The Protection of Schools under International Humanitarian Law
Captain D.M.L.G. (Dennis) Lemmens LL.M. and captain F.J.M. (Fleur) de Boer LL.M.1
The armed conflict in Yemen has been called the worst humanitarian crisis in the world. It has, however, also been titled a 'forgotten war'.2 The conflict has a horrific impact on the civilian population. Violence, illness and starvation plague the civilian population.3 Women and children are a particularly vulnerable group.4 The United Nations Children's Fund (hereinafter 'UNICEF') and the International Committee of the Red Cross (hereinafter 'ICRC') point out that many schools have been destroyed, damaged or used for military purposes.5 Education for children has also been referred to as one of the greatest casualties of war.6 Yemen is, unfortunately, not the only state where schools suffer greatly from the effects of an armed conflict.
The use of schools for military purposes may not only increase the risk that they are attacked, but also the risk of recruitment and participation of children in hostilities. Destruction of or damage to schools can have short- and long-term consequences for individuals and societies.7 Persons may lose access to education or even the entire educational system in a State can experience a severe set-back. After an armed conflict has ended, the destroyed and damaged schools will have to be rebuilt. It may take a while before education can be resumed.
International Humanitarian Law (hereinafter 'IHL') is the law that specifically applies to situations of armed conflict.8 It is designed to protect certain persons and objects and to regulate means and methods of warfare.9 The foregoing examples trigger the question whether IHL provides adequate protection to schools10 in armed conflict. To answer this question, this article first describes the legal framework and examines how IHL currently protects schools during armed conflict. Secondly, the article will examine whether the presence of certain persons in the schools has any consequences for their protection. An explanation of the targeting process will be given to further clarify the protection of schools. Lastly, the article discusses whether IHL provides schools with sufficient safeguards.
2. The legal framework
The Geneva Conventions and their Additional Protocols do not provide a definition of 'armed conflict'. The International Criminal Tribunal for the former Yugoslavia (hereinafter 'ICTY') gave a definition which is considered leading. 'Armed conflict' is defined as follows:
'an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State'.11
Whether an armed conflict exists, is a factual determination. There are two types of armed conflict, namely: international armed conflicts12, which take place between two or more States, and non-international armed conflicts13, which take place between one or more States and an organized armed group or between such groups within a State.14 The rules of IHL are based upon and reflect a number of basic principles.15 These principles are, inter alia, the principle of necessity, the principle of humanity, the principle of distinction and the principle of proportionality.16 The principles entail that parties to the conflict should only use force which is necessary to achieve their goals, and that the means and methods employed by parties to the conflict should not cause unnecessary suffering and superfluous injury.17 Furthermore, parties to the conflict should make a distinction between civilians and combatants and between civilian objects and military objectives.18 Lastly, expected collateral damage must be proportionate in relation to the anticipated concrete and direct military advantage.19 Parties to the conflict must take all feasible precautionary measures to avoid or limit collateral damage.20
3. The protection of schools
There is no provision in the four Geneva Conventions of 1949, the Additional Protocols or in customary international law that explicitly and exclusively deals with the protection of schools.21 Schools are to be considered as prima facie civilian objects and the general rules of IHL, including the previously mentioned basic principles, provide a framework in which their protection can be examined. Parties to the conflict must, according to the principle of distinction, distinguish between civilian objects and military objectives because attacks may only be carried out against the latter.22 Civilian objects may not be targeted. This is a rule of customary international law, which consequently applies to international and non-international armed conflicts.23 If there is serious doubt as to whether the school is a civilian object or a military objective, it shall be considered to be a civilian object.24 IHL grants schools general protection against direct attacks: a direct attack against a school violates the rule of distinction and constitutes a breach of IHL. They may not, in principle, be targeted but they can be affected by an attack.25 Even though schools may be affected by an attack, the effects must be weighed against the concrete and direct military advantage in accordance with the principle of proportionality.26 IHL requires that attacks shall be limited strictly to military objectives.27
Schools can nevertheless temporarily lose their general protection under IHL. In that case, a direct attack does not constitute a breach of IHL. Schools are protected by IHL both in international and non-international armed conflicts against attacks, unless and for such time as they are military objectives.28 A school can therefore lose its general protection if it becomes a military objective. A 'military objective' is defined as follows:
'objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage'.29
Schools are surely not objects which by their nature make an effective contribution to military action. However, the use of a school for military purposes can render it a military objective. For example, a school can be used to host artillery or soldiers, or as a military base, a command post or a military training camp. Schools can even be used for both civilian and military purposes. These so-called 'dual use objects' are nevertheless considered to be a military objective when they meet the aforementioned criteria.30 When targeted, the same rules and basic principles apply. IHL affords schools general protection, which is not absolute. However, there may be people present in the schools. Does that have any consequences for the protection of schools?
