Legal Perspectives to the Gaza Hospital Attack
The tragic attack on Ahli Arab Hospital, Gaza, on the 17th of October, 2023, allegedly by the Israeli airstrikes, which injured civilians causing extensive damage to the hospital facility highlights the intensity of the conflict between Palestine and Israel.
Ahli Arab Hospital, which began operation since 1882, was founded by the Church of England’s Mission Society. The attack left many Palestinians homeless and without essential health care, highlighting the need for peaceful resolutions to the conflict between states.
This article will examine the impact of the attack, explore the legality of the attack under international laws as well as proffer possible solutions to the unceasing conflict.
Nature of the Conflict Between Israel and Palestine
Prior to the attack, it was recorded that the Al-Ahli Arab Hospital serves the purpose of providing shelter to the displaced civilians while also providing succor to aggrieved families affected by the feud.[1]
Primarily, the underlying dispute between Israelis and Palestinians can be traceable to the disagreement over the occupation of the territory of the city of Jerusalem by the two states.
It revolves around the legal status of East Jerusalem and especially the Old City of Jerusalem, while broader agreement exists regarding future Israeli presence in West Jerusalem in accordance with Israel’s internationally recognized borders.
The Applicability of International Laws to the Attack on Ahli Arab Hospital, Gaza
Under the international laws, the relationship that exists between countries and international organizations are governed by certain rules of conduct, customary legislations and conventions.
International laws or law of nations are derived from various sources including treaties, international customs, general principles of law recognized by civilized nations, judicial decisions and teachings of the most highly qualified publicists of the various nations.[2]
As a matter of fact, the principle of pacta sunt servenda ensures that all international agreements are kept. Without such a rule, no international agreement would be binding or enforceable on parties subject to its sway. Therefore, all international laws signed and ratified by each country is binding and enforceable.
Significantly, international humanitarian law is a branch of international law. IHL is the law that regulates the conduct of war, jus in bello.” It is otherwise referred to as the law of war or the law of armed conflicts. It is a branch of international law that seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities (civilians) and by restricting and regulating the methods of warfare available to combatants.[3]
Moreover, IHL applies to situations in armed conflicts. Armed conflicts are categorized into two; the international armed conflict and the non-international armed conflicts. The Israeli-Palestine conflict is a non-international conflict. Non-international conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State.[4]
Furthermore, Article 3 common to each of the 1949 Geneva Conventions govern persons taking no active part in hostilities in the case of an armed conflict not of an international character and seeks to guarantee minimum levels of protection for them.
The Article 3 of the Geneva Convention seeks to ensure humane treatment of civilians and noncombatants in war times. One significant effect that it has had is the recognition that parties to a conflict are not limited to States, but can also extend to non-State actors in this context. This is regardless of their legal personality, status or legitimacy under international law.
Under the Rome Statute of the International Criminal Court (ICC), the murder of wounded and sick people, as well as other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health, may amount to crimes against humanity or war crimes. See Article 7(1)(a) (k) of the Rome Statute.
As accorded under international law, Parties to an armed conflict must take measures to protect medical units from attacks, such as ensuring that they are not situated in the vicinity of military objectives. See GC I, Article 19; GC II, Article 22; GCIV, Article 18; API, Article 12; AP II, Art. 11; Rule 28 of Customary International Humanitarian Law.
Broadly speaking, attacking a health care unit that presents as a safe haven for internally displaced civilians is deemed as a cowardly approach on the part of the forces. Note, however, that the Israeli Forces and the Hama “militants” are claiming to have no involvement in the Ahli hospital attack.
Nonetheless, deliberately attacking a health care unit is widely considered a violation of international humanitarian law. The Geneva Conventions and the Rome Statute of the International Criminal Court both prohibit attacks on medical facilities, and such attacks are considered war crimes.
War crimes is defined in what Fernando Traversi of the International Center for Transitional Justice (ICTJ) describes as the premeditated, planned and deliberate killing of civilians — that’s a clear war crime. Indiscriminate violations of international humanitarian laws set pace for the prosecution of leaders and combatants or soldiers suspected to be involved in war crimes.
As mentioned in the foregoing laws, intentionally directing attacks against “hospitals and places where the sick and the wounded are collected, provided they are not military objectives” and against “medical units” using the distinctive emblems of the Geneva Conventions in conformity with international law” constitutes a war crime in international armed conflicts.
