As Israel’s raids on the Al Shifa hospital in southern Gaza unfolded over recent weeks, the outrage of the international community at the alleged wanton targeting of a “civilian object” suggests questions about whether Al Shifa was civilian and whether Israel’s actions were indiscriminate.
Notwithstanding dangers to civilians, there is no such thing as an entirely “off limits” target. It is tragic but true that even a hospital, mosque, or school can become a military objective if used for a combat-related purpose. International humanitarian law, as codified in the 1949 Fourth Geneva Conventions and 1977 Additional Protocol I, identifies exceptions to protection of civilians.
As party to the Geneva Conventions, Israel employs the principle of military distinction that requires “at all times [to] distinguish between the civilian population and combatants and between civilian objects and military objectives.” The Conventions’ drafters wrote in the aftermath of state conflict in which they envisioned all parties playing by the same rules. Terrorist and other asymmetric groups like Hamas, however, complicate the ability to distinguish civilian targets. By embedding among civilians, dressing in civilian clothing, and at times masquerading as civilian professionals such as journalists and medical personnel, terrorists deliberately put civilians in harm’s way.
Hospitals lose their civilian status if used for any military purpose. The Geneva Conventions clearly state, “the protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.” This is precisely what Hamas did. Israel, meanwhile, provided the necessary warning that the hospital had lost its status.
For organizations like the International Committee of the Red Cross to invoke the Geneva Conventions selectively absent acknowledging their caveats and conditionality is simply dishonest, putting pre-determined narratives above both the letter and spirit of international law. Jessica Moussan, media advisor for the International Committee of the Red Cross, encourages Hamas to continue to use hospitals as military bases when she ignores the nuance of the Geneva Conventions to declare, "[h]ospitals should be safe for people who need medical help, for those who work there, and for those sheltering in them.” Indeed, the Geneva Conventions state, “The presence of a protected person may not be used to render certain points or areas immune from military operations.” Article Two of the First Annex to the Fourth Convention further warns, “No persons residing, in whatever capacity, in a hospital and safety zone shall perform any work ... directly connected with military operations or the production of war material,” while Article Five of the same Annex specifies obligations for hospitals. "(a) The lines of communication and means of transport which they possess shall not be used for the transport of military personnel or material, even in transit; (b) They shall in no case be defended by military means.”
Such Hamas violations do not absolve Israel of responsibility toward civilians, but to allow Hamas to selectively cite international law is to obviate its meaning. The Red Cross or, for that matter, the United Nations Secretary General, should know better than to absolve Hamas of the requirement to abide by the laws of armed conflict.
Indeed, the International Committee of the Red Cross declares, “The Geneva Conventions and their Additional Protocols are at the core of international humanitarian law,” but they also today ignore the Additional Protocol’s Article 44, that obligates Hamas “to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.” If an armed combatant “cannot so distinguish himself,” he remains a combatant. That Hamas once drilled in uniform but then shed them for its October 7 invasion and its aftermath show the blatancy of its violation. Hamas’s actions to strip hospitals of their protection was tragic, avoidable, and a selfish consequence of Hamas’s disregard for all human life. The Conventions only protect civilians if they do not become combatants by “take[ing]a direct part in hostilities.” Once civilians become combatants and embed within civilian structure, all bets are off.
By demanding a ceasefire, U.N. Secretary General Antonio Guterres and other world leaders risk eviscerating the 75-year-old Geneva Conventions due to animus toward Israel or its elected prime minister Benjamin Netanyahu. If governments and international organizations truly care for Palestinians, they will recognize that Israel follows international law in its struggle to free Gaza from Hamas.
