Israel’s attack on Gaza school shows limitations of war conventions

The signing of the Geneva Conventions, which set the rules of conduct during warfare, on 12 August 1949. They updated earlier conventions set in 1929. Photo: British Red Cross/CC BY-SA

By Lawrence Hill-Cawthorne

18 Aug 2024

Each of the four 75-year-old Geneva Conventions aims to protect a distinct category of war victim. Judging by the number of deaths of civilians in the Gaza conflict, they are not succeeding.

Gaza is reeling after a missile strike launched by the Israeli Defense Forces (IDF) targeted a building and mosque inside a school complex in Gaza City on 10 August. 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.

12 August marked the 75th anniversary of the adoption of the four 1949 Geneva Conventions, which 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 comprehensive protections for civilians for the first time.

The 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. Deaths from organised violence – including war – have risen steadily, particularly over the past 25 years (2023 reportedly had the third-highest annual deaths from organised violence since the Rwandan genocide in 1994).

Israel’s assault on Gaza since last year’s attacks by Hamas on 7 October 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, and there is 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.

Israel Gaza Geneva Conventions The signing of the Geneva Conventions, which set the rules of conduct during warfare, on 12 August 1949. They updated earlier conventions set in 1929. (Photo: British Red Cross / CC BY-SA)

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 or political leaders can be prosecuted as well).

Indeed, in many recent conflicts, militaries have – successfully or not – claimed to pursue a policy of “zero civilian casualty” 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 they 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 have issued such warnings in relation to other strikes during the current conflict (though some of them 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 UN has noted with concern the pattern of Israeli attacks on schools throughout Gaza. The IDF continue to argue that their 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 in terms of 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 have to ask whether a particular military operation would be lawful, but also whether it would be just. DM

First published by The Conversation.

Lawrence Hill-Cawthorne is professor of public international law at the University of Bristol in England.

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.

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