On Bombing Hospitals
Stefan Tarnowski
In the summer of 2019, I took part in an investigation by the Syrian Archive into attacks on medical facilities in Syria, described by the Lancet in 2017 as ‘the most dangerous place on earth for healthcare providers’. The Syrian Archive verified 410 incidents of hospital bombings, and identified with confidence the perpetrators of 252 attacks. Ninety per cent of those were acts of aerial bombardment by Assad’s forces and their allies, in particular the Russian air force. Systematically targeting hospitals was one of their most ruthless tactics, a means to depopulate opposition areas.
There’s no starker asymmetry of power than the aerial bombardment of civilian areas by state and imperial air forces. The Syrian Archive decided that the most effective route to a prosecution would be through an investigation into hospital bombings. (The Yemeni Archive, a companion project, documented 133 attacks on hospitals and medical facilities in Yemen between 2014 and 2019, 72 of them carried out by the Saudi-led coalition, armed and assisted by the US and UK.) Hospitals and medical personnel are ‘protected objects’ under international law. Since Syria was also the most dangerous place in the world for journalists – first because the state had banned and expelled foreign correspondents from the country; second because journalists had been kidnapped and executed by militant groups – the investigation relied heavily on footage produced, at considerable risk, by media activists and first responders.
For investigators, this was considered an opportunity as much as a constraint. User-generated content – such as videos shot on smartphones and uploaded on YouTube – could become a new form of evidence to hold states to account under international law, a step-change similar to the pioneering use of state documents as evidence at Nuremberg. Investigators hoped that this new kind of evidence – produced by ordinary citizens using cheap and accessible tech – would democratise international criminal law: ‘More video can result in more justice,’ as one lawyer argued.
There were political, technical and legal hurdles facing the investigation. The way to an international criminal tribunal at The Hague can be blocked by veto at the Security Council, in Syria’s case by Russia and China. But there are workarounds, such as prosecution in a third country with universal jurisdiction legislation. Two Assad regime officials who had defected to Germany were put on trial in Koblenz and found guilty of torture.
Doubts concerning the reliability of user-generated content on social media made it seem unfit for admission to court as evidence, if it was even still available: following the Bataclan and Christchurch attacks, Western governments had put pressure on social media platforms to remove content that might radicalise viewers. But activists and investigators worked to restore the data and verify it. Investigators at the Syrian Archive liaised with platforms to recover deleted footage. First responders in opposition-held areas under bombardment were kitted out with GoPro cameras that automatically stamped footage with metadata to determine its location, date and time. And, thanks to the work of other organisations such as the UN International, Impartial and Independent Mechanism in Geneva, data is archived in ways that preserve a chain of custody.
Even when it was possible to prove not only that an attack took place but who the likely perpetrator was, in cases of aerial bombardment it was almost impossible to prove mens rea – that the act was intentional. If a case were ever to go to trial, the defence could always argue that the missile had hit the hospital by mistake, collateral damage in an attack on a nearby building that housed a militia and was therefore a legitimate target. The onus would then be on prosecutors to prove beyond reasonable doubt that every surrounding building didn’t house a legitimate military target: a close to impossible task.
What’s more, a medical facility is only a protected object under international law if it doesn’t house fighters or store weapons. The defence could always argue that the hospital concealed a military facility – a claim which Russian spokesmen would invariably fall back on in response to condemnation from the media or at the UN.
The Syrian Archive investigation assembled a mass of data showing that medical facilities were being bombed, often repeatedly, by state and imperial air forces. But a pattern doesn’t necessarily prove intent under international law. Libby McAvoy, the Syrian Archive’s legal adviser, proposed that if a medical facility was targeted twice in fairly quick succession, it might be possible to make a legal case that the hospital had been struck intentionally. There could also be cases in which the air force wasn’t only targeting the facility but also the first responders and medics who gathered at the scene of the first bombing and were hit by the second. The legal concepts she was carving out through these spatio-temporal criteria – multiple targeted strikes and double taps – could prove shades of intentionality. But the investigation couldn’t throw up an ‘open-and-shut’ case; we can only know the probity of this kind of evidence if it’s tested in court.
So far, none of the incidents have gone to court. The investigation was published as a report on the Syrian Archive’s website. We have a lot of video and no justice. It may be that more evidence comes to light in future: documents, for example, that show pilots were obeying orders to target medical infrastructure, or audio recordings proving intent.
