by Kristin Hausler and Robert McCorquodale
[Kristin Hausler is an Associate Senior Research Fellow in Public International Law and Robert McCorquodale is the Director of the British Institute of International and Comparative Law. The views expressed here are those of the authors and not of BIICL.]
On 30 July, a school operated by a UN agency in the Jabalia refugee camp, north of Gaza City, was shelled by the Israeli army, killing at least 16 people and injuring more than 100.On 3 August, the Israeli army bombed another Gaza school run by the UN, this time in Rafah, where over 2,000 displaced Palestinians were sheltering. This attack reportedly killed at least 10 individuals. There have also been reports that Hamas has been storing weapons in schools. Can attacks on schools, teachers and students ever be legitimate under international law?
International humanitarian law applies, in its entirety, to international armed conflicts, while some of its key principles apply also to non-international (internal) armed conflicts. All the parties to the current armed conflict in Gaza and other armed conflicts, no matter if they qualify as state or non-state actors, are, at the very least, legally bound by the rules of customary international humanitarian law. The key rules are the distinction between civilians and those taking a direct part in hostilities, and between civilian and military objects. Deliberate attacks on civilians are prohibited. Therefore, students, teachers and all other civilians who may be located in a school are protected as long as they do not take an active part in the hostilities. In addition to deliberate attacks, indiscriminate attacks, which do not distinguish between civilian and military targets, such as those consisting of area bombardments over densely populated areas or those conducted with imprecise weapons that are not able to target military objectives with sufficient precision, are prohibited. Disproportionate attacks which cause excessive harm to civilians are also prohibited.
In the same way as individuals are protected if they do not take part in hostilities, schools are protected from attacks because they do not serve a military function. While some buildings, such as hospitals, benefit from special protection under international law, this is not the case for schools. The protection of schools from attacks ceases if they become military objectives, which occurs when they are used for military purposes and effectively support military action, such as to store weapons or to station troops. Such use should be discouraged.
Deliberately placing civilians in or around military objects amounts to using civilians as ‘human shields’, which is prohibited under customary international law. If schools are used solely as shelters for civilians, they remain civilian objects. In case of doubt about the military nature of an object, the building in question must be presumed to be civilian. At all times, any party to a conflict must minimize the risks of civilian casualties and injuries, as well as minimize the risks of damage or destruction of civilian objects by taking all possible precautionary measures in the conduct of military actions.
In addition, parties to a conflict also have a duty to respect human rights within their borders, as human rights continue to apply during armed conflicts. States exercising effective control over territories beyond their borders are also bound by their human rights obligations on those territories. Both Israel and Palestine are parties to human rights treaties that protect the right to education and protect children’s rights. Therefore, the use of schools for military purposes, which is likely to threaten the provision of education, may also amount to a human rights violation on the part of the state responsible to provide education.
Through the application of international criminal law and after appropriate investigation, the perpetrators of international crimes may be held individually responsible. In relation to both international and non-international armed conflicts, the Statute of the International Criminal Court (ICC) establishes that intentionally directing attacks against the civilian population, as well as intentionally directing attacks against buildings dedicated to education, are war crimes. However, the ICC can only prosecute crimes if the alleged perpetrator is a national of one of its State Parties, if the crime was committed on the territory of a State Party, or if the matter is referred by the UN Security Council. While Israel has signed the ICC Statute, it has never ratified it, and Palestine’s declaration accepting the ICC jurisdiction was not accepted when it was made.
It is also important that those, including the injured and the relatives of the victims, who have suffered harm as a result of those attacks are provided with adequate reparations. States responsible for violations of international humanitarian law and international human rights law are under an obligation to provide adequate reparation, even if their actions were committed extra-territorially. For example, the schools that have been destroyed must be repaired so that the right to education continues to be provided.
Elsewhere, schools, pupils and teachers have been the objects of acts of violence in recent times, including, for example, in Nigeria, where Boko Haram conducted targeted shootings at schools and abducted female students, and in Pakistan, where the Taliban attempted to kill student and activist Malala Yousafzai. All of these attacks highlight the need to uphold the international legal provisions protecting education, as has been shown by BIICL’s research on Protecting Education in Insecurity and Armed Conflict. If a state and a people are to have long-term sustainable peace and development after an armed conflict, then there is a great need for education now and in the immediate future. Furthermore, the right to education is an enabling right, empowering access to other human rights and to meaningful participation in society. It is a right deserving of all our protection, at all times.