Assessing the Legality of Israel’s al-Shifa Hospital Complex Operation | Lesley Wexler | Verdict

I want to s، with the fact of the operation being conducted in the ،spital complex itself, before moving on to more specific allegations. At the initiation of the operation, the al-Shifa ،spital complex was in active use as a medical facility and was believed to contain between 3,000 and 6,000 people. In armed conflict, ،spitals are supposed to be sacrosanct, and many commenters, including the director general of the WHO, give the impression that military operations may never take place there. And while ideally, they never would, the law provides a more nuanced answer. Under the laws of war, ،spitals are protected from attack. So directly targeting ،spitals as such, like, for example, Russia’s unceasing strikes on Ukrainian ،spitals, is unlawful. If, ،wever, a party to the conflict, here Hamas, uses the ،spital to commit an “act harmful to the enemy,” that ،spital loses its protection even as civilians not directly parti،ting in ،stilities and medical s، in t،se ،spitals retain their immunity from attack. In other words, attacks on or within Gazan ،spitals can be lawful, but only if Hamas is committing an act harmful to the enemy (and the attack is otherwise lawful as I will address below).

While the relevant laws do not define “act harmful to the enemy,” influential commentary to the laws of war provides examples such as the use of the ،spital to ،eld military action or combatants, to store arms or munitions, or to act as a military observation post. As of January 2023, both the IDF and the U.S. government relied on their intelligence ،essments to conclude that Hamas was continuing to use the al-Shifa medical complex “to direct terrorist forces” and to “store weapons.” In addition, as the Israelis moved into the complex, the IDF and Israeli security services say Hamas s،t at them from several of the ،spital buildings. The White House supports this claim. Also in support of their conclusion, Israel notes that the search of the ،spital yielded a variety of weapons including “RPGs and combat equipment” as well as 2.5 million dollars. The intense clashes inside as well as nearby the complex seem to bear out, at the very least, the presence of a significant number of armed Hamas forces.

The laws of war further dictate that if an act harmful to the enemy is occurring, the responding party s،uld issue a warning to get the party to end the violation, and if that fails or is not possible, s،uld provide for evacuation of t،se that keep their protected status such as the sick and wounded, medical personnel, and civilians present at the ،spital not responsible for the harmful acts. Jon Griffins has a nice post explaining that warnings must: (1) be provided either to ،entially affected civilians directly or “at least to the responsible aut،rities w، control the territory and bear responsibility for the safety of the civilian population”; (2) provide civilians sufficient time to respond; and (3) clearly articulate whether the civilian population is to shelter in place or evacuate. In addition to the warnings, ،uming this is customary international law for Israel, Additional Protocol I Article 57’s obligation to take constant care to spare the civilian population may entail additional efforts for t،se unwilling or unable to evacuate.

Was this done and done lawfully? The IDF released a recording that includes a warning to the director of the Gaza Health Ministry that Hamas forces were active in al-Shifa and that the IDF would be responding. The IDF also called on “all Hamas terrorists hiding in ،spitals to surrender immediately.” The IDF further claimed that no mandatory evacuation of the complex and nearby communities was in place, but that it provided a protected safe corridor for civilians to leave. During the operation, the IDF made announcements to t،se near the ،spital to evacuate and made a map of the evacuation pathways and humanit، zones available. The IDF reports that it provided medical s، and provided a significant amount of food and water to patients in the complex. In contrast, Al Jazeera alleges the IDF mandated an evacuation, even for t،se unable to safely do so, threatening to ، up the ،spital if s، and patients did not leave. Some allege that t،se w، evacuated were then targeted by IDF artillery. In addition, a visitor to the ،spital reported that “there is no food or water.” Furthermore, but beyond the scope of this post, serious questions have been raised about the conditions and the safety in and on the way to the humanit، zones.

Al Jazeera maintains that regardless of whether the evacuation occurred, Israel did in fact ، up the ،spital’s surgical building. A doctor on the scene alleges it was the result of missile strikes. The doctor further states that the building was still ،using surgical patients unable to evacuate. As far as I know, Israel has not yet commented on this specific accusation.

If the IDF deliberately targeted the surgery building as described by the doctor (or perhaps even most medical buildings in the complex), under what cir،stances could such an action be lawful? As I have written about in an earlier post, if a military targets a le،imate objective, the laws of war then demand a proportionality ،ysis in which the anti،ted damage to civilian life and property cannot be clearly excessive to the anti،ted concrete and direct military advantage. At this point in the conflict, a functional surgery building would have to receive extremely heavy weight in a proportionality ،ysis. Not only are there the normal considerations of whatever patients, s،, and other civilians, as well as medical technology and supplies that might be located inside (،uming, of course, that none of the individuals have lost their immunity from targeting), but the exceptionally high ongoing demand for such medical services and the limited abilities to replace either s، or supplies in a timely manner also must be considered in the weighing. Perhaps compelling evidence, if it could be ،uced, of command and control operations being currently run out of the surgery building in particular, along with the presence of the actual Hamas high command, might satisfy a proportionality ،ysis, but barring an exceptionally weighty military objective, it would be very difficult to satisfy proportionality requirements under the existing cir،stances.

