Cameroon

Minister of Education Letter to the Governor of the Far North, 2017

Subject: Respect for Safe School Declaration

It comes to my attention that in some public primary schools in the departments of Mayo-Sava and Logone-et-Chari, soldiers provide lessons to students in uniform.

I appreciate the initiative of local administrative and military authorities to come to the aid of the education of children affected by the armed conflict imposed by the Boko Haram sect in this area of ​​the country, I have the honor to ask kindly to convey to the military teachers concerned my encouragement and the gratitude of the Republic.

However, I urge them to carry out their educational actions in school buildings in civilian clothes and without weapons to comply with the provisions of the Safe School Declaration.

[List of nine schools “of concern” listed in attachment.]

Canada

Policy Statement on the Safe Schools Declaration and the Guidelines for Protecting Schools and Universities from Military Use During Armed Conflict, 2017

The world is home to more young people than at any other time in history. While great strides have been made to enhance their development and wellbeing, an estimated 250 million children live in countries and areas affected by armed conflict. Among them, girls are 2.5 times more likely to be out of school than boys. Canada shares the strong conviction to mitigate and ultimately stop the terrible effects of armed conflict on children, schools and universities. Canada strongly believes that education is a right that must be upheld, including in conflict situations. We believe that all students, girls and boys, must be able to attend school or university without fear of being targeted. Schools should be places where students come together in peace to learn about the world and their contribution to it; education can be a remedy for conflict and should never be a target of it. Protecting children and youth from all forms of violence and harmful practices is critical to upholding their rights, ensuring that they thrive, and helping them grow into engaged and productive members of society.

The Safe Schools Declaration and the Guidelines for Protecting Schools and Universities from Military Use During Armed Conflict recognize the importance of education and its role in promoting understanding, tolerance and respect for all. Canada joins other countries in endorsing the Safe Schools Declaration and, in doing so, reaffirms its commitment the protection of persons affected by armed conflict, including children.

We are concerned with the use of schools by parties to armed conflict for military purposes such as bases, barracks, weapons caches and detention centers, where such use is in contravention of international humanitarian law and we welcome efforts to address this. Eliminating all violations against children in all settings, including in situations of armed conflict, is a priority and we recognize and firmly support the need to prevent the unlawful recruitment and use of children in armed conflict, as well as for the rehabilitation and reintegration of children who have been recruited and involved in hostilities.

Compliance with international humanitarian law remains the best means to protect schools and other civilian objects from unlawful attack and we call on all parties to armed conflicts, including non-state actors, to adhere to these established international legal obligations. While not legally binding, the Declaration and associated Guidelines will inform the planning and conduct of Canadian Armed Forces operations during armed conflict, which are always carried out in full compliance with Canada’s obligations under international humanitarian law.

Canada shares the strong desire to minimize the adverse effects of armed conflict on children and we strongly agree with the importance of adhering to the protections that international humanitarian law affords to civilians and civilian objects, including schools and the students who attend them. Our endorsement of the Declaration gives us an important opportunity to reiterate our call for compliance with international humanitarian law.

Central African Republic

MINUSCA directive on the protection of schools and universities against military use, 2015

Purpose:

1. These guidelines aim at preventing the use of schools and universities by MlNUSCA Force and Police and to minimize the impact of armed conflict on the security and education of children.

General principles:

2. Schools have to be havens of peace, where children are protected even in times of armed conflict. They are, however, often attacked or used for military purposes by parties to the conflict in the Central African Republic, to the detriment of children.

3.    MINUSCA Force and Police are requested not to use schools for any purpose. All MlNUSCA military and police personnel should avoid encroaching on the security and education of children by using the following guidelines as good practice.

4.   Schools and universities that are operational should never be used in any way. This applies to schools and universities that are closed after school hours, during weekends and holidays and during vacation periods.

5.    Abandoned schools and university buildings which are occupied or used by MINUSCA Force and Police should be liberated without delay in order to allow educational authorities to reopen them as soon as possible. All signs of militarisation or fortification of such buildings or structures should be completely removed after the withdrawal and any damage caused to the institution should be repaired quickly before hand-over to the authorities, to allow the return to educational use.

6.    All ammunitions, unexploded ordinance or war debris should be cleared from the site.

7.   The use of a school or university by a party to a conflict is not permitted, and cannot provide grounds for continuation of such use.

8.   Military and police personnel tasked to secure schools or universities should avoid wherever possible entering into the school premises or buildings in order not to compromise their civilian status.

9.   The Force Commander and the Police Commissioner are requested to ensure the implementation and wide dissemination of this directive.

Chile

World Humanitarian Summit Commitment, 2016

Chile will promote and disseminate in the formation of its Armed Forces the Guidelines to Prevent Military Use of Schools and Universities during Armed Conflict.

Colombia

Yenys Osuna Montes v. the Mayor of Zambrano Municipality, Constitutional Court, 1999

Yenys Maria Osuna Montes, a student at the educational institution “Escuela Oficial Mixta María Inmaculada,” filed an action for injunctive relief against Alejandro Lopez Franco, mayor of the municipality of Zambrano (Bolívar), arguing that her rights to life and education were being threatened.

The petitioner was elected student representative by her peers at the above-mentioned school and, in such capacity, she sees to it that the rights and duties of her fellow students and teachers are respected and observed. Petitioner claimed in her complaint:

...I consider that our dignity as humans and the integrity of the institution I belong to, and which together with all members of the educational community we have strived to preserve, have been stepped on. We do not feel safe, and we live under the constant strain of knowing that we are serving as human shields for the police headquarters which are located right behind our building, and my friends and I often worry that a confrontation could break out during school hours. If this happened, what would we do?

