Mariupol, Ukraine and the Crime of Hospital Bombing

17 March, 2022,
Emer­gency ser­vices on site at the destroyed Mar­i­upol chil­dren’s hos­pi­tal as Rus­si­a’s inva­sion of Ukraine con­tin­ues, in Mar­i­upol, Ukraine, on March 9, 2022 (pho­to cour­tesy Reuters).

 

Aren’t wan­ton attacks on hos­pi­tals and oth­er med­ical facil­i­ties con­sid­ered war crimes? The coau­thors of Human Shields, a His­to­ry of Peo­ple in the Line of Fire, Neve Gor­don and Nico­la Perug­i­ni, reveal the shock­ing truth about mil­i­tary attacks on hos­pi­tals, includ­ing the Russ­ian Fed­er­a­tion’s bomb­ing last week of the hos­pi­tal at Mar­i­upol, Ukraine.

 

Neve Gordon & Nicola Perugini

 

As peo­ple around the world were glued to their screens try­ing to make sense of the Russ­ian-Ukrain­ian war, a Russ­ian airstrike dev­as­tat­ed a mater­ni­ty hos­pi­tal in the besieged port city of Mar­i­upol. Reports sug­gest that the Mar­i­upol com­plex was hit by a series of blasts that shat­tered win­dows and ripped away the façade of one build­ing. Clips from the scene show Ukrain­ian police and sol­diers rush­ing to evac­u­ate vic­tims, includ­ing a heav­i­ly preg­nant woman who is seen car­ried on a stretch­er amidst burn­ing cars and torched trees. A few days lat­er the Asso­ci­at­ed Press report­ed that both the woman and her baby had died as a result of the attack.

The attack on the Mar­i­upol hos­pi­tal was only one of 43 Russ­ian attacks against Ukrain­ian med­ical units dur­ing the first three weeks of the fight­ing. In an effort to jus­ti­fy such bom­bard­ments, Rus­sia has accused Ukrain­ian armed forces of using civil­ian struc­tures and med­ical facil­i­ties as shields for mil­i­tary activ­i­ties. Imme­di­ate­ly after the attack on the mater­ni­ty ward in Mar­i­upol, the Russ­ian Embassy in Israel shared an image osten­si­bly show­ing a Ukrain­ian bat­tal­ion oper­at­ing in prox­im­i­ty to the hos­pi­tal. The image aimed to cor­rob­o­rate the charge that Ukrain­ian forces are ille­gal­ly using civil­ian struc­tures that are pro­tect­ed by the laws of war as shields. It did not take long, how­ev­er, for the inves­tiga­tive jour­nal­ist group Belling­cat to ver­i­fy that the image used by the Russ­ian Embassy in Tel Aviv was of a build­ing actu­al­ly locat­ed ten kilo­me­ters away from the Mar­i­upol hos­pi­tal and that the Russ­ian line of defense was based on fabrication.

The image shared by the Russ­ian Embassy in Israel and removed from social media after Bellingcat’s foren­sic investigation.

Bomb­ing hos­pi­tals is not some­thing new in the Russ­ian play­book. Physi­cians for Human Rights has claimed that Russ­ian forces were impli­cat­ed in 244 attacks on med­ical facil­i­ties in Syr­ia, where the destruc­tion of the enemy’s health care ser­vices became a strate­gic objec­tive of the Assad regime from the war’s out­set. [Ger­man broad­cast­er Deutsche Welle claimed “hos­pi­tals across Syr­ia have been attacked more than 400 times. Data obtained by DW sug­gests the attacks formed part of a larg­er strat­e­gy to crip­ple access to med­ical facil­i­ties in rebel-held areas.”] In rebel held areas with­in Syr­ia, the med­ical field was swift­ly pushed under­ground. Yet even when rebels con­struct­ed hos­pi­tals in caves, with makeshift emer­gency rooms, out­pa­tient depart­ments, and mater­ni­ty wards, the Syr­i­an gov­ern­ment, which began receiv­ing aer­i­al assis­tance from the Russ­ian Air Force in 2015, con­tin­ued hunt­ing the health pro­fes­sion­als down. At a cer­tain point, med­ical units receiv­ing assis­tance from Médecins Sans Fron­tières asked the human­i­tar­i­an orga­ni­za­tion to stop shar­ing the GPS coor­di­nates of their facil­i­ties with the Syr­i­an gov­ern­ment, a com­mon prac­tice used dur­ing war to help pro­tect med­ical units from attack. MSF real­ized that instead of guar­an­tee­ing pro­tec­tion to these hos­pi­tals and staff, at times the coor­di­nates enabled the gov­ern­ment and its Russ­ian ally to trans­form them into tar­gets. With the Syr­i­an regime dis­re­gard­ing the dis­tinc­tion between war-mak­ers and health providers, strikes on hos­pi­tals and health pro­fes­sion­als became a cor­ner­stone in the mil­i­tary cam­paign to defeat its enemies.