4. The presence of persons
Normally, schools accommodate persons including children, students, teachers and other staff of the school. One may argue that schools are most likely empty during an armed conflict. However, the situation in Yemen illustrates that schools are still functioning despite the armed conflict.31 Under normal circumstances, the aforementioned persons have the status of civilians and enjoy general protection under IHL. The basic principles such as the principle of distinction and proportionality apply. Civilians may not be directly attacked but they can be affected by an attack.32 The effects of an attack may not be excessive in relation to the concrete and direct military advantage.33 A distinction must be made between civilians on the one hand, and civilians taking direct part in hostilities or members of the armed forces on the other hand. The general protection of civilians is not absolute. Civilians lose their protection against attack when they directly take part in hostilities. They even cease to be civilians when they become members of the armed forces.34 However, for international armed conflicts it is explicitly regulated that, in case of uncertainty, persons shall be regarded as civilians.35 The ICRC defined three criteria for direct participation in hostilities.36 The act in question must likely result in harm to the military operations or cause damage, destruction, injury or death of persons or objects protected against attack.37 Additionally, a direct causal link must exist between the act and the harm likely to be caused.38 Lastly, the act must be specifically designed to directly cause the harm.39 Consequently, the mere presence in a school does not constitute direct participation in hostilities.
Certain persons enjoy special protection under IHL.40 For example, IHL includes specific provisions on the protection of children.41 Children enjoy special protection in addition to general protection.42 IHL addresses in this context matters such as the provision of medical supplies, food and clothing, the care of children who are separated from their families or are orphaned, the facilitation of education and the treatment during deprivation of liberty.43 Additional Protocol I even speaks of 'special respect', which entails that children must be protected against rape, enforced prostitution or any other form of indecent assault.44 Furthermore, parties should prevent children from directly participating in hostilities and are prohibited from recruiting children under the age of fifteen.45
There is thus no absolute prohibition of children being affected by hostilities. Their special protection has no legal consequence for the protection of schools. The special protection is only relevant with regard to the treatment of children by parties to the armed conflict while the children are in the power of those parties. However, the presence of civilians in the school will influence the answer to the question whether the school can be attacked or affected by an attack.
5. Targeting example
The rules of IHL are incorporated in the targeting process to ensure compliance with IHL.46 To determine whether an object or person can be targeted, the first important question that must be answered is whether the object or person is a military objective. After a legitimate target has been selected, the commander is obliged to make a proper assessment on the basis of the available information regarding the expected collateral damage and concrete and direct military advantage. The expected collateral damage may not be excessive in relation to the expected concrete and direct military advantage or an attack would violate the principle of proportionality. Furthermore, the commander must take precautionary measures before engaging an objective. This requires that all feasible precautions must be taken to avoid or minimize collateral damage.47 During the targeting process, the available information with regard to the situation must be continuously updated and reassessed.
The aforementioned legal framework proscribes the targeting of a school that has the status of a civilian object. What if the school is used as a military base? A school loses its protection as a civilian object when it becomes a military objective. Military bases are usually seen as military objectives.48 The school can therefore be seen as a military objective. The presence of civilians in the building will have to be factored into the proportionality equation, whereas the presence of civilians taking direct part in hostilities or members of the armed forces or members of armed groups who are fighters do not. The latter three categories may be the object of direct attack. If the collateral damage is not excessive in relation to the anticipated concrete and direct military advantage and precautions have been taken, the school can be targeted. Now consider that the school is used as a military base where children under the age of fifteen receive training to become a future generation of combatants or fighters.49 Whether the school can be attacked, depends on the status of the children and the expected collateral damage. The principles of distinction and proportionality do not apply differently to situations involving children. If the children are not directly participating in hostilities and are not members of the armed forces or members of armed groups who are fighters, they have the status of civilians. The general protection of children as civilians is relevant in the targeting process. The school may be targeted even if children will be affected by the attack, as long as the attack does not violate the principle of proportionality.50 The destruction of or damage to the school must in that case generate considerable military advantage in order for that outcome of the proportionality assessment to be applicable.
6. Adequate protection?
Schools are afforded general protection under IHL, but practice shows that they are nevertheless badly affected by armed conflict. The situation in Yemen illustrates this. The ICRC points out that many schools have been destroyed or damaged and used by armed groups.51 Schools do not enjoy absolute protection in armed conflict. However, if schools are destroyed or used for military purposes on a widespread basis, it could create critical conditions for the civilian population. Education also plays a vital role in the reconstruction of societies after the cessation of an armed conflict. Can the protection of schools therefore be regarded as sufficient?
