Gaza is reeling after a missile strike launched by Israeli Defense Forces (IDF) targeted a building and mosque within a school complex in Gaza City on August 10. The Israeli military said the school was operating as a Hamas command and control post, but the buildings were reportedly also sheltering more than 6,000 displaced people.
Palestinian authorities have stated that the attack killed more than 80 people, a figure disputed by the IDF, which claimed that the strike killed 19 fighters, including senior Hamas commanders.
August 12 marks the 75th anniversary of the adoption of the four 1949 Geneva Conventions. Those conventions remain the core of “international humanitarian law” (IHL). This represents the body of rules under international law that regulates the conduct of war.
Each of the four treaties focuses on the protection of a particular category of war victim. The first three treaties (on wounded and sick soldiers on land; wounded, sick and shipwrecked soldiers at sea; and prisoners of war) updated earlier treaties signed in 1899, 1907 and 1929, whereas the fourth was a true innovation. It set out for the first time comprehensive protections for civilians.
Those four Geneva Conventions have now been ratified by 196 states, effectively covering the entire world. They have also been updated through three further treaties (or “additional protocols”), and supplemented by a variety of others, such as treaties banning or regulating particular weapons.
But, notwithstanding these significant legal advances, the number of conflicts around the world has steadily increased over the past half century – and particularly in the past 15 years. Fatalities from organised violence – including war – have risen steadily, particularly over the past 25 years (2023 reportedly had the third highest annual fatalities from organised violence since the Rwandan genocide in 1994).
Israel’s assault on Gaza since last year’s October 7 attacks by Hamas has accounted for a significant number of deaths – nearly 40,000. The majority of these were civilians, according to the numbers compiled by the Gaza health ministry, which are all we have to go on. Israel’s actions have come under intense scrutiny, with mounting evidence of war crimes and multiple attempts at accountability, including before the International Court of Justice and the International Criminal Court.
When is a school a lawful target?
A school is a classic example of a civilian object that cannot, as a general rule, be targeted. Where a school is used for military purposes, however, it can potentially become a lawful military objective. This would be the case if its use makes an effective contribution to military action and if its destruction, capture or neutralisation offers a “definite military advantage”. So, if the school building did house a Hamas or Islamic Jihad command centre, as claimed, this may well render it a military objective.
But even military objectives cannot be targeted if doing so may be expected to cause disproportionate harm to the civilian population. Here the test is whether such harm may be expected to be “excessive in relation to the concrete and direct military advantage anticipated”.
This calls for an assessment to be made before an attack of the likely effects of the strike on the civilian population. Given that this was a building in a school complex that also housed a mosque and was sheltering a large number of displaced people, it is very difficult to see how anything other than a significant number of civilian casualties could result. This makes the legality of the strike much harder to justify.
An attack that is knowingly going to cause clearly excessive civilian harm is a war crime for which the perpetrators can be prosecuted (in certain cases, their commanders/political leaders can be prosecuted as well).
Indeed, in many recent conflicts, militaries have (successfully or not) claimed to pursue “zero civilian casualty” policies, to avoid allegations of disproportionate attacks and to increase their legitimacy.
Violations on both sides
If Hamas and Islamic Jihad did use the school as a command centre, effectively relying on the civilians inhabiting the school as human shields, this itself is a violation of IHL and potentially a war crime.
Hamas has been accused before of using Palestinian civilians as human shields (as has Israel), and the IDF is not alone in alleging that they have done so during the current conflict. Yet even in such situations, Israel remains bound by the prohibition of disproportionate harm to civilians when targeting schools that are being used for military purposes by Hamas. It cannot justify any attempt to evade those obligations on the basis of Hamas’ wrongdoing.
Finally, though the IDF insisted it had taken “numerous steps to mitigate the risk to civilians”, it is not clear that they issued any advance warnings to the civilians located in the school. This is required (except in certain circumstances) by IHL.
Warnings are an essential means of complying with a state’s international law obligation to spare the civilian population during military operations. The IDF has issued such warnings in relation to other strikes during the current conflict (though some of these have been criticised as being unclear and thus ineffective). It is not clear on what basis they appear not to have done so here.
The United Nations has noted with concern the pattern of Israeli attacks on schools throughout Gaza. The IDF continues to argue that its strikes comply with IHL. There are strong reasons to doubt this.
But it must also be emphasised that IHL establishes an absolute minimum of permissible conduct in wartime. Indeed, much of IHL is extremely permissive as to what militaries can do during war. That we are now celebrating the 75th anniversary of the core IHL treaties is a good reminder that we should not assume its prescriptions reflect contemporary moral standards.
Militaries and armed groups ought not merely to ask whether a particular military operation would be lawful, but also whether it would be just.
This story was first published in The Conversation.
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