By Altaf Moti
The al-Shifa Hospital, the largest and most important medical facility in Gaza has been under siege and attack by the Israeli forces since 11 November as part of their ongoing military operation against Hamas and other armed groups in the Gaza Strip. The hospital has been surrounded by Israeli tanks, preventing ambulances from entering or leaving, and snipers and artillery have been targeting anyone moving outside the hospital.
On 15 November, Israeli forces entered the hospital, claiming that they had discovered a Hamas command centre and weapons cache inside. The raid was widely criticized by governments, United Nations agencies and other aid organizations as it killed and wounded dozens of people including medical staff and patients, and damaged the hospital equipment and infrastructure.
The Violation of International Humanitarian Law
The attack on the al-Shifa Hospital is a serious violation of international humanitarian law (IHL) which is also known as the law of war or the law of armed conflict. IHL sets out detailed rules that seek for humanitarian reasons to limit the effects of armed conflict. It protects those who are not, or are no longer, taking part in the fighting, and sets limits on the means and methods of warfare. According to IHL, hospitals are protected civilian objects and should not be attacked unless they are used outside their humanitarian function to commit acts harmful to the enemy such as sheltering able-bodied combatants or storing arms and ammunition. Even then, the attack must respect the principles of distinction, proportionality and precaution, which means that only military objectives can be targeted, that the expected civilian harm must not outweigh the military advantage, and that all feasible measures must be taken to avoid or minimize civilian casualties.
The Israeli military did not provide any evidence to support its allegation that the hospital was a Hamas command centre and a weapons cache. The military only showed reporters a shaft with electrical wiring and a metal ladder leading into the earth but did not allow them to enter or inspect the alleged tunnel. The military also displayed some weapons and explosives that it said were recovered from the hospital but did not explain how they were found or where they were stored. The hospital staff and Hamas denied that the hospital was used for any military activity and said that the Israeli raid was a deliberate attempt to destroy the medical facility and terrorize the civilians. The hospital director, Muhammad Abu Salmiya, said that the hospital was only used for humanitarian purposes and that the Israeli forces did not find any tunnels or weapons inside. He also said that the Israeli forces damaged the hospital equipment, stole the medical records and harassed the patients and staff.
The international media also questioned the timing and the motive of the Israeli attack on the hospital which coincided with the visit of the UN Secretary-General Antonio Guterres to Gaza. Some analysts suggested that the attack was a way of sending a message to the UN and the international community that Israel would not tolerate any interference or criticism of its actions in Gaza. Others argued that the attack was a diversion from the failure of the Israeli ground offensive which faced strong resistance from the Palestinian fighters. The UN Security Council has repeatedly called for an immediate cessation of hostilities and a resumption of negotiations based on the two-state solution which envisages a sovereign and independent State of Palestine, living side by side in peace and security with the State of Israel. The UN has also urged the parties to respect their obligations under international law and to ensure humanitarian access and protection for civilians.
The Violation of Human Rights Law
The attack on the al-Shifa Hospital is not only a violation of IHL but also a violation of human rights law which applies at all times both in peace and in war. Human rights law guarantees the right to life, the right to health, the right to dignity, and the right to be free from torture and other cruel, inhuman or degrading treatment or punishment.
The attack on the hospital has endangered the lives and health of thousands of people who are either patients in need of treatment or have taken refuge in the hospital grounds. The attack has also violated the dignity and the rights of the medical personnel who have been working tirelessly and heroically to save lives and alleviate suffering. The attack has also inflicted pain and suffering on the victims and their families, who have witnessed trauma, violence and loss.
The Accountability and Justice for the Victims
The perpetrators of this crime should be held accountable and brought to justice by the competent authorities such as national courts or the International Criminal Court (ICC). The ICC is an independent and permanent court that investigates and prosecutes individuals for the most serious crimes of international concern such as genocide, crimes against humanity and war crimes. The ICC can exercise its jurisdiction if the crime was committed on the territory of a state party to the Rome Statute, which is the founding treaty of the ICC, or by a national of a state party, or if the situation is referred to the ICC by the UN Security Council or by a state party. Palestine is a state party to the Rome Statute since 2015, and has accepted the jurisdiction of the ICC over alleged crimes committed on its territory since 2014. Therefore, the ICC may have jurisdiction over the attack on al-Shifa hospital, as well as other alleged crimes committed by Israel in Gaza. However, the ICC can only act if the national authorities are unwilling or unable to genuinely carry out the investigation or prosecution.
The attack on the al-Shifa Hospital is a tragedy and a travesty that should never have happened. It is a blatant disregard of the rules and principles of international law and human rights that are meant to protect the most vulnerable and the most in need. It is a betrayal of the values and the ideals that the international community and the UN stand for. It is a challenge and a test for the conscience and the responsibility of the world. It is a call and a cry for justice and peace.