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this post was submitted on 13 Nov 2023
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Hi there. How about an old soldier who actually had to know this stuff and use that knowledge in a war?
First off, a single incident isn't enough. A sniper or even a squad doing stuff can be dealt with in other ways. In order to strike a hospital (or any protected target) with explosives you need evidence it's a target of "military or strategic value". This is why Israel isn't just claiming a few sporadic attacks but instead that all of the hospitals are actually command centers.
Second, the protected target can only be hit by proportional force that accomplishes a specific goal. If there's an artillery battery in the parking lot and I level the obstetrics wing with dumb bombs then I've committed a war crime. Smart bombs with very low yields absolutely exist. Another example is the eponymous claim of rooftop rockets. I can hit that with an airburst explosive to prevent structural damage to most concrete buildings. In the context of protected targets these things matter. You don't get a green light to demolish it unless it's basically been hollowed out for military use only.
Third, whoever fires on the protected target is responsible for providing the evidence it was required. And war crimes investigators take a very dim view of "they did it once a decade ago", as a reason. Israel and it's allies have yet to do anything that actually proves the existence of a military or strategic target in places like the UNRWA Gaza headquarters.
While proportionality is in LOAC, if there is ample intelligence that the hospital is being used to commit attacks, it doesn't have to be used exclusively to commit attacks to be a legal target.
Rule 28. Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.
https://ihl-databases.icrc.org/en/customary-ihl/v1/rule28#:~:text=to%20medical%20units-,Rule%2028.,and%20protected%20in%20all%20circumstances.
"the protection of medical units ceases when they are being used, outside their humanitarian function, to commit acts harmful to the enemy. This exception is provided for in the First and Fourth Geneva Conventions and in both Additional Protocols.[37] It is contained in numerous military manuals and military orders.[38] It is also supported by other practice.[39]"
"While the Geneva Conventions and Additional Protocols do not define “acts harmful to the enemy”, they do indicate several types of acts which do not constitute “acts harmful to the enemy”, for example, when the personnel of the unit is armed, when the unit is guarded, when small arms and ammunition taken from the wounded and sick are found in the unit and when wounded and sick combatants or civilians are inside the unit.[40] According to the Commentary on the First Geneva Convention, examples of acts harmful to the enemy include the use of medical units to shelter able-bodied combatants, to store arms or munitions, as a military observation post or as a shield for military action."
And that's before we get into the creative reinterpreting of LOAC for terrorists in non- international armed conflicts fought by non-state insurgent groups which were invented post 9-11.
I never said it had to be in exclusive use to get fired on.
I did say the party firing on the hospital needs to provide evidence that each hospital, at each time, was a legal target. "I said so" doesn't pass muster.
My friend, they celebrate an airstrike with multiple rocket enough to create a crater few meter wide, using it on a human target, inside a crowded refugee camp. They certainly will not listen to any reasoning.
This is not an isolated incident.
We don't even have evidence of a single incident.
And before you reply with LoOk At ThE ViDeO!11
That's one guy. In the street outside a hospital. That in no way justifies anything other than the infantry going by to check it out and help the doctors. One guy with an RPG (not the sensationalist ATGM setup the headline would have us believe) is nowhere near the evidence required to drop ordinance on a hospital.
I'm older than you think. I was in the 2003 Iraq invasion. And I was specifically a mortarman. I have vivid memories of listening to the fires net and the Battalion coordinator asking for exact details and then us getting exact fire mission specifics to minimize damage. ( A normal mission would be something like all guns fire 10 rounds of ground det HE as fast as possible. These missions were more like our best gun firing one airburst or smoke at a time.) The thing is, those details are all recorded because you have to be able to account for every mission fired on a protected target. They wouldn't be sensitive either, not the parts about how exactly Hamas is using the building as reported by units on the ground. The reporting method is known and Hamas' tactics are something they want to show the world.
It's the absence of these reports along with the completely lackluster post battle evidence that has me wondering what the hell the Israelis are doing.