by Steven Haines | Jul 17, 2024

In early July 2024, the BBC reported that the Israel Defence Forces (IDF) had conducted an air strike on a school in the Nuseirat refugee camp in central Gaza. According to Palestinian sources, sixteen people were killed, with dozens more injured in the attack on the school building, which was sheltering around 7,000 internally displaced men, women, and children.

This is just one example of the significant impact of armed conflict on children, schools, education systems, and civilian communities. Against this backdrop, this post examines humanitarian efforts to address the devastating impact of armed conflict on schools. After discussing this impact in the context of the recent Israeli air strike, the post explains “soft law” efforts by the Global Coalition for the Protection of Education from Attack to encourage States and non-State armed groups to mitigate risks to schools during combat. These efforts include the Safe Schools Declaration, which has been endorsed by 120 States.

The Israeli Air Strike

Eyewitnesses told the BBC that the attack targeted the upper floors of the school, which is located near a busy market. One woman stated that some children were killed as they were reading the Koran when the building was hit. “This is the fourth time they have targeted the school without warning,” she said. Another local source said the target was a room allegedly used by Hamas police.

In relation to this tragic conflict, one needs, of course, to be cautious about the sources and accuracy of such reports. However, while the initial report came from the Hamas health ministry, the BBC reported that the IDF subsequently confirmed the attack. The IDF spokesperson stated that they had indeed targeted the school buildings but that they had taken “numerous steps” to “mitigate the risk of harming civilians, including the use of precise aerial surveillance and additional intelligence.” The IDF insisted that Hamas militants were using the location as a “hideout” to carry out attacks against IDF troops.

While the precise facts of such incidents are frequently difficult, if not impossible, to determine, especially in the immediate aftermath, it is reasonably clear in this instance, therefore, that a building used as a school was also probably used by Palestinian police or militants. The IDF targeted it and a number of civilians were killed and injured in the attack.

The targeting of schools is nothing new. Indeed, a previous and very similar attack on a Gaza school in June 2024 was reported to have killed over thirty civilians. And simultaneously, of course, we have the Russian attacks on Ukraine, in which hundreds of schools have been affected. Education—the teachers who provide it and, most significantly, the children and young people who so desperately need it and for whom it is a fundamental right—has been vulnerable over many years.

Schools under the Law of Armed Conflict

A school is ordinarily a civilian object, of course, and not subject to lawful targeting. If, however, military forces use it, the school loses its protected status and becomes a military objective.

One can debate the extent to which the presence of military forces renders a building a clear military objective. One or two soldiers paying a brief “liaison” visit to a school would be unlikely to deprive it of its protected status, for example, even though the soldiers themselves would remain legitimate targets during their visit.

But what if soldiers were located in close proximity to a school as a measure to protect it from attack by enemy forces? Providing “security” for a school might sound an entirely reasonable justification for locating military forces in close proximity to it, but that very act risks having exactly the opposite effect from that intended, drawing enemy fire towards the security forces and, inadvertently towards the school itself. Sound military judgment must be applied and a sensible approach adopted for the school’s security. A clear dilemma.

In some circumstances, however, a military presence would, without question, deprive a school of full legal protection. Its use as an operational headquarters, as a location for storing military equipment, as a barracks, as a firing position, or even as a deliberate attempt by military forces to use children and their teachers as “human shields,” would all have the effect of transforming the school into a military objective. It would become vulnerable to lawful attack, even if children were present and the school was still being used for its intended purpose.

A military objective can be subject to lawful attack, even if the action would result in civilian casualties, just as long as those casualties, including women and children, are regarded as proportionate to the military advantage gained. Sound and responsible military judgment must be applied in assessing what would and what would not be proportionate in the circumstances. Any right-minded military commander in such situations would most certainly have to grapple with a clear dilemma, balancing military advantage against the likely death and injury of innocent civilians. This represents one of the most challenging responsibilities of military command.

The 2024 Education Under Attack Report

Over a decade ago, Human Rights Watch (HRW) staff and others working in both civil society organisations and UN agencies, were deeply concerned about the impact of armed conflict on schools and universities. The right to education is fundamental, not only for individuals in relation to their personal development but also in the community. There is a collective sense that education is vital for societies to succeed and especially for them to recover from armed conflicts once some measure of peace has been restored.

An important conclusion reached by HRW was that (notwithstanding deliberate attacks on schools for ideological reasons) schools were often being targeted by belligerent forces because they were being used by their opponents, especially during civil wars, or non-international armed conflicts, which can be especially intense, with schools being used and targeted by the rival forces.

Following HRW’s assessment of the impact of the military use of schools, a coalition of non-governmental organisations (NGO) and UN agencies was formed in 2010 to seek ways of reducing the impact of armed conflict on schools and universities. This was named the Global Coalition for the Protection of Education from Attack (GCPEA). The GCPEA initiated a series of reports giving details of attacks on schools globally. They have not made easy reading.

Its latest report—Education Under Attack 2024, launched at the UN Headquarters in New York on 20 June—makes for grim reading. In 2022 and 2023, the GCPEA identified around 6,000 attacks on education—schools and universities—not to mention numerous examples of schools being used by military forces as bases, headquarters, barracks, storage facilities, and even firing positions, in approximately thirty countries where armed conflicts are currently ravaging society.

While Ukraine and Gaza are the conflicts constantly in the news today, there are many others that have become a semi-permanent feature of the international scene, with Africa and Asia the two most affected continents. Conflicts featured in the GCPEA report include those in Sudan, Myanmar, the Democratic Republic of the Congo, Cameroon, Yemen, Afghanistan, Kyrgyzstan, Syria, Burkino Faso and Mali, and many more besides. Millions of men, women, and children are affected by conflict every day.

