International law questions abound as Israeli forces raid Gaza hospitals

Israeli officials say that Hamas housed military infrastructure beneath hospitals. Hospital staff and Hamas officials deny the allegations.

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For more than a week, Al-Shifa Hospital in Gaza City was front and center in Israel’s military offensive. Outside, gunbattles raged and tanks closed in. As power was cut off, doctors reported sniper fire, bomb blasts and deteriorating conditions as trapped civilians crowded onto bloodstained floors, food and water ran out and premature babies died after incubators shut down from lack of fuel. Last Wednesday, Israeli soldiers raided the complex in search of a Hamas “command center” and hostages. 

The Israel Defense Forces has since seized control of at least two other hospitals in the north of the besieged and bombarded enclave. On Monday, Indonesian Hospital came under attack, with the IDF saying it retaliated after “terrorists opened fire from within,” though it said that it did not shell the hospital in return. 

The raids have raised the prospect that the IDF could be found to have violated international humanitarian law, since hospitals, including patients and medical staff, receive special protection during armed conflict. 

And while medical facilities, like hospitals, can lose their protection from military attacks under certain conditions, according to experts, the law sets a high bar to justify these attacks. 

“If Israel is right about the tunnels beneath the hospital, and in particular that a Hamas command-and-control center is located there, then the IDF would be acting within the law, at least in principle, by conducting its military operation within the hospital,” Marko Milanovic, professor of public international law at England’s University of Reading, told NBC News, speaking about IDF’s raid of Al-Shifa last week.

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A photo released Wednesday by the Israeli army shows soldiers carrying out operations inside Al-Shifa hospital in Gaza City.Israel Defense Forces via AFP - Getty Images

So far, there isn’t enough evidence to determine one way or another, he said. 

“Judging solely from what the IDF has shown so far, this is nowhere near the quantum of evidence we would need to reasonably justify attacking the hospital, both in legal terms and even more so in public relations terms,” Milanovic said.

Meanwhile, experts point out that if it went to an international tribunal, Hamas would no doubt be found guilty of violating international humanitarian law after deliberately killing civilians during their terrorist attack that left 1,200 dead in Israel on Oct. 7.

Using civilian places, including hospitals, as “sites for warfare” would also be a violation of the law, said Omar Shakir, the Israel and Palestine director for Human Rights Watch. The use of human shields, if proven, is considered a grave violation of the Geneva Conventions.

Palestinian militants of the Qassam Brigades move toward the Erez crossing between Israel and the northern Gaza Strip on Oct. 7.Mohammed Abed / AFP via Getty Images file

“Humanitarian law applies equally to all parties,” Shakir said of Hamas’ potential culpability. “International humanitarian law is not a deal between fighters. It’s a deal with humanity.” 

(In 2019, Shakir was expelled from Israel on the grounds that he violated an Israeli law by supporting boycotts against the country. He and Human Rights Watch deny the charge.)

Israeli and American officials say that Hamas secretly housed military infrastructure beneath hospitals, with a major focus being on Al-Shifa in Gaza City. Hospital staff and Hamas officials deny allegations that the hospital housed a headquarters for fighters and housed hostages.

An Israeli soldier stands near boxes labelled "Medical Supplies" at Al-Shifa hospital complex in Gaza City on Wednesday.Israel Defense Forces via Reuters

Since it began its raid on Al-Shifa last Wednesday, the IDF has sought to build its case that Hamas uses Gaza’s main hospital as a military base. Videos and images released between then and Monday have shown AK-47s, ammunition, grenades, uniforms and computer equipment, which the IDF claims belong to Hamas, inside the hospital.

The release of information from Al-Shifa culminated in a video published Sunday, purporting to show a 55-meter-long “terror tunnel” underneath the medical complex leading to a blast-proof door and a firing hole. The IDF also released videos and photos it said showed hostages being taken to Al-Shifa on Oct. 7. Hamas said injured hostages received medical attention in hospitals before they were taken to detention elsewhere.

NBC News is unable to independently verify Israel’s descriptions of what the footage shows, and the claims made by either side.  

In a comment to NBC News about the raid on Al-Shifa, an IDF spokesperson said, “The IDF rejects outright the claim that it acted not in accordance with international humanitarian law or that it attacked the hospital.” 

According to the spokesperson, the IDF “took many steps to ensure the impact of its ongoing operation on civilians in the hospital and on the hospital’s activity would be minimal.”

People take shelter at al-Quds Hospital in Gaza City on Oct. 31.Ali Jadallah / Anadolu via Getty Images file

In the midst of active combat and with searches by Israeli forces continuing, it is not possible at the moment to determine definitively whether international humanitarian laws have been broken, legal experts said.

Milanovic emphasized that two conditions need to be met for medical facilities, like hospitals, to lose their protection from military attacks. First, they need to be used “to commit acts harmful to the enemy,” including sheltering able-bodied combatants and storing munitions, he said. 

Warnings to cease “acts harmful to the enemy” must be issued within a reasonable time frame and remain unheeded, he said, adding that Israel had repeatedly issued such warnings.  

Even if IDF provides definitive evidence that Hamas is operating under the hospital, the Israeli raid on Al Shifa is still a possible war crime, Shakir, with Human Rights Watch, said, as repeated warnings without guarantee of a safe passage for staff and the injured don’t meet the burden of evacuation under international humanitarian law when there is “no safe place to go in Gaza.” 

And even if a hospital may have lost protection from attack does not mean that the civilians inside it have. 

“They must be protected at all times,” Milanovic added. 

Dr. Ahmed El Mokhallalati, a plastic surgeon at Al-Shifa, recounted last week that the facility had become “a war zone,” with vital resources dwindling, including food and water. He said the staff had buried 180 people in a mass grave inside the hospital because they were too afraid to venture outside during the fighting. 

El Mokhallalati told NBC News on Friday that the hospital, where there was no electricity or water, had been surrounded by Israeli troops, and no one has been allowed to get in and out. 

People wait in tent shelters in the darkness as fuel for electricity generation runs out at Al-Shifa hospital in Gaza City early on Nov. 3.Dawood Nemer / AFP via Getty Images file

The IDF issued evacuation orders Saturday to the remaining 2,500 internally displaced people who had been seeking refuge on Al-Shifa grounds, but 25 health workers and 291 patients remained in the complex Monday, according to the World Health Organization. 

William Schabas, a professor of international law at Middlesex University in London, cautioned that even if a hospital loses its protected status, it does not give the attacking party “a blanket authorization” to destroy it. A hospital also cannot be attacked if there is a serious risk of harm to noncombatants — patients, doctors and other civilians who could be inside. 

“This problem is addressed through the notion of proportionality,” he said. “Obviously, when a hospital is concerned, the balance is heavily tipped in favor of great restraint in any attack given the consequences for noncombatants.”

Disproportionate attacks are considered violations of the rules of armed conflict and are war crimes, said Paola Gaeta, a professor of international law at the Geneva Graduate Institute who specializes in armed conflicts. This could mean criminal responsibility for those who have taken part in the attack, she said. 

Rather than looking at the legality of a specific military attack, which could be a difficult exercise, Gaeta said one could also try to assess whether an attack on the hospital may be part of a widespread or systematic attack against the civilian population in Gaza and could be considered a crime against humanity. 

“Crimes against humanity are not linked to violations of the laws of armed conflict, as it is the case with war crimes, but to serious and gross violations of human rights that shock our sense of humanity — in peacetime and in wartime,” she said.