Therefore, Osuna Montes requested that the judge order the municipal government to move the Police Headquarters to a new site.

The evidence contained in the case file includes:

-    A document … indicating that:

It is hereby noted that in the toilets and the school playground the windows have no protection. The classrooms used by the 1st and 4th grade of the primary level, as well as the school’s playground, are situated immediately adjacent to the street where the police headquarters are located. There is a street separating the wall at the rear end of the school compound from the Police Station and the Police Inspectorate by 6.50 meters. The School occupies a full block. Three barricades have been set up in the street leading to the Police Headquarters using bags and barrels filled with sand. The first barricade, which was built at the corner, is at a distance of 3.71 meters from the School wall. The other one is in the middle of the street, in front of the Police Inspectorate, while the third barricade is located on the other corner, on a diagonal line from the School, at approximately 3.10 meters.

-     Documents signed by the [Commander of the Police Station of Zambrano]…, which state that:

1)    “Reports by the 3rd Naval Infantry Battalion indicate that approximately 300 FARC [Revolutionary Armed Forces of Colombia] guerrillas were stationed in farms in the area surrounding the municipality of Córdoba Tetón, and that one of their main objectives is to take over the Zambrano municipality.”

2)    “According to intelligence reports, the Zambrano Police Station is one of the military objectives pursued by the Caribbean Block of the FARC, made up of fronts 35 and 37 of that guerrilla group.”

***

-    Statement by the acting Headmistress of “Escuela María Inmaculada” … in which she states the following:

We, the teachers and parents of the students at ‘Escuela María Inmaculada,’ have met with previous city mayors to discuss the fact that school premises were often used to accommodate members of the Army when they were sent to our city. During the periods when the school was used to house these officers, children would not attend classes. In early August this year, after the guerrilla took over Córdoba, the day after that (...) It is really dangerous that the school is at such short distance from the Police Headquarters. Given the current state of public order, children, teachers and the institution are at risk, because in case—God forbid—of a takeover by the guerrilla they would be affected in the first place, because we are 4 or 5 meters away from the Police Headquarters. QUESTION: Could you specify how you think public order has been disturbed in the municipality of Zambrano Bolívar? ANSWER: The day after the guerrilla took over the municipality of Córdoba, Ms. Maida, one of the teachers, was at a meeting with the Secretary of Education and other school headmasters. They wanted to suspend classes on August 5 and 6 due to the state of public order. While they were at this meeting, rumors spread that Zambrano had been taken over and this created a climate of chaos: some mothers rushed to the school to fetch their children, and others were upset because their children had been allowed to go home just a moment before. The truth is that the teachers in the morning shift got too scared and desperate when they heard the rumors about the attack in Zambrano. QUESTION: Is there anything else you would like to add, correct or change in this statement? ANSWER: At present, we are finishing the afternoon shift earlier than usual, before 6 p.m., because we are a bit scared, and we are always the last to hear about the status of public order.

-    Statement by the minor who brought the action for injunctive relief…:

I feel that teachers rush the classes and finish earlier than planned, because they say that the guerrilla will come to the school. I think that both students and teachers are worried because the school is right next to the Zambrano Police Station. QUESTION: Tell us if any event lately has made you feel unsafe or worried as a result of your proximity to the Police Headquarters. ANSWER: The school has always been right next to the Police Station and we did not have any problems before. But now we are constantly scared because the guerrilla took over Córdoba Bolívar and there were confrontations with the Police. The following day, we saw police officers, from here, from Zambrano, running and riding their motorbikes around the school. They were carrying guns and they said that members of the guerrilla were going to enter the school, and suddenly all the mothers came to fetch their children in tears, frightened by the rumors that the guerrilla would storm the building. The streets were full of people and we feared for our lives.…

-     Statement by the Head of the educational center, who claimed that classes had been disrupted due to the status of public order. She said that she had repeatedly requested the city's mayor to stop using the school building to accommodate members of the Army, but that the mayor had dismissed her requests.…

3.    The rights of children to life, personal integrity and to a full and adequate physical and psychological development and education. The State’s role in preserving those rights. The prevalence of the rights of minors. Constitutional protections and enforcement of International Humanitarian Law to cope with actual threats to prevailing rights. Reasonable restrictions on the duty of solidarity. The protection of rights requires an enforceable court order.

This time the Court has been asked to establish whether the fundamental rights of these children—in particular the rights to life, personal integrity, to a full and adequate physical and psychological development and the right to education—have been violated or threatened by the municipal government’s response to repeated requests to move to a new site the Police Headquarters adjacent to the school that is home to the petitioning minor and her classmates and teachers…

There is, in principle, an apparent tension between the fundamental rights of children (Articles 11, 12, 44 and 67 of the Political Constitution of Colombia), which under the Constitution should prevail over the rights of others, on the one hand; and people’s duty to act in accordance with the principle of social solidarity, to respect the legitimately constituted authorities in their efforts to maintain national independence and integrity, and to strive toward the achievement and maintenance of peace, on the other (art. 95 of the P.C.).

