Military Attacks on “Hospitals Shields”: The Law Itself is Partly to Blame

The MSF Trauma Center in Kunduz, Afghanistan, following the US airstrike on the facility in October 2015. Image by Andrew Quilty. 

From the war in Afghanistan and the US-backed Saudi intervention in Yemen, to the Israeli occupation of Palestine and the Syrian civil war, hospitals have increasingly been targeted by military forces.  The justification for many of these attacks has been uncannily similar: the hospitals were bombed because they were shielding combatants and therefore the attacks do not constitute a violation of international law. Hospitals, in other words, are now classified as if they are equivalent to human shields.

The figures are revealing. One year following the infamous US bombardment of the Doctors Without Borders hospital in Kunduz—which Afghan Defense Ministry officials initially tried to justify on the theory that  the Taliban were “using the hospital as the equivalent of a human shield”— the humanitarian organization reported that 77 of its medical facilities have been attacked during the last twelve months alone. Yes, that’s over six per month. In June 2016, a United Nations commission documented that in Syria “more than 700 doctors and medical personnel have been killed in attacks on hospitals since the beginning of the conflict” and that medical facilities “are being turned into rubble.”

Politicians and military officers from Gaza to Yemen use the same refrain to defend these attacks. During its 2014 war on Gaza, Israel bombed different Palestinian medical facilities, destroying parts of one hospital and 5 primary health care centers. In an attempt to defend its strikes, Israel accused Hamas of using hospitals to store weapons and hide armed militants.

In a similar vein, after the recent bombardment of an underground medical facility in a rebel controlled area, a Syrian regime official declared that militants would be targeted wherever they were found, “on the ground and underground,” while his Russian patron explained that rebels were using “so-called hospitals as human shields.”

Saudi officials attempting to justify the high number of air strikes targeting medical facilities have adopted the same catchphrases. They, too, accused their adversaries, the Houthi militias, of using hospitals to hide their military forces.  This exact claim is also reiterated in a recent UN report.

What ties all of these examples together is not merely the use of similar rhetoric, but more importantly the same underlying assumption: when health care facilities become “hospital shields” they lose the protected status they are granted by the Geneva Conventions.  Thus, once framed as shields, these facilities can be bombarded without violating international law.

Let there be no mistake, “hospital shield” is an extremely dangerous neologism since it undermines one of the founding pillars of international law: the principle of distinction between legitimate military targets and protected civilian sites. The tragic irony is that international humanitarian law itself offers the legal toolkit for these regimes to justify the bombing of hospitals.  It does so in two ways.

First, the logic of the human shields clauses can, it seems, quite easily be transferred to medical facilities. International law prohibits the use of civilians as human shields to protect military targets, but it also permits the attacking forces to kill human shields as long as they abide by the principle of proportionality. In this instance, then, international law ceases to protect civilians and actually becomes a weapon of the strong, protecting those who kill non-combatants. By extension, if hospitals are used as shields, they too can be bombed provided the principle of proportionality is not breached.

Second, international law affirms that the protection to which hospitals are entitled is revoked when they are “used to commit, outside their humanitarian duties, acts harmful to the enemy.” This extremely vague formulation lends itself to those who target hospitals. Unlike IHL clauses prohibiting torture, which are absolute, applying at all times and in all circumstances, the articles relating to the bombardment of hospitals are conditional. Therefore, in certain “exceptional” situations medical facilities do lose their protected status.

All it takes, then, for governments to justify attacks on medical facilities is a claim that the enemy has blurred the distinction between military targets and civilian structures by using hospitals as shields. Even though we are aware that armed groups have, on rare occasions, used hospitals as shields, much more frequent and alarming is the way different governments are increasingly invoking this as justification for the deployment of lethal violence against non-combatants. This results in the gradual yet steady collapse of the difference between protected civilian objects and military objects, thus constituting hospitals as legitimate military targets.

The “hospital shield” rhetoric used to justify the unprecedented attacks on medical facilities as well as the relative lack of diplomatic outcry suggests that we are in the midst of a major transformation in the laws of war. Indeed, different international actors with ostensibly opposing political agendas are all exploiting the intrinsic ambivalence and malleability of international law, using it to legitimize the destruction of hospitals, and the killing of medical staff as well as the civilians under their care.

While human rights NGOs have vehemently denounced these attacks, the recent emergence of the neologism “hospitals shields” underscores that the international laws, which were drafted to protect hospitals in times of war and are incessantly invoked to this end by different human rights groups, can actually provide a legal justification to the forces who bomb medical facilities.

The only way to overcome this travesty is if IHL clauses pertaining to the protection of hospitals are reformulated in a way that categorically prohibits the use of lethal force against them. Currently, IHL provides the necessary protections for hospitals, and all that is really needed is to erase the clauses stipulating exceptions since these in essence hand out militaries a license to bomb medical facilities.

Although redrafting the pertinent articles will undoubtedly take several years and might require a very complex process, it is vital in the meantime to set new legal norms and standards whereby the prohibition to bomb hospitals is unequivocal and can never be justified, in any situation. Otherwise, the phrase “hospital shield” can continue to be deployed to excuse attacks against medical facilities and the killing of civilians, like the “ticking bomb” was (and in certain cases still is) repeatedly invoked to justify the torture of thousands of detainees and innocent people.

Some might argue that such norms will produce the perverse incentive among certain belligerents to use hospitals as shields. However, the price is worth paying because the alternative to protecting hospitals is new forms of total war. 

About the Author(s)

Neve Gordon

Fellow at the American Council for Learned Society, Leverhulme Visiting Professor in the Department of Politics and International Studies at SOAS, University of London, Co-Author of The Human Right to Dominate

Nicola Perugini

Lecturer at the School of Social and Political Science, University of Edinburgh, Co-Author of The Human Right to Dominate Follow him on Twitter (@PeruginiNic /a>).