Annie Sparrow & Kenneth Roth
Foreign Policy / February 9, 2024
The ICC should prosecute Israelis responsible for bombing hospitals, denying access to medicines and vaccines, and causing excessive civilian harm.
On January 26, the International Court of Justice (ICJ) in The Hague issued an initial ruling in South Africa’s lawsuit accusing Israel of genocidal acts in Gaza. The court did not call for an immediate cease-fire, nor did it rule on whether Israel is in fact committing a genocide, but it did instruct Israel to take provisional measures to prevent genocidal acts. In its ruling, the court noted “a large number of deaths and injuries, as well as the massive destruction of homes, the forcible displacement of the vast majority of the population, and extensive damage to civilian infrastructure.”
A less noted pillar of the case against Israel, however, is its systematic assault on Gaza’s medical infrastructure. Since Hamas’s horrific Oct. 7 attack, Israel has repeatedly targeted health care facilities, ambulances, and access roads. It has arrested health care workers, blockaded fuel needed for generators, and withheld critical medical and surgical supplies—all of which are intended to undermine Gaza’s health care system.
There is a particularly cruel circular logic at play here: Israeli forces, as they bomb and besiege Gaza, are creating an urgent need for medical care among civilians while simultaneously denying them access to it. Israeli forces are far from the first to target health care. In Ukraine, where Russian soldiers damaged or destroyed nearly 700 health care facilities in the first 100 days of the full-scale invasion, these attacks drove the mass exodus of 5 million people.
In Syria, attacks on health care were central to the forced dispersion of 14 million people. Government forces killed at least 831 health care workers between 2011 and 2023. Doctors took it upon themselves to build hospitals underground in opposition-held areas in the hope of avoiding deliberate bombardment by the Russian-Syrian military alliance.
Israel’s destruction of Gaza’s health care system is not only an important part of the genocide charges—it is also a blatant war crime that should be prosecuted outright by the International Criminal Court (ICC), which has an active investigation underway of war crimes in Palestine. While the ICJ resolves disputes between states, the ICC adjudicates criminal prosecutions of individuals.
Targeting health care achieves little militarily while amplifying the death toll and suffering caused by indiscriminate bombardment. Such attacks flout the core purpose of international humanitarian law—to relieve civilian suffering—and are thus often an omen of broader atrocities to come.
Israeli attacks on health care started in the immediate aftermath of the Oct. 7 assault. Within the first 36 hours, Israeli forces attacked the Indonesian Hospital in Beit Lahia, Nasser Hospital in Khan Yunis, and Al-Quds Hospital in Gaza City, among several others, killing six health care workers in the process. While offering little proof, Israel routinely blames Hamas for fighting from civilian areas and institutions, yet Israeli forces have regularly deployed methods of warfare that are indiscriminate, impose a disproportionate cost on civilians, or both.
By Nov. 24, 30 of Gaza’s 36 hospitals had been bombed, many repeatedly, even while medical staff, patients, and civilians seeking shelter remained inside. In addition to hospitals, Israeli forces have targeted ambulances, medical aid convoys, and access roads. As of Jan. 30, the World Health Organization (WHO) reported 342 health care-related attacks in Gaza, resulting in hundreds of deaths and injuries. At this point, every hospital in Gaza is either damaged, destroyed, or out of service due to lack of fuel; only 13 hospitals are even partially functioning.
Those hospitals, ambulances, and clinics that have survived bombing have been debilitated by blockades and obstruction of humanitarian convoys, depriving health care providers of not only water, fuel, and electricity but also critical medical supplies, such as oxygen, blood, and anesthesia.
The staggering figure of more than 67,000 people injured in Gaza thus far doesn’t begin to take into account the consequence of the routine medical care that is being denied to the civilian population. From childhood vaccinations to cancer treatment and dialysis, modern medical care has largely come to a standstill for 2.3 million Palestinians in Gaza, whose life expectancy is already 10 years shorter than people living a few miles away in Israel and whose rates of neonatal, infant, and maternal mortality are nearly five times higher.
Gaza’s only hospitals providing treatment for adults and children with cancer, the Turkish-Palestinian Friendship Hospital and Al-Rantisi Specialized Hospital for Children, have been bombed, besieged, and forced to close. Additionally, thousands of patients who previously received specialized treatment in Jerusalem that was unavailable in Gaza—averaging 100 per day—are now unable to access it.
As the ICJ noted in its ruling, “some 180 Palestinian women are giving birth daily amidst this chaos,” often wherever they are sheltering rather than in any medical facility. Of these women, the WHO estimates, 15 percent are likely to suffer complications such as preterm delivery, obstructed labor, and postpartum hemorrhage. Without lifesaving caesarian sections and blood transfusions, women are more likely to die in childbirth. Without incubators, oxygen, surfactant, steroids, or antibiotics, newborns are more likely to suffer brain damage or die from sepsis or respiratory distress.
The bombing and closure of Gaza’s two rehabilitation hospitals mean that 441,000 people with preexisting disabilities—constituting 21 percent of prewar households, a number that is now likely much higher—have no place to receive care or access crutches, wheelchairs, or prostheses.