The undoubted, visible and demonstrated presence of an armed conflict in the area, recent events proving that there are constant guerrilla attacks directed primarily against police stations and headquarters, other evidence presented by the State’s security forces and the testimony to that effect indicate that there is not just a theoretical possibility of risk or fear, but an actual and serious threat to the 264 children who every day attend this school, which is not just near the Police Station, but right next to it…

In the case of children, even though in principle they must act with solidarity or, better still, should be educated in the principles of solidarity and the demands of social coexistence, it must be established on a case-by-case basis if, given their position of unique vulnerability and defenselessness, they have the capacity and the obligation to tolerate all situations or perform all actions that are required from them, regardless of their present circumstances and the dangers to their fundamental rights, in particular their right to life.

Therefore, if we take into account that, due to their physical and psychological conditions and their total lack of experience they cannot defend themselves from attacks in the same way as an adult—especially attacks as serious as those discussed here—one cannot reasonably expect a minor to run the risk of losing his or her life, even more so when the risk can be avoided or reduced. This is one of the most important responsibilities of society as provided, inter alia, by Article 44 of the Constitution.

The duty of solidarity of minors cannot be interpreted to imply that they should tolerate that the environment where they receive education becomes a battle field and that they get caught in the crossfire, if we understand that infants, because of their defenseless state, are mere victims and cannot be expected to become heroes in the context of armed combat.

However, in this decision, and in line with its previous rulings, the Court has examined in particular the actual, evident and undeniable risk faced by the children in this case and has assessed the need to provide effective protection to them, based on factual considerations rather than theoretical classifications of what constitutes or not a military target. In light of the Political Constitution, 264 children are clearly at a grave risk of death or injury that could be prevented; and the existing dangers which have been proven to this Court emanate from the guerrilla’s unilateral decision—not always consistent with academic classifications—which may consider, as they have done in the past, that the Police forces—a civilian armed body- are a military target. This factual situation cannot be ignored by the judge hearing the constitutional protection action or by government and police authorities.

Past experiences clearly indicate, and this is undeniable, that when guerrilla groups launch attacks against municipalities, they often—and almost invariably—target police stations and other public buildings in the first place. Hence, the risk posed by the specific circumstances of this case—particularly taking into account many official reports that speak categorically about the possibility of a “guerrilla takeover,” the peculiarity that the school was built immediately next to the police premises, and the fact that the school has been used as barracks to house military and police personnel—is so serious that it amounts to a threat, as defined in Article 86 of the Constitution, and which has been previously examined by this Court:

A threat to a fundamental constitutional right can take many forms: it may relate to the specific circumstances in which an individual exercises such right; to the existence of positive and unmistakable signs indicating an individual's intention to act in a way that violates the right in question; or to a challenge (attempted crime) that affects the right at issue directly; it may also consist of unintentional acts whose characteristics persuade the judge before whom an action for relief has been brought that, should he fail to issue an order to enjoin such conduct, the right in question would be violated; it may likewise be caused by an authority's failure to act which, over time, could give rise to or enhance a risk; and it may also result from the existence of an unconstitutional rule—an authorization or an order— which, if applied, would constitute per se a violation or denial of fundamental rights. In the latter case, Article 86 of the Constitution mandates that such unconstitutional order or authorization should not apply to the case at issue, in accordance with Article 4 of the Constitution, provided that the principle of incompatibility between the two provisions is met. (Constitutional Court. Fifth Constitutional Review Chamber. [Corte Constitucional. Sala Quinta de Revisión]. Decision T-349 of August 27, 1993).

In the instant case, it should be underscored that, on certain occasions, Police and Army officers have stayed overnight in the School premises, aggravating in this way the risk to children's health, life, and integrity. As a result, an order will be issued to enjoin them from doing so in the future.

Having analyzed all the evidence submitted in the course of the proceedings, the Court understands that there is a high probability that the Zambrano municipality will be taken over by the guerrilla group that operates in that part of the country’s territory, as can be inferred from intelligence reports. Therefore, there is a real and impending threat to the lives of the local residents, particularly those in the proximity of the police station. And there is no justification for the fact that those who are closest to the police station are no other than the students of the above-mentioned school.

This is further aggravated by the disruption of the educational process which has caused fear among children and has resulted in high drop-out rates, as demonstrated by the evidence provided.

In this respect, the Court finds that an unreasonable burden has been placed on the students of the school in the municipality of Zambrano and that the duty of solidarity—which also falls on minors—is limited by their capacity to assume such obligation. Forcing children to occupy a facility which is in immediate proximity to the police station and, as a result, is highly exposed to attacks that fall under the guerrilla’s classification of armed conflict would be a manifestly disproportionate measure which violates the right to equality and threatens the right to life and education.

Also, this openly contradicts Article 44 of the Political Constitution, which provides that the rights of children have priority over the rights of others. It must be emphasized that international humanitarian law requires that children be protected from the horrors of the war.

It should be recalled that Protocol II to the Geneva Conventions, with a view to protecting civilians and children from attacks, encourages the temporary evacuation of children from an area in which hostilities are taking place to a safer area.

Taking into account the special relevance of the fundamental rights of children; that the duty of solidarity should reasonably and proportionally meet the limits imposed by prevailing fundamental rights; that there are constitutional provisions which expressly protect minors in areas of armed conflict; and that it must not be overlooked that one of the main goals of the State is precisely to protect the lives of its members—and this is also the paramount and necessary purpose of political organization; this Court considers it appropriate to require the municipal mayor, in collaboration and coordination with the relevant authorities at the departmental and national levels, especially the Ministries of Finance and Public Credit, Education, and National Defense, to adopt all necessary budgetary and administrative measures to transfer without delay the educational institution “Escuela Oficial Mixta María Inmaculada” in the Zambrano municipality to an area where the risk is lower, or otherwise to move the Police Headquarters to a different site that is still within the territory of the municipality but where a potential guerrilla attack would not likely result in the horrendous killing of children.

