Letter to the Editor: Bombing Hospitals: Why Bad Actors—Not the Laws of War—Are to Blame

In “Military Attacks on ‘Hospital Shield: The Law Itself is Partly to Blame,” the authors address the dangers of analogizing between human shields and hospitals, but their seemingly categorical criticism that humanitarian law (the law of armed conflict) is at fault for permitting the analogy to be made is exaggerated.

If a hospital is being used to shield military functions, then questions of targetability do arise, but even then, a medical facility is entitled to special protection at least in international armed conflict: it may not be attacked unless and until it fails to heed warnings to cease non-protected activity. What is more, whether the conflict is international or non-international, whether the fighters sought to be targeted are part of a State’s armed forces, or are members of a non-State armed group, or are merely civilians who have directly participated in hostilities – no matter what the context – a medical facility that has failed to heed a warning to stop shielding military objectives still may not be attacked if the civilian harm outweighs the military advantage. This is the principle of proportionality, mentioned by the authors. And though the United States may dispute it, customary international humanitarian law also forbids an attack when there is uncertainty about whether military functions are being performed in the medical facility.

But the more important consideration that the authors omit is the prohibition of attacking combatants who are “hors de combat.” In other words, a hospital that is merely sheltering combatants who are “out of combat” by virtue of sickness or injury is not shielding anyone who is otherwise targetable. In these circumstances, there is simply no factual predicate for an analogy to human shields.

In sum, when attacks against hospitals are sought to be justified by claims that they are shielding combatants, the attacking force must be held to a high standard:

  • Combatants hors de combat are not targetable.
  • Civilians who are not, or are no longer, directly participating in hostilities for whatever reason are not targetable.
  • If military functions are nonetheless being performed in the hospital, the facility must be warned and given an opportunity to cease.
  • Even if the military functions continue after warning, the hospital may not be attacked if civilian harm to either persons or infrastructure/objects would outweigh the military advantage of an attack.
  • Finally, in case of doubt about either the nature of activities in the hospital, or about whether civilian harm resulting from an attack would be disproportionate, the attack is forbidden.

In these circumstances, the analogy to human shields is either unavailing or insufficient to justify attack. The fault then is not in our law, but in those who fail to acknowledge and comply with it.

  

About the Author(s)

Gabor Rona

Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School