The attacks against med­ical facil­i­ties in Syr­ia were car­ried out pri­mar­i­ly from the air, and when the Russ­ian air force was blamed with breach­ing the pro­tec­tions offered by the laws of war to civil­ians and med­ical units, offi­cials either denied the alle­ga­tion claim­ing that no attack had tak­en place—fake news—or blamed, as in Mar­i­upol, the rebels for the attack and the ensu­ing destruc­tion, aver­ring that they were respon­si­ble since they had used the med­ical facil­i­ty as a shield to defend a legit­i­mate mil­i­tary tar­get such as com­bat­ants hid­ing in one of the hos­pi­tal wards. The Russ­ian response might sound out­ra­geous to some, but it actu­al­ly emu­lates a line of defense adopt­ed by an array of mil­i­taries since the incep­tion of aer­i­al warfare.


The Colo­nial Ori­gins of Hos­pi­tal Bomb­ing
 

Hos­pi­tal bomb­ings have been con­sol­i­dat­ed as a war­fare tech­nique since the begin­ning of the last cen­tu­ry. Not long after Louis Bléri­ot became the first per­son to fly across the Eng­lish Chan­nel, Euro­pean mil­i­taries woke up to the sig­nif­i­cance of air­planes for war. The Ital­ians rushed to acquire a squadron of Caproni planes and, two years after Blériot’s 1909 flight, intro­duced aer­i­al bomb­ings to armed con­flict as they quelled a pop­u­lar revolt in Libya, their North African colony.

Human Shields is out from UC Press.

The Ital­ian pilots, who at the time could not fly much faster than 100 kilo­me­ters an hour, opened their cock­pits over Libya and threw out five-kilo­gram bombs both at demon­stra­tors and at med­ical units. In response, the local affil­i­ate of the Red Cross, the Ottoman Red Cres­cent, sent a cable to the Inter­na­tion­al Com­mit­tee in Gene­va, ask­ing it to “protest indig­nant­ly against bomb­ing by Ital­ian air­planes of hos­pi­tals marked with Red Cres­cent flag in Tripoli­ta­nia.” While the new­ly estab­lished air force con­tin­ued bomb­ing med­ical facil­i­ties in the colony, Gene­va relayed the com­plaint to the Ital­ian gov­ern­ment, ask­ing for a response.

In its reply, the Ital­ian gov­ern­ment con­test­ed the facts but also request­ed that pro­tec­tive mark­ings “should be clear­ly vis­i­ble on tents, detach­ments, con­voys, etc., so as to make them rec­og­niz­able even from afar and from the air.” It added that dur­ing the fight­ing, med­ical per­son­nel should keep a fair dis­tance away from the forces engaged in com­bat and that in mil­i­tary camps, sep­a­rate and clear­ly vis­i­ble areas should be allot­ted to hos­pi­tals and med­ical staff. The Ital­ian gov­ern­ment declared that it would be unwill­ing to assume respon­si­bil­i­ty if such pre­cau­tions were not observed at all times, for “it could not give up its capa­bil­i­ty of using all meth­ods of attack autho­rized by inter­na­tion­al law, any more than the pres­ence of [med­ical] units could be allowed to serve as a safe­guard for the ene­my against its action.” Thus, from the very first instances in which med­ical units were bombed from the air, the charge that these units were being deployed to shield legit­i­mate mil­i­tary tar­gets was intro­duced to jus­ti­fy the attacks. Mil­i­tary neces­si­ty trumped the pro­tec­tion of med­ical struc­tures, aid work­ers and patients.

