Yesterday, Israel withdrew from the al-Shifa hospital complex after its fourth raid on the facility during the Israel-Hamas war. Israel articulated its activities as a “high-precision operation in limited areas of al-Shifa hospital following concrete intelligence that demanded immediate action.” The IDF said that troops had been “instructed on the importance of operating cautiously, as well as on the measures to be taken to avoid harming the patients, civilians, medical staff, and medical equipment.” It further claimed that high-level Hamas actors were currently using the hospital complex as a command center for ongoing attacks on Israel. The IDF reports it has killed 140 Hamas terrorists and detained approximately 500 men it believes are Hamas or Islamic Jihad members, with an additional few hundred questioned and released. In contrast, the director of Gaza’s media office said the dead were all wounded patients and displaced persons. The Gazan Health Ministry decried the operation as a violation of the laws of war and accused the IDF of “using fabricated narratives to justify its conduct” with a senior Hamas official labeling the event a war crime and part of a larger genocide. Somewhere in between, many security analysts say the evidence they had seen documented “a Hamas armed presence at the hospital,” but not “a smoking gun showing it was a major command center.
Like so many events in the Israel-Hamas conflict, reaching a tentative understanding of the legality of these activities requires both an introduction to the relevant legal framework and an identification of the contested facts in need of resolution. And, of course, the legal determination is only part of the inquiry, armed conflict so often involves lawful but awful behavior upon which individuals might reach different normative answers.
So in this post, I’d like to identify the relevant law and the competing narratives of several key aspects of the al-Shifa operation including: attacks on or within the hospital, the targeting of Faiq Mabhouh, the satisfaction or not of civilian protections with regards to warnings and evacuations, and the treatment of journalists and medical staff. While these are not all the allegations (such as unlawful civilian casualties) nor all the possible larger legal analysis (such as the general lawfulness of Israel’s administrative detention practices), they certainly provide a representative sample. Given the starkly opposed accounts surrounding this operation, a more fulsome investigation into these events is certainly warranted.
The Status of the al-Shifa Hospital Complex
I want to start with the fact of the operation being conducted in the hospital complex itself, before moving on to more specific allegations. At the initiation of the operation, the al-Shifa hospital complex was in active use as a medical facility and was believed to contain between 3,000 and 6,000 people. In armed conflict, hospitals are supposed to be sacrosanct, and many commenters, including the director general of the WHO, give the impression that military operations may never take place there. And while ideally, they never would, the law provides a more nuanced answer. Under the laws of war, hospitals are protected from attack. So directly targeting hospitals as such, like, for example, Russia’s unceasing strikes on Ukrainian hospitals, is unlawful. If, however, a party to the conflict, here Hamas, uses the hospital to commit an “act harmful to the enemy,” that hospital loses its protection even as civilians not directly participating in hostilities and medical staff in those hospitals retain their immunity from attack. In other words, attacks on or within Gazan hospitals can be lawful, but only if Hamas is committing an act harmful to the enemy (and the attack is otherwise lawful as I will address below).
While the relevant laws do not define “act harmful to the enemy,” influential commentary to the laws of war provides examples such as the use of the hospital to shield military action or combatants, to store arms or munitions, or to act as a military observation post. As of January 2023, both the IDF and the U.S. government relied on their intelligence assessments to conclude that Hamas was continuing to use the al-Shifa medical complex “to direct terrorist forces” and to “store weapons.” In addition, as the Israelis moved into the complex, the IDF and Israeli security services say Hamas shot at them from several of the hospital buildings. The White House supports this claim. Also in support of their conclusion, Israel notes that the search of the hospital yielded a variety of weapons including “RPGs and combat equipment” as well as 2.5 million dollars. The intense clashes inside as well as nearby the complex seem to bear out, at the very least, the presence of a significant number of armed Hamas forces.
If the Hospital Loses Immunity From Attack
The laws of war further dictate that if an act harmful to the enemy is occurring, the responding party should issue a warning to get the party to end the violation, and if that fails or is not possible, should provide for evacuation of those that keep their protected status such as the sick and wounded, medical personnel, and civilians present at the hospital not responsible for the harmful acts. Jon Griffins has a nice post explaining that warnings must: (1) be provided either to potentially affected civilians directly or “at least to the responsible authorities who control the territory and bear responsibility for the safety of the civilian population”; (2) provide civilians sufficient time to respond; and (3) clearly articulate whether the civilian population is to shelter in place or evacuate. In addition to the warnings, assuming this is customary international law for Israel, Additional Protocol I Article 57’s obligation to take constant care to spare the civilian population may entail additional efforts for those unwilling or unable to evacuate.
Was this done and done lawfully? The IDF released a recording that includes a warning to the director of the Gaza Health Ministry that Hamas forces were active in al-Shifa and that the IDF would be responding. The IDF also called on “all Hamas terrorists hiding in hospitals to surrender immediately.” The IDF further claimed that no mandatory evacuation of the complex and nearby communities was in place, but that it provided a protected safe corridor for civilians to leave. During the operation, the IDF made announcements to those near the hospital to evacuate and made a map of the evacuation pathways and humanitarian zones available. The IDF reports that it provided medical staff and provided a significant amount of food and water to patients in the complex. In contrast, Al Jazeera alleges the IDF mandated an evacuation, even for those unable to safely do so, threatening to blow up the hospital if staff and patients did not leave. Some allege that those who evacuated were then targeted by IDF artillery. In addition, a visitor to the hospital reported that “there is no food or water.” Furthermore, but beyond the scope of this post, serious questions have been raised about the conditions and the safety in and on the way to the humanitarian zones.
