Five Weeks Later, Part Two: when is a hospital not protected?

In my last mini-post, I looked at the alleged shortage of fuel needed to power Gaza’s hospitals, and what observable facts might suggest (as opposed to the purely emotive claims and counterclaims on the subject that we see being played out in the media).

In this mini-post, I’ll write again about hospitals in Gaza, but with a focus now on what is at the very heart of the issue: are hospitals in Gaza being used by Hamas for military purposes? Or, are they not?

Why this is relevant is pretty simple. International law, not to mention basic morality, requires that hospitals, medical supplies, medical personnel and civilians sheltering in a hospital should have a special kind of protection during a time of active warfare. They should be kept safe, and not subject to attack.

However, hospitals can also lose this “special protection” status if combatants use them for military purposes, such as to hide fighters or store weapons. And to say this – that hospitals are not sacrosanct or inviolable if they are used for military purposes – is not at all controversial. Everyone pretty much everyone agrees on this, at least as a statement of principle. Including the Red Cross and most NGOs operating in Gaza.

Now, Israel has claimed (not just since the start of this war, but for the last 15 years) that Hamas frequently uses hospitals in Gaza as places in which to house its operatives, store its weapons, and plan for and then command its military operations.

A key aspect of this, so Israel claims, is that Hamas has built a network of underground tunnels in Gaza, and that many of Hamas’ military assets and main command centers are deliberately located in tunnels and bunkers underneath hospitals (the reason being obvious: if the presumption is that hospitals are “off limits”, this makes them probably the safest place to put / hide military assets and personnel).

Meanwhile, Hamas has vehemently denied all of these claims. And if you check, in almost all media mentions of hospitals in Gaza, and tunnels / bunkers beneath them, being used by Hamas for military purposes, the Hamas denial is always prominently tabled in the name of “balance”. As in: “Israel claims Hamas has military tunnels and command centers under Gaza’s hospitals, but has not provided evidence, so we can’t make any assertion either way”.

Personally, I find this kind of “balance” a complete cop-out on the part of the media. Because the job of the media, fundamentally, is to assess and evaluate information from various and competing sources, perhaps lay out the details of those various and competing sources, and then come to a reasoned conclusion as to the facts.

Think of it this way. We do not expect the media to tell us: “It’s raining outside, but some say it is sunny and clear, and it’s kind of a murky and difficult subject, so we’ll tell you it might be raining or it might not be, but we won’t express any opinion on the subject”. Rather, we expect any responsible reporter to go outside, look at the sky, ask a few people, and then tell us: “Based on all the evidence we have, it’s raining today. And here is that evidence, in case you want to assess our conclusion differently for yourself”.

So, let’s try do that now. Let’s look at what we know about Hamas and hospitals in Gaza, what readily verifiable evidence we have available, what self-evident things can be observed (as opposed to empty claims and media noise), and come to a reasoned conclusion.

Although, caveat: when trying to assess whether Hamas is using Gaza’s hospitals for military purposes, it is slightly nuanced. Because by definition, 100% proof is not ever going to be possible until after the fact.

That is, until someone actually goes into a Gaza hospital and descends into a tunnel with a camera and films a military bunker being there (or not), we will never be able to know the objective truth. And being able to establish that objective truth will not be possible until after the hospital is taken by Israel, at which point debating whether or not Israel had the right to take the hospital in the first place will be somewhat academic.

So really, the real question to ask – both morally and in terms of international law – is not whether in fact Gaza’s hospitals are being used for military purposes (because we cannot possibly know this for sure until after), but whether Israel has a reasonable basis to believe that this is the case (and therefore has a reasonable basis on which to take actions that involves treating the hospital as a legitimate military target).

[Note for completeness: even if Israel is right, and thus Gaza’s hospitals are legitimate military targets, that does not give Israel “free reign” to do whatever it wants. There are still a series of international law obligations (and basic moral ones) that apply even when hospitals are used for military purposes, and which need to be adhered to. For example, the requirement to fairly warn people in hospitals of pending attacks, and to allow for orderly evacuations, etc.]

In any case: what do we presently know?

Well, firstly, we know that in recent days, even as we have heard Hamas repeatedly deny that they make any use of hospitals (or tunnels underneath them) for military purposes, there have been numerous reports of pitched battles fought between Hamas and the IDF right alongside those hospitals, from various sources.

This, to me, renders Hamas’ denials problematic, if not self-evidently contradictory. I mean, if (as Hamas claims) military assets and personnel are not being sheltered in and around Gaza’s major hospitals, isn’t it a bit odd that battles are going on between Hamas and the IDF in those very same places? Surely, at the very least, the fact of fierce battles occurring in very close proximity to hospitals suggests that those hospitals are not as “off limits” as we are otherwise being asked to believe.

