No warfighter should attack a facility that houses the infirm and those who care for them.  Likewise, no able-bodied warfighter should seek protection in a medical facility, and never should an attack be launched from one.  Each happens though, as Neve Gordon and Nicola Perugini address in, ‘Military Attacks on “Hospitals Shields”: The Law Itself Is Partly to Blame’.  The question is what legal policy best protects the innocent when combatants take advantage of a medical facility’s protected status.

The problem that the authors identify is not a legal issue, as they argue, but an empirical one.  No alternative to the status quo is better for the innocent than the rule and exception that now prevail.  The exception that the authors argue against is a crucial component of protecting the innocent.

The authors’ alternative norm will not protect individuals in medical facilities; it will merely subject them to different perils.  Gordon and Perugini advocate a rule that, “categorically prohibits the use of lethal force against (hospitals),” under all circumstances, without exception.  While the authors mention the perverse incentives this norm will create, they do not properly identify the consequences their preferred legal policy will have on patients, caregivers, and combatants.  Those consequences deserve examination.

The authors’ proposal invites warfighters to use hospitals as base camps and fighting positions.  Belligerent groups will force hospitals to host them.  It is unlikely that effective healthcare will remain a priority, but it is certain that in many if not most cases a hospital’s occupiers of that character will be cruel to the innocents found there.  Medical treatment will be subordinate to the belligerents’ needs, and countless doctors and patients, no matter how infirm, will be forced to accommodate or support their captors’ cause.

The authors’ proposal is similarly unfair with regard to combatants, particularly those who respect the law of armed conflict.  It would leave forces defenseless in the face of an attack originating from a medical facility.  Those who join their nations’ armed services accept risk in doing so, but few would join if they were directed to accept risk without the right to protect themselves.

Even if the international community accepted this proposal, most legal regimes include a legal defense of self-defense, and defense of others, that would be available to defendants prosecuted for violating this rule.  For US forces, the Uniform Code of Military Justice offers a defense to an accused who had reasonable grounds to believe he or she was in danger of death or grievous bodily harm, and that the force he or she used to defeat the danger was necessary.  This defense might seem more appropriate to a killing associated with a bar fight, but it applies to any situation in which death or severe injury may be imminent, such as in combat.  Were a service member charged with violating the prohibition on attacking medical facilities while being attacked from one, that service member likely could assert the right to self-defense successfully. In short, either the proposed rule expects combatants to face unacceptable risks or it would be annulled in the face of common sense rules that permit unit and self-defense.

The authors fail to distinguish forces that respect the rule of law but make genuine mistakes from belligerents that act lawlessly and attack the innocent without regard.  The practical effect of changing the norm will be to empower the lawless at the expense of those who endeavor to abide by the law.  The authors also claim that armed groups rarely use the protection of or launch attacks from hospitals.  Were this true, and it may not be, it argues in favor of the current law that has apparently kept belligerents from using medical facilities.

Parties wishing to assign or avoid blame in these situations create narratives that support their preferred outcomes, regardless of the facts.  This is where the authors should focus their criticism.  The authors state that, “[t]he ‘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,” but it is not the law that is at fault; it is the rhetoric.  The cure for the rhetoric and false justifications is not found in changing an effective, reasonable norm, but rather the efforts of truth seekers and development of effective accountability mechanisms.

Of course, this conversation would not arise if belligerents avoided entering medical facilities, as basic human decency requires.  The law of armed conflict merely codifies this humane requirement.  The law should not cater to those who put at risk the most vulnerable among us, as well as the selfless souls who care for them in the most dangerous environments.  The solution is better found through condemning belligerents who take advantage of the protection the law affords civilians, and holding to account those who falsely claim they were attacked from a medical facility.  Enforcing the law that exists, not changing it, is the best way to protect hospitals and the innocents inside.