BURSTOn Wednesday, members of the Israeli military, its border police, and its security service Shin Bet staged a raid on the Ibn Sina hospital in the city of Jenin in the northern West Bank. Israeli personnel — all wearing disguises, such as hospital scrubs or a white doctor’s coat, and caught on closed-circuit video — shot and killed three Palestinian men.
This likely broke several laws of war, including the prohibition against perfidy and the killing of protected people.
According to the New York Times, Hamas issued a statement acknowledging that one of the men was a leader in its armed wing, the Al-Qassam Brigades. His name was Muhammad Jalamneh, and the Israeli military said in a statement that he “planned a raid attack inspired by the October 7th massacre.” Islamic Jihad claimed that the other two men, Mohammad Ghazawi and Basil Ghazawi, who are brothers, belonged to its organization.
The exact circumstances of the killing of the three men is not yet clear, with differences in different reporting.
The hospital’s director, Dr. Naji Nazzal, told Reuters that the Israelis “executed the three men as they slept in the room. … They executed them in cold blood by firing bullets directly into their heads in the room where they were being treated.”
However, Nazzal only identified one of the men, Basil Ghazawi, as being treated there — for a spinal cord injury that had paralyzed him in an October battle with Israeli troops.
The Times reported that Jenin’s top Palestinian health official, Wisam Sbeihat, said that Jalamneh, the member of Hamas, was visiting Ghazawi. It seems plausible that Mohammad Ghazawi was also visiting his brother.
The likelihood that the raid involved illegality is clear on its face. Certainly the U.S. would be perturbed if, during the Iraq War, Iraqis dressed as doctors and nurses snuck into Walter Reed National Military Medical Center in Washington, D.C., and killed several American soldiers. Israel would likewise object if Palestinians gained access to a Tel Aviv hospital by wearing medical costumes and then assassinated Israeli soldiers.
Kenneth Roth, the former head of Human Rights Watch, says that first of all “there is an urgent need for an independent investigation” to establish the facts of the situation. Next, Roth contends, the fact “that Israeli forces disguised themselves as medical personnel not only endangers real medical personnel but also suggests the Israelis were guilty of the war crime of perfidy.”
Aurel Sari, an associate professor of public international law at the University of Exeter and a fellow at the Supreme Headquarters Allied Powers Europe, agrees.
“Perfidy involves the killing or injury of an adversary in a manner that first invites but then betrays their confidence in a protection offered by the law of armed conflict,” says Sari. “In the present case, feigning to be medical personnel or civilians, both of whom enjoy protections under the law [would be perfidious].”
Israel is one of the few countries (and the U.S. is another) that has not ratified Additional Protocol I to the Geneva Conventions, a 1977 amendment that specifically bans perfidy. However, perfidy is also illegal under customary international law. Sari points out that the Israeli Supreme Court has accepted that Israel is bound by customary international law.
Then there is the question of whether militants such as members of Hamas or Islamic Jihad are legitimate targets if they are in a hospital. Sari states that the general legal protection for medical facilities does not apply in this case, because “the Israeli operation was not directed against the Ibn Sina hospital,” just the three militants. He also said that enemy forces “remain targetable at all times, unless they enjoy special protections or clearly communicate an intention to surrender.”
The issue of special protection is significant because of reports that Basil Ghazawi was a paralyzed patient at the hospital. Sari noted that under such circumstances, Ghazawi would be “therefore immune from attack.” Roth concurs, saying Ghazawi “should at worst have been arrested.”
What happens now?
The International Criminal Court at The Hague opened an investigation in 2021 into potential crimes in the West Bank and Gaza that is still ongoing. (The ICC is separate from the International Court of Justice, which recently took up the complaint from South Africa about Israel’s actions in Gaza and which will likely be totally ignored by Israel.) The Rome Statute establishing the ICC entered into force in 2002, but as neither the U.S. or Israel has ratified it, the ICC can’t investigate crimes committed by American or Israeli nationals on their own soil.
However, Palestine is enough of a state that it did ratify the Rome Statute. This means the ICC has jurisdiction over potential crimes committed by Israelis or Palestinians or anyone on Palestinian soil, such as at the Jenin hospital. (The Palestinian ratification of the statute also means the ICC has jurisdiction over potential crimes by Palestinians anywhere — such as those of Hamas on October 7. On October 10, the court stated that its mandate “is ongoing and applies to crimes committed in the current context.”)
Where will the ICC’s investigation go now? When the court’s original investigation was announced three years ago, Secretary of State Antony Blinken proclaimed that “the United States firmly opposes and is deeply disappointed by this decision.” Israeli Prime Minister Benjamin Netanyahu said the ICC’s actions were “undiluted antisemitism and the height of hypocrisy.”
While the outcome is uncertain, it’s not that uncertain. Of the ICC’s total 31 cases, almost all have involved African defendants. The smattering of non-African defendants have been Arab.
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