And given that for practical reasons this judgment may not be executed immediately, the Court understands that, in view of the circumstances of the case and in order to ensure the observance of the fundamental rights at issue, it is both viable and necessary to grant temporary injunctive relief to reduce the risk that threatens the lives of these children.

Therefore, the Court understands that the city’s mayor should prevent members of the State security forces from entering the school premises to conduct practices, trainings or to mount weapons, ammunition or deploy armed personnel, as this would increase the danger to the student community. Also, the educational community should be instructed on how to manage an emergency evacuation situation and on the mechanisms to protect the lives of its members.

In addition, this Court finds striking that the appellate court has only formally safeguarded the petitioner’s rights and has failed to issue a specific order for their protection. In this regard, it is worth noting that the action for injunctive relief (acción de tutela) is a protection established to safeguard rights that have been threatened and to guarantee their effectiveness (art. 2), and that the Constitution explicitly states that (art. 86) “the protection will consist of an order enjoining others to act or refrain from acting.”…

The lower court’s decision is hereby SUPPLEMENTED and the municipal mayor is ordered, in collaboration and coordination with the relevant authorities at the departmental and national levels, especially the Ministries of Finance and Public Credit, Education, and National Defense, to adopt without delay all necessary budgetary and administrative measures to transfer as soon as possible the educational institution “Escuela Oficial Mixta María Inmaculada” in the Zambrano municipality to an area where the risk is lower, or otherwise to move the Police Headquarters to a different site that is still within the territory of the municipality but where the minors attending the school could be effectively protected.

In the meantime, before the execution of this judgment is completed, the mayor shall prevent members of the State's security forces from occupying the premises of the educational institution “Escuela Oficial Mixta María Inmaculada” and conducting shooting practices or training in the use of firearms, ammunition and explosives. Likewise, the educational community shall be instructed on how to manage an emergency evacuation situation as well as on the mechanisms to protect the lives of its members…

Wilson Pinzón v. the Mayor of La Calera, Constitutional Court, 2001

…Petitioner files a writ of protection on behalf of his minor son, who attends the nursery school Jardín Infantil Departamental La Calera. He states that this educational institution is situated one block from a police station and a military base of the Colombian Army. The police station is opposite the military base…

Petitioner says that the municipality was taken over by guerrillas on July 19th, 1994, when the police station was completely destroyed by an attack with firearms… On July 27th, 1999, a second guerrilla attack was launched, and residents fled with their children to more remote locations in order to avoid danger.

The following day, the petitioner requested the mayor of the municipality to move the police station “to a more appropriate and less-residential location outside the urban zone...” The mayor responded to those requests stating that this issue was not under his purview and that “securing the lives of individuals was not a responsibility of the Municipal Government but of the military forces,” that the property which housed the police station did not belong to the municipality and that no objections had been raised when the police station was relocated.

In response, the petitioner pointed out that public deed No. 182 dated March 8th, 1996 proved that the police station is located in a property owned by the municipality. He added that while residents did not object when the police station was inaugurated in a residential area, their opinion was never sought.

The petitioner also expressed concern over the statements made on television by the FARC spokesman, Raúl Reyes, who recommended Colombian authorities to locate police stations outside the urban areas of municipalities, as the members of such organization had been instructed to attack police stations…

FINDINGS OF THE CHAMBER

…

2.1 The State has an obligation under the Constitution to protect the rights and the lives of individuals - Description of duties of the police forces:

Article 2, paragraph 1, of the Constitution establishes that the essential purpose of the State is to guarantee the effective enjoyment of the rights enshrined therein. In turn, article 11 provides that the fundamental right to life may not be violated. Also, in its second paragraph, article 2 lists the purposes for which authorities have been instituted, including in the first place the obligation to protect the lives of individuals.

In order to achieve those purposes, the constituent assembly deemed it necessary to organize a public force (art. 216), made up by the military and the police. The police force is created as a civilian organization within the sphere of the national government. Its primary purpose is to maintain the conditions necessary for the exercise of rights and freedoms and to ensure that the inhabitants of Colombia live in peace.

However, although the Constitution conceives the police as a civilian institution with preventive functions—as opposed to the military forces—in the current socio-political situation in Colombia, characterized by widespread instability and violence, this classification does not always portray the reality or allow the police to perform the service it is expected to provide. Therefore, in previous cases, the Colombian Constitutional Court has recognized that the police force is in a “grey area” halfway between the military and the civilian spheres.

...[A]s a result of the current state of affairs of the Colombian conflict, the police force may not be classified as an entirely civilian institution from a legal standpoint, because in certain regions of the country instability has grown to the point that police officers and their workplaces are often chosen as military targets by the guerrillas...

2.2 People’s solidarity is a necessary condition for an adequate police service.

Clearly, in order to live together, individuals must fulfill certain social responsibilities... This duty of solidarity, in terms of the service provided by the police, justifies imposing certain burdens on private individuals, insofar as the location of police stations is part of a strategic plan to allow authorities to make the most of available resources and provide an effective service for everyone…

2.3 Limits on the duty of solidarity:...

However, the duty of solidarity does not require private individuals to indiscriminately take any risk which could undermine their rights. In such case, the State would abdicate its role as guarantor of those rights, suggesting that no oversight of administrative measures is possible because their purpose is legitimate.