 

Prox­im­i­ty

The rules of the game were thus estab­lished in Libya. But it was only a few years lat­er, in World War I, that air­planes were for the first time sys­tem­at­i­cal­ly used as instru­ments of vio­lence. The Inter­na­tion­al Com­mit­tee of the Red Cross col­lect­ed eighty com­plaints relat­ing to the bom­bard­ment of hos­pi­tals and med­ical instal­la­tions by artillery or air­craft. One case that received con­sid­er­able media atten­tion involved the Ger­man bomb­ing of sev­er­al hos­pi­tal wards in Éta­ples on the north­ern coast of France in May 1918. The med­ical wards were hit repeat­ed­ly, with 182 patients and nurs­es killed and 643 injured. In one of the raids, a Ger­man pilot was shot down, and while being cared for in the dam­aged hos­pi­tal he had bombed, he was inter­ro­gat­ed about the attack.

“He tried at first to excuse him­self by say­ing that he saw no Red Cross,” one news­pa­per report­ed, adding that “when chal­lenged with the fact that he knew that he was attack­ing hos­pi­tals, he endeav­ored to plead that hos­pi­tals should not be placed near rail­ways, or if they are, they must take the con­se­quences.” The pilot’s claim was straight­for­ward: dur­ing war, those who help sus­tain life can­not expect to be pro­tect­ed if they are locat­ed in prox­im­i­ty to mil­i­tary targets.

In May 1939, while Britain was prepar­ing for anoth­er world war, the attack on med­ical facil­i­ties at Éta­ples and the Ger­man pilot’s claim about why the hos­pi­tals were bombed was raised in the House of Lords in Lon­don and reaf­firmed by a much more promi­nent sol­dier. Hugh Tren­chard, who had served as an infantry offi­cer in the Sec­ond Anglo-Boer War and lat­er helped found the Roy­al Air Force, which he head­ed from 1918 until 1930, actu­al­ly sup­port­ed the expla­na­tion pro­vid­ed by the pilot. He told his fel­low par­lia­men­tar­i­ans that he was aware of the “pop­u­lar idea” that “every hos­pi­tal fly­ing the Red Cross is pur­pose­ly bombed.” “One heard very much the same about the bomb­ing of the hos­pi­tals and camps at Éta­ples dur­ing the War,” he con­tin­ued, “and it appar­ent­ly did not occur to any­body that the real objec­tives there were the rail­way and the dumps.”

Bombed hos­pi­tal in Éta­ples, 1918. (pho­to: Unit­ed King­dom Min­istry of Infor­ma­tion, First World War Offi­cial Collection).

Tren­chard referred his col­leagues to the His­to­ry of the Great War Based on Offi­cial Doc­u­ments—a chron­i­cle of Britain’s mil­i­tary efforts dur­ing the First World War—and point­ed out what the direc­tor of mil­i­tary oper­a­tions at the War Office said: “We have no right to have hos­pi­tals mixed up with rein­force­ment camps, and close to main rail­ways and impor­tant bomb­ing objec­tives, and until we remove the hos­pi­tals from the vicin­i­ty of these objec­tives, and place them in a region where there are no impor­tant objec­tives, I do not think we can rea­son­ably accuse the Ger­mans.” In oth­er words, the British War Office agreed with the Ital­ian gov­ern­ment and the Ger­man pilot that a hospital’s prox­im­i­ty to a legit­i­mate mil­i­tary tar­get makes it sus­cep­ti­ble to attacks, while also inti­mat­ing that the cul­pa­bil­i­ty lies with those who place the hos­pi­tal in such a loca­tion, not with those who bomb it.

 

 

Black Let­ters

Dur­ing the Sec­ond World War, the inten­si­ty of aer­i­al bomb­ings increased dra­mat­i­cal­ly and whole cities were sys­tem­at­i­cal­ly being bom­bard­ed, some until they were com­plete­ly flat­tened. Indeed, a mere thir­ty-four years after the first hand­held explo­sives were thrown from a cock­pit at Libyan pro­tes­tors, the Unit­ed States dropped atom­ic bombs on Hiroshi­ma and Nagasa­ki, mak­ing the sin­gling out of hos­pi­tals moot. In what some have called “total war,” civil­ian life becomes expend­able and bomb­ing med­ical units is par for the course.

