Penny Wong has called on Israel to stop “the attacking of hospitals” in Gaza. Australia was “particularly concerned with what is happening with medical facilities … I would make this point in relation to hospitals and medical facilities – international humanitarian law does require the protection of hospitals, of patients and of medical staff”, the Foreign Minister said in a weekend interview.
In the laws of armed conflict, proportionate doesn’t mean in proportion to the initial attack or provocation. Instead, it’s proportionate to the military objective. If as part of that the number of civilians killed is high, in this case it’s due to Hamas hiding fighters and weaponry deep amid civilian populations.
Israel does try to do everything possible, from initial advance warnings to vacate, to the choice of targets and weapons, to minimise casualties. But not at the cost of the main military objective. The biggest constraints on Israel are operational calculations: is the military goal feasible and achievable? At an acceptable cost? Sadly, the fate of the hostages won’t be allowed to compromise the main goal of defeating Hamas.
Hospitals are protected and can’t be attacked if operating as hospitals. It is a war crime to compromise the status of hospitals by using them to cover military facilities and operations.
Hamas is extensively using hospitals to achieve protection or, at least, to draw massive information warfare benefits if they are attacked.
Israel’s military says Gaza’s al-Shifa hospital covers a massive command and control, communications, and weapons factory complex.
The fourth Geneva Convention article 19 on the wounded and sick specifically deals with the discontinuance of protection of hospitals. It states that “the protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy”.
The laws of armed conflict would permit an assault on this complex if the expected civilian casualties would not be excessive in relation to the concrete military advantage to be gained. It’s certain that the Hamas capability in Gaza would be severely impeded and the operation vastly accelerated if it were destroyed.
The Israeli Defence Forces have tried to get people who are able to move to leave the area. This is a requirement in Article 58 of Additional Protocol I to the Geneva Conventions. It says that the parties to the conflict shall to the maximum extent feasible “endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives”.
Hamas has prevented evacuations. Israel has said it will assist with moving vulnerable patients and get them to medical facilities. It has refrained from using air power to strike the hospital. Instead, the IDF has assumed the much greater risk to the IDF of moving to neutralise Hamas facilities on the ground.
The intensity of the fighting around the hospital shows the extent of the Hamas presence and its tactics. This could end immediately if Hamas withdrew from the hospital area. They are not defending the patients and medical staff as this would best be achieved by a withdrawal from the area and letting Israel provide medical support. Israel has no other choice but to fight the terrorists as they find them.
Meanwhile, on Saturday there was another Hamas misfire that caused the latest damage at al-Shifa hospital. The terrorists were trying to target Israeli forces operating near the hospital, missed and struck the hospital itself. It was like the devastating effects of the earlier Palestinian Islamic Jihad misfire on the al-Ahli hospital in Gaza locating the launch site so close to civilians and the hospital, and launching the rocket with the broad intent behind constituted a war crime.
Anthony Bergin is a senior fellow at Strategic Analysis Australia. A version of this article was first published in The Australian.