On the contrary, the fact that the State is subject to the rule of law also means that the mechanisms by which it pursues its constitutional goals should be monitored. The problem does not lie in determining when the principle of general interest should prevail over any consideration of subjective rights. Instead, the extent of the duty of solidarity should be defined to establish what can be reasonably expected from private individuals when the service provided by the police poses a risk to the population. The prevalence of the general interest is not a constitutional rule with a single legal consequence, but rather a principle that, as such, may be taken into consideration.

The burdens that a government may place on private individuals by virtue of the prevalence of the general interest are enforceable insofar as the private interest infringed is incompatible with the needs of the service. Even though private individuals must accept certain burdens required for the provision of any public service, the State has an obligation to minimize inherent risks, so that individuals do not bear an unnecessarily heavy burden. This is particularly true in cases where the risk threatens people’s lives and physical integrity. Claiming that life and other rights can be guaranteed by policing alone is not enough. Those responsible for the administration of the police service should take all necessary actions to minimize the risks involved and, at the same time, bring the needs of the service more closely in line with a fair distribution of public burdens.

In all cases, even when the needs of the service may not be harmonized with subjective rights or interests, burdens should be necessary, reasonable and proportionate. A burden will be necessary if the measure at issue is required for an appropriate provision of the service. Of course, the government has significant latitude in this regard, as it usually has the information and resources to identify the needs for the service and the means available to provide it. Reasonability should be the defining criterion for weighing the legal interest pursued or protected against the legal interest undermined by the burden. Needless to say, this assessment should be made taking into account the hierarchy established in the Constitution. The proportionality assessment seeks to guarantee that the burden does not impinge too much on the rights, expectations and other interests of those who bear it. In other words, only the sacrifice that is strictly necessary should be made to achieve the objective.

The most important aim of international humanitarian law is the protection of civilians in times of conflict, based on two fundamental principles: the principle of distinction between combatants and civilians, and the principle of proportionality…

With these principles in mind, under the current state of affairs in the country, the police forces, both in practice and in law, occupy a “grey area” halfway between the civilian and the military sectors; it is an armed State force involved in counterinsurgency activities, and as such its members can be classified as combatants. Therefore, on the understanding that the police are part of the combatant population, and that despite the risks to civilians resulting from ongoing attacks against this armed force the State cannot renege on its obligation to fulfill this role, we can only conclude that the State must take actions to minimize such risk. In other words, strictly “military” operations, as well as all other activities conducted by State armed forces, should only pose the minimum possible risk to the civilian population. On this point, article 13 of Additional Protocol II to the Geneva Conventions of 1949 ... establishes the minimum protection provisions for the civilian population and, to guarantee this protection, affirms the principle of distinction between civilians and combatants...

“ARTICLE 13. Protection of the civilian population.”

“1. The civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations. To give effect to this protection, the following rules shall be observed in all circumstances.”

“2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”

“3. Civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities.” ...

As part of the protection of civilians against the dangers arising from military operations, covered under subsection 1 of this article, the State should take specific measures to guarantee that the risk posed to civilians is the minimum necessary to ensure an effective performance by the police forces. The notions of efficiency and risk are variables that should be assessed based on the second principle that we mentioned, the principle of proportionality. Taking into account such principle, the need to establish police stations in accessible locations from where services can be provided to the whole population should not entail an excessive risk for those who live in the vicinity…

2.7 Concluding observations

With the above considerations in mind, we can conclude that in these cases the admissibility of [writ of protection] actions is conditioned on a sufficient showing that the threat represents an imminent risk to the life and personal integrity of an individual or group, because of the current scale of historic guerilla attacks in a certain geographical location, and the specific circumstances of the person requesting the injunction. However, failure to establish the existence or imminent occurrence of a risk within the term of the [writ of protection] action does not mean that the risk is not real. Even when the judge acts with the utmost diligence and performs all necessary tests to establish the seriousness of the risk, the constitutional term may turn out to be insufficient, as the analysis of all elements involved can often exceed the investigative capacity of the [writ of protection] judge and, therefore, impinge on their capacity to offer protection. However, administrative authorities, and in particular entities responsible for intelligence activities and safeguarding the security of individuals, have the necessary means and infrastructure to establish whether a guerrilla attack is imminent and the degree of exposure of those who live in the vicinity of police stations.

Irrespective of the admissibility or inadmissibility of the [writ of protection] action, executive authorities should assess these risk situations in many of the country's municipalities, and take such measures as may be necessary to minimize the threat. Only efficient and sufficient planning, prevention and correction efforts can guarantee the effective enjoyment of the rights to life and personal integrity in the context of a climate of widespread violence that pervades many parts of the country. In such cases, the prompt and responsive actions of the [writ of protection] judge would be inadequate to deal with the scope and nature of the issue of insecurity.

3. The case in question

In the [writ of protection] proceedings before this Court, ...the guerrillas have launched attacks against police stations which left several police officers and civilians injured and caused significant structural damage. In addition, according to the report by the Ministry of Defense, both municipalities are of strategic interest to the guerrillas and there is presence of several FARC fronts or blocs. This situation was further compounded by the statements that one guerrilla commander made on television, claiming that police stations were targets of guerrilla attacks and should be relocated.

These events underscore that at present ... police stations in La Calera... are potential targets of FARC attacks, and the means by which such attacks are carried out pose a significant risk to the buildings and the lives and personal integrity of the population in the vicinity.

