A Reminder that Targeting a Hospital is a War Crime

[Elise Baker is a senior staff lawyer at the Atlantic Council Strategic Litigation Project, where she leads work on accountability and support for victims and survivors of human rights violations in Syria. She previously documented the Assad regime’s systematic attacks on health care in Syria with Physicians for Human Rights.

Britt Gronemeyer is an assistant director at the Atlantic Council Strategic Litigation Project, where she supports accountability for human rights violations in Iran, Syria, Ukraine, and other countries]

The world is focused on the ceasefire taking hold across Gaza, and rightly so. It brings urgent, life-saving relief to the enclave’s more than two million civilians. However, while mediators, politicians, and humanitarian workers’ immediate focus should be on securing a lasting ceasefire and facilitating urgent humanitarian assistance, lawyers and human rights activists should be doubling down on accountability efforts.

Israeli military action in Gaza over the past two years has obliterated international law, with near-daily reports of war crimes and crimes against humanity, costing tens of thousands of lives. Chief among Israeli violations in Gaza are strikes on medical facilities, which total in the hundreds. Prior to the ceasefire, the World Health Organization recorded more than 700 attacks on health care in Gaza, all carried out with impunity.

Failure to ensure accountability for these attacks—to reinforce international law and resist the normalization of war crimes and crimes against humanity—will further erode international law and make future violations more likely, leading to the complete erosion of health care systems in conflict and costing hundreds of thousands more lives.

Double Tap Strikes on Nasser Hospital

While international experts and organizations have condemned Israel’s strikes on hospitals and health facilities throughout the war, backlash intensified following Israel’s double-tap strike on Nasser Hospital in southern Gaza in late August. The attack killed 22 people, including five journalists, and made global headlines. However, with a daily onslaught of horrors in Gaza, the world would move on; shortly after the Nasser attack, relief authorities warned of Gaza’s “descent into a massive famine,” and Israel launched a new devastating assault on Gaza City.

But the world must not move on from the Nasser Hospital strike or other targeted attacks on hospitals. While it may be somewhat rote to highlight the blatant illegality of a double-tap strike targeting a hospital in Gaza, it is necessary to make these obvious points—to condemn the attack and resist the normalization of war crimes.

Just after 10:00 am on the morning of August 25th, Israeli forces fired two nearly simultaneous precise tank shells, striking the exterior staircase on the eastern side of Nasser Hospital and a similar staircase on the northern side. Reuters cameraman Hussam Al-Masri was positioned on the eastern staircase. His live video feed went black at the moment of the strike, when he was killed. According to multiple eyewitnesses, Al-Masri’s was the only camera positioned at the top of the hospital, a known reporting location where journalists, including Al-Masri, regularly operated, including to find cell service to upload material.  

Following the initial strike, rescue workers (many in visible safety vests), journalists (some visibly carrying press vests), healthcare providers, and nearby civilians rushed to the scene to aid victims and cover the strike. Videos show an injured person being carried down the northern staircase and dozens of people in the eastern staircase, carrying a gurney and pulling out a camera.

Nine minutes after the initial strikes, and following drone surveillance on the site of the strike, a second round of strikes hit the hospital. As with the first round, this round included two separate tank shells, both precise munitions fired near simultaneously at the exposed eastern staircase where responders were gathered. This second round of strikes maximized civilian casualties. Together, the four strikes killed twenty-two people, including five journalists, four hospital staff, a final-year medical student, a firefighter, and other rescue workers. In addition to those killed, at least another 50 were injured, including already critically ill patients being treated at the hospital.

While Israeli Prime Minister Benjamin Netanyahu initially characterized the strikes as a “tragic mishap,” it’s unclear what about this attack could have been a mistake. The pattern of the attacks—two simultaneously fired precise munitions, followed minutes later by two more simultaneously fired precise munitions, with three of the four munitions hitting the same spot—suggests they were coordinated and targeted. Nasser Hospital is the largest and only remaining partially functioning hospital in southern Gaza, its location well-known to the Israeli Defense Forces (IDF).