The hor­rors of World War II led the Inter­na­tion­al Com­mit­tee of the Red Cross to draft a new con­ven­tion ded­i­cat­ed to the pro­tec­tion of civil­ians and civil­ian infra­struc­tures that includ­ed legal claus­es aimed at pro­tect­ing hos­pi­tals. Sev­er­al pro­vi­sions were adopt­ed oblig­ing war­ring par­ties to refrain from attack­ing med­ical facil­i­ties that dis­play the Red Cross emblem. Civil­ian hos­pi­tals “may in no cir­cum­stances be the object of attack, but shall at all times be respect­ed and pro­tect­ed by the Par­ties to the con­flict,” reads arti­cle 18 of the Fourth Gene­va Con­ven­tion. The fol­low­ing arti­cle, arti­cle 19, then pro­hibits shield­ing mil­i­tary activ­i­ties behind Red Cross emblems, not­ing 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 arti­cle also pro­hibits plac­ing med­ical facil­i­ties in prox­im­i­ty to mil­i­tary tar­gets. It reads: “In view of the dan­gers to which hos­pi­tals may be exposed by being close to mil­i­tary objec­tives, it is rec­om­mend­ed that such hos­pi­tals be sit­u­at­ed as far as pos­si­ble from such objec­tives.” Inter­na­tion­al law thus com­bined the pro­tec­tion of hos­pi­tals with the pro­hi­bi­tion of using hos­pi­tals as shields.

The ten­u­ous nature of these pro­vi­sions became appar­ent dur­ing con­flicts that took place in South­east Asia imme­di­ate­ly fol­low­ing the Sec­ond World War. In North Korea dur­ing the Kore­an War in the ear­ly 1950s, Amer­i­can and Unit­ed Nations forces destroyed scores of med­ical facil­i­ties, forc­ing the Kore­ans to move their hos­pi­tals under­ground. In Viet­nam, the French air force was accused of bomb­ing med­ical units and evac­u­a­tion con­voys with napalm dur­ing the 1954 defeat of the Viet Minh at Dien Bien Phu, to which the French gov­ern­ment respond­ed by accus­ing the Viet­namese resis­tance of vio­lat­ing the laws of war and “trans­port­ing muni­tions in med­ical air­craft marked with the Red Cross emblem.”

A decade and half lat­er, the Amer­i­cans were charged with delib­er­ate­ly bomb­ing Viet­namese hos­pi­tals marked with the Red Cross emblem. After the infa­mous bom­bard­ment of the 940-bed Bach Mai Hos­pi­tal, the Unit­ed States mil­i­tary main­tained that Viet­namese mil­i­tants had shield­ed them­selves behind the Red Cross emblem, explain­ing that the hos­pi­tal “fre­quent­ly housed anti­air­craft posi­tions to defend the mil­i­tary com­plex,” adding that it was locat­ed less than 500 meters from the Bach Mai air­field and mil­i­tary stor­age facil­i­ty. The deploy­ment of hos­pi­tals to con­ceal legit­i­mate mil­i­tary tar­gets and their prox­im­i­ty to such tar­gets were thus invoked togeth­er as jus­ti­fi­ca­tions for the attack.

Due to these and oth­er attacks on hos­pi­tals, med­ical units again received sig­nif­i­cant atten­tion dur­ing the Diplo­mat­ic Con­fer­ence on the Reaf­fir­ma­tion and Devel­op­ment of Inter­na­tion­al Human­i­tar­i­an Law Applic­a­ble in Armed Con­flicts in the mid-1970s, which led to the for­mu­la­tion of the 1977 Addi­tion­al Pro­to­cols to the Gene­va Con­ven­tions. Dur­ing the con­fer­ence, the inter­na­tion­al del­e­gates again out­lined the two con­di­tions in which pro­tec­tions offered to hos­pi­tals can be for­feit­ed: “The Par­ties to the con­flict shall ensure that med­ical units are sit­u­at­ed as far as pos­si­ble [from mil­i­tary tar­gets] so that attacks against mil­i­tary objec­tives can­not imper­il their safe­ty. Under no cir­cum­stances shall they be used in an attempt to pro­tect mil­i­tary objec­tives from attack.” In the final ver­sion of Addi­tion­al Pro­to­col I, these con­di­tions were for­mu­lat­ed as a form of shield­ing and incor­po­rat­ed into arti­cle 12, which states that “under no cir­cum­stances shall med­ical units be used in an attempt to shield mil­i­tary objec­tives from attack. When­ev­er pos­si­ble, the Par­ties to the con­flict shall ensure that med­ical units are so sit­ed that attacks against mil­i­tary objec­tives do not imper­il their safety.”

