The bombing of al-Ahli Arab Hospital in Gaza has pushed countries and organisations around the world to label Israel’s recent aggressions as a “war crime”, a “massacre”, and a “violation of international humanitarian law”.
The strike on Tuesday killed over 500 people in a place where civilians were taking shelter, overworked medical staff were treating patients, and the sick and injured had gathered in the hope of rescue or recovery.
Israel placed blame on the Palestinian Islamic Jihad, something viewed by many as part of a pattern where officials falsely attribute responsibility for attacks to other parties, often Palestinians themselves.
However, threats from Israeli officials indicate a disregard for civilians and international humanitarian law. Israeli army spokesperson Daniel Hagari admitted that hundreds of tonnes of bombs had been dropped on Gaza with an emphasis “on damage and not accuracy”.
But what does international law say about attacks on civilians and health facilities?
I am horrified by the killing of hundreds of Palestinian civilians in a strike on a hospital in Gaza today, which I strongly condemn. My heart is with the families of the victims. Hospitals and medical personnel are protected under international humanitarian law.
— António Guterres (@antonioguterres) October 17, 2023
What law defines what counts as a war crime?
According to the United Nations, no single document in international law codifies all war crimes. Lists of what may count as a war crime can be found in various branches of international law: humanitarian, criminal and customary law.
According to the UN, a war crime occurs during armed conflict and is a breach of the Geneva Conventions and a violation of international humanitarian law – the set of rules, also known as the “law of war”, that seek to limit the effects of armed conflict.
This branch of law protects victims of war and does not recognise principles of reciprocity – which means that parties to a conflict cannot use violations of an enemy as an excuse to not implement humanitarian norms.
On Tuesday, Israeli national security minister, Itamar Ben-Gvir, threatened to drop explosives on Gaza if Hamas did not release captives.
“As long as Hamas does not release the hostages in its hands – the only thing that needs to enter Gaza are hundreds of tons of explosives from the Air Force, not an ounce of humanitarian aid.”
You & your regime are the human animals & savages. https://t.co/bIJrpRlPp7
— iara (@iara_modarelli) October 17, 2023
International humanitarian law does, however, recognise “principles of proportionality”, which states that an attack is in violation if the damage to civilian life is greater than any military advantage that is gained.
In Tuesday’s strike, over 500 people were killed, although medics have reported that it is difficult to give an exact estimate due to the scattered limbs and that the causalities are likely much higher.
International nongovernmental organisations and state representatives are calling the bombing a “massacre” due to the destruction and loss of life it caused.
Fourth Geneva Convention
International humanitarian law, particularly in times of war, is dictated primarily by the Geneva Conventions which Israel has ratified.
Its four central conventions were formed by a series of treaties that took place between 1864 and 1949, with the first one being a shield for the sick and wounded in the armed forces.
The Fourth Geneva Convention, established in 1949, was the first to call for the overall protection of people who do not take part in any hostilities – be it children, patients or healthy adult men.
A number of its articles directly address the importance of medical support: Article 14 states that hospital and safety zones must in fact be established for groups such as the injured, sick and pregnant women; Article 18 states civilian hospitals and their staff must be protected.
Speaking to Al Jazeera, Basel Sourani, an international advocacy officer for the Palestinian Centre for Human Rights (PCHR), said Israeli strikes have already hit tens of Palestinian hospitals, ambulances and health workers.
“Targeting of protected places is not something new; all evidence and our conversations with witnesses point to it being an attack by Israel,” he said.
Under international humanitarian law, all warring parties have an obligation to take constant care to spare the civilian population and objects.
Hospitals have special protections. Unlawful attacks committed deliberately or recklessly are war crimes. pic.twitter.com/KwXnbgffsy
— Human Rights Watch (@hrw) October 17, 2023
Additional Protocol One
In 1977, the first of three additional protocols was adopted under the Geneva Conventions.
Article 12 clearly states: “Medical units shall be respected and protected at all times and shall not be the object of attack.”
Investigating a violation of this protocol would require the activation of an international fact-finding commission – a legal hurdle for this incident since Israel has not ratified Additional Protocol One, according to Srinivas Burra, an associate professor of international humanitarian law at South Asian University in Delhi.
While the Geneva Conventions are for the victims of war, the Hague Conventions address the conduct of warfare and allow for reciprocity toward an enemy party.
It does, however, also call for caution when it comes to medical care.
Article 27 of the regulations states: “In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to … hospitals, and places where the sick and wounded are collected.”
It rests on the condition that such buildings must not be used for military purposes and must have visible signs indicating the presence of the building, although it does not clarify what the signs would be.
Although Israel has not ratified the Hague regulations, they are binding on even non-ratifying states as a part of international customary law.
The Rome Statute is a treaty that established the International Criminal Court (ICC), the body responsible for investigating and prosecuting Geneva Convention violations such as attacks on hospitals and historical monuments.
Founded in 1882, al-Ahli Arab Hospital is also one of the oldest hospitals in Gaza and near a church, which Sourani said also made it a place of shelter for the displaced during the ongoing offensive.
Although Israel does not recognise the ICC, Palestine does, and the attack occurring on Palestinian territory means the ICC has the jurisdiction to investigate and prosecute the perpetrators of the incident.
Sourani said that PCHR has been trying to get the ICC to expedite an ongoing investigation into alleged Israeli war crimes and that they are disappointed with the lack of progress and response, especially compared to how the case of Russia’s violations in Ukraine was handled.
“We have been calling on the international community to hold perpetrators accountable but their silence has led us to this situation,” said Sourani.
Burra told Al Jazeera a clear statement from ICC prosecutor Karim Khan on the hospital bombing would not relieve the court from launching an official incident into the event, and that it would serve more of a political rather than a legal purpose.
He said although the ICC may be playing a “wait and watch” game, the current absence of an investigation announcement was “surprising” and unlike cases that have occurred in the past.
“The silence in the current situation rightly so creates a certain amount of suspicion about the prosecutor’s office,” he said.