This attack also took place in the context of an already extremely diminishing health care system, as medical facilities in Gaza have been under attack for nearly two years, hundreds of health workers have been killed, and Israel is increasingly barring foreign doctors from volunteering in Gaza.

Every Indication This Attack Was Illegal

International Humanitarian Law prohibits attacks on hospitals, and in general, targeted attacks on hospitals are war crimes. Hospitals only lose their protection and may be targeted when four conditions are met: (1) “they are being used, outside their humanitarian function, to commit acts harmful to the enemy,” (2) an advance warning was given to cease the acts or evacuate civilians, and it was not heeded, (3) the attack is proportionate, meaning harm to civilians is not excessive in relation to the concrete, direct military advantage anticipated from the attack, and (4) the attack is required by military necessity, with no other feasible means causing less harm to civilians. If even one of these conditions is not met, an attack on the hospital is illegal and, in many cases, constitutes a war crime.

There is no dispute that Nasser Hospital was functioning as a hospital at the time of the attack; it is the only major hospital still functioning in southern Gaza and was operating at 180 percent bed capacity in the weeks and days leading up to the attack. Thus, the question is whether Hamas was using Nasser Hospital to commit acts harmful to Israel, and if so, whether the IDF’s attack met the three required preconditions of advance warning, proportionality, and military necessity.

The day after the attack on Nasser Hospital, the IDF released a statement with the results of an “initial inquiry” into the strike. According to the statement, troops with the Golani Brigade identified a camera “positioned by Hamas in the area of” Nasser Hospital and used “to observe the activity of IDF troops, in order to direct terrorist activities against them.” The IDF said the troops’ observations were “further supported” by Hamas’ use of hospitals in Gaza, and Nasser Hospital in particular, “to carry out terrorist activities since the start of the war.” Based on these observations, “the troops operated to remove the threat by striking and dismantling the camera.” According to the IDF, six “terrorists” were killed in the strikes on Nasser Hospital, although the IDF states that none of the journalists killed in the attack were “terrorists.” Israeli outlets have reported additional details, including that the IDF Southern Command had approved a drone strike on the camera. Troops said they then identified what they thought was a rifle scope and received authorization from their division commander for tank fire. The second round of strikes was in response to reportedly seeing armed men.

There are many issues with the IDF’s explanation and justification. First, all indications are that the alleged “Hamas camera” belonged to Reuters journalist Hussam Al-Masri. He was broadcasting footage of Khan Younis from Nasser Hospital and was the only person on the balcony at the time of the attack. Journalists, including Al-Masri, frequently used the balcony and staircases of Nasser Hospital to film, photograph, and access internet. Al-Masri himself positioned his camera there at least 35 times between May and August 25, when he was killed. Media outlets have reported that the IDF was “fully aware” of journalists’ positions at Nasser Hospital, and they “frequently observed” the location by drone. The IDF provided no support for their claim that Hamas operated a camera at Nasser Hospital. However, hours after the attack, Israeli Channel 12 published a photograph of the alleged Hamas camera and operative, both covered in a white cloth, which Al-Masri was known to use as protection from heat and dust. Channel 12 credited the identification of the “Hamas camera” to Refael Hayoun, a right-wing Israeli civilian open source investigator. Hours after the attack, Hayoun posted a video on X justifying it because “these terrorists”—referring to the journalists who were killed—were collecting intelligence on Israeli forces and transmitting it to Hamas. This raises the question of whether the IDF was targeting a journalist’s camera based on an unsubstantiated allegation that he was aiding Hamas. The IDF has a pattern of targeting journalists based on such allegations, which are rising.

Second, within the significant volume of videos and photographs documenting the double-tap strike, there are no images of armed men. Every individual on the eastern staircase, where the second round of strikes hit, appears to be a first responder or journalist. Relatedly, the IDF’s claims of killing six Hamas members in the Nasser Hospital strikes are highly suspect. According to reports, at least one was reportedly killed the day before, and not at Nasser Hospital. At least two others were health workers and first responders, not members of Hamas. Two others had been visiting patients at the hospital and were assisting with rescue efforts when they were killed. Multiple eyewitnesses have confirmed that no one killed in the strikes was armed.

