Don't reward Hamas's war crimes - opinion

An Israeli soldier walks through a tunnel underneath Al Shifa Hospital in Gaza City, November 22, 2023

Hamas’s exploitation of Shifa Hospital in Gaza has long been referred to as Gaza’s worst-kept secret. Recently released security footage shows Hamas terrorists whisking Israeli captives into the hospital as medical staff nonchalantly carry about. The IDF also found extensive weapons caches and bunkers beneath the hospital. Hamas’s use of human shields, and especially hospitals, is a longstanding pattern of operation.

Under Rantisi Hospital in Gaza, the Israeli army found a Hamas command and control center, explosives, and weaponry as well as an elaborate tunnel system in which Israeli hostages were likely held. Just recently, Telegraph TV published footage of Hamas firing rockets from Al-Quds hospital.

Under international law, hospitals are meant to enjoy a protected status from military use. Hamas’s exploitation of hospitals to protect its terrorists and leaders, store weapons, and launch attacks on Israelis is a clear war crime. Hamas has a duty to distinguish its fighters from civilians and to distance Gazan civilians from the battlefield. Once again, Hamas demonstrates its clear contempt for human life by entangling Gaza’s most vulnerable in its war against Israel while burrowing beneath hospitals.

Israel’s limited, proportionate response to Hamas’s use of the sick and wounded as human shields has met with criticism from some international organizations, such as the World Health Organization and the Red Cross. This criticism stems from an apparently intentional misrepresentation of international law and only serves to reward Hamas for its war crimes. The Fourth Geneva Convention and its First Additional Protocol reflects customary international law when it explicitly states that “the presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor, or impede military operations.”

For the past month, Israel has urged civilians to move out of hospitals in northern Gaza and travel to safety in the south. Israel has offered to help patients and medical staff evacuate Shifa Hospital, supply incubators and equipment, and coordinate the establishment of field hospitals. Israel does not seek to harm Gazan civilians, but to defeat and neutralize the terrorists who carried out the deadly October 7 massacre.

Israeli soldiers stand near the opening to a tunnel at Al Shifa Hospital compound in Gaza City, November 22, 2023 (credit: REUTERS/Ronen Zvulun)

Israeli soldiers stand near the opening to a tunnel at Al Shifa Hospital compound in Gaza City, November 22, 2023 (credit: REUTERS/Ronen Zvulun)

Tragedies are not automatically war crimes

Israel is taking necessary precautions to minimize civilian casualties, as required under international law. The tragedy of war means that, unfortunately, civilians are likely to lose their lives, yet this in and of itself does not indicate a violation of Israel’s international obligations. According to the principle of proportionality, the collateral damage to civilians must not be excessive in comparison to the military advantage of the operation. Hospitals – as well as schools, residential buildings, and mosques that are used for military purposes – are legitimate military targets. Israel is fighting against a cruel enemy that carried out the worst slaughter in the history of the Jewish state and that continues to threaten millions of Israeli citizens. The military value of eliminating Hamas’s leadership as well as its fighting capabilities is enormous.

The alternative to Israel’s actions is to incentivize terrorist organizations to hide themselves in hospitals, knowing that this will render them immune. In fact, this is a common tactic used by other terrorist groups such as al-Qaeda, the Taliban, and ISIS. The UK and the United States, during their campaigns in Iraq and Afghanistan, fought terrorists who were abusing hospitals. In 2004, British and American forces in Falujah captured a hospital serving as an al-Qaeda base. Similarly, US-led forces struck a hospital used by ISIS for military purposes during the 2014 assault on the city. The American army targeted the al-Salaam and Jamhuri hospitals in Mosul in 2016 and 2017 after ISIS set up its headquarters there, housing fighters and launching attacks from the premises. International law is largely based on state practice, and these examples demonstrate how other states have acted in similar military situations. A legal rule aimed solely at Israel is no rule at all.

When Hamas set out on its bacchanal of murder on October 7 against Israeli civilians, it knew that it would be causing a disaster for Gaza’s population. Hamas intentionally hides in Gazan hospitals, schools, and homes because it understands, perversely, that a higher Gazan casualty rate will bring about greater international pressure and opprobrium on Israel. Israel is acting in full compliance with international law and is taking great care to minimize civilian harm while fighting a cruel and savage terrorist organization. Those that uphold international norms must not fall into Hamas’s trap by rewarding its war crimes.

The writer is a lawyer at Kohelet Policy Forum.