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.
The second problem in Gordon and Perugini’s argument is their selection of a limited prism through which to look at the wider problem of grave disrespect for the protected status of health care in armed conflicts. Instead of adopting a holistic approach to the problem, they seem to prefer turning a blind eye to all the empirical data and focus on only one of its components – the targeting of hospitals – suggesting a reform that would probably only aggravate the problem.
The ICRC’s “Health Care in Danger” project, which studied “violent incidents affecting the delivery of health care” from January 2012 to December 2014, analyses thousands of cases and reveals that harm to health care in belligerencies is attributable to all adversaries, not mainly states attackers, as Gordon and Perugini presume. For example, about 33% of all violent incidents against health care facilities were committed by state armed forces, and only 17% were related to direct attacks against health care facilities, either intentional or unintentional (Ibid., at 7-8, 11). (I use the adjective “only” here not to discount or “understate” the problem, as was argued against me by Gordon and Perugini,but rather to place it in context.) The 2016 Safeguarding Health in Conflict report on 23 different countries also reflects similar patterns of attacks on health care. Furthermore, Fiona Terry’s analysis of the ICRC’s three in-depth field studies – in Afghanistan (2010), Somalia (2012), and the Democratic Republic of the Congo (2013) – found that the main dangers to health care in these theatres stem not from the strategic use of violence against it, as Gordon and Perugini insist, but rather from “a lack of respect for the protected status of health care” (at p. 28).
The lesson to be drawn from the empirical data, reflecting the scope of the problem and its attributes, is that improving the protection of health care requires consideration of all aspects of the problem in their wider context, including the fact that hospitals are used and taken over by belligerents, disrupting the availability of health care to those who need it. This isn’t a hypothetical, as Gordon and Perugini assert, but already a well-documented occurrence.
Every legal reform requires prudent holistic examination of all its possible effects. Given the reality of common disrespect for the strong legal protection granted to all hospitals,granting absolute protection to shielding hospitals is neither practical nor desirable. (According to Gordon and Perugini I have misrepresented their argument since they “are not advocating ‘granting absolute protection to shielding hospitals’, but rather promoting absolute protection to all hospitals”, but it is the current law that grants such absolute protection to all hospitals except shielding ones.) The contingent immunity currently granted to hospitals is consistent with the contours of IHL in general, and with the distinction rule in particular, while the suggested absolute immunity would undermine them. Furthermore, the suggested immunity would probably have unintended counter-effective consequences, given the well-documented common abuse of health care facilities. If hospitals were to be immune and protected regardless of the scope of their shielding activities, defendants would have an inherent incentive to abuse them for their military purposes. The suggested approach would probably also impact the sick and wounded by subjecting the use of the hospital’s space and resources to the defendant’s priorities at their expense. It might even incentivize the use of the sick and wounded as an active shielding device by the defendant. Moreover, the special classification of health care facilities and personnel – the “liminal people and objects” – as suggested by Gordon and Perugini,would pose a challenge to the distinction rule. It could undermine the current absolute protection granted to civilians who are also engaged in missions which are a “constitutive part of war”, but who are not health care employees who would be privileged by the suggested immunity.
A balanced appraisal of the entire health care problem during armed conflict, and of the multi-layered constraints imposed by the prevailing law, led me to conclude in my Reply that it would be best to contemplate supplementary protections to hospitals within the prevailing legal contours of the contingent protection. Not surprisingly, influential NGOs – including the ICRC, the Safeguarding Health in Conflict Coalition and Human Rights Watch –and the UN Security Council and Secretary-General, who are substantially involved in enhancing health care protection, have called for compliance with and the enforcement (with the adoption of applicative measures) of the current contingent protection. I do hope these international organizations – which are familiar with both the current law and the reality on the ground – will be spared the reproach with which Gordon and Perugini have taxed me, namely that “wittingly or not,” they may end up “defending those who attack hospitals.” These bodies’ motivation is not one-sided: in carrying out their mission to reduce war hazards, all they want to do is save the injured but not kill IHL.