The Israel-Hamas war has witnessed an astounding number of attacks on medical facilities, medical transport, and health workers, the vast majority by Israeli forces. Starting on Oct. 7 with Hamas’s attack on Israel, Palestinian militants targeted medical workers and ambulances with close-range gunfire and indiscriminately fired rockets that directly hit and damaged a medical center in Ashkelon on three separate days. As Israeli forces responded with a full-scale assault on Gaza, attacks on health care skyrocketed. From Oct. 7 to Dec. 12, the World Health Organization recorded 231 attacks on health care in Gaza, which include airstrikes and shelling on hospitals and ambulances, detention of health workers, militarized searches of hospitals, and more. Hospitals have been attacked, surrounded, and raided since Dec. 12.

Direct targeting of health facilities, workers, and transport (used as such) are illegal under international humanitarian law, as are indiscriminate attacks on the same. Nevertheless, attacks on health care have been used as a weapon of war by Russian and Syrian government forces in Syria and Russian forces in Ukraine, as well as in Myanmar, Tigray, Yemen, and elsewhere around the world. Israeli forces have also attacked medical facilities, transport, and personnel in Gaza in past military campaigns including the 2008-2009 and 2014 wars. Still, the rate of such attacks in Gaza since Oct. 7 has outpaced all prior Israel-Hamas conflicts.

This piece discusses the illegality of recent attacks on medical facilities in Gaza, which are ongoing. International humanitarian law is clear that medical facilities must be protected in war zones. Yet, Israeli forces appear to be systematically targeting medical facilities in Gaza. Israel’s claimed defense is that Hamas is carrying out military activity in hospitals, transforming them into legitimate military targets. However, the evidence Israel has presented of alleged Hamas activity does not justify the attacks Israel has carried out. Urgent action is needed now to ensure that Gaza’s remaining health infrastructure is protected and accessible. Gazans’ lives depend on it.

International Humanitarian Law Protecting Hospitals in Conflict

International humanitarian law (IHL) is clear: beyond the protections afforded to all civilians and civilian institutions, medical facilities receive additional heightened protections. In almost all cases, targeting a hospital is a war crime. There are only incredibly limited circumstances, with four strict requirements, when an attack directed at a medical facility may not violate international law.

  1. The medical facility is used outside of its medical purpose to commit “acts harmful to the enemy.” Such acts do not include the mere presence of armed medical personnel or guards, small arms or ammunition taken from patients, or wounded or sick fighters in the medical facility. Acts harmful to the enemy would include the facility’s use as a shelter for able-bodied fighters, storage place for weapons, or military observation post.
  2. The attacking force has given advance warning of the attack, setting a reasonable time to cease the military operations in the medical facility or evacuate civilians. An attack may only occur after a warning goes unheeded.
  3. Proportionality is met: the near-term and long-term harm caused to civilians by attacking the medical facility must not be excessive in relation to the concrete and direct military advantage anticipated from attacking the facility.
  4. The attack balances the legal principles of military necessity and humanity. In other words, the complete or partial submission of the enemy requires an attack on the medical facility, and there is no other feasible means to achieve the military outcome with less harm to civilians.

To comply with IHL, any attack must meet all four requirements when the attack is launched. If an attacking force issues a warning of an impending attack on a medical facility, and military activity ceases, the medical facility cannot be attacked. Moreover, IHL provides that where there is doubt whether a civilian institution is being used for military purposes, it is assumed to be civilian and cannot be attacked.

To be clear, any armed group’s use of medical facilities or transport for military purposes violates international law and is a war crime. It is illegal to use protective emblems such as the red cross and red crescent for any other purpose than to identify medical personnel, facilities, and transport; when such misuse causes death or injury, it is a war crime. The use of human shields—intentional co-location of military objectives alongside civilians or other protected persons, with the specific intent to prevent targeting of the military objective—is also illegal and a war crime.

War crimes on the part of one party do not excuse or justify war crimes by another.

Israel’s Systematic Assault on Hospitals in Gaza

The latest round of attacks on and impacts to health care in Gaza began shortly after Israel launched its military response to Hamas’s October 7th attacks. On Oct. 8, U.N. authorities reported that Israeli airstrikes had killed six health workers, injured four others, and damaged seven health facilities and nine ambulances. By Oct. 10, additional attacks had injured four more health workers and impacted six more health facilities and six ambulances. By Oct. 12, an additional five health workers were killed, eight injured, and six health facilities and five ambulances damaged. Independent investigations are required to determine the circumstances of each case, including whether any of these strikes were directed at hospitals and ambulances or were indiscriminate; whether those hospitals and ambulances were engaged in “acts harmful to the enemy;” and , whether advance warning was given and proportionality was met, given the significant damage caused in some cases, and the high death count of health workers.

