I I I. Protecting Education Buildings from Military Use

The number of students decreased after the occupation. Around 25 students have left. The teachers went to the village and tried to convince the local residents to send their children to school. The teenage girls were afraid to come.... Sometimes the jawans [troops] scold the students and [glare in an intimidating manner] at the children, and the children feel threatened by these incidents and sometimes don’t come to school for one or two days. When the teacher learns this they go to the village to encourage the child to return to school. The teacher tried to convince them to come, but because of these incidents, fear remains, and this hampers their studies.... Sometimes the jawan shout and howl, and they even use abusive language. But we [teachers] can’t say anything against them.

—Teacher at a partially occupied school in Chota Nagra, West Singhbhum district, Jharkhand, India, June 2009

Attracted by schools’ central locations, solid structures, and electrical and sanitation facilities, state security forces have taken over schools for weeks or months, and sometimes years for their own purposes. Research by Human Rights Watch has shown that military or police use of schools not only disrupts students’ education, it may itself provoke attacks from opposing armed groups.[73]

In some instances, security forces entirely displace students. But even when schools are not being used for classes, military use is problematic because attacks by opposing forces can destroy school infrastructure and blur the lines between civilian and military installations, potentially exposing schools to attack when students return.

In other cases, military forces occupy only parts of schools, with classes continuing to be held in the unoccupied areas. Such partial occupation of schools is also problematic. In partially occupied schools visited by Human Rights Watch in India and southern Thailand, students, teachers, and parents variously complained about problems as diverse as overcrowding of classrooms, loss of kitchens, and inability to use school latrines. (Lack of access to toilets is a globally recognized factor contributing to lowered school attendance by girls.[74]) Students try to continue their studies alongside armed men whose often poor behavior – ranging from beating criminal suspects in front of students to gambling, drinking, and using drugs – are all counter to a safe and positive learning environment for children. When security forces move in, there is typically an immediate exodus of students. Long-term occupations also deter new enrollments and re-enrollment into the higher class years. Human Rights Watch’s research indicates that girls appear more likely to drop out or fail to enroll, motivated in part by fear of harassment by troops using the schools.

International Humanitarian Law

Parties to a conflict are required under international humanitarian law to take all feasible precautions to protect the civilian population and civilian objects such as schools under their control against the effects of attacks. Moreover, each party to the conflict must, to the extent feasible, remove civilians and civilian objects under its control from the vicinity of military objectives.[75] Thus it is unlawful to use a school simultaneously as an armed stronghold and as an educational center.

Although there is no ban in international humanitarian law on the use of school buildings as military bases or for other deployments, a UN treaty body and the UN Security Council have raised concerns about such use.

The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which has been ratified by 139 countries, requires member states to submit regular reports to the Committee on the Rights of the Child, an international expert body charged with monitoring state compliance with the treaty. When presented with evidence of military occupation of schools, the committee has urged the immediate discontinuation of such use. In 2010, reviewing the situation in Colombia, the final report from the committee noted:

The Committee is … concerned over continued reports indicating the occupation of schools by the armed forces and over military operations in the vicinity of schools. The Committee recognizes the State party’s duty to guarantee the right to education throughout the territory, however underlines that military presence in the vicinity of schools significantly increases the risk of exposing school children to hostilities and retaliations by illegal armed groups.

The Committee urges the State party to immediately discontinue the occupation of schools by the armed forces and strictly ensure compliance with humanitarian law and the principle of distinction. The Committee urges the State party to conduct prompt and impartial investigations of reports indicating the occupation of schools by the armed forces and ensure that those responsible within the armed forces are duly suspended, prosecuted and sanctioned with appropriate penalties.[76]

Also in 2010, on Sri Lanka, the Committee stated:

The Committee … calls upon the State party to:

(a) Immediately discontinue military occupation and use of the schools and strictly ensure compliance with humanitarian law and the principle of distinction and to cease utilizing the primary section of V/Tamil MV school and the Omanthai Central College in Vavuniya to host separatees; and

(b) Ensure that school infrastructures damaged as a result of military occupation are promptly and fully restored.[77]

The UN Security Council has also called on armed forces to refrain from using schools for military operations because of the impact it can have on children’s access to education. In a statement delivered by the president of the UN Security Council in April 2009, “The Security Council … urges parties to armed conflict to refrain from actions that impede children’s access to education, in particular … the use of schools for military operations.”[78] Although presidential statements are not legally binding, they require a consensus to be adopted, and they are thus persuasive indicators of the views of the membership of UN’s principle body for the maintenance of peace and security.

