Gaza’s hospitals were used to conceal hostages. Who knew what and when? Whether hospital staff were involved, and whether other actors were informed of these events, including UN agencies and NGOs, requires investigation and accountability. The hostages and their families deserve justice.
As Israel’s operations in Gaza continue into their fourth month and freed hostages provide accounts of their time in captivity, evidence continues to emerge that Hamas exploited civilian infrastructure, including hospitals, for the taking of more than 240 hostages from Israel during the 7 October onslaught and massacre.
Hospitals have been a particularly favored location for Hamas to embed fighters, store weapons, engage in combat, and torture political adversaries. This infrastructure capture by Hamas not only endangered civilians seeking medical treatment, but placed at risk all of those working at the hospitals regardless of their affiliation to Hamas. Beginning in 2009, reports surfaced about Hamas use of Gazan hospitals and their grounds as repeated locations for its military activities. Examples include the Indonesian hospital, the Al-Rantisi hospital, and most notoriously, the Al-Shifa hospital in Gaza City. The former head of USAID for Gaza reported that ‘it was broadly suspected/understood as far back as 2014 that Hamas used the Al-Shifa Hospital complex as a command center and base for operations.’ A Dutch journalist recounted that he personally saw fighters at Al-Shifa and that ‘Everyone in Gaza including UN staff knows about the dual use of these facilities.’ Former hostages have told how they were brought into and hidden within and under hospitals. A released teenage hostage recounted how she was held alongside another hostage in a hospital, and that he died during his captivity there.
In one of the more shocking examples, released CCTV footage showed two hostages (Thai and Nepali nationals) taken from Israel and being brought into Al-Shifa hospital. They are surrounded by a group of men, some armed, while individuals dressed in scrubs look on. In one frame, others in scrubs direct the kidnappers and usher one of the hostages on a gurney into a room. The date and time stamp indicates these events took place in the late morning of 7 October.
If verified, the CCTV footage, coupled with hostage accounts and other evidence of hostage presence at hospitals, demonstrate serious criminal offenses. The video shows armed combatants bringing hostages into a hospital, a place with protected legal status. It would provide evidence that hostages kidnapped from Israel were present in Al-Shifa as early as the morning of October 7, and individuals in scrubs (potentially members of hospital staff) were aware of this presence. It is also reasonable to consider that these individuals may have possessed other salient knowledge, including the hostages’ medical condition, identity of their captors, and location of captivity. In addition to the implications for the individual health and safety of those abducted, this information would be vital to authorities looking to rescue and release the hostages, to international organisations, such as the ICRC, looking to make contact with them, and to the families desperate for knowledge of their condition. This information could also have been, and remains critical, to the scale, scope, location, and duration of the conflict in Gaza as the release of all hostages is one of the two primary objectives of Israel’s military campaign. It is unknown whether and to what extent hospital staff were involved in administering to the hostages, helped to conceal them, or were involved in physically harming them.
This article argues for the legal imperative to open investigations regarding the presence of hostages at Gaza’s medical facilities, and whether those who assisted in or were aware of this presence bear responsibility for international crimes associated with the taking of hostages on the basis of aiding and abetting such crimes, through facilitating such acts, and/or by withholding information regarding the presence and status of hostages.
The Crime of Hostage Taking
The international community views hostage taking as an abhorrent offense, if not a jus cogens prohibition, and has established legal frameworks to prevent it and hold perpetrators accountable. It is proscribed not only in domestic criminal law in most, if not all countries, but is considered a grave breach and war crime under international humanitarian and international criminal law. (See Articles 3, 34, and 147 of the 1949 Fourth Geneva Convention; Additional Protocol I Articles 75(2)(c), 85(4)(b), and Article 4(2)(c) of APII). It is also a violation of customary international law, whether in the context of an IAC or a NIAC. Aspects of the crime also can fall under the category of crimes against humanity. During a December 2023, visit to Israel and the West Bank, International Criminal Court Prosecutor Karim Khan called for the ‘immediate and unconditional release of all hostages taken by Hamas and other terror organisations,’ highlighting hostage taking as having ‘no justification’ and constituting an ’egregious breach of fundamental principles of humanity’.
