Guest Post: Attacks on Schools–What about International Law?

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.

 

http://opiniojuris.org/2014/08/13/guest-post-attacks-schools-international-law/

5 Responses

  1. One might also examine the recent Israeli bombing of schools in Gaza within the larger sociopolitical and recent historical contexts of this ongoing conflict (one legally characterized by Israel’s belligerent occupation, as well as its practice of conspicuous forms of both colonialism and apartheid). In so doing we discover that

    “[s]ince the second intifada began in September 2000, Palestinian schools and universities have come under military attack. According to the Palestinian Ministry of Education and Higher Education, around 300 schools and eight universities have been shelled, shot at or raided by the Israeli army between 2000 and 2005. In the Gaza Strip, 73 educational institutions were partially or totally destroyed between 2000 and 2004 [that is, well before the 2008-09 Gaza War or Operation Cast Lead]. These attacks have cost the lives of students as well as permanent disability. This study found many examples, even if taking short sample periods:
    • In March 2003, a twelve-year old girl was hit in the head by a bullet outside Khan Yunis while sitting at her desk, which left her blind.
    • On 1 June 2004, two ten-year old boys in UNRWA’s Al-Umariye Elementary Boys’ School in Rafah were hit by a bullet and ricochets from an Israeli tank.
    • On 7 September 2004, a ten-year-old girl sitting at her desk in UNRWA’s Elementary C Girls’ School in Khan Yunis camp was struck in the head by an Israeli bullet and died.
    • On 15 October 2004, the army shot and killed a child sitting in the classroom of a UN-flagged school.
    • On 12 December 2004, the Israeli army opened fire on a school, wounding seven children under the age of nine.
    • A month later, on 31 January 2005, the army again opened fire on an elementary school in Rafah, this time killing an eleven-year old and injuring another child in the schoolyard.
    • In 2006, the Israeli army disrupted classes in 18 schools in Jenin, Tulkarem, Nablus and Jericho through raids, attacks and arrests. It also raided the Polytechnic University in Hebron and a girls’ school in the village of Anata in the district of Jerusalem.
    • In ‘Operation Cast Lead,’ 164 students and 12 teachers from (Palestinian government) schools were killed and a further 454 students and 14 teachers were injured.
    • A total of 86 children and 3 teachers who attend UNRWA schools were killed, and a further 402 students and 14 teachers were injured.
    • In June 2006, an F-16 fighter plane bombed the Islamic University in Gaza, and in ‘Operation Cast Lead’ six university buildings were destroyed and 16 damaged. [….]

    Between 1988 and 1992, the Israeli military closed Birzeit University in the West Bank—along with all other Palestinian educational institutions, including schools and kindergartens—multiple times. The Palestinian community continued to pursue its education by holding classes in homes, offices, churches, mosques and community centres, but the Israeli army often raided these classes and arrested students and teachers attending. For most of 2003, Hebron University and the Palestine Polytechnic University were closed down by Israeli military order, suspending the education of more than 6,000 students for over six months. [….]

    In April 2008 alone, 14 Hebron-area schools and orphanages, serving approximately 7,000 Palestinian children and orphans, were threatened with closure by the Israeli army after multiple raids. In July 2008, the Islamic School for Girls in Nablus was shut down after being raided and ransacked based on accusations of an affiliation with Hamas.

    Since September 2000, Israel has arrested and detained almost 6,000 children. In 2007 alone, 700 children were arrested without being provided any form of education while in prison. The alleged offenses for which they are imprisoned range from throwing stones at protests over the Separation Wall to being affiliated with Hamas and inciting protests.”

    And the above should be viewed in conjunction with other policies and tactics used by the Israeli government that harm students and consistently and egregiously interfere with or hinder their right of education. For example, it’s been duly noted that the “restriction of mobility of Palestinian students [through delays at checkpoints, road closures, curfews, destruction of school infrastructure, for example] is the main obstacle to their exercising their right of education.” See (with citations and references) the full discussion in Virginia Tilley, ed., Beyond Occupation: Apartheid, Colonialism, and International Law in the Occupied Palestinian Territories (London: Pluto Press, 2012): 177-184.

  2. Here’s the problem when it comes to Hamas’ tactics. Basically, there is NOTHING you can do. They can – for instance – assembly a large crowd and shield themselves from every attack this way. IHL does not have answers for these tactics.

  3. by the way, if the translation in this video is correct, it does not seem as if the role of UNRWA schools in ensuring the right to education is indeed very helpful…
    https://www.youtube.com/watch?v=YGJajyjMCbs#t=24

  4. Prof McCorquodale and Ms Hausler,

    Thank you for your helpful summary of how IHL, IHRL and ICL applies to this situation.

    In your second last paragraph, you write: “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.”

    Does your second sentence qualify your first (ie, reparations are only payable if there has been a breach of IHL or IHRL), or are the two sentences independent (ie, (1) reparations must be paid by someone to address the harm regardless of whether or not IHL or IHRL was breached, and (2) if a State has breached IHL or IHRL, it is liable for that proportion of the reparations that can be attributed to harm that resulted from the breach).

    Thank you

  5. Many thanks for giving us an opportunity to clarify the question of reparation.

    When a state breaches an international obligation (which may arise from an IHRL, IHL or customary law obligation), it has a duty to redress the harm caused thereby to another state. Hence there must be a breach of an international obligation for this inter-State obligation to make reparation to arise. Note that the obligation to make reparation does not equate the right of victims to obtain reparation, which is nevertheless enshrined in several human rights treaties.

    The reparation provided must be sufficient to wipe out all the consequences of the wrongful act. It must be commensurate with the harm suffered as a result of the breach in question.

    For more on this point, see ‘Education and the Law of Reparations in Insecurity and Armed Conflict': http://www.biicl.org/research-reparations

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