...Taking into consideration the particular circumstances of the petitioners seeking protection, this differential analysis rests on a question of fact, i.e., the defenselessness of minors in nursery schools, and a question of constitutional law, resulting from the prevalence of the rights of children over those of other people. The prevalence of the rights of children also means, in turn, that the legal interest to be protected by sacrificing these rights should be of a superior constitutional value. Only then can protection be denied. At the same time, to the extent that the threat does not pose an imminent risk to the life or physical integrity of the children whose protection is sought by the [writ of protection] action, the decision to grant protection may not be grounded in the prevalence of those rights.

…[T]he evacuation and, in general, the effective protection of approximately 330 minors who attend the two nursery schools in the area near the police station in the municipality of La Calera will not be possible in the event of an attack. Even if appropriate preventive measures are taken to conduct an evacuation or safeguard the children, the headmasters of the institution do not have the necessary tools to protect their lives, and minors are under no obligation to bear the burden of such a great risk...

To the extent that a group of minors in a school or nursery are not capable of coping with the risk of a guerrilla attack, and considering also that the professors and headmasters have no means to protect them either, the probability of a guerrilla attack represents an imminent threat to the defenseless children who attend a nursery located near a police station.

In addition, because the rights of children are involved and these rights have prevalence over the rights of other people, the level of protection should be greater. Article 44 of the Constitution recognizes the duty of the State to provide special protection to children from all forms of physical violence. In this way, public administration can only be released from the obligation to provide special protection when it can prove conclusively that such protection may compromise a legal interest of higher constitutional value than the rights of children…

For the reasons stated... this Court AFFIRMS the decisions rendered on September 12, 2000, which granted the protection requested…

Order from Commander General of the Military Forces, 2010

Considering International Humanitarian Law norms, it is considered a clear violation of the Principle of Distinction and the Principle of Precaution in attacks and, therefore a serious fault the fact, that a commander occupies or allows the occupation by his troops, of a good of private nature, or of public use, such as the housing where the civilian population lives and public institutions such as education establishments, [and] communal rooms; which causes an imminent risk to minors’ protection. This affects in a sensible manner the way in which minors’ Rights are granted and respected.

The General Command of the Armed Forces and the Military Commanders have repeated on various occasions through different directives the prohibition of the occupation of the buildings mentioned above, warning about the serious danger that teachers and children may face who go daily to exercise their right to education. For this reason, commanders at all levels are responsible for the application of issued orders and instructions and the control of the actions taken by their subordinates, 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. Against such accusations, it is required to undertake disciplinary investigations where possible and to carry out … monitoring in order to avoid a repetition of the behavior in operation areas.

Côte d’Ivoire

Child Protection Training Module, 2017

The armed forces of Côte d’Ivoire have integrated modules on the rights and protection of children into trainings provided in military schools, academies, and training centers. The training now includes a specific module on prohibiting occupation of schools and training institutions. The training is established in the four military regions of Côte d'Ivoire, and provided by a child protection cell, which is staffed with trained military personnel.

Croatia

Science and Higher Education Act, 2003

 Article 55 – Inviolability of the University

(1) The premises of the university shall be inviolable.

(2) Competent state authorities may intervene on the premises of the university only with the consent of the head, according to the decision of the competent court or if there is an immediate danger for the life and health of people or property.

Democratic Republic of Congo

Child Protection Act,

The State ensures the necessary protection, education, and care for children affected by armed conflict, tensions, or civil unrest… This provision also applies to the child displaced as a result of a natural disaster or a deterioration of socio-economic conditions.

Ministerial Directive, 2013

I urge you to educate all members of the [Congolese army] that all those found guilty of one of the following shortcomings will face severe criminal and disciplinary sanctions: ... Recruitment and use of children… Attacks against schools ... requisition of schools ... for military purposes, destruction of school facilities.

Denmark

Military Manual, 2016

The protection of children and youth also implies a certain respect for the right of children to education, etc., even in areas of conflict. It is necessary, therefore, to exercise restraint with respect to the military use of children’s institutions, including day-care facilities, schools, and orphanages. This also applies in situations in which the international legal basis, including [Status of Forces Agreements], allows for the evacuation of such institutions for use by international military forces. [Footnote to UN Security Council Resolution 2143.]…

The principle of distinction is not merely a requirement to distinguish between military objectives and civilian objects when conducting an attack. The principle is also intended to ensure that the parties to the conflict help facilitate the distinction for the adversary. Against this background … parties to the conflict must endeavour to remove civilians and civilian objects from the vicinity of military objectives and take other precautions to protect the civilian population against the dangers resulting from military operations… The rules are designed to provide a framework for armed conflicts in international law which, to the extent feasible, spares the civilian population and civilian objects, including schools and hospitals, and which contributes to maintaining the basis for the continuation of civil society in the States that are parties to the conflict, also after the conflict has ended…

In this context, restraint should be exercised in using schools and other educational institutions in support of Danish military operations. The reason for such special consideration of schools, etc., is that the military use of schools has severe consequences not only in that it immediately endangers the lives of children and youths who are present in and near such schools but also in regard to the longer-term consequences for the education of school children. [Footnote to UN Security Council resolution 2143, and to the Safe Schools Declaration.]

The locating of military objectives among the civilian population does not deprive the population of its civilian character and protection, but it may violate the obligations under customary international law to avoid locating military objectives in or near densely populated areas… [An example] of the locating of civilians at military objectives: In 2012, Syrian government forces and militias allegedly converted and used schools as military bases, detention facilities, and interrogation centres for both children and adults even as lessons continued to be given there.

Ecuador

Higher Education Law, 2010

Article 19 —  Inviolability of university campuses.