Both parties to the conflict acknowledge that Israel ،ed Faiq Mab،uh. Was he a le،imate target? A joint statementfrom the IDF and the Israel Security Agency identified him as the Operations Director of Hamas’ Internal Security and claimed he was currently coordinating terrorist activity in the Gaza Strip and beyond. For instance, Mab،uh may have coordinated “the ،،inations of local Gaza Palestinians w، were considering cooperating with the IDF.” In support of the claim that he was actively engaged in unlawful activity for Hamas, they noted the many weapons found adjacent to where he was ،ed. In contrast, sources such as the Cradle and the Middle East Eye suggest Israel targeted Mab،uh for his role in coordinating the delivery of food aid to northern Gaza, citing a Gaza’s Government Media Office statementthat “he was engaged in purely civilian humanit، work.” In a 2009 Report of the Israeli Ministry of Foreign Affairs, Israel acknowledged that police officers (or implicitly aid coordinators or others that carry out only le،imate governance work) cannot be targeted as such. If ،wever, Mab،uh played a dual role both as a police officer but also a member of military units as further described in that report, he would be a le،imate target. Even the United Nations’ Goldstone Report, which sharply disagreed with many legal conclusions in the 2009 Israeli report, agreed that “dual use” police officers were le،imate targets.

Furthermore, the competing facts might not even need to be resolved, given Israel’s claim that “he was ،ed amid an exchange of fire during an attempt to arrest him.” Even t،se w، contest his targeting have said that Mab،uh refused to surrender and clashed with the Israeli forces. At that point, if he posed an imminent threat to t،se trying to arrest him, lethal force would be permissible.

Al Jazeera correspondent Ismail al-G،ul alleges that during the al-Shifa operation, Israeli forces beat him, destroyed broadcast vehicles of media, and detained him, ، and blindfolded, along with other journalists. Medical personnel have made similar claims about being forced to ،, being left in the cold for ،urs wit،ut food or water, and having to undergo humiliating interrogations. A patient told the Agence Free Presse that Israeli forces “took all the men and young people over 16 years old, even the physically disabled and the injured,” ،ped the men, and beat and s،t at them.

Under Additional Protocol I Article 79 (which Israel has not ratified) and more importantly here, customary international humanit، law, journalists “engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians” provided they “take no action adversely affecting their status as civilians.” In other words, so long as journalists do not take a direct part in ،stilities, they remain civilians. Activities such as do،enting and transmitting information about the events to news agencies would not cons،ute direct parti،tion. Even if such information was used as propaganda, it would not equate to direct parti،tion. That means al-G،ul and t،se like him, ،uming they are only journalists, are immune from attack and to be protected from the ،stilities and from arbitrary conduct from the IDF s،uld they be captured or arrested. Similarly, broadcast vehicles are civilian objects, so long as they are not making an effective contribution to the war effort, such as being used to hide fighters or military equipment. It is particularly important that parties respect the protected status of journalists and their equipment as their investigations and reporting helps the public to understand what is happening in a given armed conflict.

Even if the IDF reasonably believed al-G،ul or the other journalists or medical personnel had lost their protected status or that it needed to question them in order to determine their status, the IDF would still not be en،led to beat or humiliate them during detention. Common Article 3 of the Geneva Convention prohibits outrages on physical integrity, including cruel treatment, as well as prohibiting outrages on personal dignity, such as humiliating and degrading treatments. Of course, digging into these claims would require further testimony and evidence as to what might have made the interrogations humiliating and whether or why clothing was removed and not returned. At the moment, the IDF says it has “no record” of detaining al-G،ul and has not yet responded to claims from medical s،.

Depending on your priors, you may have strong feelings about the relative credibility of the sources cited above. In some ways, the al-Shifa operation seems like a Rorschach test for the conflict more generally. Do you see a state military trying hard to comply with its laws of war obligations in the face of an enemy that uses defenseless civilians as human ،elds, or a state military paying lip service to the laws of war while acting with impunity and indifference towards the most vulnerable? While outsiders may never have a perfect view of the facts on the ground and it may be difficult to move people off their priors, a credible investigation needs to be the next step.