On 20 May 2024 the International Criminal Court (‘ICC’) Prosecutor Karim A.A. Khan KC (‘Prosecutor’) applied to the Pre-Trial Chamber I (‘PTC’) of the ICC, for arrest warrants in the Situation in the State of Palestine, under Article 58 of the Rome Statute. The application was against five individuals: three members of Hamas (Yahya Sinwar [deceased], Mohammed Diab Ibrahim AL-MASRI [‘Deif’] [likely deceased but yet to be accepted by the Prosecutor for the purposes of the warrant] and Ismail Haniyeh [deceased]) and two from the State of Israel (Prime Minister Benjamin Netanyahu and Israel’s Defence Minister Yoav Gallant). It was probable that these arrest warrants would be issued given the strong evidential basis for the arrest warrants supported by a panel of international law experts and the PTC I issued warrants for arrest for Netanyahu, Gallant and Deif on 21 November 2024. This Article concerns the charges in the application for the arrest warrants and considers the scope and likelihood of bringing additional charges for attacks against schools.

At present, the three individuals have been charged for various crimes against humanity (‘CAH’), namely extermination, persecution, rape and other inhumane acts under Article 7 of the Rome Statute, as well as war crimes under Article 8 of the Rome Statute of rape, torture, cruel treatment and more. There is no limit to an amendment to a formal indictment until the trial; as the PTC I has granted the application for arrest warrants, the Prosecutor can still add more charges. Furthermore, the Expert Panel also stated that additional crimes are under investigation which can lead to ‘additional applications in the future’ (para 11).

This Article argues for and discusses a potential additional charge regarding the failure to protect educational institutions from military attacks. Education can suffer in various ways during a conflict and state of war, such as preventing children from attending school, turning the schools into military bases or being targeted themselves, especially with civilians and children present in the premises of the school. This Article seeks to analyse the attacks on schools by Israeli authorities and whether they can be prosecuted under the Rome Statute. It firstly discusses the future likelihood of the Prosecutor bringing any charge for attacks against schools at the ICC. It then discusses whether this charge could be a specific charge  for attacks against places of education or fall under an overall charge of attacks against ‘civilian objects’ that are prosecuted under different provisions of the Rome Statute.

Documentation and Current Evidence of Attacks against Schools

The procedure that the Prosecutor adopts in forming the charges in its application is by examining the evidence collected by his Office (Article 54 of the Rome Statute). The evidence should ‘provide a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed’ (Article 53(1)(a) of the Rome Statute). The evidence collected by the Prosecutor’s Office is not currently in the public domain (Rule 121(10) Rules of Procedure and Evidence); therefore, it is challenging to establish whether or not the Prosecutor has sufficient information to form a ‘reasonable basis’ to charge for attacks against schools in the situation in the State of Palestine. Nevertheless, many attacks have been publicly reported, recorded and merit consideration under an international criminal legal framework.

Demolishing schools has been a frequent practice in Gaza by the Israeli military. These attacks have historically pre-dated October 7 2023, for example, in 2021, an Israeli airstrike hit two United Nations Relief and Works Agency (‘UNRWA’) schools. In May 2023 Israel demolished an EU-funded school in Jubbet Adh Dhib. On 17 October 2023 the UNRWA reported one of its schools in the Gaza strip was targeted, killing at least 6 people. The UN Secretary-General on Children and Armed Conflict’s recent report dated 3 June 2024 verified 2 attacks on schools primarily by Hamas (para 104) and 45 attacks on schools attributed primarily to Israeli armed and security forces (para 111). On 7 June 2024 the UN reported that Israeli forces hit one of UNRWA schools and 37 people, including 14 children were killed. On 6 July 2024 at least 16 Palestinainas were killed due to an Israeli attack on a UN School sheltering the IDPs. This repeated on 14 July 2024 killing 22 Palestinians taking shelter in a UN-run school in Central Gaza. These actions have also been termed ‘scholasticide’ (systematic destruction of education) in Gaza by UN Experts, drawing attention to the figure that over 80% of schools in Gaza have been damaged or destroyed since October 7. This also goes the other way where Hamas has been found to ‘intentionally target elementary schools’ but Israel has been reported to more often target schools in  Gaza.