The campuses of universities and polytechnics are inviolable and cannot be searched except in the cases as for a person’s home, as provided in the Constitution and the law. They must be used exclusively for the fulfillment of the aims and objectives set out in this law.

The monitoring and maintenance of internal order are the responsibility of campus authorities. When the protection of public forces is needed, the legal representative of the institution will request the relevant assistance, and inform the top collegiate academic body.

Those who violate these campuses will be sanctioned in accordance with law.

Manual of International Humanitarian Law, 2016

…Educational … institutions shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded to … educational …  institutions in time of peace as well as in war.

Greece

Law on the Structure and Operation of Higher Education Institutions (repealed), 1982

Article 2: Academic freedoms and university asylum

…

(4)  To ensure academic freedom, freedom of scientific inquiry, and the free distribution of ideas, “University Asylum” is recognized.

(5)  University Asylum covers every area of the universities, and prohibits any intervention in these areas by state forces without an invitation or the permission of the competent organ of the university, as outlined below…

 (7) Intervention by state forces without the permission of the competent organ of the university is allowed only if flagrant felonies or flagrant crimes against human life are being committed.

(8) Those in violation of the provisions of paragraph (5) on University Asylum shall be punished with at least six months sentence, but only after being officially accused by the Senate or the competent organ outlined in paragraph (6).

Law on the Structure and Operation of Higher Education Institutions, 2017

Article 3 — Academic freedoms

1. …Academic asylum is recognized for safeguarding democratic values, academic freedoms in research and teaching, free movement of ideas, protection of the right to knowledge and learning against anyone who attempts to dismantle it.

2. Intervention of public powers in the areas of higher education institutions is authorized of their own motion in cases of crimes and crimes against life and only following a decision of the Rectorate Council in any other case. The above limitations do not apply to fire brigade operations and road traffic accident interventions.

India

Manoeuvres, Field Firing and Artillery Practice Act, 1938

Article 3: Power exercisable for purpose of manoeuvres.

(1)  Where a notification under sub‑section (1) of section 2 has been issued, such persons as are included in the military forces engaged in the manoeuvres may, within the specified limits and during the specified periods,__

(a)  pass over, or encamp, construct military works of temporary character, or execute military manoeuvre on, the area specified in the notification, …

(2)  The provisions of sub‑section (1) shall not authorise entry on or interference with any … educational institution…

Requisitioning and Acquisition of Immovable Property Act, 1952

Power to requisition immovable property:

Where the competent authority is of opinion that any property is needed or likely to be needed for any public purpose, being a purpose of the Union, and that the property should be requisitioned, the competent authority … may, by order in writing requisition the property… Provided that no property or part thereof … is exclusively used … as a school, … or for the purpose of accommodation of persons connected with the management of … such school, … shall be requisitioned.

Inqualabi Nauzwan Sabha v. Bihar, High Court at Patna, 2001

One aspect needs to be placed on record at the outset lest it may be misunderstood that the police is being evacuated from the present camping ground and that this affect the law and order situation. This is not so. By all means let the police force even be increased to double strength. No one has any objection to this.

But what is being complained of is that the police has occupied the building of the school with the result that the children are not being sent to school where the police has occupied the classrooms. This is depriving the children of education.

The correct perspective would be that the police may remain within the district; but, the schools should not be closed for the reason that the classrooms have been converted into barracks. Why should this happen? This is depriving a generation and a class of children from education to which they have a right.

Paschim Medinipur Bhumij Kalyan Samiti v. West Bengal, High Court at Calcutta, 2009

Mr. Roy, the learned Advocate General, appearing on behalf of the State/respondents, informs this Court that in fact, 22 schools in the district of West Midnapore were requisitioned for the purpose of accommodating the police forces deployed there to cope with the abnormal situation prevailing.

Mr. Roy further submits that out of 22 schools, the possessions of 10 schools have already been returned to the school authorities and other two schools, namely, Goaltore Boys High School and Goaltore Girls School will be vacated within 2^nd December, 2009…

In such circumstances, we dispose of this writ application by directing the State/respondents to deliver back the possession of the 10 remaining schools … positively within 30th December, 2009…

[T]he cost of consumption of the electricity in those schools by the police personnel will be borne out by the State Government in no time.

It is needless to mention that the mid-day meal should immediately start in those schools, where the possession has already been handed over to the school authorities and in respect of other schools, it should resume immediately after the handing over of possession of those schools.

National Commission for Protection of Child Rights, Protection of Children’s Rights in Areas of Civil Unrest, 2010

Schools should never be used as temporary shelters by security forces. The [National Commission for Protection of Child Rights] is of the view that use of schools by police or security forces violates the spirit and letter of the [Right to Free and Compulsory Education] Act 2009 because it actively disrupts access to education and makes schools vulnerable to attacks. The Home Ministry should ensure that its directives against this are implemented. District magistrates must never offer schools to police and security personnel, and must enquire promptly into complaints that they are being used in this way. The army or police personnel in their turn must not use schools to set up camps or checkpoints. On the contrary, they should be directed to actively protect educational facilities.