International humanitarian law is binding on non-state parties to an armed conflict just as it is on state parties. However, non-state armed groups do not have the legal capacity to sign or ratify international treaties. One approach to this issue was the drafting of the 2010 Deed of Commitment for the Protection of Children from the Effects of Armed Conflict, a document that would give armed groups an opportunity to demonstrate their commitment to international norms protecting children during armed conflict. The document contains among other commitments, a provision “To further endeavor to provide children in areas where we exercise authority with the aid and care they require, in cooperation with humanitarian or development organizations where appropriate. Towards these ends, and among other things, we will: … v) avoid using for military purposes schools or premises primarily used by children.”[79]

General Protections for Education during Military Occupation

International humanitarian law during occupation by foreign armed forces provide a variety of special protections for education to ensure that children are still able to obtain an education even in the aftermath of an armed conflict. Thus although the Geneva Conventions do not prohibit military use of schools, they do impose an obligation on occupying forces to ensure that children continue to have access to education.

Under the Fourth Geneva Convention, which is applicable during a belligerent occupation,  an occupying power must facilitate, with the cooperation of the authorities, “the proper working” of all institutions devoted to the education of children. [80] In addition, “should the local institutions be inadequate for the purpose, the Occupying Power shall make arrangements for the maintenance and education, if possible by persons of their own nationality, language and religion, of children who are orphaned or separated from their parents as a result of the war and who cannot be adequately cared for by a near relative or friend.” [81]

While the concept of belligerent occupation does not exist during non-international armed conflicts, Protocol II provides a fundamental guarantee that children “shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care.”[82]

Education Buildings as Cultural Property

International humanitarian law prohibits the use of property of “great importance to the cultural heritage of every people” for purposes that are likely to expose it to destruction or damage, unless imperatively required by military necessity.[83]

There are differing views on the extent to which educational buildings are protected under this standard.

In a case before the ICTY, Dario Kordic and Mario Cerkez were accused, among other things, of destroying schools in Bosnian Muslim towns and villages, and the Trial Chamber ruled in 2001:

The Trial Chamber notes that educational institutions are undoubtedly immovable property of great importance to the cultural heritage of peoples in that they are without exception centers of learning, arts, and sciences, with their valuable collections of books and works of art and science.[84]

However, on appeal, the ICTY Appeals Chamber found that “the Trial Chamber erred when it considered that educational institutions are undoubtedly immovable property of great importance to the cultural heritage of peoples”[85] because the Appeals Chamber did not see how all educational buildings could be objects “whose value transcends geographical boundaries, and which are unique in character and are intimately associated with the history and culture of a people.”[86]

Human Rights Law

Even during armed conflict, international human rights law remains in effect.[87] When the extended use of a school by government security forces affects children’s ability to receive education, they may be violating children’s right to education guaranteed under international human rights law.[88] Indeed, states are under an obligation to achieve increasing realization of the right to education. These include measures to encourage regular attendance at schools, reduce dropout rates, encourage the development of higher forms of education, and continually improve the material conditions of teacher staff – all elements that Human Rights Watch has shown are threatened by military use of schools.[89]

Two major international treaties guarantee the right to education. The International Covenant on Economic, Cultural and Social Rights (ICESCR) in article 13 provides:

1.       The States Parties to the present Covenant recognize the right of everyone to education …

2.      … [W]ith a view to achieving the full realization of this right:

(a)   Primary education shall be compulsory and available free to all;

(b)   Secondary education in its different forms, … shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

(c)    Higher education shall be made equally accessible to all, …;

(d)   Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;

(e)   The development of a system of schools at all levels shall be actively pursued … and the material conditions of teaching staff shall be continuously improved.

The Convention on the Rights of the Child (CRC), which has been ratified by all states except Somalia and the US, also guarantees the fundamental right to education. Under article 28:

1.       States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

(a)   Make primary education compulsory and available free to all;

(b)   Encourage the development of different forms of secondary education, … make them available and accessible to every child…;

(c)    Make higher education accessible to all on the basis of capacity by every appropriate means; …

(e) Take measures to encourage regular attendance at schools and the

       reduction of dropout rates.