Moreso, Rule 28, Volume 2 Chapter 7 Section D provides that health care units exclusively assigned to medical purposes must be respected and protected in all circumstances. It is the position of the law that parties to an armed conflict must do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects (especially health care units) and are not subject to special protection, i.e. medical personnel, health care units, wounded persons, but are military objectives.
Conclusion
United Nations bodies and leading legal organizations including Amnesty International and Human Rights Watch have described Israel domination of Palestine as one of totalitarian force. That is, exerting supreme control over the economic, political, social and physical lives of the Palestinians.
This form of control is repugnant to natural justice, equity and good conscience. It is a contravention of rights of the Palestinians to life, dignity, health, liberty, property and other rights as provided for under the Universal Declaration of Human Rights (UDHR), International Conventions on Civil and Political Rights (ICCPR), International Human Rights Laws (IHRL), International Humanitarian Laws (IHL), International Covenant on Economic, Social and Cultural Rights (ICESCR) and body of other international laws.
That said, International humanitarian law and international human rights law still share “a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity” see Abella v. Argentina, 1997, para. 183.
In order to achieve a peaceful resolution to the conflict between Israel and Palestine in line with international laws, both countries must renounce their occupation and consider diplomatic approaches to resolving disputes. This could include pursuing dialogue, negotiation, mediation rather than military action which causes more harm than good.
REFERENCES
- https://ihl-databases.icrc.org/en/customary-ihl/v1/rule156#:~:text=Basis%20for%20the%20war%20crimes%20listed%20above,-Common%20Article%203&text=making%20the%20civilian%20population%20or,hostilities%2C%20the%20object%20of%20attack%3B&text=pillage%3B&text=committing%20sexual%20violence%2C%20in%20particular,enforced%20sterilization%20and%20enforced%20pregnancy.
- https://ihl-databases.icrc.org/en/customary-ihl/v1/rule156
- https://www.amnesty.org/en/latest/news/2023/10/damning-evidence-of-war-crimes-as-israeli-attacks-wipe-out-entire-families-in-gaza/
- “What is Israel’s narrative on the Gaza hospital explosion? | Israel-Palestine conflict News | Al Jazeera” https://www.aljazeera.com/amp/news/2023/10/18/what-is-israels-narrative-on-the-gaza-hospital-explosion
- “Gaza hospital: What video, pictures and other evidence tell us about Al-Ahli hospital blast – BBC News” https://www.bbc.com/news/world-middle-east-67144061.amp
- “Non-International Armed Conflict (NIAC) | UNDRR” https://www.undrr.org/understanding-disaster-risk/terminology/hips/so0002
[1] “WHO statement on attack on Al Ahli Arab Hospital and reported large-scale casualties” https://www.who.int/news/item/17-10-2023-who-statement-on-attack-on-al-ahli-arab-hospital-and-reported-large-scale-casualties
[2] See article 38(1) of the Statute of the International Court of Justice, ICJ
[3] “International humanitarian law – Wikipedia” https://en.m.wikipedia.org/wiki/International_humanitarian_law
[4] https://economictimes.indiatimes.com/news/defence/where-does-international-law-fit-into-the-israeli-palestinian-conflict/articleshow/104438542.cms
Image Credit: The New York Times
About Author
Rofiat Popoola is a second year law student at the prestigious University of Ilorin, Nigeria. She is a passionate writer, researcher and volunteer who prides in writing on contemporary issues affecting her country as a whole. She joined LawGlobal Hub in January, 2023.
If I may ask, will this still be your position, the position of the law if the hospital and civilians are aiding, harbouring and protecting militants
Thank you so much Emmanuel for that question. It is an intellectual one
In my own humble view, taking consideration of all the International Humanitarian Law, Geneva convention in particular, no matter the action of the medical personnel/unit in as much as it is done within the confine of their duties will not be questioned. When they are protecting, treating, transporting the militants, they are still under the umbrella of the protection provisions. However, if the medical teams engage in direct hostilities towards the enemy, then that is another story to tell. Hence, if the form of harbouring is to protect the injured, the weak or the sick, it is not a direct engagements in the hostile act of war.