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Questions surround international humanitarian law as Gaza's hospitals are attacked

MARY LOUISE KELLY, HOST:

Today marks Day 10 of the second Israeli military raid on Al-Shifa Hospital. That is the largest medical complex in Gaza. It only recently began operating again in a limited capacity following a November raid. Israel says that Hamas uses tunnels under the complex as a base and says 180 militants have been killed. Gaza's health ministry says at least 13 people have died as a result of disruption to medical care and says some 30,000 displaced people are sheltering there. Well, NPR is not able to verify either account. Foreign journalists are not allowed into Gaza. But we'll note this is not the only instance of Israel attacking health care facilities recently. Today, Lebanon's health ministry said Israeli airstrikes against a relief facility killed seven medics in fighting against the militant group Hezbollah. Well, I want to bring in Tom Dannenbaum to talk about this. He's an associate professor of international law at the Fletcher School of Law and Diplomacy. Professor Dannenbaum, welcome.

TOM DANNENBAUM: Thank you for having me, Mary Louise.

KELLY: So just to elaborate on that context, since the beginning of the war, on October 7, the World Health Organization has documented at least 410 attacks on health care facilities in Gaza. That includes attacks on hospitals and clinics and ambulances. Can you give us just a brief primer? What does international law say about targeting hospitals during a war? Start with what laws would be applicable here.

DANNENBAUM: Well, one of the oldest laws in codified international humanitarian law is the protection of hospitals from attack. In fact, it's in Article 1 of the very first Geneva Convention from 1864 - that hospitals are not to be subject to attack during armed conflict. There are, of course, specific and narrow exceptions to that. But the baseline rule is that they're protected, and attacks on them are prohibited.

KELLY: OK. There are exceptions though, such as?

DANNENBAUM: Well, the key exception is that hospitals lose their protection when they are used for acts harmful to the enemy. However, there are a number of key components of that exception. So for example, it is not an act harmful to the enemy to have combatants in the hospital for medical reasons.

But even if those kinds of issues aren't what's at stake and the hospital is being used for acts harmful to the enemy, such as being used as a command center, there are still additional protections that are designed to ensure the protection of the humanitarian function of the hospital. So in particular, the attacking party has to give a warning to the hospital and the persons within it to allow for the misuse of the hospital to cease so that the protected status of the hospital snaps back into place and any further attack on the hospital would be prohibited. There are a couple of additional rules, particularly around precautions and proportionality, that provide further protection beyond those I've just mentioned.

KELLY: Who enforces any of this?

DANNENBAUM: Well, the primary one in this context, in addition to the enforcement systems within the parties to the conflict themselves, would be the International Criminal Court, which has jurisdiction over activity in Gaza.

And we can look at past precedents. So, for example, in the context of the war in Bosnia in the 1990s, and particularly the siege of Sarajevo from 1992 onwards, including the shelling of a hospital within Sarajevo, the appeals chamber in the International Criminal Tribunal for the former Yugoslavia determined that, during certain periods, the hospital was being used by the armed forces of Bosnia-Herzegovina such that it lost its protection. But at other periods during that shelling campaign, it was not being misused in that way. And for those periods, therefore, the attack on that hospital was prohibited and was a component of the conviction of Stanislav Galic for war crimes in the context of the siege of Sarajevo.

KELLY: Well, I'm speaking to you today from Boston. You, like I, are not in a position to verify conflicting accounts of what's happening there at Al-Shifa Hospital. But given the evidence that Israel has publicly provided to date, what questions are on your mind as you try to weigh whether the exception for the targeting of hospitals is being met here?

DANNENBAUM: I think it's important to bear in mind that even when a hospital is being misused for acts harmful to the enemy, and that misuse continues, notwithstanding warnings, it would still be prohibited to engage in an attack on the hospital if the expected harm to civilians, medical personnel and medical units and facilities is expected to be excessive in relation to the military advantage from the attack. And that, of course, requires a judgment call. But in a context of diminished medical capacity due to the elimination of other medical facilities and increased medical need due to the effects of the armed conflict and the siege, the expected harm to civilians and other protected persons from an attack on a hospital that would render that hospital nonfunctional is very high.

KELLY: Tom Dannenbaum of the Fletcher School of Law and Diplomacy at Tufts University - thank you.

DANNENBAUM: Thank you very much. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Linah Mohammad
Prior to joining NPR in 2022, Mohammad was a producer on The Washington Post's daily flagship podcast Post Reports, where her work was recognized by multiple awards. She was honored with a Peabody award for her work on an episode on the life of George Floyd.
Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.