The most prominent incident impacting a hospital in Gaza early in the war was on Oct. 17 at al Ahli Arab Hospital. While initial reports claimed that an Israeli airstrike killed 300-500 civilians at the hospital, significant debate ensued, as later information indicated lower casualties and attribution to Palestinian armed groups, and misinformation circled online. In the weeks since this event, multiple investigations have made clear that videos Israeli, U.S., and other governments relied on in attributing the attack to Palestinian armed groups actually show an Israeli Iron Dome interceptor missile colliding with a rocket miles away, unrelated to the hospital blast. Some sources have still concluded the most likely cause was a failed Palestinian rocket, while others have raised questions around those conclusions. Casualty counts and responsibility for this attack matter and should be the subject of independent investigations. However, the debate over this single incident largely distracted from the bigger picture: attacks directed at and impacting medical facilities continued unabated across the Gaza strip, with Israeli forces indisputably responsible for the vast majority of attacks.

After Israel’s ground invasion of northern Gaza on Oct. 28—following calls to evacuate the area including its 22 hospitals, which the World Health Organization equated to a “death sentence for the sick and injured”—bombardment on and around hospitals increased. Israeli forces targeted a convoy of ambulances in front of al Shifa Hospital on Nov. 3, killing and injuring dozens. Israeli forces then systematically surrounded certain medical facilities. While some limited aid deliveries reached hospitals, they were insufficient to meet heightened needs and also lacked fuel, a necessity after Israel cut electricity to the strip. Israel’s obstructions of fuel—imposed through its siege of Gaza and control over what is included in limited aid deliveries to the strip—killed patients. As the sieges on hospitals continued, medical facilities continued to be struck by Israeli projectiles, damaging facilities and killing patients. Medical staff in some hospitals reported the urgent need to evacuate staff and patients from many hospitals, but evacuations were delayed and unsafe as military activity continued. Eventually, some hospitals were able to carry out complex and dangerous evacuations of patients and staff to southern Gaza. Some evacuation attempts were halted by military activity, including an apparent targeted attack on a clearly marked medical convoy. Other evacuations could not bring all patients, resulting in deaths of those who were forced to remain behind. Other evacuations resulted in the arrests of medical workers.

The devastating toll of attacks on hospitals in Gaza is both undeniable and incomprehensible. When the temporary humanitarian pause set in on Nov. 24, 20 of northern Gaza’s 24 hospitals—more than 80 percent—were out of service due to damage, forced evacuations, and/or lack of medical supplies, fuel, or staff. In southern Gaza, where hundreds of thousands of internally displaced persons have fled and which is now the focus of Israel’s military operations, hospitals are completely overwhelmed and operating well beyond their capacity while sheltering thousands of displaced persons. Meanwhile, health needs have never been higher. In addition to routine care for chronic conditions and pregnancies, communicable and infectious diseases are spreading, and as of Dec. 19, the Palestinian Ministry of Health in Gaza reported that more than 52,000 people have been injured and 19,000 killed since Oct. 7. Casualties and health needs are increasing by the hour.

There is significant circumstantial evidence that Israel has systematically targeted hospitals in Gaza, including that dozens of medical facilities were attacked over a seven week period and many repeatedly, facilities were attacked after their locations were shared with Israeli forces, and many were attacked with close-range fire. The clearest indication of targeting is Israeli military officials’ own admission that they have conducted targeted operations on al Shifa and other hospitals.

There is no argument that Israel has targeted hospitals in Gaza. The debate is why.

Israel’s Claimed Justification, and al Shifa Hospital as a Case Study

Israeli officials have attempted to justify targeted attacks on health care with claims of military activity in hospitals and ambulances. However, to date, there is virtually no evidence of military activity that would justify the full-scale, prolonged attacks that have systematically dismantled Gaza’s health care system.

