Israel - Hamas War: Interrogating the Legality or otherwise of the Attacks on Medical Establishments in Gaza Strip

Abstract

Various United Nations Conventions and Protocols afford special protection to medical establishments and personnel whose mission is to save lives and provide health care for civilians and combatants alike. However, when medical establishments are used to interfere directly or indirectly in military operations or for military purposes, thereby causing harm to the enemy, the rationale for their specific protection ceased. The allegation of use of hospitals for military purposes in the ongoing war between Israel and Hamas and the consequential attacks on the medical establishments in Gaza Strip displays the contemporaneity of the problem discussed in this study. This study therefore interrogates the legality or otherwise of the attacks on medical establishments in the ongoing war between Israel and Hamas in Gaza Strip, using doctrinal method of legal research and analytical approach. The findings of this study indicates that parties to the war are taking unfair advantage of the flexibility of the exceptions to the protection of medical establishments in armed conflict to deliberately or recklessly violate International Humanitarian Law – in particular the prohibition of launching indiscriminate attacks and the principle of proportionality and precautions in attack. This study concludes that nonetheless the use of medical establishments for military purposes which may legally and morally justify an attack against such protected facilities, there are certain precautions expected of the attacking party; and with specific recommendations on how to interpret the law governing such attacks; and proposes adoption of additional international legislation complimentary to the Geneva Convention for the protection of medical establishments in conflicts.