Investigate and prosecute allegations of violations of applicable national and international law and, where appropriate, duly prosecute perpetrators.
The Declaration and the Guidelines are useful tools to promote compliance with applicable international and national legal frameworks, and to promote accountability when violations occur. Attacks on schools in contravention of international humanitarian law should be investigated and those responsible duly prosecuted. A country’s legislation should include effective penal sanctions for breaches of international human rights and humanitarian law. Effective national accountability mechanisms are a key measure to deter future unlawful attacks against educational facilities, students, and teachers during armed conflict.
In addition to national accountability mechanisms, states may make use of other existing mechanisms, such as the United Nations treaty bodies, fact-finding commissions, human rights commissions, ad hoc international criminal tribunals, and the International Criminal Court (ICC).
Below is a non-exhaustive list of recommended actions to be undertaken by governments to implement the commitment on ensuring accountability for attacks on educational facilities, students, and staff during armed conflict.
EXAMPLES OF GOOD PRACTICE
Argentina: In the manual on international law of armed conflict, Argentina explicitly mentions educational facilities in the definition of war crimes: “Other grave violations of the laws and customary practice applicable in non-international armed conflicts, within the framework of international law…: Intentionally directing attacks against buildings dedicated to … education … provided they are not military objectives.” - Ministério de Defensa, Manual de derecho International de los Conflictos Armados, 2010, p. 94.
Democratic Republic of Congo:
- Immediately after state security forces attacked students at the University of Lubumbashi during a protest on January 27, 2019, the country’s newly elected president, Felix Tshisekedi, demanded that the police commissioner responsible for opening fire on the students be brought to trial. One month later, the Haut-Katanga military court found the police commissioner guilty of murder and sentenced him to death.* Three other high-ranking officers were sentenced to 20 years in prison for attempted murder, six officers received sentences of six months to two years, and five were acquitted of crimes. The court also ordered payments of 40,000 to 50,000 USD to each victim. This trial was notable both for DRC and globally. For one, accountability for the attack occurred quickly after the incident, in part due to pressure from the highest levels of government. Second, the court considered reparations to victims during sentencing, though the distribution of these sums was not confirmed at the time of writing. Finally, GCPEA has found that the use of excessive force by police against student protesters affected thousands of higher education students and personnel globally between 2015 and 2019, and over one hundred in DRC alone; justice in DRC, supported by the highest levels of government, sets a precedent of accountability for attacks the world over.
*GCPEA opposes capital punishment as an accountability mechanism for attacks on education.
- From a trial of an alleged perpetrator of attacks on educational facilities: “Ives Kahwa Panga Mandro (“Chief Kahwa”), founder of the Party for Unity and Safeguarding of the Integrity of Congo, was convicted by an Ituri Military Tribunal in August 2006 on six charges, including the war crime of intentionally directing attacks against a building dedicated to education, for attacks against schools committed in October 2002. Citing the Democratic Republic of Congo’s constitution’s provision allowing courts and military tribunals to apply international treaties, the tribunal directly applied the Rome Statute’s war crime of intentionally directing attacks against buildings dedicated to education. Kahwa received a 20- year sentence. However, the Orientale Province Military Court later acquitted Kahwa on two offenses that it held to fall within applicable amnesty provisions, and in respect to the other charges – including that for the destruction of the school – the appeal chamber cancelled the lower court’s verdict citing procedural violations. - Human Rights Watch, Schools and Armed Conflict, A Global Survey of Domestic Laws and State Practice Protecting Schools from Attack and Military Use, July 20, 2011, pp.44-45
Kenya: On June 19, 2019, over four years after al-Shabaab gunmen stormed Garissa University College on April 2, 2015, a Kenyan court convicted three men who were accused of crimes in connection with the deadly attack. Rashid Mberesero, Hassan Edin Hassan, and Muhamed Abdi Abikar were found guilty of conspiring to commit and committing a ‘terrorist act’ as defined by the state and belonging to a ‘terrorist group’ as defined by national law; the former was sentenced to life and the latter two to 41 years in prison each. Evidence, including phone records, linked Mberesero, Hassan, and Abikar to the attack and to al-Shabaab. The court also tried and fully acquitted one other suspect.
International Court of Justice: In 2017, the International Court of Justice, through the application of the International Convention on the Elimination of All Forms of Racial Discrimination, found that the Russian Federation had restricted the right to education for ethnic Ukrainian students in Crimea. The court unanimously voted that Russia must ensure the availability of education in the Ukrainian language. While this case does not indicate an investigation of an attack, it shows how a legal ruling can protect continuity of education in affected areas.196 However, Freedom House and local news and civil society organizations reported that restrictions to Ukrainian-language education continued after the ruling.