If there is a lesson to be drawn for the carpet bombing of Gaza and the targeting of its hospitals, it’s a bleak one. The videos released by the Israeli military and by embedded Western journalists following the ground invasion show what they claim is a weapons store at Shifa Hospital. It was hardly proof of the militia headquarters alleged to be underneath the hospital. Even the US deflated its language and has subsequently referred to the hospital as a ‘command and control node’. But the images may also make it impossible for lawyers to prove beyond reasonable doubt that the hospital should have maintained its protected status, and that its targeting was therefore illegal.
Between the constraints of international law and institutions, the prosecution of a state for bombing a hospital – even with a mass of verified data determining who committed the act – is practically impossible. At the same time, the regime of international law allows acts of aerial bombardment to be classified as ‘proportionate’, ‘legitimate’, ‘compassionate’, even ‘humanitarian’, whether they’re conducted by Russia, Syria, Saudi Arabia, Israel or anyone else. With historic and ongoing failures of accountability, states will continue to bomb hospitals with effective impunity to drive the displacement of civilian populations.
Comments
“Even when it was possible to prove not only that an attack took place but who the likely perpetrator was, in cases of aerial bombardment it was almost impossible to prove mens rea – that the act was intentional.”
and:
“Between the constraints of international law and institutions, the prosecution of a state for bombing a hospital – even with a mass of verified data determining who committed the act – is practically impossible. . . . .With historic and ongoing failures of accountability, states will continue to bomb hospitals with effective impunity to drive the displacement of civilian populations.”
Certainly the overall burden of proof lies with the prosecution: the evidence of apparent war crimes and of the intention to commit them needs to be sufficient, admissible, reliable and credible, and you have explained how in this digital age so much more evidential material is potentially available than used to be the case, even only a decade or two ago.
But as regards mens rea, the IDF’s commission of war crimes in Gaza is almost self-evident, and the intention to commit them self-declared. As Professor Conor Gearty argues in the very latest edition of LRB:
“Israel has been methodically engaging in military actions within Gaza that cumulatively appear to breach many of the provisions of the Rome Statute as well as pre-existing settled international humanitarian law, a code that has developed over time and goes beyond the crimes listed in the Rome Statute.”
Once a prima facie case is established, the evidential burden shifts. The defence is of course likely to argue some sort of justification: that a missile had hit a hospital by mistake, or that it suffered collateral damage in an attack on a nearby building which housed a militia and was therefore a legitimate target. But it still has to show that the belief was well-founded. It must produce evidence credible enough to give rise to a reasonable doubt as to intention, by showing that the hospital itself and/or some of the surrounding buildings did indeed house a legitimate military target; or that the defendant had reasonable grounds to believe that this was the case; and that all reasonable efforts were made to minimise civilian casualties and to allow timely humanitarian relief to get through.
As things stand, to quote Prof Gearty again:
“Nine UN special rapporteurs have warned that the ‘complete siege of Gaza coupled with unfeasible evacuation orders and forcible population transfers’ constitute ‘a violation of international ... criminal law’, amounting to a war crime. But far from deterring Israeli actions, such statements may as well have been a ‘to do’ list for the IDF. The ICC prosecutor will be spoilt for choice.”
The main obstacles to the obtaining of justice will not be the prosecution's difficulties in assembling the evidence and discharging the burden of proof, but the cowardice and inertia of politicians who stand in the way of any cases reaching The Hague in the first place.
There is a confusion concerning armed combatants in a hospital. Their mere presence does not mean that the hospital loses its protected status. A wounded or sick combatant goes to hospital and has every right to do so, and the hospital staff have an obligation to treat him to the best of their ability (First Geneva Convention). That wounded combatant often arrives carrying weapons or his comrades transporting him are armed. Still no loss of protection. The armed elements leave the hospital and are supposed to take the wounded fellow's weapons with him; this does not always happen due to the reigning confusion but the presence of several such weapons does not constitute a "weapons cache" in the hospital. This is a simple practical reality of warfare.
What is important is what the weapon carriers do while in the hospital. Should they take offensive action against the enemy while on the grounds of the hospital then the hospital loses its protected status. Nonetheless, any counter action against the hospital must still meet strict requirements of proportionality; you cannot destroy a hospital just because someone took a potshot at you.
christos giannou