In the word­ing of the arti­cle, we can see that prox­im­i­ty and hos­pi­tal shield­ing have a par­al­lel his­to­ry in inter­na­tion­al law. The charge that a med­ical unit is locat­ed in prox­im­i­ty to a mil­i­tary tar­get implies that it is shield­ing the tar­get and can there­fore lose its pro­tec­tion under law. It is as if the Ital­ian government’s argu­ments voiced after the bomb­ing of med­ical facil­i­ties in Libya and Ethiopia became inter­na­tion­al norms.


In the Midst of Terror

The claim that hos­pi­tals were being used as shields became per­va­sive with the sub­se­quent “War on Ter­ror” and its sys­tem­at­ic attacks against main­ly brown civil­ians. From the war in Afghanistan and the US-backed Sau­di inter­ven­tion in Yemen to the Israeli cam­paigns in Gaza and the Syr­i­an civ­il war, in recent years hos­pi­tals have con­stant­ly been bombed by mil­i­tary forces under the guise of coun­tert­er­ror­ism, while the shield­ing argu­ment has been invoked time and again. Accord­ing to the World Health Orga­ni­za­tion, in 2020 a med­ical unit was attacked on aver­age every day, and in 2021 more than two med­ical units were attacked every sin­gle day. Clear­ly, hos­pi­tal bomb­ings are nei­ther spo­radic nor a series of iso­lat­ed events but rather a strat­e­gy of war­fare aimed at weak­en­ing the enemy’s infra­struc­ture of exis­tence. And while a few hos­pi­tals may have indeed been used as shields, the sheer num­ber of bomb­ings sug­gests that bel­liger­ents use the shield­ing accu­sa­tion ex post fac­to in order to legit­imize the strikes.

In Syr­ia it has been pri­mar­i­ly Pres­i­dent Bashar al-Assad’s regime and its ally Rus­sia that bombed hos­pi­tals in rebel-held ter­ri­to­ries, while in Yemen and Gaza it is Sau­di Ara­bia and Israel whose planes have been destroy­ing med­ical facil­i­ties held by non­state actors. Inter­na­tion­al and local human rights and human­i­tar­i­an groups have con­sis­tent­ly con­demned these attacks, claim­ing that they are in fla­grant vio­la­tion of inter­na­tion­al law.

The states charged with bomb­ing med­ical units either deny the accu­sa­tion or main­tain that the hos­pi­tals were shield­ing insur­gents, har­bor­ing weapons, or used as a cov­er for mil­i­tants launch­ing rock­ets. In such cas­es, the bomb­ings do not vio­late inter­na­tion­al law, since the law allows mil­i­taries to bomb med­ical facil­i­ties that serve as shields, pro­vid­ed that they give ade­quate warn­ing to those on the ground and do not breach the prin­ci­ple of proportionality.

Dur­ing the 2014 Gaza War, for exam­ple, Israeli strikes destroyed or dam­aged sev­en­teen hos­pi­tals, fifty-six pri­ma­ry health­care facil­i­ties, and forty-five ambu­lances. In a sim­i­lar vein, Sau­di offi­cials attempt­ed to jus­ti­fy the high num­ber of air strikes tar­get­ing med­ical facil­i­ties in Yemen adopt­ed the same catch­phras­es, accus­ing their adver­saries, the Houthi mili­tias, of using hos­pi­tals to hide their mil­i­tary forces. After the bom­bard­ment of an under­ground med­ical facil­i­ty in a rebel-con­trolled area, a Syr­i­an regime offi­cial declared that mil­i­tants would be tar­get­ed wher­ev­er they were found, “on the ground and under­ground,” while his Russ­ian patron explained that rebels were using “so-called hos­pi­tals as human shields.”

