All attacks on hospitals should be banned and the exceptions in international humanitarian law (IHL) that enable aggressors to justify bombing hospitals – by, for example, claiming that they are shielding combatants – should be removed.

Professor Neve Gordon, professor of international law at Queen Mary University in London, made this argument at a recent seminar co-hosted by his university, the Geneva Graduate Institute’s Global Health Centre,  and Médecins Sans Frontières (MSF).

According to IHL, hospitals are protected from attack unless they are being used to “commit acts harmful to the enemy”, including shielding combatants and weapons.

But, said Gordon, this exception has now become the law – particularly in Gaza where, in his words, “shielding has become a tool of genocide”.

The Israeli government claims that there are “hundreds of kilometres of tunnels under the Gaza Strip, and these tunnels are legitimate military targets, so anything above the target can be interpreted as a shield to the target”, said Gordon.

“Israel has targeted [hundreds] of medical units in the Gaza Strip, and each time it has claimed that these hospitals shielded something that belongs to Hamas,” he added.

“We know that the vast majority of these claims are fabrications. But what you can see is how the law is being deployed by Israel, through the shielding argument, to defend and protect genocide,” said Gordon.

“Anyone can decide what is proportional and what is not. Today, you kill two civilians for a soldier. Tomorrow, you kill 100 civilians for a soldier. And who can argue that that is not an adequate interpretation?” Gordon asked.

 “Part of the problem is the law. Let’s say there’s evidence of 10 combatants in a hospital. I say:” So what? We do not attack the hospital full stop. Wait till they come out, and you attack them.”

Massive increase in state attacks on hospitals

Maarten van der Heijden, Global Health Centre research fellow,  showed that states were responsible for the majority of attacks on hospitals between 2016 and 2024, according  to the the Epidemic of Violence Report 2024 produced by the Safeguarding Health in Conflict Coalition.

There has also been a 1,000% increase in attacks on hospitals by states during this time.

“Attacks on healthcare are becoming part of the scorched-earth tactic, where you make a place unlivable,” said van der Heijden. 

After an Israeli attack on Nasser Hospital in August, the government of Prime Minister Benjamin Netanyahu used “multiple arguments” to justify the attack, based on denial, deflection and justification, he said.

“Netanyahu said it was a mistake. The military claimed that there was a [Hamas] camera. And then later, … they published a picture of six Hamas fighters that were attacked,” he said, adding that there is no clarity about how the Israeli military had assessed that the hospital was a legitimate target.

Deciding whether a hospital is a legitimate target requires a “complex analysis”, he added. “During a conflict, as we see right now in Myanmar, in Gaza, in Sudan, it is impossible to assess whether these attacks are actually legitimate or not.”

Lack of compliance

Professor Esperanza Martinez, head of Health and Human Security at the Australian National University’s law college, argued there was not an absence of legal frameworks but rather “an absence of compliance.”

“In 2024, there were more than 1,000 incidents directly targeting health facilities, hospitals primarily, and more than 80% of the attacks were committed by states,” said Martinez.

“So what we do have really here is a situation of widespread violations, impunity or lack of compliance and very limited enforcement.”

Professor Gloria Gaggioli, Vice-Dean for Research at the University of Geneva’s Law Faculty, agreed that IHL is sufficient and that exceptions to hospital attacks are important.

“Is the exception the problem? I don’t think so, because imagine a situation where we would say all attacks on hospitals are prohibited, and it’s a crime. What would be the result? The result would be that the enemy would have an incentive to use hospitals for military purposes,” said Gaggioli.

Plea from the field

“IHL doesn’t work,” said MSF’s Tarak Bach-Baouab. “We have the lives of our patients, the lives of our staff in our hands, and we have to have an environment where all the rules are well understood by all the players, and in which we can continue to operate.

“We have a larger problem than compliance. The law is actually used to justify attacks on health care, and the onus today is put on practitioners like ourselves working in hospitals in conflict zones to prove that the hospital is not used for a military purpose, or is not used as a shield,” added Bach-Baouab, who heads advocacy for MSF’s Operations Management Team.

“It used to be that the military contemplating attacking a hospital needed to go through almost a checklist before being able to attack. Today, the onus of proof has been turned on its head, and I think this is a major problem we are facing as humanitarians in conflict zones.”

He called for mobilisation by medical associations across the globe against these attacks and in support of the implementation of resolutions such as Resolution 2286 on the protection of health care, which was passed almost 10 years ago.

He also challenged the Swiss government, as the host of the Geneva Convention adopted at the end of the Second World War, to step up as guardians of IHL and push for “stronger uptake of these rules”.

How many civilians is it acceptable to kill in pursuit of a military target, Bach-Baouab concluded?  A complete recording of the event is available at the GHC You Tube Channel. 

Image Credits: Olga Cherevko/ OCHA, MSF, Safeguarding Health in Conflict Coalition.