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Generally, you are not allowed to hit someone with a baseball bat, but if you are robbed at gunpoint, in most jurisdictions that ban no longer applies because the other party has already committed a crime against you (pointing a gun at you) and has therefore lost her/his protection against being physically assaulted.

Does that, or a similar principle, apply in war?

E.g., AFAIK purposely bombing hospitals is a war crime, but in case the hospital is used for military purposes, which again, AFAIK, is a war crime in itself, then the hospital becomes a legitimate target. Is the war crime of intentionally bombing a hospital "excused" if the hospital (partially) is part of the other side's military infrastructure?

Alternative scenario: Imagine a hospital where half of the floors are used as an extermination camp (which I think is a war crime) and half of the floors are for regular hospital purposes.

If you can suggest other relevant scenarios, please comment on them too.

The Editor
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d-b
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    "has therefore lost her/his protection against being physically assaulted" that is not how those laws work and not their reasoning. You can use a baseball bat if it is the best defence against an unlawful action at the moment, you cannot whack someone with a baseball bat, because they threatened you with a gun last week. It is not transactional like that. – nvoigt Dec 15 '23 at 11:09
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    @nvoigt I didn't say that. I was talking about the moment where you are held at gun point, or the immediate aftermath (to retake your possession). Not vigilante style revenge. – d-b Dec 15 '23 at 11:22
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    In a way, these are word games. When a hospital is abused and the other side calls that out publicly, then attacking the hospital is not a war crime any more. So one is not allowed to commit the war crime because the action which is now allowed it isn't a crime any more. – o.m. Dec 15 '23 at 15:42
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    Does this answer your question? Does an act of Perfidy excuse no quarter? – Trish Dec 15 '23 at 18:29
  • @Trish Not really, but it was interesting too. – d-b Dec 15 '23 at 20:17
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    If an act is legal, it is not a crime. If an act is a crime, it is not legal. This question is rather like "is it legal to murder someone who is swinging an axe at your head?" The answer is that it's not generally possible to murder someone who's swinging an axe at your head because killing someone in that situation isn't murder. – phoog Dec 27 '23 at 23:14
  • I don't have the rep to vote for closing, but this is effectively a duplicate of this question. Certainly, it is definitely answered by one of the answers given to that question. Additional perspective. – wrod Dec 27 '23 at 23:26

2 Answers2

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No, you may not commit war crimes on the grounds that your opponent commits war crimes.

Is the war crime of intentionally bombing a hospital "excused" if the hospital (partially) is part of the other sides military infrastructure?

If a hospital is not involved in "acts harmful to the enemy," if it is only involved in humanitarian acts, then it is a war crime to attack it.

If a hospital is involved in "acts harmful to the enemy" then it is not a war crime to attack it.

It is not an "act harmful to the enemy" for the hospital to treat wounded military personnel and have armed guards.

It is an "act harmful to the enemy" to launch missiles or other attacks from the hospital.

Medical units exclusively assigned to medical purposes must be respected and protected in all circumstances. They lose their protection if they are being used, outside their humanitarian function, to commit acts harmful to the enemy.

- International Committee of the Red Cross - International Humanitarian Law Database - Rule 28. Medical Units

Lag
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  • Further, while medical personel and equipment may be armed, those armaments may only be defensive in nature and used for the purposes of the defense of the staff, facilities, and patients in the care of the hospital. Using protected symbols such as the Red Cross/Crescent to transport or store offensive weapons is a war crime. – hszmv Dec 15 '23 at 18:47
  • As I understand your answer it contradicts itself. First you answer "no" and then you answer "yes if the hospital is used to launch missiles". Launching missiles from an installation that is protected is a war crime, which, according to your answer, excuses an attack on said protected installation. – d-b Dec 15 '23 at 20:12
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    @d-b: I don't see how you can interpret either this answer or The Hague Convention / Geneva Convention this way. The reason attacking a missile launch site disguised as a hospital is not a war crime is because it is a legitimate target, not because the enemy committed a war crime. – Jörg W Mittag Dec 15 '23 at 22:46
  • @JörgWMittag I think you have the causality wrong. It is the war crime that makes it a legal target, not the other way around. – d-b Dec 16 '23 at 11:45
  • @d-b The headline to your question is like asking "is it legal for Alice to murder Bob if Bob attempts to murder Alice?" No, murder is illegal by definition. But an act of killing is not necessarily murder. Whether or not the act is murder depends on the circumstances. In some circumstances it is not murder - it is legal - for Alice to kill Bob. Likewise it is not illegal in itself to attack a hospital. Whether or not it is illegal depends on the circumstances. – Lag Jan 01 '24 at 17:32
  • @Lag A headline is not a full question with all details. Duh! – d-b Jan 01 '24 at 17:55
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Mostly no, but sometimes sort-of, yes.

The "Law of Reprisal" allows one party to take measures which would normally be "illegal" in order to pressure another party to return to respecting the "rules of war".

An an example, Party-A decides to start using ambulances to transport uninjured combatants to, from & between areas of conflict in an attempt to shield them from attack by Party-B - essentially misusing ambulances as troop transports.
Using ambulances in this way is a war-crime.
It's also normally a war crime to attack an ambulance carrying the injured.
But due to Party-A's misuse of ambulances (a war-crime), Party-B is now justified in attacking Party-A's ambulances without regard for whether or not they're carrying the injured or not (since they have no way of knowing) - until such time as it can be established that Party-A has stopped their initial war-crime misuse of their ambulances.

brhans
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