Last week an undercover team of Israeli soldiers, disguised as doctors, patients, and even a woman carrying a baby, snuck into a Jenin hospital, entered a patient’s room, and killed three people Israel claims were terrorists. This brought international condemnation and accusations of war crimes.
Usually we associate war crimes with targeting civilians or causing civilians disproportionate harm. For example, bombing a hospital housing numerous civilian staff and patients just in order to kill three enemy soldiers inside or in a tunnel below could be a war crime. But in this Jenin incident, Israel found a way to harm only its targets while leaving the rest of the hospital undamaged. Shouldn’t this be praised, not criticized?
There are two laws the Jenin attack may have violated. The first is called perfidy. The laws of armed combat designate classes of individuals who may not be targeted, such as civilians, medical personnel, and soldiers injured such that they are no longer able to participate in combat. Perfidy means that it is forbidden to pretend to be a person in one of these categories in order to gain the confidence of an enemy for the purpose of carrying out an attack.
The reason is simple. If soldiers fear that any medic or civilian they encounter could potentially be an enemy in disguise, about to whip out a gun and shoot them, soldiers will no longer feel comfortable allowing medics and civilians to go about their jobs. If hospitals have to fear that any patient or ambulance driver who shows up could be an undercover assassin they would hardly be able to function. Absent trust that individuals granted legal protection from military attack are what they appear to be, these legal protections can’t be effective. By dressing as hospital visitors and staff the Israeli soldiers have undermined the trust that all Palestinian hospitals must count on, and may therefore have violated this rule.
Hors de Combat
A second issue is that at least one of the targets of this attack was hospitalized because he had already been seriously injured. The legal term for this is hors de combat. Once a soldier is incapacitated it is considered unnecessary cruelty to harm him further, so it is forbidden by the laws of armed combat.
If the reason for targeting this hospital patient was not his participation in the current war, but rather the suspicion that even though he was injured in the future he might recover and help plan more terrorist attacks, Israel would then be required to arrest him and put him on trial. Governments cannot just go ahead and execute someone they suspect may be plotting a crime. Sending a hit squad to this room without a legal process would be an extra-judicial killing, which is of course forbidden under international law.
Questions of Fact
We can’t draw a firm conclusion about Jenin because many facts remain unknown. There is some question about how the Israeli soldiers were disguised and the precise way they used their disguises to gain access to the hospital. We don’t know the true medical condition of the people they killed or exactly on what basis they were targeted. Finally, it is unclear as to whether the current state of war applies to the West Bank as well as Gaza. But even if not, perfidy and extra-judicial killings would still be crimes, the legal terminology just different. It’s fair to say that even though no definitive conclusions can yet be drawn, this incident raises serious concerns that require investigation.
If this hospital raid was indeed a war crime, what would be the consequences? Primary responsibility for prosecuting any war crimes committed by the Israeli military falls on Israel itself. So for example, if an Israeli soldier would wantonly kill civilians they should face a court martial and punishment. But in this case, since this hospital raid was approved by Israeli authorities and defended by the government it seems clear they aren’t planning to take any action.
When a country fails to police itself, the other possible source of legal accountability is the International Criminal Court (ICC). The ICC has jurisdiction, as this took place in the West Bank and the Palestinian Authority has acceded to the court.
However, there are two significant obstacles for the ICC. First, the ICC can only bring charges against individuals, not whole military units or nations. So in order for the ICC to bring charges that this Jenin hospital attack violated the laws of armed combat, it would have to identify and charge by name the soldiers who carried it out or the military officials who planned it and gave the orders. Without cooperation from Israel, which would certainly not be forthcoming, this is something the ICC may not have any means to do.
Second, the ICC only charges crimes that meet a threshold of gravity. This is because since the ICC cannot possibly investigate every war crime allegation in every war around the world, it only takes up crimes of enormous scope or horrifying nature that are so severe they demand the court’s attention. It is hard to see how this Jenin incident would meet the gravity criteria for ICC scrutiny.
Palestinian War Crimes
It’s important to remember that while one side’s crimes do not excuse another’s, this incident comes in the context of countless Palestinian war crimes. If the individuals targeted in this attack were in fact Hamas fighters using the hospital to shield themselves from Israel’s military, that would be a crime. Hamas’s military use of Gaza hospitals has already been well documented. Outrage that Israel sent undercover soldiers into a hospital while defending Hamas as it uses hospitals to store weapons and shelter tunnels where it holds hostages and keeps its rockets is flagrant hypocrisy.
That said, legal norms that shield hospitals and civilians from the horrors of war benefit Israelis and Palestinians alike. Tactics which undermine that safety are short-sighted and likely not worth whatever small victories they may help deliver. And no one wants to live under a government where the leaders can order people shot without even the approval of a judge. It’s hard to see how this Jenin operation could have been worth the price.
This article was first written for Times of Israel.