III. International Human Rights and Humanitarian Law

The Right to Education

Syria is a party to two of the international treaties that establish the right to education under international law: the International Covenant on Economic, Social, and Cultural Rights (ICESCR)[68]and the Convention on the Rights of the Child.[69] These treaties recognize that states are to make primary education free and compulsory, and secondary education generally available. Governments have obligations to ensure these basic rights are met. While opposition groups are not formally bound by international human rights law, those that have effective control over populated areas should seek to act consistently with international human rights law.

Students, teachers, and school officials are protected from being mistreated in schools by state officials under the general provisions of the International Covenant on Civil and Political Rights and other treaties.[70]Protections include the right not to suffer cruel and degrading treatment, not to be arbitrarily detained, and to enjoy the right to freedom of expression and association.

On the subject of education in emergencies, the UN special rapporteur on the right to education has stated that:

Security in schools, meaning not only physical, psychological and emotional safety but also an uninterrupted education in conditions conducive to knowledge acquisition and character development, forms part of the right to education. This means that States have a responsibility to punish perpetrators and devise effective methods of protection….

During times of conflict … teachers, students and parents become the targets of violence. Parents keep their children at home to avoid the risks involved in the trip to and from school.[71]

During wartime, the use of schools and universities for military purposes can jeopardize students’ right to education. The Committee on the Rights of the Child, an international expert body charged with monitoring state compliance with the Convention on the Rights of the Child, has urged states not to use schools for military purposes.[72] It has noted, “Military presence in the vicinity of schools significantly increases the risk of exposing school children to hostilities and retaliations by illegal armed groups.”[73] In instances of such military occupation of schools, the committee has also called on states 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.”[74]

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. A statement delivered by the president of the UN Security Council in April 2009 reads, “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.”[75]

International Humanitarian Law and Attacks on Schools

The armed conflict in Syria is covered by international humanitarian law, also known as the laws of war.[76] It is considered a non-international (or internal) armed conflict for which Common Article 3 to the four Geneva Conventions of 1949 and customary international humanitarian law apply.[77]

International humanitarian law imposes upon all parties to an armed conflict a legal obligation to reduce unnecessary suffering and minimize harm to civilians. It applies to both government armed forces and non-state armed groups. In Syria the parties to the conflict include the Syrian armed forces, the shabiha armed groups that operate in concert with government forces, and Free Syrian Army and other opposition armed groups.[78]

A fundamental principle of the laws of war is that parties must at all times distinguish between civilians and combatants, and between civilian objects and military objectives. Attacks may only be directed at combatants and military objectives.[79]

Civilians are only subject to attack when and for such time as they are directly participating in hostilities. Where there is doubt as to whether a person is a civilian or a combatant, that person must be considered a civilian.[80]

Military objectives are those targets that “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.”[81] These include, but are not limited to, military personnel, weapons and ammunition, and places of military deployment and operations.

Civilian objects are buildings and structures that are not considered military objectives.[82] In general, the law prohibits direct attacks against what are normally civilian objects, such as homes and apartments, places of worship, hospitals, schools and universities, and cultural monuments, unless they are being used for military purposes.[83]

Parties to the conflict must take all feasible precautions to protect civilians and civilian objects under their control from attack.[84] They also must, to the extent feasible, remove civilians under their control from the vicinity of military objectives.[85]

Under the laws of war, military forces that occupy or otherwise use a school render it a legitimate military target.[86] Thus a school that serves as a military base, an ammunition depot, or a sniper post may be subject to attack. It is unlawful to use a school simultaneously as an armed stronghold and an education center, since it places children, teachers, education personnel, and other civilians at unnecessary risk. In such instances, military forces occupying a school have an obligation to take all feasible precautions to protect civilians from attack and to remove them from the vicinity.[87]

Attacks on legitimate military targets, including schools being used for military purposes, may be neither indiscriminate nor disproportionate. An indiscriminate attack is one in which the attack is not directed at a specific military objective or the methods or means used cannot differentiate between combatants and civilians. A disproportionate attack is one in which the expected loss of civilian life and property is excessive compared to the anticipated military gain of the attack.[88]

Individuals who willfully commit serious violations of international humanitarian law can be prosecuted in domestic or international courts for war crimes. Among the war crimes set out under the Rome Statute of the International Criminal Court is “[i]ntentionally directing attacks against buildings dedicated to … education, … provided they are not military objectives.”[89]States have an obligation to investigate alleged war crimes committed by their nationals, including members of the armed forces, and prosecute those responsible.[90] Non-state armed groups also have a legal obligation to respect the laws of war, and thus a responsibility to ensure that their commanders and combatants abide by their requirements.[91]