The right to education is also guaranteed in various regional human rights treaties.[90]

Domestic Law and State Practice

State practice when it comes to domestic regulations on armed forces using schools as either short-term shelters or long-term bases varies. Although many countries told Human Rights Watch that they placed no restrictions on their use of schools, a few countries do have explicit prohibitions against the use of schools by their armed forces, while others have explicit restrictions on their use. Two countries stated that although they have no such regulations they nonetheless do or would avoid this practice, and others told Human Rights Watch that they recognized that there were implicit restrictions under their laws on the use of schools.

Countries with Explicit Prohibitions or Explicit Restrictions on the Use of Schools

Eight countries covered by the Human Rights Watch survey have either explicit prohibitions or explicit restrictions on the use of either all, or some, education buildings by their armed forces: Colombia, Ecuador, Greece, India, Ireland, New Zealand, the Philippines, and the UK. Of particular note is that Colombia, India, and the Philippines are all involved in prolonged internal armed conflicts against various rebel groups. That countries with these experiences have opted for such explicit restrictions against the use of schools may reflect certain lessons from these conflicts.  It certainly demonstrates a belief that their armed forces can fight successfully without having to resort to the use and occupation of schools.

In 1992, the Congress of the Philippines enacted the Special Protection of Children Against Child Abuse, Exploitation, and Discrimination Act, which prohibits the use of school buildings as government forces command post, detachment, depot, or any similar facility.[91] This prohibition has also been incorporated into military directives.[92]

In Ireland, although the military has extensive powers to set up military camps in pursuant of a “maneuvers (authorization) order,” the Defence Act of 1954 stipulates that this authorization does not allow “the entry on or interference with (except to the extent of using any road) any … school, … [or] ground attached to any … school.”[93]

Under India’s Requisitioning and Acquisition of Immovable Property Act of 1952, the central government is barred from requisitioning or acquiring a school property, or teacher housing, even if it is determined that such a property is needed for any public purpose.[94] (However, under India’s constitutional system, state governments have equal power to requisition, and therefore this ban does not apply to them.) In practice, state governments in India have frequently used schools as bases for police and paramilitary police forces. However, the Supreme Court of India and some state courts have on a number of occasions ordered that such occupied schools be vacated. India’s judiciary has often ordered paramilitary forces and police to vacate schools that they occupy, and has banned future occupations. For example, in a September 2010 ruling, the Indian Supreme Court ordered armed security forces to vacate all schools buildings occupied in the northeast states of Assam and Manipur and that schools should not be allowed to be occupied by the armed or security forces “in the future for whatsoever purpose.”[95]

In an ongoing case against the state of Chhattisgarh where Maoist opposition forces have a large presence, the Supreme Court in December 2010 ordered the state government to vacate all schools occupied by security forces.[96] During a hearing the following month, the court ruled: “There shall be a direction to the Union of India and the State of Chhattisgarh to ensure that the security forces vacate all the educational institutions, school buildings and hostels within a period of four months from today.”[97]

State courts in India have also ordered that schools be vacated when they have become occupied by police or paramilitary security forces.[98]

The Ministry of Defense for Colombia told Human Rights Watch that “the General Command of the Military Forces has issued different instructions which target all the military units. The aim of these is to remind the military units that the occupation of civilian goods, and in particular, of schools and educational centers, is prohibited, because it will mean a violation of [international humanitarian law].” As an example of such directives, the Ministry cited a July 2010 order of the Commander General of the Military Forces, which states that “it is a serious offence, [if] a commander occupies or allows the occupation on the part of his troops of … public institutions, such as educational establishments, including colleges, schools, and community halls, which causes an imminent risk for the protection of minors, noticeably affecting the guarantee of the fulfillment and respect of their rights.”[99] The order also notes that “since the use of civilian and public property has historically triggered other accusations against troops, such as forced displacement, theft, indiscriminate attacks, and both physical and verbal abuse against minors, who are subject to special protection…it is required to undertake disciplinary investigations where possible and to carry out … monitoring in order to avoid a repetition of [such] behavior in operation areas.[100]

