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Home » Hospitals Must Not be Attacked if Civilian Casualties Outweigh Military Advantage: UN Special Rapporteur

Hospitals Must Not be Attacked if Civilian Casualties Outweigh Military Advantage: UN Special Rapporteur

by Eli Barker
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Since the very beginning of its ongoing offensive, hospitals have been a central target in Israeli attacks on the Gaza Strip.

According to Gaza’s Health Ministry, all hospitals in Gaza City and northern areas of the Gaza Strip are now out of service, shelled repeatedly by Israeli forces and completely deprived of any and all essential supplies.

In the past few days, Israel’s ground offensive has also focused on hospitals.

Israeli forces seized Al-Shifa Hospital, Gaza’s largest, which they alleged was being used as a command center by Hamas, accusations that the Palestinian group has denied.

They have also laid to siege to the Indonesian Hospital, leaving thousands of people, including patients, displaced civilians and medical staff, trapped inside.

As these operations have played out, there has been much furor around the world over Israel’s targeting of hospitals, which are generally protected spaces even in times of conflict.

But Israel has used its claims of Hamas presence to justify its actions, basically using the law of military necessity.

However, according to Ben Saul, who has recently taken over as the UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, that specific provision still does not give any armed force free rein to attack hospitals.

“Hospitals are civilian objects which are ordinarily protected from any kind of military attack. If they are used by the military forces of one of the parties, then that can make them military objectives, which can potentially be attacked by the other side,” Saul told Anadolu in a video interview.

“If that’s the case, then other rules of international humanitarian law still have to be respected, including critically, that the armed forces must not launch an attack if it would cause excessive civilian casualties, relative to the military advantage anticipated from that strike.”

What that means, he elaborated, is that “they have to weigh up the military importance of the target … against what they know, based on the information they have and that they’ve collected, would be the likely civilian casualties.”

“That means both damage to the civilian property … (and) any harm, death or injury to civilians in the building,” said Saul.

“But it also … would require asking what would be the effect on other civilians not in the hospital, but who, in the near future, would need to rely on that hospital for their medical care… Particularly in a case like Gaza, where most of the hospitals are now not functioning or are heavily damaged and have limited functioning, it means any attack on any remaining hospitals has a really substantial impact on civilians.”

For that reason, he emphasized that “extra special care has to be taken in any decisions about targeting a hospital.”

“It would need to be a very, very important military objective to justify launching any kind of operation. And once that operation is launched, the greatest care would have to be taken to spare civilian casualties,” he said.

Question of right to self-defense

A key issue in Israel’s ongoing Gaza offensive has been its claim of acting in self-defense after Hamas’ Oct. 7 attack.

Tel Aviv’s position has been supported by its powerful Western allies, including the US, UK and EU.

But others, including legal experts and UN officials like Francesca Albanese, the UN special rapporteur for the occupied Palestinian territories, have pointed to its position as an occupying power, something recognized in the official UN position.

In recent comments, Albanese explained that right to self-defense that Israel has invoked under Article 51 of the UN Charter entitles a state to repel an attack that comes from another state, which is not the case when it comes to Hamas.

She also cited the view of the International Court of Justice (ICJ) that “self-defense cannot apply in a context of military occupation,” pointing out that “in this case, Israel is occupying another state and another people.”

To a question on this, Saul also reaffirmed that the ICJ “has held that threats emanating from territory occupied by a state do not give rise to a right of self-defense.”

“That was a case in 2004 dealing with the Palestinian territory of the West Bank. In relation to Gaza, the UN still regards Gaza as being under Israeli occupation. So the same legal argument would apply in relation to attacks coming from Gaza as well,” he said.

“That has been controversial for some states. So some Western states have, in particular, asserted that there is a right of self-defense against non-state actors even in potentially occupied territory.”

About Albanese’s comments, Saul said her point “is not that Israel has no right to protect its people, but rather that there’s a different legal basis for those kinds of protective operations.”

“International humanitarian law, of which the law of occupation is a part, does enable occupying powers like Israel, to take security measures to protect civilians from armed violence by armed groups,” he explained.

“That includes both law enforcement, policing type powers, but it also includes the power to conduct hostilities or military operations against non-state armed groups, who cannot be stopped by ordinary policing or law enforcement means.”

Saul said the question when it comes to Israel is about the “legal source” of its actions against Hamas.

“It may not be the right of self-defense under the UN Charter and instead is found in the security powers of the law of occupation,” he added.

‘Israel hasn’t been exercising sufficient care to spare civilians’

To a question about proportionality in Israel’s attacks on Gaza, which have now killed more than 14,100 people, including over 5,800 children and 3,900 women, Saul said it is “fairly clear, overall, that there is some strong evidence of at least some disproportionate and indiscriminate attacks in Gaza.”

“I think that there is good evidence of indiscriminate attacks. And I think Israel hasn’t been exercising sufficient care to spare civilians from the effects of hostilities,” he said.

On the “near-complete siege and blockade on Gaza,” the UN rapporteur stressed that Israel has an obligation under humanitarian law to allow in aid that is “necessary for the survival of civilians.”

“If it doesn’t do that, then it could well be committing the war crime of intentionally starving a civilian population,” he said.

