R. David Harden is the former assistant administrator at USAID’s bureau for democracy, conflict and humanitarian assistance; former USAID mission director to the West Bank and Gaza; and former senior adviser to president Barack Obama’s special envoy for Middle East peace.
On Wednesday, Israeli Defense Forces seized the al-Shifa hospital compound in what will be a litmus test in this war between Israel and Hamas. Given the importance of the hospital to Palestinians and the polarization of this conflict across the world, international humanitarian law serves as a good guide as to the obligations and rights of the IDF and Hamas, not only in hospitals but more broadly across the Gaza Strip.
Claims by Israel that Hamas co-opts hospitals and ambulances, and threatens Gazan civilians, align with my experience. As far back as the 2014 war, Israelis and Palestinians told me that they suspected Hamas used the al-Shifa complex as a command centre and base for operations. In my dealings with the International Committee of the Red Cross, we discussed that Hamas at times used ambulances to transport its people during periods of intense fighting. In one searing experience during the 2008-2009 Cast Lead War, our USAID Gazan staff was caught in the crossfire between the Israelis and Hamas. I worked with senior Israeli military leaders so our people could escape to a United Nations safe haven. The Israelis stopped shelling, our team tried to escape, and Hamas opened fire on them as they fled, resulting in one injury. None of my experiences can confirm what is actually happening at al-Shifa hospital today, but it does provide context that Hamas acted with perfidy in prior wars.
International humanitarian law offers practical and binding guidance about the protection of hospitals during armed conflicts. Specifically, combatants must give hospitals, the wounded and sick, medical staff and ambulances special protection. This privileged status remains in force unless a combatant uses the hospital outside its inherent humanitarian function in an “act harmful to the enemy.” In the case of the IDF’s attack on the al-Shifa complex, Israel must demonstrate that the hospital was used by Hamas, for example, as a base from which to launch an attack; as a weapons depot; as a centre for liaison with fighting troops; or as a shelter for able-bodied combatants. Further, Hamas’s use of al-Shifa hospital for any military purposes violates its precautionary obligations to protect the wounded, sick and health care personnel and violates the prohibition against using human shields.
Assuming the evidence confirms that al-Shifa hospital lost its protected status, as increasingly appears the case given recent findings of a tunnel shaft and vehicle, Israel still has an affirmative and continuous duty to allow for the safe evacuation of the wounded and sick. Now that the IDF is inside the hospital, it must spare the patients and medical staff and, as far as possible, take active measures for their safety. The Israelis offered medical supplies, incubators, Arabic speakers and medics, and some limited evacuations as they entered the hospital, but that aid was almost certainly insufficient. The hospital needs fuel, running water and adequate sanitation today.
Further, the IDF remains bound by the principle of proportionality. That is, the costs of dismantling Hamas infrastructure in or under al-Shifa hospital must be weighed against the humanitarian consequences of the attack on the medical complex. A small cache of arms in one section of the hospital is insufficient justification for attacking the entire hospital complex. The Israelis would also be wise to invite impartial observers to al-Shifa to share its findings with the international community.
The fog of war makes it difficult to understand what is happening inside the al-Shifa complex. Yet, the IDF’s bombing campaign and ground incursion in northern Gaza were distinctively less discriminate given the disproportionate number of civilian deaths compared to rather modest military gains. If the evidence that Hamas used the hospital for significant military purposes holds, then the IDF’s more targeted approach at al-Shifa should guide further operations against Hamas. If the IDF does not present sufficient evidence of a Hamas control operation in al-Shifa hospital, then it will suffer a profound loss of credibility.
The end of this war is not imminent. Hamas and other Palestinian groups still hold roughly 240 hostages, nearly all Gazan civilians have been displaced and are living through a humanitarian catastrophe, none of the most senior Hamas leaders have been held accountable for the Oct. 7 attack, and there is no obvious off-ramp to this war. Political realists – and certainly terrorists – tend to dismiss international humanitarian law as fanciful, academic and irrelevant. In the case of the battle for al-Shifa hospital, the law regarding the protection of hospitals for armed conflict is prudent for the Israelis now and provides a good road map for the conflict still ahead.
This video contains graphic content. Israeli troops entered Gaza's Al Shifa hospital on Wednesday (November 15) and were searching its rooms and basement, witnesses said, amid global alarm over the fate of thousands of civilians trapped inside.