Before the war, an estimated 71 percent of the adult population in Gaza had depression. According to UNICEF, at least 800,000 children in Gaza needed mental health and psychosocial support. Yet since the outbreak of war, the area’s only psychiatric hospital was bombed, three psychologists were killed, and mental health services have been vastly reduced—all while virtually the entire civilian population is being psychologically traumatized by the horrors of war.
Making matters worse, the combination of forced mass displacement, unhygienic conditions caused by interrupted sanitation services and sewage treatment, and interrupted vaccination will inevitably drive disease outbreaks in the future, functionally resulting in a form of indirect biological warfare.
Taken together, this deprivation of basic health care will only compound the death toll of this war beyond those killed by bombs, shells, and bullets.
The Israeli government’s ritualistic insistence that it complies with international humanitarian law is running thin in the face of overwhelming contrary evidence. The lawyers defending Israel in The Hague sought to deny genocidal intent by asserting that Israel is providing some medical supplies and services, including “six field hospitals and two floating hospitals,” as well as two more hospitals in the process of being built. But 15 of the court’s 17 judges found those steps insufficient, citing U.N. Secretary-General António Guterres’s assessment that the “health-care system in Gaza is collapsing.”
In mid-January, Qatar announced a deal in which Hamas agreed to deliver medication to the hostages in its captivity in return for a vow that “medicine along with other humanitarian aid is to be delivered to civilians in Gaza.” Of course, it is wrong for Hamas to deny hostages the medicine they need, but that does not absolve Israel of blocking delivery of medicine to Palestinian civilians in Gaza and using their medical needs as a bargaining chip. Humanitarian law protects the right of even wounded combatants to seek medical care and requires allowing “rapid and unimpeded passage of humanitarian relief for civilians in need.”
International humanitarian law already protects health care facilities outside of the context of genocide. These facilities lose protected status only if they are being used to commit an “act harmful to the enemy.” A past presence is not enough; a current threat is required. Israel has tried to defend its attacks on health care facilities by blaming Hamas for turning them into legitimate military targets, but given the paucity of evidence, the ICJ understandably found that excuse wanting.
For example, the Israeli government repeatedly claimed that Hamas was maintaining a command center under Al-Shifa Hospital in Gaza City, the largest hospital in the Gaza Strip. Yet when Israeli forces took over the hospital in November, all they could point to as evidence was a handful of rifles and a single tunnel—possibly to the same bunker built by Israeli engineers when Israel last controlled the site—in territory that is already permeated with Hamas-built tunnels. A Washington Post analysis of the evidence that Israel made public found it underwhelming. Today, Al-Shifa resembles a refugee camp and has been reduced to offering first aid instead of lifesaving clinical care. With no active Hamas presence, Israel’s reasoning was insufficient to justify depriving the territory’s population of an essential health facility.
It was not only Al-Shifa. Human Rights Watch found “repeated, apparently unlawful attacks on medical facilities,” including “the Indonesian Hospital, al-Ahli Hospital, the International Eye Care Center, the Turkish-Palestinian Friendship Hospital, and Al-Quds Hospital.”
Moreover, even if there were a military rationale, international humanitarian law prohibits—in other words, considers a war crime—attacks that are expected to cause civilian harm that would be “excessive in relation to the concrete and direct military advantage anticipated.” Shutting or occupying hospitals in Gaza, however, provides no such advantage, and the civilian harm inflicted on Palestinians there has thus far been immediate and crushing. When such civilian harm is “clearly excessive,” it is subject to prosecution by the ICC. Perpetrators of such unlawful acts (or those responsible for ordering the attack or with command responsibility) are subject to prosecution by the ICC.
That harm was compounded by the manner in which the takeovers were carried out. As the International Committee of the Red Cross explains, “prior to an attack against a medical unit which is being used to commit acts harmful to the enemy, a warning has to be issued setting, whenever appropriate, a reasonable time-limit and that an attack can only take place after such warning has remained unheeded.”
Instead, the Israeli military issued broad evacuation orders to entire regions of Gaza with minimal provision for safe passage or reception of those ordered to leave. As Human Rights Watch found, the “sweeping nature of the order and the impossibility of safe compliance, given that there is no reliably secure way to flee or safe place to go in Gaza, also raised concerns that the purpose was not to protect civilians, but to terrify them into leaving.”
Gaza is becoming increasingly uninhabitable, and drastic action will be required to stop—and begin to reverse—the enormous damage that has been done. But mere calls to protect hospitals and pronouncements that “health care is #NotATarget” miss the point: These attacks could be part of a plan to make Gaza uninhabitable and drive Palestinians out, an outcome that senior Israeli ministers—whose support Israeli Prime Minister Benjamin Netanyahu needs to remain in power—continue to promote.
ICC Prosecutor Karim Khan’s investigation so far has yielded only statements to the media rather than criminal charges. As he inevitably addresses the fallout of this war, he should include the assault on health care among the war crime charges. Punishing perpetrators of these attacks is the best way to prevent their proliferation—in Gaza and, inevitably, beyond.
Annie Sparrow is a practicing clinician in war zones and an associate professor at the Icahn School of Medicine at Mount Sinai in New York
Kenneth Roth is a visiting professor at the Princeton School of Public and International Affairs and the former executive director of Human Rights Watch, which he led from 1993 to 2022