The Ministry of Defense for Ecuador told Human Rights Watch that through their minister, there are “guidelines that dictate that schools and other educational institutions may not be used by the military.” Moreover, the ministry noted that “the directives of the Joint Command and three branches of the Armed Forces state that under no circumstances can these facilities be used as they are considered protected facilities and perform their specific function and cannot be interrupted nor used by members of the institution.”[101]

At the time of writing, New Zealand was preparing to release the second edition of their Manual of Armed Force Law, expected to be issued by the Chief of Defence Force as a Defence Force Order during 2011. According to the director general of Defence Legal Services in the NewZealandDefence Forces (NZDF), Brig. Kevin Riordan, the draft manual provides that members of the NZDF are only to use the buildings of educational institutions for military purposes “if it is absolutely necessary to so.”[102] In such cases, the draft manual states that all feasible steps are to be taken to ensure that:

a. Civilians and, in particular, children are protected from the effects of attack upon the institutions by opposing forces – including where necessary the removal of such persons from the vicinity;

 

b. Such use is for the minimum time possible;

 

c. The adverse effects upon children, in particular in respect to their right to education, are minimised to the maximum extent possible.[103]

The commentary to these provisions in the draft manual states that educational institutions are entitled to “particular protection from the effects of war as the destruction or endangerment of such facilities is unequivocally an attack upon the learning and development of future generations who bear no responsibility for the armed conflict from which the damage arises.”[104]

The draft manual notes that because the educational, religious, or cultural nature of all buildings encountered during operations will not always be apparent to troops, commanders and others responsible for the planning and execution of operations “therefore bear particular responsibility for the identification of such objects and for ensuring that this information is passed to those members of the NZDF involved in operations.”[105]

Noting that New Zealand recognizes that children have a right to education, the commentary of the draft manual states:

Use and occupation of schools and other educational institutions obviously inhibits the exercise of this right [to education]. Where for military reasons it is necessary for a force to use such an institution all feasible steps must be taken, in consultation with local authorities, to ensure that the disruption to the education of children is reduced to as low as reasonably practicable. This may include the need to identify and facilitate the use of other suitable facilities for such purposes.[106]

New Zealand’s Brigadier Kevin Riordan added: “Members of the NZDF are also required to ensure that they do not use the facilities of a school in a way that is perfidious i.e by purporting to rely upon the protected civilian character of the buildings with intent to betray that confidence. To use a school as cover for a sniper, for example, would breach this provision.”[107]

In the United Kingdom, the Joint Service Manual of the Law of Armed Conflict states that during internal armed conflicts it is prohibited to commit any act of hostilities against cultural property so long as it is not being used for military purposes, but notes that “[a]s a corollary, the better view is that the law also prohibits … the use of cultural property for purposes which are likely to expose it to destruction or damage in armed conflict, unless there is no feasible alternative to such use.” [108] This exhortatory language is a higher standard of protection than exists under customary international humanitarian law. The manual states that “cultural property includes places of worship, institutions dedicated to religion, charity, education, the arts and sciences, historic monuments, and works of art and science.” [109]

In Greece, there is a long and historically important tradition of “university asylum” or “academic asylum,” whereby public security forces are banned from entering the property of institutions of higher learning without permission. This traditional protection was famously violated by the military junta in November 1973 after students at Athens Polytechnic barricaded themselves in protest against the dictatorship. In the early hours of November 17, the military government sent a battle tank into the campus to break the protest. Following the return to democracy, the government codified the practice of “academic asylum” in a 1981 law. This law was updated in 2007, to make the procedures for lifting the asylum easier.[110] Under the current law, “public powers” (police and other public security forces) are banned from entering institutions of higher learning, except by invitation or permission of either the rector’s council of a university or the council of a technical school, and the presence of a representative of the judiciary.[111] Public powers can otherwise only enter an institution of higher education in response to certain crimes such as crimes against life.[112] Anyone who violates the protection can be punished with at least six months’ imprisonment.[113] The university asylum has only been lifted three times since it was enshrined in law—during riots in 1985 and 1995, and to relocate hunger-striking migrants occupying Athens University Law School in 2011.[114] The 1973 uprising is commemorated annually on November 17 with the closing of all schools and universities.