Third, even if there were a “Hamas camera” or Hamas fighters at the hospital, Israel was strictly required to issue a warning before attacking the hospital. First responders and media organizations state that no warning was given. Israel has not claimed a warning was issued.

Fourth, any strike must be proportionate. Firing two high-explosive tank shells at the last functioning hospital in southern Gaza, followed by two more high-explosive tank rounds fired at first responders and journalists, must be reasonably expected to cause substantial civilian harm such as 22 deaths and 50+ injuries. That level of harm is excessive in relation to any anticipated military advantage resulting from the destruction of a single, stationary camera.

Finally, the strike also violated principles of military necessity and humanity. Firing high-explosive tank rounds at a hospital to destroy a camera is a wanton use of force that would predictably inflict superfluous injury and unnecessary suffering. Firing two more high-explosive tank rounds at first responders and journalists rescuing the injured from and documenting the first strike completely eviscerates the principles of military necessity and humanity. Retired Israeli military staff have confirmed that less deadly munitions were available, and current Israeli officials have stated that tank shells should not have been used.

The IDF’s statement on its initial inquiry concluded by identifying two gaps that require further examination: (1) the authorization process prior to the strike, including ammunition approved and timing of the approval, and (2) the decision-making process in the field. While no additional formal explanation has been offered, Israeli officials have since indicated that troops fired the strikes without proper authorization from the senior regional commander. Israel should launch a genuine investigation into these and other identified issues with the deadly strikes on Nasser Hospital and subsequently take steps to ensure accountability. However, Israel’s track record with internal investigations into strikes on civilians suggests that any potential investigation is unlikely to result in discipline or legal accountability. The Golani Brigade, which launched the attacks on Nasser Hospital, has committed other egregious violations with little internal response, including the massacre and mass grave burial of 15 medics and rescue workers in March that only resulted in a letter of reprimand and one deputy commander’s dismissal. An analysis by Action on Armed Violence recently found that 88 percent of Israeli investigations into alleged war crimes in Gaza and the West Bank have been stalled or closed without findings. As a result, accountability will most likely need to come externally.

The Need for Accountability

While domestic accountability within Israel or Palestine remains extremely unlikely, foreign and international courts are viable avenues to justice and accountability. Foreign courts, in the US and Europe, can and should be used to hold US and European actors accountable for aiding and abetting Israeli attacks on hospitals through the provision of military aid—for example, tank projectiles, bombs, and other munitions used in hospital attacks. Foreign courts must also investigate (and where there is sufficient evidence, prosecute) Israeli soldiers and military officials involved in targeting hospitals, as well as those who aid and abet such attacks. In addition, the International Criminal Court (ICC) must stay the course, despite political attacks meant to obstruct justice, and pursue accountability for those most responsible for the most serious international crimes. The ICC should prosecute this and other targeted attacks on hospitals in Gaza as war crimes and, given their widespread and systematic nature, crimes against humanity.

Today, Gazans desperately need food, clean water, routine and urgent medicine and medical care, shelters to sleep in, and many other basic necessities. But Gazans also need to see accountability for the innumerable egregious violations they’ve lived through. In the past decade, there have been thousands of attacks on hospitals and medical workers in conflicts globally, including in Syria, Yemen, Ukraine, Sudan, the Central African Republic, and Gaza before 2023. However, there have been no trials for attacks on hospitals in conflicts. Not a single person has even faced charges for attacking hospitals in these conflicts. International law is failing to protect hospitals, and civilians—doctors, nurses, medical workers, and patients—are dying as a direct result.

Continuing attacks on hospitals, with virtually no response from actors enforcing the laws of war, will all but ensure that health care systems will be obliterated in future conflicts. Accountability can help change the course.