“Hospital Shields” and the Murkiness of International Human Rights Law in Wars

The recent explosion of the Ahli Arab Hospital in Gaza marked the destruction of yet another medical facility in a war zone. Ukraine’s healthcare facilities also bear the scars of war following over 1,100 Russian attacks on facilities and personnel since February 2022. In Yemen, the Saudi Arabia-led coalition carried out over 130 attacks on medical facilities in 2019. And in October 2015, United States airstrikes destroyed a trauma hospital run by Médecins Sans Frontières (MSF) in Afghanistan.

These aforementioned attacks are a mix of catastrophic accidents, examples of warfare gone wrong, but also intentional attacks on healthcare facilities. Yet, Article 18 of the Geneva Convention — ratified in 1949 to prevent continued atrocities after the World Wars — states that civilian hospitals “may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.” Seeing as acts of aggression against medical facilities are prohibited under international law, what has catalyzed this increase in violence against hospitals in war-torn areas?

The Development of International Humanitarian Law

To better understand the current structure of international human rights law, it is necessary to understand the historical context in which it developed. After witnessing the ravages of war, particularly the atrocious treatment of the dead and injured at the Battle of Solferino in 1859, Henry Dunant wrote “Un Souvenir de Solferino,” which was published in 1862. In this landmark text, Dunant described how dead and wounded soldiers were left behind on the battlefield, forgotten casualties of the conflict.

Dunant’s text capitalizes on what scholar Matthew Newcomb calls an “affective moment,” which relies on “bodily drives and intensities” to create meaning out of war. Dunant used his book and the horrified reactions of readers and public figures to form the International Committee of the Red Cross in 1863.

From this point onward, a series of atrocities drove the construction and expansion of international humanitarian law. Theodor Meron, a scholar of international human rights law, describes how the horrors committed by the Nazis led to the Nuremberg Charter and the 1949 Geneva Convention. More recently, the atrocities in Yugoslavia and Rwanda also led to the development of more legal mechanisms including tribunals in an effort to enforce laws. Meron describes this process as a “humanization of the law of war” whereby laws have been implemented to limit human rights catastrophes associated with warfare. Yet as the recent targeting of medical facilities in Palestine, Ukraine, Sudan, and elsewhere demonstrate, there is a significant gap between the normative laws and the reality of modern warfare.

Loopholes in the Geneva Convention

Despite its objective to prevent conflict and humanitarian disasters, the Geneva Convention has been unable to stop the targeting of medical facilities during wartime. This is partly because international human rights laws contain loopholes that make it incredibly difficult to prosecute those who have committed attacks on hospitals. For example, Article 19 of the 1949 Geneva Convention states that “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.” In other words, if hospitals are used as part of the war effort, the Geneva Convention no longer protects them.

Hospitals, however, will always be intertwined with the war effort in some capacity. The involvement of medical facilities in war is not black and white, but rather exists somewhere in a gray area. This murky area generated the justification of “hospital shields” for deliberate attacks on medical facilities.

Neve Gordon, an Israeli professor at Queen Mary University, and Nicola Pergugini, a researcher on the politics of international law, describe the evolution of “hospital shields” in their book, Human Shields: A history of People in the Line of Fire. Gordon and Pergugini write that attackers will claim that the enemies have blurred the lines between military and civilian institutions by locating military activities near hospitals. Attackers then use this as a justification to “legally” bomb medical facilities as long as they provide a warning and “do not breach the principles of proportionality and military necessity.

This justification was used in the 2014 Gaza war, in which Israel damaged 17 hospitals, 56 primary care facilities, and 45 ambulances, justifying their destruction by accusing Hamas of hiding militants and weapons within hospitals. Israel continues to use this rationale today. If this sounds eerily familiar, it is because the same rationale was used a few days ago on November 3rd when an attack was carried out on an ambulance in Gaza City which Israel accused of being used as “a Hamas terrorist cell”. A similar reasoning was also used by Saudi Arabia in Yemen in 2019 where hospitals and other civilian infrastructures were targeted by airstrikes.

These loopholes have made it difficult to prosecute the destruction of medical facilities under international law. Since there are few mechanisms to hold warring parties accountable, hospitals have been increasingly coming under fire. The consequence has been continuous catastrophic blows to patients and staff members in hospitals. Furthermore, under its current form, international human rights law has been ineffective at preventing the targeting of hospitals and medical facilities during wars.

Consequences

The impact of these loopholes goes beyond physical destruction. For example, a 2009 study conducted during the Gaza War found that hospital personnel had much higher rates of stress and depression due to increased exposure to rocket attacks, pressure, and workload. Personnel also continued to experience post-traumatic stress symptoms following the attack.

Attacks on medical facilities across the world have, and will continue to have, devastating impacts on civilians seeking care. In Ukraine, 10 to 15 percent of medical facilities have been destroyed by Russian forces since 2022. In Sudan, 70 percent of medical facilities have been destroyed. With such a substantial amount of medical infrastructure destroyed, patients are unable to receive the care that they need. To recover from devastation, it will take significant time, finances, and organization to recover. In this sense, wartime destruction of medical facilities can have lasting effects on a country even after the end of the conflict.

In today’s conflict between Israel and Hamas, there has been continued evidence that Israel is willing to target hospitals and their surrounding areas. Already, there have been over 115 attacks on healthcare facilities since the conflict began on October 7. In mid-October, Israel ordered the evacuation of 20 hospitals in Gaza to prepare for a ground invasion, an ominous sign of potential destruction to come. And on November 3, an airstrike near the entrance of the Al Shifa hospital killed several people. History shows us the devastating impacts that attacking medical facilities can have on civilians and personnel. In order to protect civilians and medical infrastructure in a time embroiled in conflict, reforms to international human rights law to ensure the security of medical facilities are more important now than ever.