International Humanitarian Law’s Protection of Healthcare Under Pressure: An Assessment of the IDF’s Approach to “Hospital Shields” and “Acts Harmful to the Enemy” in the Conduct of Hostilities in Gaza
摘要
International humanitarian law (IHL) grants extensive protection to medical personnel, transport, and facilities: belligerents bear a negative duty to refrain from directly attacking them and a positive duty to respect and protect them. However, these rules allow for exceptions, permitting the targeting of such protected persons or objects when they lose their humanitarian function and contribute to the enemy’s war effort. Specifically, this includes situations where “acts harmful to the enemy” are committed or when medical facilities or personnel are used to shield military activities. This chapter aims to assess how the Israel Defense Forces (IDF) have interpreted and applied this legal framework during the ongoing hostilities in Gaza. It demonstrates that the IDF has attempted to provide an interpretation of IHL norms and principles which expands the circumstances in which exceptions to protection can be invoked. Furthermore, it critiques the IDF’s understanding of the principles of distinction, proportionality, and precaution, arguing that it effectively empties these essential legal principles of their effet utile. In light of this analysis, the chapter challenges the arguments put forth by scholars advocating for the abrogation of exceptions to the protection of medical personnel and facilities. It concludes that the solution to the issues raised does not lie in amending the law, but rather in ensuring the proper enforcement of the existing legal framework, which strikes an appropriate balance between military necessity and humanitarian principles.