Hospitals are protected in war. But the safeguard is not absolute

TEL AVIV, Israel — Is a hospital ever a legitimate military target?

Hospitals in Gaza have suffered repeated damage in the Israel-Hamas war, and their protected status is a source of fierce disagreement between Israelis and Palestinians.

Palestinians say that hospitals should never be harmed.

"Hospitals have specific protections under international law and there should be the utmost care to protect those facilities," said Wesam Ahmad, with the Palestinian human rights group Al-Haq, which is based in the West Bank.

Israel's military counters by saying that Hamas, which rules the Gaza Strip, operates in tunnels beneath Gaza's hospitals in hopes this will spare the militant group from Israeli attack.

"Hamas is cynically using hospitals as a shield for its underground terror complex," said Rear Adm. Daniel Hagari, Israel's chief military spokesperson.

Israel raises this issue almost daily, and argues that these Hamas actions can override the legal safeguards normally provided hospitals.

This is all part of the larger debate over civilian casualties. More than 11,000 people have been killed in Gaza since fighting began Oct. 7, mostly civilians, according to the Health Ministry in Gaza. Most of the 1,400 dead in Israel from the Oct. 7 Hamas attack were also civilians, according to Israeli officials.

Israel argues it's pursuing Hamas and can't avoid civilian casualties because Hamas embeds itself in Gaza's most populated neighborhoods.

For Hamas, this is a "win-win strategy," said Pnina Sharvit Baruch, a lawyer who served in Israel's army as a top legal adviser on military operations.

"Either Israel refrains from attacking this [Hamas] military infrastructure because civilians might get killed. Or Israel does attack. Civilians get killed and the whole world puts pressure on Israel," said Sharvit Baruch, now with the Institute for National Security Studies in Tel Aviv.

But Sari Bashi, the head of global research at Human Rights Watch, says Israel is unleashing massive firepower — and knows the outcome.

"The Israeli military has been launching explosive weapons in densely crowded city blocks, causing tremendous civilian harm. That's predictable," Bashi said.

Geneva Conventions say hospitals have special status

So what exactly do the laws of war say about hospitals?

The Geneva Conventions of 1949 provide special protection, saying "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."

However, this shield is not absolute. The Geneva Conventions go on to say that a hospital can lose this protected status if an armed group uses the hospital to carry out "acts harmful to the enemy."

Legal scholars say a Hamas attack from a hospital could make it a military target, though not immediately.

The Geneva Conventions add that the other side, in this case Israel, must give the hospital "due warning" and allow a "reasonable time limit" to see if the attacks stop.

And any retaliation would have to be proportionate. A lone gunman firing from a hospital wouldn't give an army the right to destroy the entire building, according to lawyers.

"I am particularly worried about the risk of indiscriminate attacks because of the way the Israeli military is waging this war," said Bashi of Human Rights Watch.

Debating the legality of military strikes

The former Israeli military lawyer, Sharvit Baruch, spent years working with Israeli commanders as they compiled target lists during times of relative calm.

She said she could veto planned attacks as legally problematic, though commanders could appeal up the chain of command.

She acknowledged that when fighting erupts, there simply isn't time to review every attack.

And she also noted there are times when Israel might act within the letter of the law, yet harms itself in the court of international public opinion.

"You see the devastation in Gaza, the heart breaks," she said. "There's immediately a sense that Israel is using too much force, this can't be legal."

Palestinian officials in Gaza say more than 100 health care facilities have been damaged in Israeli attacks and more than 40 ambulances destroyed over the past month.

Two attacks have received widespread attention.

The first was an Oct. 17 explosion in the parking lot of the Al-Ahli Arab Hospital in Gaza City. Palestinians said several hundreds were killed and blamed an Israeli airstrike. Israel denied involvement, saying the cause was an errant rocket fired by Palestinian militants. U.S. and other intelligence agencies also investigated, and said the evidence pointed to a Palestinian rocket.

The second episode was Nov. 3, when Israel acknowledged an airstrike just outside Shifa Hospital, the largest hospital the Gaza Strip. Israel said it targeted an ambulance that Hamas fighters were using as cover to get away from the hospital in Gaza City. Hamas denied this, while hospital officials said bystanders were among the 13 killed and dozens injured.

At least some of the casualties were among the thousands of Palestinians who are camping out on the grounds of Shifa and other hospitals, hoping they will provide at least a bit more safety than other places in Gaza, a territory under almost round-the-clock bombardment.

An attack under investigation

Sari Bashi said Human Rights Watch is investigating this attack on Shifa hospital, noting Israel said the Hamas fighters were leaving the hospital, not attacking from it. She also said that Israel gave no warning it was striking.

"These are the kinds of rules that all the nations in the world have agreed to," she said. "And even on its own statements, the Israeli military is not accepting those rules."

The same rules of war apply to Hamas, which makes no pretense of observing them.

A 1977 addition to the international rules of warfare state that "under no circumstances shall medical units be used in an attempt to shield military objectives from attack."

Hamas denies the Israeli allegation that it has headquarters under Shifa Hospital. But the militant group does acknowledge building a vast tunnel network, and it is widely believed to be operating underground in and around sensitive civilian sites.

In addition, Hamas has always targeted Israeli civilians, from scores of suicide bombings in the 1990s and early 2000s, to its Oct. 7 massacre in southern Israel.

The group holds about 240 hostages, most of them civilians, and during the past month, has fired thousands of rockets in ongoing attacks directed at civilians in Israeli cities.

Sharvit Baruch put it this way: "How can we eliminate the threat of Hamas and spare civilians in the Gaza Strip?"

Neither Israel nor its critics, she said, has a good answer.

Greg Myre is an NPR national security correspondent who was based in Jerusalem from 2000-2007. Follow him @gregmyre1.

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