The Iranian School Strike: Excusable? A Violation? A War Crime?

[Gabor Rona is a Professor of Practice at Cardozo Law School]

The Pentagon has conceded responsibility for the bombing in which more than 170 people, mostly children, were killed on the grounds of their Iranian school. Is it a war crime despite that it was not known to the attackers that the building had ceased to be used by the Iranian Revolutionary Guard Corps (IRGC) Navy some years ago? If it is not a war crime, is it nonetheless a violation of international humanitarian law – the law of armed conflict? 

Violation vs. War Crime

Not all violations of the rules of armed conflict are war crimes. For example, the Third Geneva Convention requires that prisoners of war be allowed to have musical instruments, but there does not appear to be any international or domestic war crimes law that includes the violation of this requirement in its list of offenses. In other words, all war crimes are violations of the laws of war but not all violations of the laws of war are war crimes. Still, it is necessary to first determine whether the attack violated the laws of war.

What International Humanitarian Law Prohibits in the Conduct of Hostilities

IHL forbids the following categories of attacks:

• Those deliberately directed against civilians and civilian objects (principle of distinction);
• Those that are not directed at a known military objective, or that employ a means or method of combat that cannot be directed at a specific military objective (prohibition of indiscriminate attacks);
• Those directed against military objectives, but anticipated to result in civilian harm that is excessive in relation to the anticipated military advantage (principle of proportionality);
• Those that cause civilian harm that could have been avoided by taking feasible measures to minimize such harm, against both persons and property (principle of precaution); and
• Those that use prohibited means, such as biological weapons, or prohibited methods, such as perfidy/feigning protected status.

Of these, it is doubtful that the school attack violates the principle of distinction, assuming a good-faith, albeit mistaken, judgment that the structure was part of the IRGC compound. Also, it is possible that the attack could be construed to be indiscriminate, although that charge is normally applied where the attacker is indifferent to what will be struck. The principle of proportionality is also not at play, as there is no civilian harm to weigh against an anticipated military advantage when the premise for the attack is a mistake. But the attack almost certainly violates the principle of precaution, which is codified in Art. 57  the First Additional Protocol to the Geneva Conventions (AP I). While the United States is not a party to AP I, the rule of precaution is noted by the ICRC’s Customary IHL Study to be a rule of customary international law, applicable to all armed conflicts. The United States does not dispute this assertion.

The Principle of Precaution: The Role of Visual Inspection and Artificial Intelligence

The attack on the school was part of a series of missile strikes against adjacent facilities of the IRGC, clearly a legitimate military objective. Striking the school was deliberate, apparently not the case of a missile gone astray. Outdated intelligence designated the structure as part of the IRGC complex, despite that it had been separated and turned into a school many years ago. What measures might have been feasible to determine the true nature of the structure?

First, a visual inspection would have shown that the school premises were fenced off from the IRGC premises and that they contained a playground and brightly colored murals on the exterior walls, uncharacteristic of a military facility. It might have also shown children with their backpacks and teachers outside or entering and leaving. It is not known if such an inspection was carried out. 

Second, there are indications that artificial intelligence (AI) played a role in the designation of the school as a military objective. If so, what does that tell us about the wisdom of outsourcing life and death decisions to a machine? That issue is at the heart of the Trump administration’s present dispute with Anthropic and its AI chatbot, Claude. 

It may be argued that machines are less fallible than humans. There is evidence, for example, that humans cause more accidents, per capita, than do self-driving cars. This analogy is, at best, imperfect. The private sector features several accountability mechanisms to incentivize corporate responsibility. In addition to federal and state regulations that establish standards, courts are well-positioned to impose accountability for violations, both deliberate and negligent. Consumers also play a role, voting with their wallets. The military is subject to few such controls. It determines the body of information on which the AI machinery is trained and is largely insulated from civilian regulation or accountability for the development of means and methods of waging war. In the absence of accountability mechanisms applicable in the private sector, the incentive is to create AI that errs on the side of targetability. This is especially the case now that Secretary of Defense Hegseth has dismissed legal advisors, has eviscerated the Pentagon’s Civilian Harm Mitigation and Response (CHMR) program, and referred to rules of engagement as “stupid.”

One response to criticisms of AI use in targeting is that there is still always a “human in the loop.” Indeed, it is unlikely that the school attack was completely autonomous. But the ability of that human to satisfy legal obligations is questionable. The defining feature of AI is its ability to analyze massive amounts of data with great speed. That speed puts tremendous pressure on the “human in the loop” to absorb and judge the data and decide on targetability. The pressure from commanders or political actors to identify large numbers of targets in short order exacerbates the problem. In this case, thousands of targets were identified by AI at the commencement of hostilities, a strategic choice that heightens the “shock and awe” potential of U.S. firepower. The school was one of the early targets, In other contexts, analysts were allotted a mere 20 seconds to pass judgment on AI-generated targeting information. 

In the absence of AI-generated conclusions, attempts to satisfy the precautionary requirement might have focused more on what was physically observable. With the use of AI, the humans that control how the AI operates, and those who provide the last line of defense against its misuse, are not easily held accountable for mistakes. As such, their incentive to minimize mistakes is not the same as those with whom the buck otherwise really does stop. The diffusion of responsibility is, itself, a risk factor.

In the absence of visual confirmation efforts, and assuming reliance on flawed AI outputs, it is likely that the IHL principle of precaution was violated and was a direct cause of this tragedy. But is this a war crime?