International Criminal Court: The trial of Congolese militia leader Thomas Lubanga Dyilo included recognition of a destroyed school as a represented victim. Thomas Lubanga was charged by the ICC with conscripting children under the age of 15 and using them in hostilities. A total of 99 victims participated in the trial and were represented by seven lawyers. It was stated in court documents that “one of these victims is a school principal who is considered a victim both in his own personal right (and as an indirect victim as he was beaten when trying to intervene in the recruitment of children as soldiers from his school), but also as the representative of his school itself which was destroyed, and, as of January 2009 had not been rebuilt.” - ICC, Prosecutor v. Thomas Lubango Dyilo, ICC-01/04-01/05, Decision on the Applications by Victims to Participate in the Proceedings (December 15, 2008), paras. 105-111. See also ICC, Prosecutor v. Thomas Lubango Dyilo, ICC-01/04-01/06-T-107-ENG ET WT, Procedural Matters (Open Session) (January 26, 2009), pp. 44-45.
International Criminal Tribunal for the Former Yugoslavia: In an indictment of alleged perpetrators of attacks on education institutions, the ICTY prosecutors stated that one of the perpetrators “knew or had reason to know that members of the 4th Military Police Battalion who were under his command and control were about to engage in the wanton destruction and plunder of Bosnian Muslim dwellings, businesses, institutions dedicated to religion or education, civilian personal property and livestock…” and therefore had committed a violation of the laws or customs of war.”- International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Pasko Ljubicic: Corrected Amended Indictment (The Hague, September 26, 2000). See also International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Pavle Strugar, Milodrag Jokic, and Vladimir Kovacevic: Amended Indictment (March 31, 2003).
International Federation for Human Rights (FIDH): The FIDH published a Q&A regarding the International Criminal Court Prosecutor’s investigation into the situation in Afghanistan. The Q&A states that the denial of education for girls based on their gender can amount to a crime against humanity. In the ICC investigation, the Office of the Prosecutor has found that alleged attacks on schools, more specifically schools for girls, resulting in many girls being denied access to education, could amount to a war crime under Article 8(2)(b)(ix) of the Rome Statute. The Prosecutor’s request for authorization can be found here, and there are numerous references to attacks on education, particularly girls’ education.
Eritrea-Ethiopian Claims Commission: Compensation was awarded for attacks on schools: “Having found that Ethiopia permitted looting and burning of structures in the town of Guluj during May and June 2000, the Commission found Ethiopia liable for 90% of the total loss and damage to property in Guluj during that time. After applying the 90% factor, Eritrea sought compensation of ERN 9,688,554 plus US$39,502 in relation to fifteen buildings or groups of buildings in Guluj: the Health Center, Ministry of Health Warehouse, Sub-Zoba Administration, Town Administration Building, Police Station, Courthouse, Water Authority, schools, Sub-Zoba Ministry of Agriculture, Sub-Zoba PFDJ Office, Land Transport Office, Sub-Zoba NUEYS Office, NUEW facilities, gas stations and Catholic Church. Ethiopia offered no specific defense to Eritrea’s claims on any of these buildings... The Commission awards Eritrea compensation in the amount of US$900,000 for 90% of the total loss and damage to the buildings or groups of buildings listed above […].”- Eritrea Ethiopia Claims Commission, Final Ward: Eritrea’s Damages Claims, between The State of Eritrea and The Federal Democratic Republic of Ethiopia.
European Court of Human Rights: The European Court of Human Rights found that Russia violated the right to life of 409 victims in the 2004 attack on a school in Beslan, because “…at least several days in advance the authorities had sufficiently specific information about a planned terrorist attack in the areas in the vicinity of the Malgobek District in Ingushetia and targeting an educational facility on 1 September…A threat of this kind clearly indicated a real and immediate risk to the lives of the potential target population, including a vulnerable group of schoolchildren and their entourage...” Although some measures were taken to mitigate the risk, the Court found that “in general the preventive measures in the present case could be characterized as inadequate.” The Court also found “that there has been a breach of the positive obligations under Article 2 [on the right to life] of the [European] Convention [on Human Rights] in respect of all applicants in the present case.”- European Court of Human Rights, Case of Tagayeva and Others v. Russia, 2017, paras 491-493.