Countries with Implicit Restrictions on the Use of Schools

In response to the question in Human Rights Watch’s survey regarding  restrictions on military use of education buildings, a number of countries noted that although they had no such explicit regulations, they said such use would nonetheless be either prohibited or restricted in some way by other existing obligations.

For example, the Director General of the Ministry of Defense in Norway told Human Rights Watch that Protocol I, article 58 obligates military forces to take the other necessary precautions to protect civilian objects under their control against the danger resulting from military operations, and stated that, “[u]sing a school for military purpose will easily be a violation of this obligation and consequently a violation of the general regulation regarding protection of civilian objects.”[115]

Greece’s explicit protection for higher education institutions from interference, referenced above, does not protect lower educational institutions. However, with respect to the occupation and use of schools, the Department Director of Human Resources and Environment at the Hellenic Ministry of Defense, Col. Yannakakis Spyridon, told Human Rights Watch: “Such actions are, in principle prohibited by international humanitarian law, due to the fact that the above use would then render them to military targets. The Greek Armed Forces are aware of this prohibition (which stems from a ratified International Law and is consistent to Military Regulations/Orders/Directions etc.) thus acting accordingly.”[116]

In response to the question whether Canada has regulations binding on the armed forces regarding occupation or use of school buildings, Maj. Jean-Michel Cambron, Deputy Director of the Directorate of International and Operational Law in the Office of the Judge Advocate General, wrote to Human Rights Watch: “Implicitly, yes.”[117] The rule cited by Major Cambron as the source of this implicit limitation on the occupation or use of education buildings was rule 4 of the Canadian Forces’ Code of Conduct, which states that civilian property must be respected, and rule 9, which states that, as a general rule, buildings and property dedicated to cultural or religious purposes may not be attacked.[118] He also cited the obligation to protect civilians and civilian objects against the effects of attacks as outlined in Canada’s law on armed conflict manual.[119]

Lithuania’s Deputy Chairman of the Ministry of Defense’s Commission on Implementation of the International Humanitarian Law noted that “the right of armed forces to occupy schools and other educational institutions are limited by general provisions of Articles 57 and 58 [of] Protocol I.”[120]

The Ministry of Defense in El Salvador confirmed that there were restrictions on the use of education buildings, citing article 72 of the Code of Military Justice, which states that it is a crime for the military to “unduly or unnecessarily occupy” a building, punishable with imprisonment of one to five years.[121]

There are no specific prohibitions in legislation in Estonia prohibiting the use or occupation of schools by armed forces. However, the Penal Code provides that:

A person belonging to the armed forces or participating in acts of war who destroys or illegally appropriates property on a large scale in a war zone or an occupied territory, whereas such act is not required by military necessity and lacks the necessary elements of an offence provided for in §95 [Acts of war against civilian population], 106 [Attacks against non-military objects] or 107 [Attacks against cultural property] of this Code, shall be punished by a pecuniary punishment or up to 5 years’ imprisonment.[122]

The Estonian Minister of Defense and Permanent Secretary of Defense said this prohibition also covers schools and other educational institutions.[123]

According to the Office of the Legal Advisor to Israel’s Ministry of Defense: “the use of schools or other educational facilities, for military purposes, is generally prohibited, unless it is done under an imperative demand due to the necessities of war.”[124] According to the Legal Advisor’s office, this prohibition arises from the general protection that civilian objects have from seizure under international humanitarian law, with two exceptions: (1) As a school becomes a military object the seizure of a school in order to remove the threat posed is also permitted; and (2) In the existence of an “imperative demand due to the necessities of war,” civilian objects can be seized or destroyed.[125]

In a December 2000 case, Israel’s High Court allowed the seizure of three schools by the Israel Defense Forces (IDF) in the West Bank city of Hebron, one of which was used as a military outpost. The IDF contended that the seizure and use of the schools granted the IDF observation and fire control over a source of shooting directed towards an Israeli settlement and force.[126]

Countries that Do Not Use Schools, Regardless of Any Obligation

Representatives from the defense ministries of two countries—Japan and Finland—told Human Rights Watch that although their countries had no legal obligation prohibiting the  use of schools, they did not and would not, undertake such action.