War Crimes Under International law

As for what constitutes a war crime under international law, there is no better source than the Rome Statute of the International Criminal Court (ICC). Article 8 of the Statute defines war crimes. The drafters (I was a participant in the drafting of the Elements of Crimes document while working in the legal division of the International Committee of the Red Cross) legislated criminal responsibility for violations of the principles of distinction and proportionality, as well as for the use of indiscriminate attacks and prohibited means (weapons) and methods (e.g., perfidy). However, they deliberately excluded failure to abide by the precautionary principle due to concerns that the standards were too vague to justify criminal consequences for violations. The International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR), like the ICC, contain no stand-alone crime of failure to take precautions. However, in the Kupreskic case, the ICTY Trial Chamber ruled that the principle of precaution is not just a treaty rule but is part of Customary International Law, meaning it applies to everyone, everywhere. The court held that the duty to take precautions is “fleshed out” by the general principle of distinction, suggesting that the failure to take precautions likely implicates a violation of the principle of distinction, which is a crime. Still, while it is clear that precaution is an IHL obligation, it is far from clear that a  violation is ipso facto an international law war crime. (Recall the obligation to permit PoWs to have musical instruments).

War Crimes Under Domestic Law

As for domestic law, the U.S. War Crimes Act (WCA) criminalizes “grave breaches” of the Geneva Conventions (GCs). The relevant Convention here is GC IV for the protection of civilians. GC IV does not include precaution violations in its list of grave breaches. In fact, the Conventions make no mention of the principle of precaution, This is understandable because the focus of the Conventions is on persons already in the hands of the enemy, not on conduct of hostilities issues. The principle does appear in the more appropriate treaties, such as Additional Protocol I to the GCs, which also addresses the conduct of hostilities, and the 1907 Hague Convention IV, Respecting the Laws and Customs of War on Land, which is exclusively devoted to the conduct of hostilities. 

The U.S. War Crimes Law does incorporate violations of, inter alia, Arts. 25 and 27 of the Annex to the 1907 Hague Convention IV.  

Art. 25 states: “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.”

Art. 27 states: “In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.

It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.”

Art. 25 makes clear that undefended buildings are not to be targeted. But again, there is no evidence that U.S. forces knowingly, intentionally, targeted what they believed to be an undefended building. Art. 27, however, adds the requirement to take “all necessary steps” “as far as possible” to spare certain types of buildings. This is a direct reference to the precaution principle. Schools are not on the list, but it is not a stretch to consider a school, especially in an Islamic Republic, to be devoted to religion, art, science, or charitable purposes. Taken together, Arts. 25 and 27 make clear that certain structures, such as schools, not only may not be deliberately targeted, but also, that feasible precautions must be taken to avoid mistakes.

The failure to take adequate measures to prevent mistakes that result in the targeting of civilian infrastructure in international armed conflict is, thus, a war crime under U.S. law.

Prospects for Individual Accountability?

Even if the principle of precaution was designated as a war crime in the Rome Statute, the ICC would lack jurisdiction because the U.S. and Iran are not parties to the ICC treaty. 

As for potential criminal accountability under the U.S. WCA, of course, there is no prospect for a criminal investigation under the present administration. However, there is no applicable statute of limitation in the WCA. There is a general statute of limitation of five years for non-capital offenses and no statute of limitation for violations subject to the death penalty. The War Crimes Act does allow for the death penalty for war crimes resulting in death, as is the case here. Thus, there is no applicable statute of limitation, meaning that any future administration could prosecute.

Like the U.S. WCA, many other countries’ war crimes laws provide for jurisdiction over perpetrators regardless of their nationality, even if they commit their war crime in another country. The Geneva Conventions obligate states parties to provide for, and to exercise such “universal jurisdiction” for grave breaches and all states are party to the Conventions. But the Conventions do not limit the permissible scope of universal jurisdiction to “grave breaches,” and some states can exercise such jurisdiction for other war crimes, as well, if their legislation permits. Should U.S. nationals implicated in the school attack travel abroad, they may be at risk of prosecution under such laws.

As a practical matter, those responsible for instituting the policies resulting in the school attack may be more susceptible to prosecution than those carrying out the attacks. A commander who either knew or should have known that policies for which they are responsible would lead to violations of IHL resulting in death could certainly face prosecution. Secretary of Defense Hegseth’s denunciation of “stupid rules of engagement” and emphasis on “maximum lethality over tepid legality” may have those words used against him if a causal connection can be shown between those statements and changes in rules of engagement that led to the school attack. An “inferior” in the military chain of command, however, even one who “pushed the button,” would only be criminally liable if they knew the orders under which they were operating were unlawful. The defense of “superior orders” is also unavailable if the orders in question are “manifestly unlawful,” (e.g., orders to torture or kill civilians or prisoners of war) – not likely the case here.  

State Responsibility

Unlike criminal responsibility which is limited by the definition of crimes and scope of jurisdiction of relevant tribunals, states incur responsibility to each other for violations of international law attributable to them. In the IHL realm, the starting point is Art. 1 Common to the four GCs, which obligates all state parties to “respect and ensure respect for the present Conventions in all circumstances.” The details of state responsibility are beyond the scope of this article but suffice it to say that international mechanisms for adjudication include IHL Fact Finding Commissions and Enquiry Procedures, UN Commissions of Inquiry,  the UN Security Council, and the International Court of Justice. When they establish jurisdiction, these mechanisms can order various elements of reparation, including restitution, compensation, and satisfaction.

Conclusion

The likelihood of either criminal or state accountability for the attack on the Shajareh Tayyebeh Primary School is low. But the attack may well constitute a war crime stemming from the failure to take adequate precautions. Regardless of whether it is a crime, the failure is a violation of applicable international humanitarian law for which the United States incurs international responsibility. As the political landscape shifts, it is conceivable that individuals and/or the United States can eventually be held to account. The more important lesson going forward, however, is that over-reliance on AI is a recipe for disaster.