Consider, as a case study, al Shifa Hospital, the largest hospital complex in Gaza which according to Israeli officials serves as the “main headquarters” for Hamas. The Israeli military published numerous claims of Hamas military activity within and around the hospital, alleging it contains underground meeting rooms, living quarters, and storage facilities that can house several hundred people and are connected to a broader network of Hamas tunnels. After issuing warnings, the military then encircled, shot at, and raided the hospital on Nov. 15, forcing the hospital to cease normal operations and evacuate staff and patients. The Israeli military stated after their raid that Hamas fighters were not within the hospital when its forces entered, but it published alleged evidence of prior Hamas activity and an “operational command center” at the hospital. However, this “evidence” falls far short of proving that Israel’s assault on al Shifa Hospital was justified under international law.

First, the Israeli military published a video and photographs depicting weapons allegedly found in al Shifa Hospital’s MRI building (alongside medical supplies and equipment), the totality of which amounts to 15 guns, some grenades and ammunition, a few bullet-proof vests and uniforms, military booklets, a laptop, and a stack of CDs. The military also published a video depicting a truck allegedly on the hospital grounds containing guns, ammunition, grenades, and RPGs. Even assuming all of these findings are true—an assumption that requires verification, given that researchers and news outlets have questioned whether the Israeli military moved weapons around the hospital—they are not necessarily evidence of a Hamas command center, which would typically include meeting rooms and a significant number of computers, communications devices, and intelligence materials. (While it is possible that items evidencing a command center may have been removed prior to the IDF raid, a mere assumption that they were there previously does not suffice; Israel has the duty to determine military use of the hospital, and no attack should be launched in case of doubt.) Moreover, it is not clear whether the findings evidence an IHL violation by Hamas, as the presence of confiscated weapons or armed guards do not transform a hospital into a military target, and medical staff frequently use computers and CDs for medical purposes.

The Israeli military has also published videos and photographs depicting what it claims are two entrances leading to a Hamas tunnel network 10 meters under al Shifa Hospital containing a blast-proof door with a firing hole and empty underground rooms with metal cots and bathrooms. These visuals evidence an underground network and rooms, but their use is unverifiable from these materials. While they could have been used for military purposes, they also could have been used for medical or humanitarian purposes. Current and former Israeli officials have acknowledged that when Israel expanded al Shifa Hospital decades ago, during its physical occupation of Gaza, they dug out basements or underground bunkers under certain buildings to expand its medical capacity. (Israeli officials maintain that Hamas expanded the basements originally built by Israel, going deeper and connecting it to a network of tunnels.) This history demonstrates that the mere existence of tunnels or bunkers under the hospital is not evidence of military activity. What is required is proof of military use of the tunnels or bunkers—proof that has not yet been presented.

The Israeli military also released two videos reportedly depicting two hostages inside al Shifa Hospital on the morning of Oct. 7, claiming that the video is evidence Hamas used the hospital “as terrorist infrastructure.” However, these videos, if verified, do little more than demonstrate that hostages were taken to the hospital, which could simply have been for treatment. If that’s indeed the case, provision of medical care to wounded hostages held illegally by Hamas is not military activity. In fact, denying such care would itself be illegal and likely a war crime. Moreover, the Israeli military’s report that it found two bodies of deceased hostages near al Shifa Hospital does not evidence military activity or the illegal holding of hostages at the hospital.

Finally, it is worth considering reports of military activity at al Shifa Hospital from past conflicts. A PBS documentary filmed in 2006 during rising tensions between Hamas and rival party Fatah showed Hamas fighters and gun battles inside the hospital. An investigation by Human Rights Watch indicated that in June 2007, Fatah fired mortars and grenades at al Shifa Hospital, and Hamas responded with fire from within the hospital. According to a New York Times article from the 2008-2009 Israel-Hamas war, armed Hamas militants were inside al Shifa Hospital claiming to provide security, but they shot individuals accused of “collaboration with Israel.” Amnesty International reported that in 2014, “Hamas forces used the abandoned areas of al Shifa Hospital in Gaza city, including the outpatients’ clinic area, to detain, interrogate, torture and otherwise ill-treat suspects, even as other parts of the hospital continued to function as a medical centre.” All of these are apparent IHL violations by Hamas. However, none of these reports indicate that Hamas used al Shifa Hospital to commit “acts harmful to the enemy” in 2023, which would be required to justify an Israeli attack on the hospital at that time. U.N. bodies have also investigated allegations of military use of hospitals in Gaza in the 2008-2009 and 2014 conflicts (although not at al Shifa Hospital specifically) and were unable to confirm any reported instances.