Under the Geneva Conventions, High Contracting Parties have an obligation to prevent and prosecute grave breaches (Arts. 146, 157) and the 1979 International Convention against the Taking of Hostages, of which 175 countries are signatories, call to facilitate the extradition of offenders (Articles 8-10); and under Article 12, to provide the ‘greatest measure of assistance’ to all States. Consequently, all countries have a duty under the principle of aut dedere aut judicare to investigate and potentially prosecute on the basis of universal jurisdiction or, alternatively, to extradite those responsible to jurisdictions willing to do so.
Some States may have more of a vested interest to fast-track such inquiries. According to reports, UN agencies, including the World Health Organization and UNRWA, international humanitarian aid NGOs like Médecins Sans Frontiers, and the ICRC, among other international organisations, are donors to or work with the hospitals at issue. The ICRC has a particularly close connection with Al-Shifa, funding infrastructure and providing courses. These organisations and states that are donors to Al-Shifa and other implicated hospitals, would and should be particularly interested in conducting such investigations, not only as a means to punish international crimes and to preserve the protected status of hospitals, also as a means of oversight and protection for their development funding. Depending on the evidence collected, if members of hospital staff employed by their organisations knew that hostages had been present or were being held at the hospital, but failed to alert their employers, this may give rise to liability for aiding and abetting by omission (as to which see further below), not only for hospital staff, but potentially for aid organisations and/or UN agencies.
Aiding and Abetting Liability
A primary issue that investigatory authorities will need to examine is who was aware of the presence of hostages at the medical facilities and whether hospital staff facilitated the taking and holding of hostages. A key consideration will also be whether such facilitation occurred by omission. Namely, whether individuals, including potentially medical staff and administrators, knew of but failed to report in breach of duty the presence of hostages at the hospital. An investigation will also have to examine how Hamas operated in taking over hospital facilities and how that impacted the staff work environment.
Aiding and abetting is a well-established concept in criminal law and proscribed ‘in every specialised area of international law, including international humanitarian law‘. The issue arose at the ad hoc international criminal tribunals, which applied customary international law located in their statutes. In general, ‘the actus reus of aiding and abetting consists of practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime’. (ICTY, Stanišić & Simatović, para 93). The International Criminal Tribunal for Rwanda, further noted that ‘the actus reus of aiding and abetting is constituted by acts or omissions specifically directed to assist, encourage, or lend moral support to the perpetration of a specific crime, and which have a substantial effect upon the perpetration of the crime.’ (Nahimana, para. 482).
To establish mens rea (intent), it must be shown that the ‘aider and abettor knew that his acts or omissions assisted the commission of the specific crime by the principal, and that the aider and abettor was aware of the essential elements of the crime which was ultimately committed, including the intent of the principal perpetrator … it is not necessary that the aider and abettor know the precise will probably be committed, and one of those crimes is committed, he has intended to facilitate the commission of that crime, and is guilty as an aider and abettor.’ (ICTY, Sainovic, para. 1772; Stanišić & Simatović, para 109-10)
Aiding and abetting by omission can attach either by ‘tacit approval and encouragement’ or by failing ‘to discharge a legal duty and by this failure assists, encourages or lends moral support to the perpetration of a crime and has a substantial effect on the commission of that crime’. Additionally, aiding and abetting by omission necessarily requires that the accused has ‘the ability to act, or in other words, that there were means available to the accused to fulfil this duty’. (Sainovic, para. 1677). ‘The encouragement or support need not be explicit; under certain circumstances, even the act of being present on the crime scene (or in its vicinity) as a ‘silent spectator’ can be construed as the tacit approval or encouragement of the crime.’ (ICTY, Brđanin, para. 277).
Establishing a legal duty for hospital staff (should it be found that they were involved), such that they might bear responsibility for aiding and abetting by omission, is well-grounded. Under medical ethical rules, many of which are codified into domestic law and recognised in many international instruments, such as UN General Assembly Resolution 37/194, medical workers are bound by a duty of care. This means they must always act in the best interest and safety of patients. Failure to carry out duties that violate medical ethics, endanger health, or other acts contrary to accepted medical standards is not only an ethical contravention, but constitutes a violation of IHL.
