How Russia could get away with hospital attacks

A large wall riddled with shrapnel stands where an esteemed otorhinolaryngology department once functioned at full capacity, providing specialty operations for serious illnesses affecting the head and neck.

On February 27, only three days into Russia's brutal invasion of Ukraine, the Volnovakha Central District Hospital was shelled for the first time by Russian armed forces.

The attack destroyed the entire hospital section, says Dr. Andriy Khadzhynov.

The 48-year-old trauma surgeon sits on a couch in front of his computer monitor as we inquire about his experience on that fateful day. Instead of a doctor's coat, he wears a black shirt that accentuates his brawny upper body.

The hospital was full of people, he says, including "doctors, patients and many civilians who had sought shelter there."

The small town of Volnovakha in Ukraine's eastern Donetsk region is home to just over 20,000 people. The hospital is the only emergency medical facility for the population of roughly 100,000 within a 50-kilometer (30-mile) radius. 

Khadzhynov tries to calm his emotions throughout the interview, but the trauma of the experience breaks through his composure several times.

"The hospital is located on a hill," he says, describing how it was the only three-story building in the area. "It can be easily seen from all sides." Renovations to the hospital's facade, conducted two years ago, made the building striking when juxtaposed to the abandoned factories that dotted the former industrial heartland surrounding it.

"It stood out," he says, suggesting that there was little chance that the first attack was an accident.

Two days later, the shelling would continue, as his wife and children sought shelter there along with hundreds of other civilians. The ensuing attacks would leave the hospital in ruins.

Pursuing war crimes

Attacks on medical facilities have long been considered war crimes. International humanitarian law explicitly proscribes attacks on hospitals, whether targeted or indiscriminate.

In Ukraine, such attacks have not only disrupted the continuity of health care, which provides critical services for the civilian population: They have also killed dozens of medical staff and patients, according to anonymized data published by the World Health Organization (WHO).

DW's investigative unit has examined 21 attacks on medical facilities in detail, including several underreported cases, such as the attack on the Volnovakha Central District Hospital in the early days of the conflict. That figure is only a fraction of the 91 attacks on health care infrastructure so far confirmed by the WHO, which represents an average of two attacks on hospitals, ambulances or medical supply depots per day.

The Ukrainian Healthcare Center (UHC), an independent think tank, provided DW with access to undisclosed material, including a log of more than 100 attacks on medical facilities (at the time of publication). According to the UHC, the figures are slightly higher than the WHO's because the center has a nationwide network of on-the-ground sources who can report attacks as they happen.

"We are documenting attacks on medical facilities according to the high standards of legal proceedings in international courts, because we want these attacks to be prosecuted and those responsible to be held accountable," says Pavlo Kovtoniuk, a former deputy health minister and co-founder of the organization.

Although attacks on medical facilities are banned under the Geneva Conventions, there is one condition under which hospitals may lose their protected status as civilian objects: if the facility is used for military purposes.

'A fair trial'

Mariupol had already been under siege for nearly two weeks when Russian warplanes dropped ordnance on the city's children's hospital and maternity ward on March 9. Around the world, viewers were shocked by images of women and children being carried out of the rubble in their hospital blankets. Some of them died.

Before and after the attack, however, Russian officials had claimed that the hospital was a legitimate target, alleging that a Ukrainian battalion was operating there.

DW investigated the claims by reviewing videos, images and satellite imagery of the attack, and could not find any indication that a military unit had taken position within the Mariupol hospital. DW also spoke to eyewitnesses and reviewed visual material in 20 other attacks on medical facilities and, again, found no indication that legitimate military targets or combatants were present or in the immediate vicinity of the facilities that came under attack.

The Russian armed forces have repeatedly claimed that the hospitals they have destroyed across Ukraine were being used for military purposes.

The German judge Wolfgang Schomburg, who has sat on international criminal tribunals for the atrocities committed during the breakup of Yugoslavia and the Rwandan genocide, tells DW that prosecuting such cases is an often lengthy process.

A fair trial would include the account of the accused and any claims that might support it, Schomburg says — "for example, that the hospital had been emptied beforehand and that Russia had tried to establish that there was no one left in the building. Many witnesses would be called in that scenario."

"In the end, convinced beyond all reasonable doubt, the court must establish the facts of the matter."

Not a single prosecution

DW could not find a single international attempt to prosecute wartime attacks on hospitals in the nearly three decades since the International Criminal Tribunal for the former Yugoslavia (ICTY) was established by the United Nations in 1993.

During that time period, thousands of medical facilities have come under attack in conflicts — from the Balkan wars in the 1990s to the Afghanistan and Syria conflicts of the 21st century.

Charges were brought against former Serbian leader Slobodan Milosevic, related to the massacre of patients and medical staff taken hostage in the Croatian city of Vukovar. But, as the victims were executed off-site, the specific charges were not for a direct attack on a hospital — though the facility was also shelled several times over the course of a year. Milosevic died in custody before the conclusion of his trial.

Given the burden of proof, legal experts overwhelmingly agree that, despite public outcry, attacks on hospitals are rarely prosecuted as war crimes due to the legal protections afforded suspected perpetrators.

Still, others say significant progress has been made within international law, and that there may be grounds for prosecution under other criminal categories, such as crimes against humanity or the crime of terror.

"International law has evolved over the past decades. It is no longer possible to misuse the incoherence between laws for combatants and civilians to argue that a functioning hospital could ever become a legitimate target," says Mark Somos, a legal scholar and professor at the Max Planck Institute for International Law.

"It is categorically a violation of international law, and requires prosecution under the strictest enforcement mechanisms of the international community."

Part of the strategy

In a video produced by Russian media and circulated on YouTube, a reporter with a helmet and a flak jacket with the word "Press" addresses the camera about the events that left Volnovakha Central District Hospital in ruins.

In this account, the Ukrainian national guard is at fault for allegedly establishing a firing position from within the medical facility. The Russian reporter claims that doctors were held hostage in the basement and that "ungrateful Ukrainian soldiers" had ordered the shelling.

Dr. Khadzhynov, who lived through the destruction of his hospital, is aware of this fabricated account.

"It's all bull****," he says.

There were no armed people on the hospital's grounds, Khadzhynov adds. As of March 1, when Russian armed forces launched a new wave of attacks on the hospital, medical staff turned away wounded soldiers because the facility was far over its patient capacity.

DW's investigative unit repeatedly requested comment from the Russian Defense Ministry for the attacks on Volnovakha Central District Hospital and on dozens of other Ukrainian medical facilities. The requests were left unanswered at the time of publication.

"The world must understand," former Deputy Health Minister Pavlo Kovtoniuk says, "that the old rules of being neutral, of being apolitical in the humanitarian sphere, are no longer relevant here in this war, because the aggressor uses humanitarian issues as a part of its hybrid warfare strategy."

DW's Emily Sherwin and Birgitta Schülke contributed reporting.

Edited by: Sandra Petersmann and Milan Gagnon