In a Sep­tem­ber 2019 press con­fer­ence con­vened to speak about “numer­ous alle­ga­tions of bomb­ings of med­ical and oth­er civil­ian facil­i­ties in Idlib,” Russia’s per­ma­nent rep­re­sen­ta­tive to the Unit­ed Nations, Vass­i­ly Neben­zia, explained that rebels rou­tine­ly used med­ical units to com­mit acts harm­ful to the ene­my. He thus pre­sent­ed excep­tion­al situations—which accord­ing to inter­na­tion­al law strip med­ical units of their protections—as the rule, while adding that “the delib­er­ate manip­u­la­tion of infor­ma­tion has become one of the most impor­tant weapons of this war.” The Russ­ian pre­sump­tion was that the oppo­si­tion will always deny that it was using med­ical units to advance their war efforts, and thus the debate was shift­ed from hos­pi­tal bomb­ings per se, to whether the bomb­ing was legit­i­mate giv­en the legal exceptions.

Such expla­na­tions can serve as a robust defense because med­ical per­son­nel actu­al­ly lose the pro­tec­tions allo­cat­ed to them by inter­na­tion­al law if they “exceed the terms of their mis­sion” or car­ry out “acts harm­ful to the ene­my” Accord­ing to the Inter­na­tion­al Com­mit­tee of the Red Cross, “Such harm­ful acts would, for exam­ple, include the use of a hos­pi­tal as a shel­ter for able-bod­ied com­bat­ants or fugi­tives, as an arms or ammu­ni­tion dump, or as a mil­i­tary obser­va­tion post; anoth­er instance would be the delib­er­ate sit­ing of a med­ical unit in a posi­tion where it would impede an ene­my attack.”

In an effort to legit­imize its bomb­ing of Pales­tin­ian med­ical facil­i­ties fol­low­ing the 2014 war on Gaza, Israel invoked both excep­tions in a legal report. It accused “Hamas and oth­er ter­ror­ist orga­ni­za­tions” of exploit­ing “hos­pi­tals and ambu­lances to con­duct mil­i­tary oper­a­tions, despite the spe­cial pro­tec­tion afford­ed these units and trans­ports under cus­tom­ary inter­na­tion­al law.” It claimed that hos­pi­tals were used both as “com­mand and con­trol cen­ters, gun­fire and mis­sile launch­ing sites, and cov­ers for com­bat tun­nels” and also as prox­i­mate shields for Hamas mil­i­tants who fired “mul­ti­ple rock­ets and mor­tars with­in 25 meters of hos­pi­tals and health clin­ics.” Some­times Israel would call the hos­pi­tal in advance, warn­ing the staff that it was about to bomb their facil­i­ty. This allowed the Israeli gov­ern­ment to claim that it had pro­vid­ed due warn­ing and rea­son­able time to evac­u­ate the build­ings before it launched a strike, and there­fore had not vio­lat­ed inter­na­tion­al human­i­tar­i­an law arti­cles requir­ing bel­liger­ents to warn med­ical units before bomb­ing them.

Fol­low­ing protests by Médecins Sans Fron­tières against the bom­bard­ment of one of its med­ical units in Yemen, the Joint Inci­dents Assess­ment Team of Sau­di Arabia’s mil­i­tary coali­tion released a response sim­i­lar to Israel’s argu­ment in its legal report on the attack on Gaza: “The [Assess­ment Team] found that the tar­get­ing was based on sol­id intel­li­gence infor­ma­tion. . . . After ver­i­fi­ca­tion, it became clear that the build­ing was a med­ical facil­i­ty used by Houthi armed mili­tia as a mil­i­tary shel­ter in vio­la­tion of the rules of inter­na­tion­al human­i­tar­i­an law.” Accord­ing to the self-exon­er­at­ing report, one of the med­ical facil­i­ties tar­get­ed by the coali­tion “was not direct­ly bombed, but was acci­den­tal­ly affect­ed by the bomb­ing due to its close loca­tion to the group­ing which was tar­get­ed, with­out caus­ing any human dam­age. It is nec­es­sary to keep the mobile clin­ic away from mil­i­tary tar­gets so as not to be sub­ject­ed to any inci­den­tal effects.” Even though hos­pi­tals had been bombed, the Assess­ment Team con­clud­ed that coali­tion forces had not vio­lat­ed the law.