According to Balta, schools should enjoy a higher level of protection than other civilian objects because of the special protection afforded to children under IHL.52 She further implies that various UN sources indicate a different level of protection for schools other than the general protection for civilian objects.53 Some UN sources mention special protection for schools.54 Balta recommends, inter alia, the creation of a specific emblem for schools to help distinguish between schools as civilian objects and schools as military objectives.55 Bart highlights the difference between the protection of schools and other objects such as hospitals. He notes that hospitals may not be used for military purposes, whereas no such prohibition exists for schools.56 This is perhaps due to the difference between schools and hospitals in an actual combat situation in an armed conflict. Hospitals tend to be full of patients during an armed conflict, while schools tend not to be full of children in the middle of an actual combat situation. The removal of patients from the hospitals during an actual combat situation, would most likely result in immediate or short-term effects on their health. Bart nevertheless argues that schools should be afforded the same or even superior privileges as hospitals.57 Schools would consequently be protected at all times in the same way as medical objects.
Medical objects are protected at all times, unless the object is used to commit, outside their humanitarian duties, acts harmful to the enemy.58 If the medical object is used as a military observation post or as a shelter for able-bodied combatants or fighters, then this use can be qualified as acts harmful to the enemy.59 This does not mean that the protection immediately ceases. The protection ceases only after a due warning has been given, such as naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.60 This phrase makes the protection of a medical object a 'special' one. If the opponent uses the medical object for instance as a military observation post or as a shelter for able-bodied combatants or fighters, he must stop these harmful acts within a reasonable timeframe. If the opponent does not do this, the medical object loses its special protection and follows the path of a civilian object that loses its general protection when it makes an effective contribution to military action and therefore qualifies as a military objective.61 Similarly, the medical object has become a military objective 'protected' by the framework that IHL offers in the context of the principle of proportionality and precautionary measures.62 It is arguable that IHL, similar to hospitals or other medical objects, should include an express prohibition of the use of schools for military purposes.63
Human Rights Watch has documented recent and historic examples of the military use of schools in countries with armed conflict and urges all governments to endorse the Safe Schools Declaration and to implement the Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict (hereinafter 'Guidelines').64 As of 29 May 2019, 89 States have endorsed the Safe Schools Declaration, which in turn endorses and commits to the implementation of the Guidelines.65 The Guidelines distinguish between functioning schools and abandoned or evacuated schools. According to the Guidelines, fighting forces of parties to the armed conflict may not use functioning schools for any purpose in support of their military effort. Abandoned or evacuated schools may not be used except when and for the duration that there is no viable alternative.66 This leaves room for operational necessity. Armed forces may seek immediate shelter, the building may be strategically located and an empty school might be an easier alternative than removing residents from their homes or setting up an entire post. Additionally, the Guidelines note that the schools used for military purposes should remain available in such a manner that allows for re-opening. This includes the removal of any indications of militarization. Interestingly, the Guidelines also suggest certain protection for abandoned or evacuated schools that appears to be similar for medical objects. Guideline 4 suggests that a party to the conflict should consider measures before targeting a school, such as warning that the school will be attacked unless it is no longer used for military purposes. It also calls upon parties to the conflict to consider the special protection of children and the potential long-term negative effects.
This article examined the legal framework regarding the protection of schools in armed conflict. The general protection of schools and civilians, and even the special protection of children, does not result in an absolute prohibition on the targeting of schools and the use of schools for military purposes. The general protection under IHL would in principle be sufficient, however, the conflict in Yemen demonstrates that many schools have been destroyed or are used for other purposes and the situation continues to deteriorate. This suggests that enhanced protection is necessary. Schools could benefit from a special protection standard similar to the protection of medical objects. It would then be prohibited to use schools for military purposes and the special protection only ceases when a certain party uses a school to commit acts harmful to the enemy, ignores a due warning to stop these acts and is given a reasonable time for it. The Guidelines apply a nuance to this special protection as they distinguish between functioning and abandoned or evacuated schools. This distinction takes into account the military necessity that can arise in combat situations. It does not fully equate schools with medical objects, perhaps because of the differences regarding their role during an armed conflict. The Guidelines nevertheless provide schools with enhanced protection. The Guidelines place schools higher up the ladder of protection and can further prevent direct attacks on schools. This form of enhanced protection can be seen as a compromise between, on the hand, the harsh reality of armed conflict and, on the other hand, the role education plays during the armed conflict and in the post-conflict stage.