Though Gordon and Perugini deserve praise for casting light on the serious problem of targeting hospitals, their analysis and conclusion suffer from two ills. They misinterpret the law related to the targeting of hospitals, and they turn a blind eye to all the empirical data relating to the unacceptable hazards and damage caused to health care during armed conflicts. Their recommendation seems to be detached from the world we all live in.
The prevailing law is relatively clear, and it grants a strongyet contingent protection to hospitals. As I mentioned in my Reply,“Save the Injured – Don’t Kill IHL: Rejecting Absolute Immunity for ‘Shielding Hospitals’”,the protection granted to hospitals has both institutionally inherent and personal justifications. The former derives from their humanitarian mission and is contingent upon their actual use in light of this purpose. The second justification, namely the vulnerability of their patients and medical staff, is always present. These weaknesses require special scrutiny and legal adjustments, and the damage multiplier of the sick and wounded should be taken into consideration when assessing the collateral damage that might be caused to them. Gordon and Perugini seem to misunderstand this roadmap of the law, which is not subject to interpretation by states, as they argue.
They appear to ignore the fact that the law grants different layers of protection to hospitals: the special institutionalprotection granted to any hospital, the cumulative requirements for identifying an object as a legitimate military target, and the constraints of the proportionality request in IHL. I have the impression that Gordon and Perugini also ignore the precautionary requirements in IHL, relating to all civilians in general and the one afforded only to medical units in particular. Their misinterpretation turns all these different layers of protection into a single one that can very easily be removed by claiming that the attacked hospital is a shielding hospital. Indeed, another mistake they seem to make relates to the burden of proof. The law is not satisfied merely with an attacker’s arguments as regards a shielding hospital; a heavy burden lies on its shoulders to prove all the facts justifying the attack. Gordon and Perugini appear to assume, unfoundedly, that the burden lies on the attacked. Furthermore, by limiting their prism to constraining attackers, they don’t pay any attention to the binding obligation on all belligerents, which is not limited to the attacker, to insulate hospitals from the hazards of war to the extent possible. The belligerent who controls the hospital’s territory thus is required by law to take concrete measures aimed at achieving this goal.
Indeed, as presented in my Reply, the law as it stands allows the targeting of hospitals only as an exception and not as a norm, as argued by Gordon and Perugini. Unfortunately, in the absence of effective international law enforcement, the shielding argument can easily serve as a pretext for transgression, a hazard that most in bello and ad bellum rules are subject to. But the answer to this manipulation challenge doesn’t lie in changing a normatively desired rule – e.g., cancelling the right of self-defense – but rather in improvinglaw enforcement and compliance. This would require that the facts be established in each case of attack and the law then applied to it, distinguishing between the bona fide mistakes of law-abiding militaries and intentional criminal targeting.