As the Israeli army struck the vicinity of Rafic Hariri public hospital in Jnah, in Beirut's southern suburbs, on Monday evening, killing at least 13 people, including children, and injuring 57, it’s important to remember that international humanitarian law (IHL), mainly derived from the Fourth Geneva Convention, protects healthcare facilities — particularly hospitals — from being targeted in attacks. This protection also extends to the wounded, the sick, healthcare workers, and medical transport staff, such as ambulance drivers. But are there exceptions to this rule? In a summary published on its website, the International Committee of the Red Cross (ICRC) explains the scope of this protection and the rare exceptions.

What kind of protection does IHL provide to the wounded and sick in times of armed conflict? 

- Anyone, whether military or civilian, in need of medical care who is no longer, or never was, involved in hostilities must be respected —neither attacked nor mistreated — protected, searched for, collected and treated without discrimination.

– Warring parties must provide medical care to the injured as soon as possible and cannot arbitrarily deny organizations permission to carry out their work.

– IHL offers specific protections to medical personnel, health facilities and medical transport. According to the ICRC, the parties involved in conflict "must respect them while they are performing an exclusively medical function, and must not unduly interfere with their work so as to allow them to treat the wounded and sick."

Under what circumstances can hospitals lose the protection afforded by IHL?

– Hospitals only lose protection under IHL if they are used by one of the warring parties to commit "acts harmful to the enemy." While IHL does not specifically define these acts, it singles out certain actions as "not harmful to the enemy," such as carrying or using light weapons for self-defense or to protect the wounded and sick, stationing armed guards at a medical facility, or the presence of injured fighters who are no longer involved in combat.

- In the absence of a universally accepted definition of the acts that could cause hospitals to lose their immunity, the reason for the loss of this protection remains "clear", however, according to the ICRC: when these establishments "are used to interfere directly or indirectly in military operations". For example, when the hospital "is used as a base for launching an attack, as an observation post for transmitting information of military interest, as a weapons depot, as a liaison center with armed troops, or to shelter able-bodied combatants", the text continues.

- And if there is the slightest doubt, IHL is clear: it must be presumed that health care facilities are not used to commit acts of war.

- In the absence of a universally accepted definition of acts that could strip a hospital of its immunity, the ICRC says the reason for losing this protection is "clear;" it occurs when hospitals are "used to interfere directly or indirectly in military operations." For instance, if a hospital is "used as a base from which to launch attacks; as an observation post to transmit information of military value; as a weapons depot; as a center for liaison with fighting troops; or as a shelter for able-bodied combatants."

– And in case of doubt, IHL is explicit: it must be presumed that healthcare facilities are not used to commit acts of war.

What are the legal conditions for launching an attack on a hospital allegedly used to commit harmful acts against an enemy?

- Before attacking a hospital, a warning must be issued to allow the parties involved time to cease "acts harmful to enemy," or safely evacuate the wounded and sick. An attack can only be "permitted" if the warning remains "unheeded," according to IHL.

– In the event of an attack, the safety of the wounded and sick must be preserved by all possible means, and the attacking force must take precautions to avoid or at least minimize casualties and damage. "The wounded and the sick being cared for in the facility may not be disregarded. They must be spared and, as far as possible, active measures for their safety taken."

– The attacking party is also required to respect the principle of "proportionality," meaning that the humanitarian consequences of its actions must be considered.

How do these rules apply to Israel's current attack on al-Shifa hospital in Gaza, which it alleges is being used as a Hamas operations base? Paul Morcos, an expert in international law and director of the Justicia law firm, provides insight:

- What if it is established that Israel committed war crimes in Gaza's hospitals? These crimes are not subject to the statute of limitations; they can be referred to the International Court of Justice in The Hague at any time, when the political conditions are met.

– First, it is important to note that Israel withdrew from the Fourth Geneva Convention, which it ratified in 1950. However, this does not absolve it from adhering to IHL, as these laws are considered binding for all humanity. Israel is therefore obliged to respect the conditions required to justify an attack on a hospital, spare civilians and protect the wounded and sick in the event of an attack.

– As for who should verify the legitimacy of Israel’s claims regarding the attack on al-Shifa hospital and other health facilities in Gaza, and who should hold Israel accountable, Morcos points out that this is where the problem lies: the United Nations Security Council is currently incapable of forming a commission of inquiry or at least a fact-finding mission in cases like this.

– What if it is established that Israel committed war crimes in Gaza's hospitals? These crimes are not subject to a statute of limitations; they can be referred to the International Court of Justice in The Hague at any time, when the political conditions are met.

This article originally appeared in French in L'Orient Le-Jour on Nov. 15, 2023 and was updated on Oct. 22, 2024.