Tom Dannenbaum is Quoted in ABC News – Israeli Security Forces May Have Violated International Law in West Bank Hospital Raid, Experts Say

The experts cautioned that ultimately the International Criminal Court is the body that can determine if international law was violated during the raid, but they pointed to elements of the Rome Statute, the governing treaty of the ICC, and the study on the rules of customary international humanitarian law the IDF may have violated in conducting the raid. The United States, along with China, India, Russia — about 40 countries total — did not sign the Rome Statute and are not party to the ICC, according to the Council on Foreign Relations.

The ICC is different from the International Court of Justice, which issued a preliminary ruling last week in a case brought by South Africa against Israel accusing Israel of committing genocide against Palestinians. The ICC can “exercise jurisdiction” in the form of preliminary examination, investigation and, at times, ultimately trials, over “genocide, crimes against humanity or war crimes,” it says.

Israel is not a member of the ICC and rejects the court’s jurisdiction, but the ICC prosecutor has investigated Israel’s actions toward Palestinians before.

It’s a violation of international law to feign protected status, in this case, by dressing up as a doctor or patient, “in order to invite the confidence of the adversary and then proceed to kill or injure them,” Aurel Sari, associate professor of public international law at the University of Exeter, told ABC News. This violates the prohibition to kill or injure the adversary by resorting to perfidy, Sari said.

“The rule is part of customary international law in both international and non-international armed conflicts, which means Israel is bound by it,” Sari said.

“Based on what has been reported, it appears that the Israeli Security Forces involved in the operation in the Ibn Sina Hospital in Jenin did resort to perfidy in violation of the law of armed conflict,” Sari added.

It’s unclear if the IDF used disguises to gain access to the hospital or to gain the confidence of the adversaries they were targeting directly.

The other possible violation of international law the IDF may have committed in this case is violating the prohibition on attacking combatants who have been incapacitated by wounds or sickness, or attacking persons “hors de combat,” associate professor of international law Tom Dannenbaum told ABC News.

One of the Palestinian men who was killed, Basel Ghazawi, was being treated in the Ibn Sina Hospital and was paralyzed, Sebehat said. The IDF denied the reports that Ghazawi was paralyzed.

Ghazawi had been in the hospital undergoing treatment for three months. He was injured after a drone attack in Jenin in October, Sebehat said. His older brother, Muhammad Ghazawi, and their friend, Muhammed Jalamneh, were in the hospital room with Basel Ghazawi when all three were killed by the Israeli Security Forces, according to Sebehat.

“Combatants who have been incapacitated by wounds or sickness are protected from attack as persons ‘hors de combat,'” under international law, Dannenbaum said. “Clearly, someone who is paralyzed is incapacitated in that respect, so an attack on that individual would be prohibited. Violating that prohibition would be a war crime.”

The IDF accused Jalamneh of transferring weapons and ammunition “to terrorists in order to promote shooting attacks and planned a raid attack inspired by the October 7” Hamas terror attack on Israel, the IDF said in a statement about the raid.

“Along with Jalamneh, two additional terrorists who hid inside the hospital were neutralized,” the IDF said in the statement. The IDF did not specify why the two other men were killed but said all three men were Hamas operatives.

“For a long time, wanted suspects have been hiding in hospitals and using them as a base for planning terrorist activities and carrying out terror attacks, while they assume that the exploitation of hospitals will serve as protection against counterterrorism activities of Israeli Security Forces,” the IDF said.

The IDF has repeatedly claimed that Hamas uses hospitals in Gaza to mask terrorist activities. The IDF has said it is only targeting Hamas and other militants in Gaza and alleges that Hamas deliberately shelters behind civilians, which the group denies.

The ICC would ultimately be the body that could determine if a war crime was committed or if international law was violated in this raid. In March 2023, the ICC issued an arrest warrant for Vladimir Putin for crimes related to the invasion of Ukraine.

“To conclude that a war crime has been committed, criminal tribunals avail themselves not rarely of years of investigations and assessments,” Robert Kolb, professor of public international law and international organization at the University of Geneva, told ABC News.

More than 26,000 people have been killed in Gaza and over 65,000 others injured since Oct. 7, according to the Hamas-run Gaza Health Ministry. In Israel, at least 1,200 people have been killed and 6,900 others injured since Oct. 7, according to the Israeli prime minister’s office. Israeli officials say 556 IDF soldiers have been killed, including 221 since the ground operations in Gaza began.

Editor’s Note: This story has been updated to reflect a clarification the IDF issued after publication of our story. Initially, the IDF said the raid on Ibn Sina Hospital in Jenin was conducted by the IDF, Israeli Security Forces and Israeli Police in a statement on Monday, Jan. 29. After publication of our story, the IDF clarified that only Israeli Security Forces conducted the operation on the hospital. The IDF made this clarification on Jan. 31.

ABC News’ Michael Mendelsohn and Jordana Miller contributed to this report.