The effects can be, and frequently are, generational. In Liberia, civil wars that raged in that country until a decade ago affected almost 95 percent of schools. The educational infrastructure there has still not fully recovered. Liberia suffered terribly from a lack of trained medical personnel during the Ebola outbreak in 2014/15; educational shortcomings were a significant contributing factor.

According to Human Rights Watch, around 4,000 schools in Ukraine have been affected during the war, since February 2022, many as a result of the illegal attacks on that country by Russian armed forces. A child deprived of a place in school today will not only have his or her future placed under severe threat but is unlikely to contribute their full potential to the future development of their communities.

Education is fundamentally important for all societies. Without it, whole populations cannot thrive. The provision of education—primary, secondary, and tertiary—is the principal means by we all are enabled to contribute positively to the development, growth, and stability of the communities in which we live. It is no surprise that the UN Declaration of Human Rights—the foundational document of international human rights law—lists education as a fundamental right.

The GCPEA’s 2012 Guidelines and the Safe Schools Declaration

In 2012, the GCPEA launched a major project in an attempt to reduce the targeting of education in conflict. Having identified the presence of military forces in and in close proximity to schools as a reason for attacks on them, an obvious key objective was to reduce that presence. Twelve months later, the Global Coalition launched the International Guidelines for the Protection of Schools and Universities from Military Use during Armed Conflict. It’s a long title but the Guidelines themselves are short and to the point, just six in all, described on a single sheet of paper. (For a full account of the development of the Guidelines, see here.)

Adopted and championed by both Norway and Argentina, the Guidelines were incorporated in the Safe Schools Declaration (SSD) drafted under Norwegian auspices and launched at an all-States diplomatic conference in Oslo in 2015. Ziauddin Yousafzai, the father of Nobel laureate Malala Yousafzai, delivered an impassioned keynote address at the beginning of the proceedings.

The SSD has since then received widespread and high-level endorsement. French President Hollande and President Zelensky of Ukraine were, for example, just two world leaders who personally endorsed it. Rwanda became the 120th endorsing State in 2024. The UN Security Council and General Assembly have urged use of the Guidelines at the heart of the SSD as a means to protect schools. Although the United States has not formally endorsed the SSD, it has promulgated the Guidelines within its armed forces. Importantly, under the good offices of the Swiss-based NGO Geneva Call, a number of non-State armed groups have also signalled their support for the Guidelines, which is especially relevant given the frequency of non-international armed conflict today.

What do the Guidelines recommend? They are brief and self-explanatory but what follows is a summary of what they contain.

First and foremost is the message that functioning schools should not be used by military forces for any purpose.  A “functioning” school includes one that is closed for a weekend or a vacation period. The fact that there are no students or staff present does not mean it is not functioning as a school. And staff should not be offered incentives to “close” or vacate a school in order that a military force could use it.

Not even abandoned schools should be used by military forces, except in extreme circumstances and for exceptional purpose. If they are used, they should be vacated by the military as soon as they are required once more for their intended educational purpose. They should also be returned to the condition they were in before the military force used them with all military equipment removed and any damage repaired etc.

Schools that are abandoned should certainly not be destroyed by military forces retreating from an area simply to deprive the opposing belligerents of a useful building/site for use by their military forces. As civilian objects, schools should not be targeted but, even when a school or university is being used for military purpose turning it into a military objective, an opposing belligerent should if possible resist targeting it and consider alternative means of dealing with it.

Finally, military commanders faced with a school that is located in a conflict zone and which might be vulnerable to attack, should think carefully before providing security to it using military personnel for that purpose. The mere presence of military forces there to provide security can lead to the school being perceived by the enemy as a legitimate military objective. Alternative means of providing security should if possible be considered

The Guidelines also contain comment on how they should be promulgated within the armed forces. Each State and each non-State armed group will have its own processes for doing this, including with such mechanisms as rules of engagement and through training. The important message is that those personnel deployed tactically in conflict zones should be aware of the Guidelines and be trained to apply them.

Conclusion

These Guidelines are not in and of themselves legally binding, although they are consistent with and, in large part, reflective of both international human rights law and the law of armed conflict. In that sense, they are “soft law,” intended to influence State practice in a positive direction. They generate no new legal obligations for endorsing States, but they represent what a GCPEA-convened “focus group” of military, government, civil society, and International Committee of the Red Cross (ICRC) representatives considered entirely reasonable as a guide for military commanders operating in difficult armed conflict circumstances.

It must be admitted that the Guidelines are not yet as effective as the endorsing States, GCPEA, UN agencies, the ICRC, and other humanitarian groups would like them to be. In relation to the two most prominent conflicts in train today, for example, while Ukraine became the 100th State to endorse the SSD in 2019, the Russian Federation has ignored them and, while Palestine has endorsed, Israel has not. And it should be noted as well that neither Ukraine nor Palestine appears to be in full compliance with the Guidelines, with both using schools for military purposes. There has been some success in terms of State endorsements, therefore, but there is a long way still to go before we can rest on our laurels.

***

Steven Haines is Professor of Public International Law in the University of Greenwich, UK and, as a serving officer in the UK Armed Forces, Chaired the Editorial Board of the UK Government’s official Manual of the Law of Armed Conflict (OUP, 2004). From 2012 to 2014 he acted as the Legal and Military Consultant for GCPEA and drafted the International Guidelines for the Protection of Education from Military Use during Armed Conflict which are at the heart of the Safe Schools Declaration.