The Col­or Line

Although the legal con­dem­na­tion of those who use hos­pi­tals as shields is uncon­di­tion­al and that act is always con­sid­ered a war crime, the pro­tec­tion offered to hos­pi­tals is con­di­tion­al. All a war­ring par­ty has to do in order to legal­ly jus­ti­fy an attack is to claim that a med­ical unit was locat­ed near a tar­get or was used to con­ceal it, assert that it warned the med­ical per­son­nel before the attack, and argue that the assault fol­lowed the prin­ci­ple of pro­por­tion­al­i­ty. The his­to­ry of bomb­ing hos­pi­tals, the legal debates sur­round­ing it, and the for­mu­la­tion of legal claus­es per­tain­ing to the pro­tec­tion of med­ical facil­i­ties reveal that inter­na­tion­al law priv­i­leges those who attack over those who shield and can serve as a tool for human­iz­ing the use of lethal force against the very med­ical units that the law itself pur­ports to protect.

From the advent of aer­i­al bomb­ing, prac­ti­cal­ly every time war­ring par­ties admit­ted they had bombed a hos­pi­tal (and it was not a mis­take), they invoked one of the legal excep­tions to jus­ti­fy the act. This his­to­ry undoubt­ed­ly ques­tions the lib­er­al under­stand­ing which pre­sumes that juridi­cal process­es can replace vio­lence as a way of set­tling con­flicts. This lib­er­al sto­ry line, which takes us from vio­lence to law, does not account for the vio­lence of the law itself. Actu­al­ly, the laws of war do not pro­hib­it vio­lence, they reg­u­late its deploy­ment, pro­vid­ing con­crete guide­lines about who can be killed, what can be destroyed, and the reper­toires of vio­lence that can be legit­i­mate­ly used. The law makes lofty claims about the impor­tance of pro­tect­ing hos­pi­tals but as the his­to­ry of hos­pi­tal bomb­ing shows, the law enables and at times even facil­i­tates vio­lence by pro­vid­ing numer­ous excep­tions that allow states to tar­get med­ical units. Con­se­quent­ly, invok­ing the law to seek relief from vio­lence is not nec­es­sar­i­ly the best strategy.

This his­to­ry thus rais­es seri­ous ques­tions about the legal­is­tic purview of many human rights and human­i­tar­i­an orga­ni­za­tions, which the legal his­to­ri­an Samuel Moyn has traced in his account of the change from an anti­war pol­i­tics dur­ing the Viet­nam War to an increas­ing empha­sis on inter­na­tion­al law. Refer­ring to the attack on med­ical facil­i­ties in Ukraine, a Physi­cians for Human Rights researcher exclaimed: “Russia’s bru­tal his­to­ry of con­sol­i­dat­ing pow­er through mil­i­tary action is a clear warn­ing – these hor­rif­ic attacks on civil­ians and crit­i­cal health care infra­struc­ture are a brazen and unam­bigu­ous vio­la­tion of inter­na­tion­al human­i­tar­i­an law. The per­pe­tra­tors must be stopped and must be held account­able for their crimes.” Indeed, account­abil­i­ty for the vio­la­tion of inter­na­tion­al human­i­tar­i­an law has been the pri­ma­ry ral­ly­ing cry for NGOs seek­ing jus­tice in Gaza, Yemen, Syr­ia and now Ukraine.

But inso­far as legal excep­tions legit­i­mat­ing attacks on med­ical unites are an inte­gral part of the law, the law can end up jus­ti­fy­ing the bomb­ing of hos­pi­tals. This sug­gests that only a com­plete ban on tar­get­ing med­ical units, with­out any excep­tions, has any hope of reduc­ing the vio­lence. Once there is a ban, med­ical units can­not be legal­ly bombed even when they are locat­ed close to a mil­i­tary tar­get or when they shield combatants.