Second, we know that Hamas have in the past used Gaza’s hospitals for military, or at least military-adjacent and non-medical purposes. And we know this not from Israel, but from various NGOs normally at the vanguard of condemning Israel. Like in 2007, during Hamas’ fight with Fatah to take control of Gaza, when a coalition of human rights groups called on Hamas “to end killings near and inside hospitals in the area.” [At the time, Fatah accused Hamas of using al-Shifa Hospital’s x-ray department as a prison and interrogation center]. Or like Amnesty International – one of Israel’s harshest critics – that in 2015 reported on Palestinian civilians being interrogated and tortured by Hamas “within the grounds of Gaza City’s main al-Shifa hospital”.

Third, we know that Hamas indisputably has built a vast tunnel network under much of Gaza. A simple google search for “Gaza tunnels” will throw up hundreds of images of the tunnels, many taken and posted proudly by those in Gaza. Plus, Hamas have told us as much themselves, and repeatedly. For example, in 2011, Yahya Sinwar, the leader of Hamas, claimed that Hamas had built 500 kilometers of tunnels under Gaza. Likewise, Ismail Haniyeh, current Hamas political bureau chief (living safely in Qatar) in 2016 boasted of a tunnel network in Gaza double the size of that dug by the Viet Cong in the Vietnam War.

[For reference, a tunnel network of this scale would be more than the entirety of the London or Paris undergrounds. And, when you consider that Gaza is about 50 kilometers long and 10 kilometers wide, this represents enough tunnel to crisscross the whole of Gaza about 10 times over. So, it would be hard to imagine that Gaza’s tunnel infrastructure does not, at least in part, go near or under hospitals.]

Third, Israel claims to have direct evidence from multiple sources that there are Hamas tunnels and military bunkers directly underneath various hospitals in Gaza. This includes intelligence gathered from Gazan informants, intelligence gathered from Hamas terrorists captured and interrogated, ground penetrating radar images from satellites, intercepted phone calls, etc.

And while inevitably there will be those who don’t trust Israel as a source, we also know that Israel has shared this information with US and European allies, who presumably have been equally convinced, or we would have probably heard murmurings to the contrary by now.

[Indeed, after I’d already started writing this, the European Union (all 27 members) issued a joint statement condemning Hamas for using “hospitals and civilians as human shields”. Similarly, US National Security Adviser, Jake Sullivan (while urging Israel to do everything reasonably possible to protect those inside al-Shifa hospital) said: “Without getting into intelligence information, we can just look at the open-source reporting that Hamas is using hospitals as it uses many facilities for command-and-control, for weapons storage, to house its fighters, and this is a violation of the laws of war”. I doubt either of these statements would have been issued without some basic due diligence as to accuracy.]

And fourthly, we know that Hamas has previously located military tunnels in sensitive civilian locations. The IDF has claimed to have discovered many such instances, but even if you are not willing to take Israel’s word, you’d presumably be willing to believe UNRWA (possibly one of the most anti-Israel NGOs of all). In 2022 UNRWA found a Hamas military tunnel directly underneath an elementary school it operated in Gaza, and was so appalled that it felt compelled to make a rare complaint about Hamas (although this was barely considered newsworthy at the time, and so barely got reported). But, if we know for sure that Hamas is willing to put military tunnels under a school for six and seven-year-old kids, why not under a hospital?

My point here is simple.

We do not know with 100% certainty that Hamas uses Gaza’s hospitals, and tunnels / bunkers beneath them, for military purposes (and by definition we cannot ever know for sure until after the fact).

But that doesn’t mean that there isn’t more than enough compelling evidence to allow any intellectually honest person, looking at that evidence objectively, to reasonably conclude that they do.

And whilst this conclusion, based on self-evident observations and easily verifiable facts, might be simple, it is also really important. Because it serves to clearly demarcate the boundary of responsibility between Hamas and Israel on this subject. Not just in a technical legal sense, but also in an everyday moral sense that we all know and can intuitively understand.

It means that it is Hamas who has stripped Gaza’s hospitals of what would otherwise be the normal status of “protected” in time of war. It means therefore that is not Israeli “aggression”, but rather Hamas’ actions, that have put Gaza’s hospitals, and the people in them, in harm’s way. And it also means that Israel taking military action that will adversely affects those hospitals, and the people in them – difficult, gut-wrenching and horrible as the outcomes may be – is not unjust or unlawful.