Ukraine: is targeting hospitals always a war crime?

Black smoke rising over a grey sky. The images on social media all look the same. Since the beginning of the Russian invasion of Ukraine, web users, several NGOs as well as the Ukrainian foreign minister, Dmytro Kuleba, have claimed there have been airstrikes hitting hospitals or their surroundings.

The prosecutor of the International Criminal Court, ​​Karim Khan, has just announced he will launch an investigation into possible war crimes committed on Ukrainian territory, begging the question: What are the consequences for senior Russian military officials if these attacks are confirmed?

Marion Vironda Dubray, scientific collaborator at the research programme, Right to Truth, Truth(s) through Rights, directed by professor Sévane Garibian at University of Geneva’s faculty of law, breaks down for us what international humanitarian law says.

HD News: How does international humanitarian law (IHL) protect hospitals and caregivers?

Marion Vironda Dubray: IHL specifically protects hospitals. The Geneva Conventions and their additional protocols stipulate that the sick and wounded, medical staff, hospitals and mobile medical units may under no circumstances be the object of attack. This also applies to wounded military personnel being treated in the hospital and to armed medical workers – if they are armed to defend their lives and those of the wounded.

But humanitarian law is quite pragmatic so an exception applies when hospitals and mobile medical units are used, outside their humanitarian duty, to commit acts harmful to the enemy. The typical example would be the launching of an attack from a hospital. But even then, there must be a warning before the attack. If it remains unheeded and the hospital loses its protection, two fundamental principles of IHL apply to the attack:

• The principle of precaution, which requires the attacker to take all feasible precautions to minimise or avoid loss of lives and injury in the civilian population, as well as damage to civilian objects, for example by using sufficiently accurate weapons and munitions.

• The principle of proportionality, which requires ensuring that the attack will not cause excessive harm to civilians, compared to the anticipated military advantage.

HD News: In recent years, the ICRC has recorded thousands of attacks on health institutions and workers. Why are hospitals regularly targeted despite the binding nature of the Geneva Conventions?

MVD: Health facilities are eminently strategic, both in ensuring the health of the population and in trying to endanger it. Targeting them is a way of reducing the health resources that the civilian population and the armed forces depend on and destabilising the health system. There is also a psychological aspect: these strikes instill terror in the population and dissuade it from using the health system. According to the World Health Organization (WHO), these attacks also have consequences for the mental health of health workers and affect their willingness to go to work.

HD News: Amnesty International and Human Rights Watch denounce indiscriminate strikes from Russia. In legal terms, what difference does it make whether you target a hospital or hit it unintendedly?

MVD: The conditions for the attack to be recognised as a violation of IHL are different. If the hospital is targeted, the person responsible for the attack must meet the criteria mentioned above.

For indiscriminate attacks, it is worth recalling the most fundamental principle in IHL: the principle of distinction, meaning the obligation of belligerents to distinguish civilians from military targets at all times. An attack may be directed against combatants or military objectives, such as a command centre, but not against civilian persons or objects. If the strike is not directed at a military target, then it is considered indiscriminate. This is a violation of IHL and may constitute a war crime.

HD News: What about when the target is military, but the attack results in civilian casualties?

MVD: To analyse this case, one must resort to the principles of precaution and proportionality: the perpetrator of the attack must prove that he has taken all appropriate precautions, particularly using adequate methods or means of combat, to strike a military objective and to avoid or minimise loss or damage to the civilian population and property. If the attacker knew, when ordering the attack, that civilians would be killed or wounded or that a hospital would be hit, for example, they must establish that they concluded that the military advantage gained from the attack would outweigh the harm done to civilians.

HD News: Human Rights Watch has reported an attack using cluster munitions, which are banned in many countries precisely because of their indiscriminate effect…

MVD: It is a complex issue. A convention banning these weapons was concluded in 2008, comprising 110 states, but neither Russia nor Ukraine is a party to the treaty. This does not mean that Russia can use these weapons outside of any legal framework. In terms of IHL, the key is to establish whether their use in a specific case respects the principles mentioned earlier, which is often not the case. These weapons are highly criticised by the international community because they release a lot of submunitions and cover an area the size of several football fields, making it difficult to target specific military objectives in an attack.

Another problem is that submunitions do not always explode when they hit the ground, becoming a threat to civilians in the long term, similarly to anti-personnel mines. The consequences over time cannot be controlled.

HD News: So the judges will be more interested in the decision making before and during the attack?

MVD: Exactly. Typically for cluster munitions, they will look at the population density where the strike took place and the size of the military objective targeted. The judges will try to determine what the decision-makers knew at the time of the attack, notably through military documents. On the question of proportionality, which is always very much in dispute, they will bring in experts in military strategy and others to establish the military advantage that can be expected from a particular attack and to establish the damage suffered by civilians. And the question of intent is also very important as it is the basis for criminal responsibility.

However, one must bear in mind the difficulty of establishing the facts in these contexts and proving that war crimes were committed, particularly because of the lack of access to evidence, which, in addition, are often destroyed by the perpetrators.

HD News: ICC proceedings can take years, meaning that Vladimir Putin doesn’t risk anything in the short term. Does the current situation discourage you?

MVD: One could say that the current war raises questions about the impact of international law, and in particular the preventive effect of international humanitarian law and international criminal law. But I have hope. We need to take a step back and look at the long and difficult evolution of international criminal law. The aim of the ICC is to fight impunity for mass crimes and to prevent their recurrence by holding those most responsible accountable. But in historical terms, it is a very recent development. One hundred years ago, creating a permanent criminal court such as the ICC was still an unfinished project. We hardly could have imagined that sitting heads of state would have to answer for their actions before a court.

I believe in the crucial role that the ICC can play in ending impunity for mass crimes. The prosecutor’s announcement that he intends to request an investigation following Ukraine's acceptance of the ICC's jurisdiction is a strong signal in that direction. However, the ICC's action alone is limited. The international community as a whole and the states individually must do their part.