This editorial can be found in the February 2024 issue of the American Journal of Bioethics.
Three thousand belligerents, mostly belonging to the military arm of Hamas, stormed Southern Israel on October 7th, 2023. Along with 3,000 rockets fired at Israel from Gaza, these belligerents invaded roughly 22 Israeli villages, towns, and military posts. As instructed in a particularly well-thought, vicious and secretive plan, they slaughtered more than 1200 soldiers and Israeli and non-Israeli citizens, and abducted more than 240 soldiers and Israeli and non-Israeli citizens. They tortured and raped civilians, murdered women and children, and were in fact preparing to do the same in second wave, reaching into the center of Israel.
Roughly 1100 belligerents were killed by the Israeli Defense Force (IDF). Dozens were captured and are currently held in prisons in Israel. At least some of those captured have been injured to varying degrees. When one injured belligerent arrived to Hadassah Hospital in Jerusalem, the hospital refused to treat him. In response, the Minister of Health issued a letter on October 11th, forbidding civilian hospitals from treating these belligerents. The letter instead determines that belligerents be treated by the Israeli Prison System (IPS) or the military.
The Minister’s letter, and the belligerents’ eventual internment in a military base in southern Israel, mean that they are receiving care that is unequal to the care received by Israeli citizens and soldiers. Is this morally justified? The relevant question here is whether and to what extent the Israeli government should provide care for the Hamas belligerents, and by extension – should governments in general do so for enemy belligerents who commit atrocities? In short, our reply is that the belligerents deserve humane and appropriate care, meaning suitable medical care based on the patient’s medical needs and available resources, and which is free from torture etc.
International Humanitarian Law (IHL)- in this case the Third Geneva Convention- establishes that prisoners of war “are entitled in all circumstances to respect for their persons and their honor” and that they “retain the full civil capacity which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise… of the rights such capacity confers except in so far as the captivity requires” (International Red Cross. International Humanitarian Law Databases. Commentary on The Third Geneva Convention 2020). The basic respect for persons required by IHL precludes any humiliating treatment, and entails “due regard for the sense of value that every person has of themselves.” The Red Cross’ commentary accompanying the Convention specifically states that “even if the enemy fails to respect its humanitarian law obligations, one’s own obligations vis-à-vis the prisoner of war remain intact.”
Article 13 of the Geneva Convention establishes the obligation for humane treatment: “Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited and will be regarded as a serious breach of the present Convention,” and the Red Cross’ commentary cites as an example “safeguards for health and hygiene; provision of suitable medical care”. IHL, then, postulates that regardless of what they do, prisoners of war (POWs) qua persons have inherent and inviolable dignity which grants them an inviolable right to equal respect and honor and thus to medical care as required by their health situation.
Yet quite a few, particularly Israeli physicians and ethicists have made the argument that the Hamas belligerents had lost any claim to dignity and equal respect following what they did on October 7th.
Equal respect of persons is foundational to ethical discourse. Persons deserve equal respect because of their inherent and inviolable moral agency or rationality. “Inviolable” means that persons do not lose their basic moral value regardless of their actions. Prisoners, including POWs, may indeed lose some of their rights, namely the right to liberty, but only insofar as it is instrumental to their captivity. However, ethicists should also recognize that it is hard to expect people grieving the loss of their loved ones and fellow citizens to hold to the notion that the people who murdered, tortured, and mutilated their loved ones and fellow citizens deserve equal treatment grounded in the obligation to respect their humanity and moral value.
Strictly as a pragmatic matter, treating the Hamas belligerents equally to Israelis, including hospitalization, family visitation etc. is not realistic. The need to secure these patients as well as other hospital patients and staff will undoubtedly pose a heavy burden on the Israeli security services. The presence of belligerents will further hinder the normal functioning of hospitals, as staff members in hospitals across Israel have already refused to provide treatment to them on several occasions.
Expecting the equal treatment of these Hamas belligerents, then, seems unreasonable, and the obligation of equal respect seems limited in its applicability and quite removed from what one can reasonably expect from the Israeli government. At the same time, the obligation to provide at least appropriate and humane care regardless of one’s deeds also feels intuitive. These obligations are also supported by IHL as elaborated above.
Digging deeper, we offer a principled defense of the obligation of governments to provide appropriate and humane medical care even to people who have committed atrocities of the scale of the Hamas belligerents.
As a broad generalization, Western ethical approaches tend to be individualist in nature, as the common focus on human rights and dignity illustrates. There are various ethical traditions inside and outside the ‘West’, however, that offer accounts of moral harm that emphasize the harm done to entities other than individuals, from the natural ethical order to humanity as a whole. These might provide some fresh insights into the ethical dilemma encountered here.
An important example we draw on is David Luban’s understanding of the meaning of crimes against humanity as offenses that are so atrocious that they “aggrieve not only the victims and their own communities, but all human beings,” as well as such that are “violating the core humanity that we all share…”. Luban first defines humans as political animals, meaning that, “we need to live in groups, but groups pose a perpetual threat to our individuality and individual interests”. He then makes a strong distinction between individual diversity and group diversity, asserting that, “Politics is as much about individual self-assertion against groups as it is about group solidarity”. In order to safeguard their own diversity, then, individuals may need to resist being in solidarity with the group, really resisting their own inherent need to belong to a group. Being human is about balancing that tension.
Crimes against humanity assault our humanness understood as humans being political animals with two fundamental characteristics: individual diversity, and our inherent need to belong to a group. By targeting individuals merely based on their affiliation with a group, crimes against humanity violate individual diversity. By explicitly targeting groups rather than individuals, crimes against humanity violate our need to belong. Hamas belligerents have thus committed crimes against humanity in attacking Israeli civilians just because they are part of a group- the Israeli people.
Crimes against humanity are morally egregious also because they are committed by groups: “Crimes against humanity are not just horrible crimes; they are horrible political crimes, crimes of politics gone cancerous”. Yet Luban also points, from this perspective, to the danger of the “crimes against humanity” language, since perpetrators may be seen as enemies of humanity itself and the result might be to “brand them as less than human, and hence to expel them from the circle of those who deserve human regard,” thereby undercutting the “root idea of international human rights, namely that everyone deserves human regard”. He reminds us that perpetrators do not have to be demons to commit atrocious acts, and so we need to be careful not to demonize them. He thus points to the dangers of not treating perpetrators of atrocities in an appropriate and humane manner from the point of view of humanity and of humanness itself.
In a world organized into political communities connected to each other through various institutions, our ethical conduct matters to humanity as a whole and to the very meaning of being human. The way we treat perpetrators of atrocities thus provides a baseline for the kind of medical treatment all other human beings (should) receive, since allowing for exceptions could snow-ball to include other murderers and really to every individual whose actions, political agenda or even identity we disapprove. We will end up with a world where basic medical treatment is an option rather than an obligation, especially when it comes to political enemies. It is thus a danger to humanity as a whole.
Zohar Lederman, Nadav Davidovitch, and Shmuel Lederman