In the case of an armed attack against Japan, under the Self-Defense Forces Act, the country’s self-defense forces can “control hospitals, medical facilities, and other facilities specified in government order(s), can use lands, houses and goods, and can order those who regularly produce, collect, sell, distribute and keep goods, to keep their goods or to confiscate their goods.”[127] However, in a written response to Human Rights Watch, the Defense Policy Division of the Ministry of Defense said that nonetheless “Self-Defense Forces would not assume the use/occupation of schools and other educational institutions as military shelters/bases.”[128]

On the existence of legal provisions prohibiting, regulating, or limiting the use or occupation of schools and other educational institutions, the Minister of Defence of Finland, Jyri Häkämies, said: “Generally speaking, it can be noted that this has been taken into account in operative planning.”[129]

Other State Practice

The United States invasion of Iraq in 2003 involved the military use of schools by both sides to the conflict, during the hostilities and in the ensuing military occupation. The incidents raised both the strengths and limits of current prohibitions on the use of school buildings under existing international humanitarian law. 

During the invasion, the US military sought to portray Iraq’s use of its schools for military purposes as contributing to civilian casualties, though not necessarily a violation of the laws of war.[130] Prior to the war, the Iraqi military stored large amounts of ammunition and small arms in schools and other civilian sites in residential areas in the run-up to the war,[131] in violation of the requirement to avoid deploying military objectives in densely populated areas. The US condemned Iraqi military commanders for using school buildings and grounds as sites for artillery, material storage, headquarters, and bases to launch attacks.[132] US Defense Secretary Donald Rumsfeld accused Iraqi President Saddam Hussein of using “schools, hospitals, orphanages, and cultural treasures to shield military forces thereby exposing helpless men, women and children to danger.”[133]

At the same time, US military forces occupying Iraq also deployed in school buildings that were characterized as abandoned or closed because of the war.[134] In April 2003 it was reported that US forces were occupying three schools in a town in northern Iraq, all closed due to the war.[135] A US military spokesman, Lt. Col. Gary Keck, appeared unwilling to defend such a practice in public. Interviewed by the media at the time he said that the US military had no information on the operation in northern Iraq, “but it certainly is our policy to not establish military headquarters or other operations in protected areas under the Geneva Convention.”[136]

That same month, on April 23, 2003 in the city of Fallujah, approximately 150 US soldiers of the 82nd Airborne Division took over the al-Qa’id primary school near the city center. The battalion commander, Lt. Col. Eric Nantz, told Human Rights Watch that his forces chose the school in order to be closer to the community: “The only reason we occupied the school is [that] we were trying to find a location where we could communicate with the people.”[137] He did not indicate that he saw any tension between his community relations objective and the response of townspeople to their school being used for military purposes. Nantz noted that the soldiers under his command had discovered schools full of arms in other cities of Iraq, especially Samawa, where the 82nd Airborne had faced Iraqi resistance. “With that experience, we went to reduce the weapons flow and remove them,” he said. “They were a danger to coalition forces and to civilians.”[138]

However, his soldiers found no weapons in the Falluja school. The two-story building offered the US military a strategic base—a defensible structure, with a seven-foot high perimeter wall around the compound and sweeping views from the roof – while placing troops under possible attack in a densely populated area and rendering the school unsafe for educational purposes. Schools in Falluja were scheduled to reopen on April 29, 2003, and tensions ran high as parents in the neighborhood wanted the soldiers out.[139] The US unit was open to withdrawing from the school, and they asked the mayor for an alternative location to base the troops. According to Nantz and his commander, Col. Bray, they had decided to withdraw from the al-Qa’id school on April 29. Before they did however, on April 28, Fallujah residents staged a demonstration outside the school calling for the soldiers to leave. The demonstration turned violent and US soldiers opened fire on the protesters, killing 17 Iraqis and wounding more than 70.[140]

At a UN press conference, the spokesperson for the UN children’s agency, UNICEF, Simon Ingram, was asked about the incident, and similar instances of US soldiers occupying schools in northern Iraq. He responded:

We were naturally very concerned to see [that] the original incident was triggered by the US troops in Fallujah where they were occupying a school. However, we did discover that the US troops have in fact left that school; as far as I’m aware, no contact [between UNICEF and US forces] was necessary as it happened swiftly afterwards, but what I can say is that this extremely worrying incident, very much underlines our positions that schools are places of learning. We are very keen to see they are reutilized for their intended purposes as quickly as possible. We have made our position clear a number of times and I have no doubt that with our continuing contacts with the de-facto authorities on the ground in Baghdad, that we will be making that point strenuously … I am not aware of any other places that this situation holds. I remember the incident you referred to, there was a school in the north and some contacts were necessary to persuade the US troops there to leave the premises, which they subsequently did. I am not aware of any other places were schools are being occupied.[141]

In 2006, the UN Mission for Iraq noted that the Multi-National Forces in Iraq (MNF-I) reportedly occupied three public schools in Eskan district, close to Aziziya.[142] In May 2008, the UN reported that 10 schools in Sadr City were being occupied by Iraqi Security Forces, MNF-I or militias – many, but not all, of which were located in sectors of the city where all primary schools had been closed because of the security situation.[143] The UN secretary-general said in 2009 that in Iraq’s Diyala governorate, efforts were under way to have units from the MNF-I, the Iraqi Army and Iraqi police units vacate more than 70 school buildings they had occupied and used for military purposes.[144]

US forces’ use of school buildings in Iraq can be contrasted with US efforts to label as a war crime the use of protected property as “shields,” including education buildings, for the purposes of prosecuting detainees at Guantanamo Bay. 

On November 13, 2001, US President George W. Bush issued a military order allowing special military commissions to try non-US citizens charged with terrorism.[145] In April 2003, the US Department of Defense released “Military Commission Instruction No. 2,” which listed the crimes in violation of the laws of war that were available to be tried before such military commissions.[146] Included on the list was “Using Protected Property as Shields,” the elements of which included: “[t]he accused positioned, or took advantage of the location of, civilian property or property protected under the law of war,” “[t]he accused intended to shield a military objective from attack or to shield, favor, or impede military operations,” and that the conduct took place in the context of armed conflict.[147] In the “Military Judges’ Benchbook For Trial of Enemy Prisoners of War,” released by the Department of the Army in 2004, to explain to military judges the elements of the crimes, the explanation of “Using Protected Property as Shield” gave “schools” as an example of “protected property.”[148]

These definitions were inconsistent with international humanitarian law’s notion of “shielding” – which only concerns seeking protection behind civilians and other protected persons. With regard to the use of education buildings, the Military Commission instruction attempted to create a new cause of action that would have punished individuals for something that was not a crime at the time of its commission, and that is not a crime under international humanitarian law.

After the US Supreme Court rejected the legal basis by which the Bush administration sought to establish military commissions to try detainees at Guantanamo Bay,[149] the US Congress enacted the 2006 Military Commissions Act. The Act similarly listed “using protected property as a shield” as a crime triable by military commission.[150] The Act defined “protected property” to explicitly include “buildings dedicated to … education … if such property is not being used for military purposes or is not otherwise a military objective.”[151] The elements of using protected property as a shield according to the law are positioning, or otherwise taking advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations.[152]

Again, such a crime would be inconsistent with current international humanitarian law. Because the definition of protected property excludes property that is being used for military purposes or is a military objective, criminalizing the use of protected property to favor military operations appears to be internally inconsistent.

The US responded to Human Rights Watch’s survey by stating that: “There is no domestic legislation, military regulation, policy, or practice binding on the US armed forces that prohibits or regulates the use of schools or other educational institutions by armed forces as short-term shelters or for other purposes not prohibited by the law of war. Decisions on the use of a school and the length of such use are the responsibility of the on-scene commander based on information reasonably available at the time and the commander’s compliance with the law of war.”[153] This indicates that the Department of Defense does not consider US forces’ ability to use or occupy schools to be limited by the criminalization of using protected property as a shield as articulated by the Military Commissions Act.

Countries with a Constitutional Right to Education

Of the countries surveyed by Human Rights Watch, 37 had an explicit right to education enshrined in their constitution.[154]

Another six countries without an explicit right to education included provisions requiring that education be required or compulsory for all.[155]

The potential for domestic constitutional protections to limit military occupations of schools is demonstrated in Brazil’s Constitution, which expands upon the right to education by explaining that “The Government’s failure to offer compulsory education or offering it irregularly implies liability of the proper authority” (art. 208(VII)(2)).

Colombia’s constitution points out that “The rights of children have priority over the rights of others” (art. 44).