Exploitation of Children in Orphanages v. India, Supreme Court of India, 2010-2011

The Deputy Commissioner of N.C. Hills should ensure that the Schools, Hostels and Children Home Complex presently occupied by the armed/security forces are vacated within a month’s time and it should be ensured that the school buildings and hostels are not allowed to be occupied by the armed or security forces in future for whatsoever purpose…

The Ministry of H.R.D. [Human Resources Development, i.e. Education], Government of    India is directed to submit a list of schools and hostels (district-wise), collected from the   State Governments/Union of Territories Administrations which are currently occupied by the armed/security forces in the North Eastern States duly indicating the date from which or duration for which such schools and hostels have been occupied by the security forces…

The Ministry of Home Affairs is directed to ensure that the paramilitary forces vacate the school and hostel buildings occupied by them and submit an Action Taken Report to this Court as well as NCPC within two months from today. The Ministry shall file a proper affidavit in this matter on the next date of hearing of this Writ Petition.

State of Jharkhand:

So far as the State of Jharkhand is concerned, it is admitted that out of a total number of 47 locations where security forces have been housed in schools and hostels, only 26 of them have been vacated by the security forces. Rest of them still continue to be in occupation of the security forces. In the circumstances, there shall be a direction directing the State of Jharkhand to forthwith take appropriate steps and vacate the security forces from the

school buildings, hostels, etc., within two months from today. The State of Jharkhand is directed to file its compliance report.

The State of Jharkhand is further directed to submit a detailed affidavit as to whether those buildings stated to have been vacated by the security forces have already been handed over to the concerned department and whether the schools are actually being run in those buildings. There shall be a similar direction for all the States where the school buildings, hostels, etc. were under the occupation of security forces.

State of Tripura:

So far as the State of Tripura is concerned, it is admitted that still 16 school buildings, hostels etc., continue to be under the occupation of the security forces and the State requires six months' further time to vacate them. We are not inclined to grant time as prayed for by the State. There shall be a similar direction directing the State of Tripura to vacate the security forces from the school buildings, hostels etc., in their occupation within two months from today. The State Government shall file the compliance report.

Nandini Sundar v. Chhattisgarh, Supreme Court of India, 2011

So far as the school buildings, educational institutions and hostels occupied by the security forces in the State of Chhattisgarh is concerned, it is stated that effective steps are being taken for vacating those buildings and the process had already begun. 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. There shall be an order accordingly.

It is necessary to note here that this Court had to intercede and order the Government of Chhattisgarh to get the security forces to vacate the schools and hostels that they had occupied; and even after such orders, many schools and hostels still remain in the possession and occupancy of the security forces. Such is the degree of degeneration of life, and society. Facts speak for themselves…

(i)   the issue of schools and hostels in various districts of Chhattisgarh being occupied by various security forces, in a manner that precludes the proper education of students of such schools…

With respect to the issue of the schools and hostels occupied by the security forces, it may be noted that the State of Chhattisgarh had categorically denied that any schools, hospitals, ashrams and anganwadis were continuing to be occupied by security forces, and in fact all such facilities had been vacated. However, during the course of the hearings before this bench it has turned out that the facts asserted in the earlier affidavit were erroneous, and that in fact a large number of schools had continued to be occupied by security forces. It was only upon the intervention, and directions, of this Court did the State of Chhattisgarh begin the process of releasing the schools and hostels from the occupation by the security forces. That process is, in fact, still on going. We express our reservations at the manner in which the State of Chhattisgarh has conducted itself in the instant proceedings before us. It was because of the earlier submissions made to this Court that schools, hospitals, ashrams and anganwadis have already been vacated, this Court had passed earlier orders with respect to other aspects of the recommendations of the NHRC, and did not address itself to the issue of occupancy by security forces of such infrastructure and public facilities that are necessary and vital for public welfare. A separate affidavit has been filed by the State of Chhattisgarh seeking an extension of time to comply with the directions of this Court. This is because a large number of schools and hostels still continue to be occupied by the security forces. We will deal with the said matter separately.

A second interlocutory application … has also been filed on behalf of the State of     Chhattisgarh, for extension of time to vacate the school buildings, educational institutions and hostels, occupied by the security forces in Chhattisgarh.

Upon hearing learned counsel for the respective parties, we also allow the same. The State of Chhattisgarh is given a further period of two months to vacate the said premises.     While extending the period, we also make it clear that no further extension of time should be prayed for on behalf of the State of Chhattisgarh for the aforesaid purpose.

Iraq

Ezidkhan Protection Forces’ Commitment to Respect Humanitarian Norms, 2018

We commit to the following measures for the protection of all civilians especially children and women:…

g. Abstaining from using schools, or any other building used for the provision of education, for military purposes to avoid harm to children and educational personnel.

h. Abstaining from attacking schools, or any other building used for the provision of education, used for military purposes unless no other feasible alternative measures exists.

Ninewa Guards’ Commitment to Respect Humanitarian Norms, 2018

We commit to the following measures for the protection of all civilians especially children and women:…

g. Abstaining from using schools, or any other building used for the provision of education, for military purposes to avoid harm to children and educational personnel.

h. Abstaining from attacking schools, or any other building used for the provision of education, used for military purposes unless no other feasible alternative measures exists.

Israel

Manual on the Rules of Warfare, 2006

It may be the case that a target might change its status from civilian to military or vice versa. For example, if an anti-aircraft battery is positioned on the roof of a school or if a sniper takes up a position on the minaret of a mosque, the protection provided for the facility by the virtue of it being [a] civilian target is no longer valid, and the attacker is permitted to attack it. The legal responsibility for the deaths of civilians in such a case is that of the side that made unreasonable use of a civilian target rather than on the side who attacked this target. In the case of incidents in which there is a doubt as to whether the target changed its status from civilian to military, the Additional Protocols determine that it should be assumed that it is not a military target unless proven otherwise.