The Alleged Targeting of the Surgery Building Itself
Al Jazeera maintains that regardless of whether the evacuation occurred, Israel did in fact blow up the hospital’s surgical building. A doctor on the scene alleges it was the result of missile strikes. The doctor further states that the building was still housing surgical patients unable to evacuate. As far as I know, Israel has not yet commented on this specific accusation.
If the IDF deliberately targeted the surgery building as described by the doctor (or perhaps even most medical buildings in the complex), under what circumstances could such an action be lawful? As I have written about in an earlier post, if a military targets a legitimate objective, the laws of war then demand a proportionality analysis in which the anticipated damage to civilian life and property cannot be clearly excessive to the anticipated concrete and direct military advantage. At this point in the conflict, a functional surgery building would have to receive extremely heavy weight in a proportionality analysis. Not only are there the normal considerations of whatever patients, staff, and other civilians, as well as medical technology and supplies that might be located inside (assuming, of course, that none of the individuals have lost their immunity from targeting), but the exceptionally high ongoing demand for such medical services and the limited abilities to replace either staff or supplies in a timely manner also must be considered in the weighing. Perhaps compelling evidence, if it could be produced, of command and control operations being currently run out of the surgery building in particular, along with the presence of the actual Hamas high command, might satisfy a proportionality analysis, but barring an exceptionally weighty military objective, it would be very difficult to satisfy proportionality requirements under the existing circumstances.
The Killing of Faiq Mabhouh
Both parties to the conflict acknowledge that Israel killed Faiq Mabhouh. Was he a legitimate target? A joint statementfrom the IDF and the Israel Security Agency identified him as the Operations Director of Hamas’ Internal Security and claimed he was currently coordinating terrorist activity in the Gaza Strip and beyond. For instance, Mabhouh may have coordinated “the assassinations of local Gaza Palestinians who were considering cooperating with the IDF.” In support of the claim that he was actively engaged in unlawful activity for Hamas, they noted the many weapons found adjacent to where he was killed. In contrast, sources such as the Cradle and the Middle East Eye suggest Israel targeted Mabhouh for his role in coordinating the delivery of food aid to northern Gaza, citing a Gaza’s Government Media Office statementthat “he was engaged in purely civilian humanitarian work.” In a 2009 Report of the Israeli Ministry of Foreign Affairs, Israel acknowledged that police officers (or implicitly aid coordinators or others that carry out only legitimate governance work) cannot be targeted as such. If however, Mabhouh played a dual role both as a police officer but also a member of military units as further described in that report, he would be a legitimate target. Even the United Nations’ Goldstone Report, which sharply disagreed with many legal conclusions in the 2009 Israeli report, agreed that “dual use” police officers were legitimate targets.
Furthermore, the competing facts might not even need to be resolved, given Israel’s claim that “he was killed amid an exchange of fire during an attempt to arrest him.” Even those who contest his targeting have said that Mabhouh refused to surrender and clashed with the Israeli forces. At that point, if he posed an imminent threat to those trying to arrest him, lethal force would be permissible.
Interrogations, Beatings, Arrests of Journalists, Medical Staff, and Other Civilians
Al Jazeera correspondent Ismail al-Ghoul alleges that during the al-Shifa operation, Israeli forces beat him, destroyed broadcast vehicles of media, and detained him, naked and blindfolded, along with other journalists. Medical personnel have made similar claims about being forced to strip, being left in the cold for hours without food or water, and having to undergo humiliating interrogations. A patient told the Agence Free Presse that Israeli forces “took all the men and young people over 16 years old, even the physically disabled and the injured,” stripped the men, and beat and shot at them.
Under Additional Protocol I Article 79 (which Israel has not ratified) and more importantly here, customary international humanitarian law, journalists “engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians” provided they “take no action adversely affecting their status as civilians.” In other words, so long as journalists do not take a direct part in hostilities, they remain civilians. Activities such as documenting and transmitting information about the events to news agencies would not constitute direct participation. Even if such information was used as propaganda, it would not equate to direct participation. That means al-Ghoul and those like him, assuming they are only journalists, are immune from attack and to be protected from the hostilities and from arbitrary conduct from the IDF should they be captured or arrested. Similarly, broadcast vehicles are civilian objects, so long as they are not making an effective contribution to the war effort, such as being used to hide fighters or military equipment. It is particularly important that parties respect the protected status of journalists and their equipment as their investigations and reporting helps the public to understand what is happening in a given armed conflict.
Even if the IDF reasonably believed al-Ghoul or the other journalists or medical personnel had lost their protected status or that it needed to question them in order to determine their status, the IDF would still not be entitled to beat or humiliate them during detention. Common Article 3 of the Geneva Convention prohibits outrages on physical integrity, including cruel treatment, as well as prohibiting outrages on personal dignity, such as humiliating and degrading treatments. Of course, digging into these claims would require further testimony and evidence as to what might have made the interrogations humiliating and whether or why clothing was removed and not returned. At the moment, the IDF says it has “no record” of detaining al-Ghoul and has not yet responded to claims from medical staff.
Conclusion
Depending on your priors, you may have strong feelings about the relative credibility of the sources cited above. In some ways, the al-Shifa operation seems like a Rorschach test for the conflict more generally. Do you see a state military trying hard to comply with its laws of war obligations in the face of an enemy that uses defenseless civilians as human shields, or a state military paying lip service to the laws of war while acting with impunity and indifference towards the most vulnerable? While outsiders may never have a perfect view of the facts on the ground and it may be difficult to move people off their priors, a credible investigation needs to be the next step.