While it is too early to draw final conclusions on al Shifa Hospital, available information indicates that Israel’s attack was unlawful. First, there is a serious question as to whether, at the time of Israel’s attacks and militarized raid, Hamas was using al Shifa Hospital to commit “acts harmful to the enemy”—military activity akin to sheltering able-bodied fighters, storing weapons, or serving as a military observation post, beyond the presence of armed medical personnel, guards, or small arms and ammunition taken from patients. No publicly available evidence clearly indicates such acts were occurring, hospital staff have flatly denied such accusations, and the Israeli military has also stated that Hamas fighters were not within the hospital when its forces entered. Second, even if there were acts harmful to the enemy, available evidence suggests that Israel’s attack was disproportionate. It is difficult to fathom that the near-term and long-term harm caused to civilians by attacking and shutting down Gaza’s largest hospital during a war with astronomical medical needs would not be excessive in relation to any concrete and direct military advantage reasonably anticipated, especially given the limited weapons and lack of fighters found inside.

Whether this and other apparently unlawful hospital attacks constitute war crimes and potentially crimes against humanity requires further investigation into the open questions above, as well as an examination of the Israeli military’s intelligence at the time of the attacks. However, the available evidence certainly raises questions of liability for the war crimes of attacking a protected object, requiring proof of intent for protected hospitals to be the object of attacks (Rome Statute, article 8(2)(b)(ix)), and excessive incidental death, injury, or damage, requiring proof of knowledge that in the ordinary course of events, an attack on a hospital would cause incidental harm to civilians that is clearly excessive in relation to the concrete and direct overall military advantage anticipated (Rome Statute, article 8(2)(b)(iv)). Given the broader context of a systematic and widespread assault against a civilian population indicated by the siege on the entire territory of Gaza and forced displacement of more than a million residents (a civilian population, even if there are military objectives within it), attacks on hospitals also suggest potential responsibility for the crimes against humanity of extermination (Rome Statute, article 7(1)(b)), deportation or forcible transfer of population (Rome Statute, article 7(1)(d)), and other inhumane acts (Rome Statute, article 7(1)(k)).

The Need for Investigations, Prosecutions, and Urgent Life-Saving Action

In the days after Israel’s raid, the military announced that it destroyed a tunnel under al Shifa hospital. While this decision could be justified by military necessity—a fact which remains unclear—it certainly raises questions and concerns regarding the destruction of evidence.

The only way to resolve the story of al Shifa Hospital is to have independent and transparent investigations into whether Hamas misused al Shifa Hospital for military purposes, to what extent and at what points in time, and what Israel knew about its use at the time of its assault on the hospital. The promise of investigations likely offers no consolation to Gazans who are under renewed bombardment—including at al Shifa Hospital—or Israelis who remain in search of their loved ones held hostage in Gaza. However, investigations are essential to ensuring accountability, which may eventually offer victims closure, deter future violations, and enable long-term peace. All reports of hospital attacks and misuse of hospitals must be investigated and those responsible—whether Israeli or Palestinian—held accountable. The U.N. Independent International Commission of Inquiry on Palestine is well-placed to conduct these investigations. The International Criminal Court—the one international tribunal with the authority to investigate and prosecute those responsible for both the ongoing crimes committed in Palestine and the crimes committed by Palestinian militants in Israel—must also quickly and significantly ramp up its Israel-Palestine investigation, with support from member states.

In the meantime, urgent action is needed to ensure that more civilians do not die in or from the longer-term impacts of attacks on or impacting hospitals in Gaza. U.S. officials can play a significant role in this regard. Any U.S. military aid or sales to Israel must include requirements that Israel stop attacking hospitals and other civilian locations and comply with IHL rules of distinction, precaution, and proportionality, and take drastic steps to significantly reduce civilian harm. Failure to do so is implicit support for any illegal Israeli attacks in Gaza, which will cost additional lives, put long-term peace in the region further out of reach, and may open U.S. officials to legal liability for international crimes.

IMAGE: Damage caused by an artillery shell that hit the maternity hospital inside the Nasser Medical Complex, on Dec. 17, 2023 in Khan Yunis, Gaza. One person was killed and others injured when a shell hit the hospitals children and maternity ward. Fewer than one-third of Gaza’s hospitals are functioning in any capacity, and Nasser hospital in Khan Yunis, the Gaza Strip’s second-largest city, is inundated with daily with people wounded or killed in airstrikes, as Israel’s campaign to defeat Hamas extends into its third month. (Photo by Ahmad Hasaballah/Getty Images)