Saul emphasized that the aid so far allowed into Gaza is “nowhere near enough … to meet Israel’s obligation to allow humanitarian relief and to not starve civilians.”

The UN official also agreed that Israeli aggression and violence has “accelerated” in the West Bank, where at least 225 Palestinians have been killed, around 2,850 others injured, and more than 2,400 arrested by Israeli forces since Oct. 7.

“I think there does seem to be mounting credible evidence of a pattern of arbitrary detentions, excessive use of violence, cruel, inhuman, degrading treatment against prisoners, a lack of adequate due process and judicial control of detention,” he said.

“I think that’s part of a long pattern of those kinds of activities in the West Bank, but it has accelerated in recent weeks.”

Israel ‘essentially compelled people’ to flee northern Gaza

On the massive displacement of Palestinians and staggering scale of destruction in the Gaza Strip, Saul said “almost half of the civilian residential housing units in Gaza have been damaged or destroyed,” while “over 1.6 million people have been forced to flee their homes.”

“The speed with which this extent of destruction has been caused is fairly unprecedented. On top of that is the failure of Israel to allow sufficient humanitarian relief to provide the necessities for the populations which have been displaced on a massive scale,” he said.

Regarding Israel’s orders for hundreds of thousands of people to evacuate their homes, Saul pointed out that “there are powers available to an occupying power to evacuate civilians for their own safety, or for imperative military reasons.”

“But if civilians are evacuated, they have to be provided with all of the essentials to maintain a dignified life. That includes all of the necessary humanitarian relief – food, fuel, water, medicine, and housing. It means special care has to be taken for vulnerable groups like the elderly, the wounded, the sick, children, pregnant mothers, and, of course, none of that has been done by Israel,” he said.

“Even if Gaza were not occupied, there’s an obligation to give effective warnings of military operations, which again implies that a reasonable period of time must be allowed for civilians to move safely under humane conditions. And, again, I don’t think that was satisfied by the way in which Israel gave the warnings and essentially compelled people to move from the north of Gaza.”

International Criminal Court’s ‘legitimacy and credibility’

On the question of accountability, Saul pointed to the role of the International Criminal Court (ICC), saying that its investigations about the situation in Palestinian territories “has been proceeding very slowly.”

“The ICC has been investigating the situation in Palestine for a number of years. That investigation has been proceeding very slowly compared to the speed with which the ICC addressed the situation in the war in Ukraine and already issued arrest warrants in relation to that within the space of a year,” he said.

“The Palestine investigations have been going on for some years now. No action of that kind has yet been taken, so there has been a concern about the legitimacy and credibility of the ICC in the way it doesn’t seem to treat situations equally when there seems to be strong evidence of war crimes in different kinds of conflicts.”

US ‘not withholding weapons’ or using influence on Israel

Regarding the role of other countries in the ongoing crisis, Saul said all countries have an obligation under the Geneva Conventions “to ensure respect for humanitarian law by other countries.”

“In particular, that means that if other countries have influence over the parties to the conflict, whether that be Qatar in relation to Hamas or the US in relation to Israel, then they must fully exercise that influence to try to persuade and pressure those parties to respect international humanitarian law,” he said.

He said the US has been pushing Israel “to take more care in targeting civilians and allow more humanitarian relief to get into Gaza,” but the pressure has not been enough.

“At the same time, the US defense secretary has publicly stated that the US is providing weapons and military aid to Israel unconditionally,” he said.

“Regardless of whether those weapons come to be used in the commission of war crimes or in the context of a total siege, amounting to starvation of civilians, the US is still not withholding weapons. So, I think, it’s absolutely not using all the influence it has over Israel to try to compel Israel to respect humanitarian law.”

On the measures being taken at forums like the UN Security Council, Saul emphasized that resolutions passed there do not have “any enforcement attached to it.”

“So, at the moment, it’s bringing moral and political pressure. But it is not a mechanism to compel either of the parties to meet their obligations,” he added.

About the differing stances of various countries, he said the situation “reflects the very serious political divisions which have existed for many years over the Israel-Palestine dispute.”

“You have different groups of states aligned with one side or the other, rather than being committed to the independent, impartial application of international humanitarian law, of human rights law, of international law generally,” said Saul.

“So instead of taking polarized partisan approaches, countries should be committing to the enforcement of international law, even against their close friends and allies if they are violating international law.”

​​​​​​​Israel cannot ‘be left to resume a full occupation of Gazan territory’

Saul stressed the need for all countries to “exercise their own universal jurisdiction over war crimes to conduct investigations and pursue prosecution or extradition of offenders where that’s possible.”

“I call on the Security Council to do more, to take binding enforcement action against any party which violates international humanitarian law. And that includes a stronger collective control through the Security Council of the resolution of the Israel-Palestine dispute, which is at the root of all of this violence,” he said.

“I don’t think Israel can be left to resume a full occupation of Gazan territory indefinitely, like it has had in the West Bank for so long. I think there does need to be action by the international community, for example, through some kind of collective security force or United Nations peace operation in Gaza, to ensure that civilian life and governance is restored for the Palestinian people in Gaza, and also to prevent violence against civilians and war crimes, including those targeting Israeli civilians.”

Source : aa

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