A Study of Satellite Data in Harvard showed that attacks against civilian infrastructure such as schools was not ‘dispersed’ or ‘randomly allocated’ but it was ‘clustered’ and the authors estimated that there is a ‘less than 1% chance that such clustering could have happened by random chance’. This further questions the intention and purpose behind these attacks. There is undisputed evidence that schools have been persistently attacked, but how unlawful these attacks are will be subject to Israel’s argument of military necessity, Hamas’s holdout arguments and how they fall under the rules of the international law. Article 8 of the Rome Statute on War Crimes states ‘the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’. These elements of a plan, policy or a large-scale commission of acts under Article 8 are important to distinguish war crimes under the Geneva Conventions and those that the ICC has jurisdiction over. In theory, given that hundreds of such attacks have occurred over the years since the Prosecutor opened an investigation on Palestine, the large-scale commission of these attacks when looking at the civilians that have lost lives warrants a consideration by the Court.

Protection of Schools Under International Law

International Humanitarian Law

International humanitarian law (‘IHL’) prohibits the deliberate targeting of schools. Article 48 of Additional Protocol I  states that attacks must only be directed against military objectives and not civilian objects. Article 52(2) of the same treaty defines civilian objects as those that are ‘not military objectives’ [‘those objectives which by their nature, location or purpose make effective contribution to military action’]. While the rules of customary IHL as stated above are binding on Israel, it is not a party to the Additional Protocols of the Geneva Convention 1949 and cannot be held accountable under its provisions except for some articles of the Additional Protocols that echo customary IHL and would apply to this situation. Article 52(3) of the Additional (‘Protocol I’) of the Geneva Convention makes it clear that if there is a doubt as to whether an object ‘normally dedicated to civilian purposes such as… school’ is a military objective, it should be presumed it is a civilian object and thus prohibited from attack. This presumption can be reversed if there is certainty that a civilian object such as a school is being used as a military object.

The Israel Defense Forces (‘IDF’) have frequently justified their attacks on schools backed by the rationale of military necessity. For example, on August 7 2024, the Israeli strikes on the Abdul Fattah Hamoud and Al-Zahra school killed over a dozen individuals and it was justified by stating ‘the school compounds were used by Hamas terrorists and commanders as command and control centres’. In order to establish the truth of these statements, investigations by human rights groups as well as commissions of inquiry under the United Nations will be seminal in determining whether these attacks were in fact lawful or a violation of the principle of distinction and military necessity. An illustration of the importance of such reports is evident with the UN Human Rights Council’s Commission of Inquiry which has published its third report on the situation in Palestine in September 2024 in which it has focused on attacks on healthcare facilities and personnel. The report concludes that “Israel has implemented a concerted policy to destroy the health-care system of Gaza. Israeli security forces have deliberately killed, wounded, arrested, detained, mistreated and tortured medical personnel and targeted medical vehicles, constituting the war crimes of wilful killing and mistreatment and the crime against humanity of extermination”. The Commission further found that these acts “were taken as collective punishment against the Palestinians in Gaza and are part of the ongoing Israeli attack against the Palestinian people that began on 7 October”. Given the extent of the bombardment on schools, it may be likely that such a conclusion is also a tenable one to hold in relation to the Israeli onslaught on educational facilities in the Gaza Strip.

International Human Rights Law

International human rights law continues to be applicable in an armed conflict. Treaties relevant to the protection of schools include the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict condemns ‘targeting of children in situations of armed conflict and direct attacks on objects protected under international law…. such as schools’. Israel became a signatory to the Protocol in 2000 and ratified it in 2002, therefore the Protocol is binding on Israel. Given Israel’s ‘effective control’ of the Gaza Strip as an occupying power, it is bound to uphold the convention during the course of the armed conflict commensurate to this control. The Safe Schools Declaration launched in 2015 was drafted with the intent to set out the importance of protecting education in the state of armed conflict, including preventing attacks on schools. It was endorsed by Palestine in 2015 but has not yet been endorsed by Israel. Security Council Resolutions 1998 (2011) and 2143 (2014) also strongly condemn and oppose attacks on schools that significantly breach children’s right to a safe environment and education (Articles 2,4, 28 and 29 of the UN Convention on the Rights of the Child). These various provisions signify the importance of international law to the protection of schools. The potential breaches of these various laws can create a scope for investigation and prosecution at the international courts such as the ICC. While the consistent attacks on schools and the law that protects them should be utilised and implemented through international courts, it will undoubtedly undergo investigative challenges, such as proving which school maintained its civilian protection requires a thorough case by case analysis. This factor could also impact the Prosecutor’s likelihood in pursuing the charge.

Past Israeli Operations

The article now looks at what human rights organisations said about the argument of military necessity by Israel and Hamas in the 2008/2014 military operations in Gaza. This assessment of the past operations permits us to evaluate whether this argument will sustain today and whether it will or should influence the Prosecutorial decision at the ICC.

