All wars are an effrontery to health, and the Israel-Hamas war is no exception. Caring for the wounded is a necessary part of waging war and hospitals are protected from the consequence of hostilities. Additionally, all medical personnel are considered non-combatants. In the current moment, the Al-Quds hospital in northern Gaza finds itself in the crosshairs of war.
According to International Humanitarian Law, hospitals can never be a military target. That hospitals should not be a military target seems uncontroversial, but a deeper question remains: when is a building a hospital and when is it not?
Under the 1949 Geneva Conventions, non-combatants are protected under the applicable international humanitarian laws related to armed conflict. Because of their humanitarian duties, medical personnel may not be attacked or taken as prisoners of war. Article 18 of the Geneva Convention stipulates that a building designated as a civilian hospital cannot be the target of attack.
Humanitarian law is pragmatic, however, and has an answer when attacks are launched from places assumed to be protected. A building ceases to be a hospital when it is used as a base to launch rockets. Under these circumstances, a building is transformed from “hospital” to “legitimate military target.” The distinctive emblem designating non-combatant status is the red cross, the reverse colors of the Swiss flag; launching only one rocket from the hospital parking lot is enough to change the meaning of a red cross on that building from “hospital” to “bullseye.”
Article 19 of the Geneva Conventions also considers the discontinuance of protection of hospitals. If a decision is made to attack a hospital, international humanitarian law requires advanced warning to that hospital. If the hospital fails to heed the warning, the subsequent attack on that hospital must adhere to the principles of precaution and proportionality.
Precaution must be taken to avoid loss of life to civilians and to avoid damage to civilian objects. A proportionate attack results only in harm sufficient to gain a military advantage. Though the language of these precautions renders sterile and technical the actual resulting horror, a frame of reference at least allows us to sift through the rubble of the aftermath, as we always must do.
Targeting hospitals and medical personnel intentionally, and as a strategy of war, is a war crime. Additional provisions of Article 19 still allow a hospital to be protected if it defends itself or has some small arms and ammunition taken from the wounded. Article 28 of the 1949 Geneva Convention IV states: “The presence of a protected person may not be used to render certain points or areas immune from military operations.” The 1977 Additional Protocol I states in article 12, section 4: “Under no circumstances shall medical units be used in an attempt to shield military objectives from attack.”
To date, 195 nations have ratified the Geneva Conventions and recognize the concept of protected medical personnel and protected areas like a hospital. Nations not bound by the Geneva Convention are not protected by it. Both Israel and Palestine (an entity with nonmember status in the United Nations that includes the West Bank, Gaza and East Jerusalem) are ratified parties to the four Geneva Conventions. As the governing authority in Gaza, Hamas is bound to observe them.
It has been claimed that the Al-Quds hospital in Northern Gaza overlies an important Hamas military site. This site would be a legitimate military target, but as it is situated beneath a hospital, targeting it while sparing the hospital staff and patients is very difficult. Assuming hospital personnel know of this problem, they may be powerless to oppose such a set-up or, alternatively, be in full support. Healthcare workers lose protected status when they participate as combatants in a military strike beyond what could be considered self-defense or patient defense. From Israel’s perspective, warning the hospital personnel to evacuate does comport with Article 19 and satisfies Israel’s duty. The obvious question for the Al-Quds medical team non-combatants and their patients is, evacuate to where?
As a practicing ICU physician, I am aware of the difficulties involved in moving critically ill patients. Sometimes it takes six people to move a single patient from the ICU to the hospital radiology department and back again. I have had many patients where I thought them too sick to move, even within the hospital, to undergo a diagnostic test or therapeutic intervention.
As another example, on Aug. 29, 2005, Hurricane Katrina hit New Orleans, resulting in a loss of power and subsequent inundation of flood water. Memorial Medical Center struggled to care for patients but became overwhelmed. While some patients were evacuated, others may have been euthanized by the hospital staff. Such a choice was likely the result of poor advanced planning and exhausted staff.
What is needed now is a coordinated effort to evacuate all patients and staff from Al-Quds. Safe passage could be coordinated, and the patients could be distributed to hospitals in Israel, Jordan, Egypt and any nearby country with an interest in a humanitarian solution.
Mahmoud Abbas heads Fatah and is the dominate authority that administers Palestinian cities in the Israeli-occupied West Bank. The health ministry in Ramallah provides money and services to Al-Quds Hospital. With money comes authority; Abbas can use this authority to help broker the transfer of patients if he chooses. Some patients will not be able to move and may die if Israel bombs what is then no longer a hospital under international law. Each of these patient deaths will be the direct result of Hamas choosing to organize its war with Israel from a HQ in a basement of Al-Quds.
International humanitarian laws are a set of rules created to limit the effects of armed conflict. These laws reflect a shared desire to elevate our humanitarian capacities in our worst and most violent moments. These laws protect persons who are charged with caring for the sick and wounded or are no longer participating in the hostilities of warfare. In the Israel-Hamas war, both sides are bound by the Geneva Conventions and owe a duty to uphold it.
Action is now required. The legal language of the Geneva Conventions lays a pathway forward to emerge from hostilities with vestiges of our humanity intact. When the shooting stops, which it eventually will, it is the memory of these vestiges that are the seeds of our civilized rebuilding.
Joel Zivot, MD, MA, JM, is associate professor of Anesthesiology and Surgery, Emory School of Medicine; former adjunct professor at the Emory School of Law; and senior fellow in the Emory Center for Ethics.
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