The post‑9/11 Mid­dle East is the key con­tem­po­rary lab­o­ra­to­ry where the “hos­pi­tal shield­ing” argu­ment has been deployed to jus­ti­fy the bomb­ing of hos­pi­tals. In our book on the glob­al his­to­ry of human shield­ing we show how West­ern lib­er­al democ­ra­cies have been com­plic­it with the destruc­tion of med­ical units and the killing of brown civil­ians. But now, with the attack on Ukraine and the killing of “Euro­pean peo­ple with blue eyes and blond hair,” a dif­fer­ent racial­ized sen­si­bil­i­ty towards civil­ian casu­al­ties than the one we have been wit­ness­ing dur­ing the last two decades is emerg­ing. West­ern com­men­ta­tors seem much less inclined to accept the same legal argu­ments that had been used to excuse the destruc­tion of civil­ian sites in Iraq, Afghanistan, Syr­ia, Yemen, or Pales­tine. The speed by which the Inter­na­tion­al Crim­i­nal Court decid­ed to open an inves­ti­ga­tion into pos­si­ble war crimes car­ried out in Ukraine is an indi­ca­tion of this trend and is dif­fi­cult to explain with­out tak­ing into account the “col­or line”—to say it with W.E.B Du Bois. Indeed, the West­ern response to the Russ­ian aggres­sion on Ukraine fur­ther reveals how our sense of human­i­ty is intri­cate­ly tied to race and has nev­er over­come its colo­nial imprint. But now that the hos­pi­tal shield­ing argu­ment has “returned” to Europe after many decades, peo­ple might be more crit­i­cal of the shield­ing excus­es voiced by war­ring par­ties as they try to legit­imize the vio­lence they deploy against civil­ian populations.

The time has come to advo­cate, with­out dis­tinc­tions of col­or, for a total ban on bomb­ing hospitals.

 

bombing hospitalsFranceGazahuman shieldsMariupolRed CrossRussian airforceSyriaUkraineVietnam

Born and raised in Israel, Neve Gordon taught at Ben-Gurion University for seventeen years before moving to the School of Law at Queen Mary University of London. His first book, Israel’s Occupation (2008), provides a structural history of Israel’s mechanisms of control in the West Bank and Gaza Strip and still serves as a reference book for anyone interested in Israel’s military occupation. His second book, The Human Right to Dominate (2015 with Nicola Perugini) examines how human rights, which are generally conceived as tools for advancing emancipation, can also be used to enhance subjugation and dispossession. His most recent book Human Shields: A History of People in the Line of Fire (2020 also with Perugini) traces the marginal and controversial figure of the human shield over a period of 150 years in order to interrogate the laws of war and how the ethics of humane violence are produced. Gordon was also the first director of Physicians for Human Rights Israel during the first Palestinian Intifada, a founding member and activist of Ta’ayush-Jerusalem during the second Intifada, and, following the birth of his two children, he helped found (and served for ten years as a board member) of the bi-lingual Jewish-Palestinian school Hagar. He is currently the Vice President of the British Society for Middle East Studies and a board member of the International State Crime Initiative. Follow him on Twitter @nevegordon or on FB

Nicola Perugini's research focuses mainly on international law, human rights, and violence. He is the co-author of The Human Right to Dominate (Oxford University Press 2015) and Human Shields. A History of People in the Line of Fire (University of California Press 2020). Nicola has published articles on war and the ethics of violence; the politics of human rights, humanitarianism, and international law; humanitarianism's visual cultures; war and embedded anthropology; refugees and asylum seekers; law, space and colonialism; settler-colonialism and trauma in Israel/Palestine. Nicola is currently working on two research projects. The first is an exploration of the global history of the University of Edinburgh during the mandate of one of his imperial chancellors, Arthur James Balfour. The second, supported by the Leverhulme Trust, examines decolonization wars and international law. He has been a member of the Institute for Advanced Study at Princeton (2012/2013), a Mellon Postdoctoral Fellow at Brown University (2014-2016), and a Marie Skłodowska-Curie Fellow (2017-2019). He has taught at the American University of Rome, the Al Quds Bard College in Jerusalem where he also directed the Human Rights Program, Brown University, and the University of Bologna. He has served as consultant for UNESCO and UN Women. His opinion pieces have appeared in Al Jazeera English, LRB Blog, Newseek, Internazionale, The Nation, the Huffington Post, the Conversation, Just Security, Open Democracy, the Herald. He tweets @PeruginiNic.