The Hospital Is the Last Courtroom

The action is defended, where it is defended at all, as the ordinary violence of a civil war in which every building may hide a gunman; and perhaps in some ruined ward in Sudan that was true. But the question the republic of nations asks is not whether one strike can be explained. It asks whether the mechanism by which hospitals came to be struck, which the BBC’s investigation finds was deliberate targeting by the Rapid Support Forces, leaves the oldest constraint in war intact for the next commander, the next siege, the next calculation about what a ward full of the wounded is worth.

That constraint is stranger than it looks. The protection of hospitals has no army behind it, no treasury and no police. It is a rule that every belligerent has agreed to and none can be compelled to obey, and it survives only because violating it is supposed to be costly: in reputation, in prosecution, in the patience of the outside powers who supply arms and recognition. Remove the cost and the rule does not vanish at once. It goes on appearing in treaties, in speeches and in the emblem painted on a roof, long after it has stopped meaning anything to the man aiming at that roof.

So my case is not, in the first instance, against the RSF, though the charge against them is grave. It is that the defence of the hospital has quietly moved from institutions to a newsroom, and that this migration is itself the erosion.

Consider the sequence. A broadcaster, not a tribunal, assembles the evidence and reaches a finding. Then Volker Turk, the UN human rights chief, the official whose office exists to speak for the law of war, says the attacks may amount to war crimes. I do not mock that conditional; precision is the lawyer’s first duty, and I would have used the same verb myself. The trouble lies elsewhere. A “may” is honest only if some body stands ready to turn it into “did” or “did not”. Where no such body acts, the conditional becomes permanent, and a permanent “may” is an acquittal that no court ever had to hand down.

The strongest objection deserves its full hearing. The findings are contested. Wars of this kind blur the line between fighter and patient, between a clinic and a command post, and journalists working at a distance can misread a ruin. Every army in history has claimed that its enemy sheltered behind the sick. On this view, to call deliberate targeting proven is to convict before the trial. The objection is serious, and it is precisely why it condemns the present arrangement rather than excusing it. If the evidence is uncertain, the remedy is a forum with the power to test it: to call witnesses, examine the strike sites and hear the RSF’s account. Doubt is a reason to hold the trial, and it is no reason at all to adjourn indefinitely.

Who gains from the adjournment? Here I reason by inference, not report. Any armed force, and not only this one, that learns hospitals can be struck and the consequence will be a documentary and a carefully worded statement from Geneva has learned something useful about the price of terror. There is another explanation, and fairness requires me to give it: the attacks may reflect commanders who cannot control their fighters rather than a policy anyone chose. But that is no comfort. The law of command responsibility exists because an army that cannot restrain itself is as dangerous to the sick as one that does not wish to.

Think, then, of the precedent. Each unanswered strike tells the next commander that the emblem is decoration. Each one tells the next surgeon to move the theatre into a basement and the next mother to keep her feverish child at home, so that the rule which was meant to protect the patient ends by emptying the ward. People used to say that laws fall silent when arms are raised. The newer and meaner discovery is that the laws can go on speaking, eloquently and in the conditional, while nothing whatever follows from what they say.

Picture a ward after the shelling. A nurse props a cracked door shut with a ledger, the hospital’s register of the living and the dead, because it is the heaviest thing left in the room. That book is evidence. It is also the only record anyone there was able to keep. Whether it ever reaches a courtroom, or stays wedged against that door until the hinges rust, will decide what Sudan’s hospitals are worth to the next army that comes within range.