Hospital Shields in the Syrian Civil War
Article by Amina Fahmy,
International Humanitarian Law (IHL) prohibits the intentional targeting of hospitals during armed conflict. Despite many instances throughout history of aerial bombings of hospitals, charges for hospital attacks have never been successfully brought in an international court or tribunal. In the last decade, hospitals in Afghanistan, Gaza, Syria, and Yemen have been targets of intentional attacks, with almost all of the perpetrators claiming that their actions were legitimate because the hospitals were harboring enemy combatants. This “shielding hospital” argument is effective: IHL offers no protection for hospitals that allow enemy combatants to seek shelter inside, and once the accusations have been levied, hospitals have little success refuting them. Since the start of the Syrian Civil War in 2011, the non-governmental health organization Physicians for Human Rights has documented 595 intentional attacks on healthcare facilities traceable to pro-government or Russian forces. This egregious campaign against healthcare facilities is demoralizing for the many Syrian citizens who work in or around these hospitals. However, because these attacks have been so blatant, it is difficult for the Syrian government to claim, with any degree of legitimacy, that they were acting as shields for terrorists. Therefore, affected parties may in fact be able to find success in bringing charges against the government.
When Italy bombed Libyan hospitals in 1911 as part of the country’s ongoing colonial effort, the Italians claimed that the hospitals were too close to the fighting to be protected. Supposedly, the hospitals’ proximity made them attractive places for fighters to hide. Italy’s defense was in stark contrast to the 1864 Convention of the Amelioration of Care for the Sick and Wounded, which codified the principle that medicine should be neutral and external to the war effort. Public outcry led to a proposal to mandate the establishment of hospital zones away from large towns and cities so that young children, mothers, and the elderly could be protected, should war break out. Unfortunately, it would take another forty years before the International Committee of the Red Cross (ICRC) would ratify Article 12 of the Geneva Convention, formally banning attacks on hospitals. Today, Additional Protocol I (“the Protocol”) to the Geneva Convention explicitly prohibits hospitals from being used for the shielding of enemy combatants, and mandates that they be constructed as far away as possible from military targets, denying IHL protection to hospitals that do not comply.
There is significant debate over the efficacy of outlawing shielding hospitals. Proponents argue that such laws ensure that healthcare remains protected from fighting and from being preyed upon by combatants seeking protection. Critics argue that just as the Italians used the shielding hospital principle to justify attacking enemy hospitals, other States will use the shielding justification to further their own military objectives. Further, critics argue that the shielding justification effectively shifts the blame away from the aggressors and places it onto the hospitals. Advocates on both sides of the argument would agree, however, that rebutting a shielding justification is a legal burden that hospitals must overcome, and that it is challenging to do so. It is so difficult in practice, in fact, that charges for hospital attacks have never been brought.
However, the situation in Syria might be different. Analysts have established a pattern of systematic hospital attacks in Syria, some suggesting that the government carried them out in order to hamper evacuation efforts and effectively cripple towns and villages loyal to anti-government forces. Further, Syrian government forces allegedly continued to carry out the attacks after the UN released a deconfliction list, stating where the hospitals were located and certifying that such hospitals were legitimate medical units. It is still unclear, however, whether charges for intentional attacks on healthcare facilities will actually be brought before an international tribunal. Leading NGOs, including Human Rights Watch and Physicians for Human Rights, advocate for Syrian hospitals to bring charges, and countless scholars acknowledge that the government simply does not have the shielding excuse available to them.
The prospect that the Syrian government may be held accountable for their violence against healthcare facilities is an appealing one, but it should not have taken an atrocity of this degree for the suggestion to carry weight. The lack of prior case law implementing the Protocol to protect healthcare facilities will be yet another challenge for prosecutors. Perhaps if IHL had not previously afforded so much protection to so many aggressors that have intentionally targeted healthcare facilities, Syrian healthcare workers may have been spared some of the violence. Regardless, IHL should still be adapted to better protect healthcare workers, and the ban on shielding hospitals should be reconsidered. Unfortunately, even if charges are successfully brought, this is not a win to celebrate, but a tragedy that took far too long to correct.
Amina Fahmy is a first year law student at UC Berkeley School of Law who is interested in civil rights and international human rights law. Amina's interests in law are rooted in her undergraduate study of social and political movements in the Middle East. Prior to law school, Amina spent two years living, working, and studying Arabic in Cairo as a Center for Arabic Study Abroad Fellow.