Conversely, medical staff under ethical rules cannot and should not refuse to treat on the basis of national identity or civilan/combatant status. In addition, prosecuting a medical worker for such treatment, should it have been executed in good faith and in accordance with medical standards, has been found to be a violation of human rights law (See e.g. Pollo Rivero v Peru, De La Cruz-Flores v. Peru, paras. 94-5).
This principle, which was directed towards those who treat combatants and maintain their patient confidentiality, however, is distinct from whether medical workers have a duty to report the presence of hostages to appropriate officials. To that end, in many domestic jurisdictions, medical workers have a duty to report suspected abuse, violence, and/or criminal conduct. The World Medical Association also notes medical ethics include the duty to ‘report to the appropriate authorities conditions or circumstances which impede the physician or other health professionals from providing care of the highest standards’. Such duties might also arise in the contracts between a hospital and its employees, aid agencies, the UN, and international donors.
Similarly, First Additional Protocol to the 1949 Geneva Conventions Article 16(3) which states that ‘no person engaged in medical activities shall be compelled to give to anyone belonging either to an adverse Party, or to his own Party except as required by the law of the latter Party, any information concerning the wounded and sick who are, or who have been, under his care, if such information would, in his opinion, prove harmful to the patients concerned or to their families,’ does not govern this situation. Such prohibition would not apply to hospital staff who may have been aware of hostage presence, but did not medically attend to any of the hostages. Second, the provision does not apply to providing information to the ICRC, the UN, or other aid agencies which act under the principles of neutrality and are not parties to the conflict. Third, it would be hard to argue that the provision of such information would ‘prove harmful’ to the hostages concerned ‘or to their families’.
As mentioned above, many of the released hostages (as well as what is seen in the October 7 CCTV footage) have reported that they were transited through and held at hospitals during their captivity, but were not provided any medical treatment there. Others have reported that they received medical treatment at hospitals or by medical staff at other locations. Under the tribunals’ jurisprudence, those who saw and/or interacted with the hostages, and violated their duty to report their presence, potentially could incur aiding and abetting liability for ‘tacit approval’ of the hostage taking or by serving as a ‘silent spectator’. It should be investigated, therefore, who gave permission and direction to Hamas or other armed groups to use hospitals to conceal hostages or to transit them through hospitals to be held elsewhere, such as in tunnels and bunkers near or under hospital grounds. It should also be determined if, and by whom, hostages were treated at the hospital, if and who released those hostages into the custody of the captors, and if those individuals informed anyone of these events.
More broadly, acts of omission, such as failing to report the presence of hostages, have severe consequences aside from the individual health and well-being of captives. Under international humanitarian law, hospitals have protected status and should not be attacked. This status is lost if they are used by a party to the conflict to commit, outside their humanitarian functions, an ‘act harmful to the enemy.’ Acts that are considered to be harmful to the enemy include that the ‘hospital is used as a base from which to launch an attack; as an observation post to transmit information of military value; as a weapons depot; as a center for liaison with fighting troops; or as a shelter for able-bodied combatants.’ In addition to the presence of combatants, weaponry, and tunnels, the use of a hospital to conceal and/or transit hostages, are also potential examples of causing ‘harm to the enemy’. By withholding information of such activity, hospital staff placed the facility at risk of losing its protected status and leaving it vulnerable to military attack. The loss of protected status harms not only patients and staff, but also civilians sheltering on hospital grounds. The withholding of such information also degrades the integrity of humanitarian aid frameworks, by compromising the obligations of humanitarian organisations operating at the hospitals.
Conclusion
The abduction of over 240 people from more than 30 nations, including babies, children, the elderly, the disabled, and the gravely injured and ill, are unimaginable atrocities. The fact that Gaza’s hospitals were used to conceal hostages is egregious. Whether hospital staff were involved, and whether other actors were informed of these events, including UN agencies and NGOs, requires investigation and accountability by the UN, governmental donors, the ICRC, and other international aid organisations funding and operating at these hospitals. Should sufficient evidence be acquired, perpetrators should be prosecuted under domestic statutes and universal jurisdiction. Not only do the hostages and their families deserve justice, but the need to preserve the protected status of hospitals and medical workers, a core concept in international humanitarian and criminal law, and the integrity and credibility of the entire humanitarian aid system, is at stake.
