-EN December 29, 2023.
[20] ISRAEL https://www.icj-cij.org/sites/default/files/case-related/192/192-20240112-ora-01-00-bi.pdf p. 18.
[21] “Anatomy of a Genocide,” Report of the Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied since 1967, Francesca Albanese A/HRC/55/73, 25 March 2024, 14–24; Luigi Daniele, “A Lethal Misconception, in Gaza and beyond: Disguising Indiscriminate Attacks as Potentially Proportionate in Discourses on the Laws of War,” November 7, 2023; Nicola Perugini, “Safe Zones: Israel's Technologies of Genocide,” January 6, 2024.
[22] Conflict 2023 - Some Factual and Legal Aspects - Israel Ministry of Foreign Affairs (2 NOV 2023).pdf: :Key Legal Aspects, 02 November 2023, p. 7, 9.
[23] Neve Gordon, “The Moral Norm, the Law, and the Limits of Protection for Wartime Medical Units,” in Everybody's War: The Politics of Aid in the Syria Crisis (2021): 58–85.
[24] This section is based on arguments we present in Neve Gordon and Nicola Perugini, “‘Hospital Shields' and the Limits of International Law,” European Journal of International Law, 30, no. 2 (2019): 439–63.
[25] Jonathan Kennedy and Domna Michailidou, “Civil War, Contested Sovereignty and the Limits of Global Health Partnerships: A Case Study of the Syrian Polio Outbreak in 2013,” Health Policy and Planning 32, no. 5 (2017): 690.
[26] Daniel Feierstein, Genocide as Social Practice: Reorganizing Society under the Nazis and Argentina's Military Juntas (New Brunswick, NJ: Rutgers University Press, 2017).
[27] Omar Dewachi, Ungovernable Life: Mandatory Medicine and Statecraft in Iraq (Stanford, CA: Stanford University Press, 2017).
[28] OHCHR and UN Habitat, Forced Evictions, Fact Sheet 25/Rev. 1, 1–50.
[29] Thomas MacManus, Penny Green, and Alicia de la Cour Venning, Countdown to Annihilation: Genocide in Myanmar (International State Crime Initiative, 2015).
[30] Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon Press – Oxford, 1989).
[31] Nowak, McArthur, and Buchinger, supra note 88.
[32] Rome Statute, supra note 85.
[33] Alan Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven, CT: Yale University Press, 2002).
[34] See Human Rights Watch, Torture Doesn't Work (2006) (last visited January 11, 2019); Lisa Hajjar, “Torture and the Future,” Middle East Report Online (2004).