The playbook for bombing hospitals in war: deny, deflect, justify. The law must close these loopholes | Maarten van der Heijden

Hospitals in Gaza have “turned into battlegrounds”, the World Health Organization’s representative for the West Bank and Gaza stated at the UN security council in January. He warned that the healthcare system was being “systematically dismantled and driven to the brink of collapse”.

Israel’s attacks on medical centres in Gaza have prompted widespread condemnation from civil society, academics and news agencies, many labelling these strikes as breaches of international law or war crimes. WHO director-general Tedros Adhanom Ghebreyesus posted that: “Any attack of healthcare facilities is a violation of international humanitarian law.”

In an ideal world that assertion would hold true. But this is not the legal reality: international law does not in fact impose a blanket ban on attacks against hospitals or other medical facilities. The Geneva conventions leave a broad margin for hospitals to lose protection if they are used for acts considered “harmful to the enemy”.

Although the Geneva conventions require that military strikes adhere to the principles of proportionality and implement every feasible precaution, in practice these obligations remain conspicuously vague. This leaves considerable room for interpretation and forgoes accountability. As a result, healthcare infrastructure remains perilously exposed in war. In Gaza, attacks have been systematic, as they have been in Ukraine, Yemen, Myanmar and Sudan.

Those accused of bombing hospitals use this ambiguity with a well-worn playbook:

Option 1: Deny the allegations or claim ignorance, after all, no public investigation will scrutinise your targeting assessment or attack.

Option 2: Insist the strike was a mistake, since intent is required to establish a war crime.

Option 3: Claim the intended target was an object nearby, making the hospital an unfortunate case of collateral damage.

Increasingly, states opt for Option 4: Accuse the opposite side of violating international law, alleging, often without sufficient evidence, that the hospital was being used as a command centre, weapons depot, or missile launch site.

Beit Hanoun hospital in northern Gaza, demolished by the Israeli army, served more than 400,000 people and was the only medical facility in the area. Photograph: Anadolu/Getty Images

Overall, the legal framework provides a favourable position for everybody with a voice in the matter. Rogue states can hide from their responsibilities. Friendly states remain silent, benefiting from the ambiguity. And legal scholars can contemplate the complexities of the proportionality assessment for attacks for decades to come, with no effect. Healthcare workers and patients – injured, silenced, imprisoned, tortured and killed – seem not to be worth an honest discussion on the functioning of the law for their protection.

One of the most highly regarded experts and advocates for humanitarian law, Prof Marco Sassòli, argues that the lack of an obligation for transparency regarding the targeting process makes the Geneva conventions a “playground for ‘lawfare’ through false accusations”. He calls for greater transparency in war, including post-conflict disclosure of targeting decisions, yet notes that parties are unlikely to release sensitive military information lightly.

This may not be sufficient for the protection of hospitals. Evidence of the rise of recurrent attacks on healthcare facilities worldwide is plentiful. Their impact is well documented too: a 16-country study by the ICRC concludes that explosive weapons are the leading cause of damage to health facilities. They are also responsible for the greatest number of casualties among staff and patients. In light of these sobering facts, additional protection is needed.

To reverse the rise in attacks on healthcare facilities and workers international law must provide immediate, simple and unequivocal protection.

One possibility would be to establish an absolute prohibition on attacks against healthcare facilities. Or, at the very least, to ban the use of aerial bombing and explosive weapons in and around them. This should be combined with a prohibition to use hospitals and surrounding areas for military purposes. Ideally, both should also be war crimes, without exception. Without such unequivocal protections, hospitals will remain theatres of war, and international law will continue to offer a script for impunity.

• Maarten van der Heijden is a global health lawyer and a researcher at the London School of Hygiene & Tropical Medicine and the Geneva Graduate Institute