Attacking hospitals: has South Africa made a case for Genocide?
16 January 2024
A major focus of South Africa’s ICJ arguments is alleging illegal Israeli attacks on Palestinian hospitals. This point has also been cited on numerous occasions by local media hosts as well as local activists.
South Africa’s application to the ICJ relies on the scenario that besieged and bombed hospitals are no longer able to treat the sick and wounded. This is listed as a compelling circumstance requiring the indication of provisional measures.
According to the ICJ application, South Africa is highly cognisant of the fact that acts of genocide are distinct from other violations of international law sanctioned or perpetrated by the Israeli government and military in Gaza — including intentionally directing attacks against the civilian population, civilian objects and hospitals (amongst other sites mentioned).
Furthermore, the International President of Doctors Without Borders (MSF) stated: “Israel has shown a blatant and total disregard for the protection of Gaza’s medical facilities. We are watching as hospitals are turned into morgues and ruins. These supposedly protected facilities are being bombed, are being shot at by tanks and guns, encircled and raided, killing patients and medical staff.
Hospitals however do not always enjoy protection from lawful military attacks within the modern day restatement of International Humanitarian Law which applies in an air and missile context. International guidelines explain in which circumstances a hospital may be legitimately be attacked for military purposes as explained below.
The Applicable Rules of International Law
As a starting point, Palestinian hospitals by default must not be the object of attack. According to the laws of air and missile warfare, hospitals must be respected and protected at all times. This is the basic premise however further legal provisions are explained below.
According to the laws of air and missile warfare, the party subject to attack must avoid locating military objectives within or near densely populated areas including hospitals which are entitled to specific protection. The protection to which hospitals are entitled does not cease unless they are used to commit harmful acts outside of their humanitarian function.
It is also prohibited to locate legitimate military targets (such as combatants) within or in the vicinity of a hospital to shield them from attack. This tactic cannot be justified under any circumstances. According to the relevant air and missile law commentary document, the party subject to attack must neither encourage nor tolerate “voluntary human shields” who ought to be removed from the hospitals which could become legitimate military objectives.
The party subject to attack must also to the maximum extent feasible, take necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations. Accordingly, the necessary precautions contemplated here include air warning systems, air raid shelters etc.
The conduct of Hamas in its own hospitals
Israel has exposed CCTV footage of Israeli hostages being dragged into a Palestinian hospital by militants with the camera’s date stamp reflecting the infamous terror attack date 7 October 2023. The IDF has published videos of hospital staff who were simultaneously working as ranking military operatives.
The IDF has furthermore communicated social media posts about hidden tunnel shafts, booby-traps and large weapon caches including AK-47, RPGs, sniper rifles, grenades and other explosives located in Palestinian hospital complexes.
The IDF has disseminated intelligence that military bases are located in the tunnels underneath Palestinian hospitals. The IDF has also shown the world actual Hamas attack points from within or nearby Palestinian hospitals.
On 10 October 2023, the spokesperson department of Hamas's interior ministry wrote on the ministry's Telegram channel: "An important note: We repeat our call on the residents to ignore the voice messages being sent randomly by the occupation to their phones demanding that they leave their homes. Their goal is to arouse panic and fear as part of a psychological warfare accompanying the occupation's aggression against us.”
On 30 October 2023, a Hamas official stated that the tunnels in Gaza were built to protect Hamas fighters, not civilians, and that protecting civilians in Gaza is the responsibility of the UN and Israel.
Under these very real and dangerous circumstances for civilians in Gaza, the counter-intuitive military tactics of Hamas have changed the default protected status of hospitals into legitimate military targets. They have done so by locating military objectives and committing harmful acts from nearby, within or underneath Palestinian hospitals. They have furthermore created an illegal human shield strategy within hospitals and have not taken adequate precautions to evacuate patients.
Israel therefore cannot be said to bear legal responsibility for the unfortunate deaths of innocent civilians in such attacks so long as Israeli military missions are operationally sound according to principles of International Humanitarian Law which include Precaution, Distinction and Proportionality.
On the readily available evidence, it can actually be argued that Hamas has violated the laws of war in and air and missile context. The compelling circumstance on which the South African team is seeking relief is accordingly both legally and factually incomplete. The legal team may therefore not be able to rely on this submission for the provisional ceasefire measures which they are seeking.
Note:
DIRCO's condemnatory media statement on 18 October which refers to the Al Ahli Arab explosion incident also appears to be factually inaccurate. While claimed to be part of an unfolding Israeli genocidal campaign, evidence shows that the explosion was likely caused by a Palestinian Islamic Jihad rocket misfire. This incident is furthermore not even mentioned in the 84 page ICJ application document.