2008/2014 Military Operations in Gaza

The UN Fact-Finding Mission on the Gaza Conflict in 2009 reviewed some pictures shown by Israel of rockets launching from or near schools. The Mission concluded that ‘it is not reasonably possible to determine whether those photographs show’ rockets being launched from or near schools (para 451). In another incident relating to schools, the Mission investigated shelling around a newly opened UNRWA elementary school on al-Fakhura Street that was operating as a shelter to civilians. The IDF claimed that Hamas fired mortar shells at its forces and they spotted the source of the fire to be 80 meters from the school. Amongst other things, the Mission conducted nine interviews with people who were present at the al-Fakhura street, none of whom had heard fires before the IDF’s fires. Though a different account had also been provided in two other reports provided by the Associated Press and British Channel 4 News (para 674), the Mission eventually accepted that some firing may have occurred. Despite establishing there was firing, the Mission found the IDF to lack credibility because they were without information about the source of fire, they were not certain from which direction the fires came from in the 80 meters vicinity of the school as alleged by IDF (para 675). Merely putting a civilian object such as school in danger due to a military necessity to respond to Hamas was not encouraged and illustrated that Israel’s is not cautious of hitting civilian objects. The Mission in one of its conclusions acknowledged the principle of proportionality

‘What makes the application and assessment of proportionality difficult in respect of many of the events investigated by the Mission is that deeds by the Israeli armed forces and words of military and political leaders prior to and during the operations indicate that, as a whole, they were premised on a deliberate policy of disproportionate force aimed not at the enemy but at the “supporting infrastructure.” In practice, this appears to have meant the civilian population’ (para 1886).

This quote is significant to the discussion as it explicitly highlights the possibility of a deliberate policy of disproportionate force employed by Israel in the past. Human Rights Watch conducted a thorough investigation of similar attacks in 2014 to weigh the credibility of Israel’s claims. Israel presented three photographs as evidence of Hamas hiding rockets in school compounds but none of the pictures belonged to the three UN schools that were attacked. UNRWA claimed that it was in regular contact with Israeli authorities and gave them the school’s coordinates on 12 different occasions but it was still attacked. Though the IDF gave a time slot for evacuation, the attack occurred before the evacuation time slot and at the time the school was being used as a designated emergency shelter by 3000 people (para 426 and 435). The IDF’s justification for the attack was that Hamas fired rockets from an area of the Beit Hanoun school and that the school was not an object of the attack as ‘IDF responded by targeting the source of the fire’ (para 430 and 431). The inquiry commission concluded that when targeting the source of Hamas’s fire in the vicinity of a school ‘the IDF must have been aware that there was a strong likelihood that military objectives and civilian objects alike would be struck’ and the ‘use of such weapons in the immediate vicinity of an UNRWA school sheltering civilians is highly likely to constitute an indiscriminate attack which, depending on the circumstances, may qualify as a direct attack against civilians, and may therefore amount to a war crime’ (para 446). In another incident Israel said the Hamas fighters had ‘operated adjacent’ to a school and then continued to fire a ‘single errant mortar’ in a UN school, this was also admitted by Israel. Israel has consistently adopted a policy of using disproportionate force in Gaza over the years with the current conflict being no different.

It is true that Hamas has historically used civilian objects as shields by intentionally firing rockets or operating from a close proximity of civilian objects such as schools or building tunnels underneath UNRWA schools that also makes schools prone to suspicion and attacks. The UN Board of Inquiry reported that weaponry was stored in three UNRWA schools by the Palestinian Militant groups (para 444). While it is noted that Hamas has intentionally fired rockets and mortar launches from urban vicinities, a report by the Israeli Ministry of Foreign Affairs that conducted a legal analysis of operations in Gaza from 2008-2009 concluded that just because Hamas was the de facto governing authority in Gaza, it does mean that all schools are presumed to lose their civilian character. When the presence of Hamas’s operations around and in some schools challenges the illegality of Israel’s attacks; the argument turns to the application of the principle of proportionality of such attacks. This is where the role of an international court could be vital in considering both sides of the argument. As evidenced above, the human rights organisations in the 2008/2014 military operations found Israel’s rationale for attacks on schools to lack credibility and some to be disproportionate. One could argue for the potential of similar legal analysis in the current conflict. As Israel continues to persistently attack schools and justifies it with a similar implausible argument of military necessity, it calls for an in depth investigation by the Prosecutor.

Charges at the ICC

The process of bringing a case to trial at the ICC involves many procedural steps.

• At the very beginning the Prosecutor opens an investigation into a Situation (Situation in the State of Palestine in this instance).
• The Prosecutor then conducts the investigation and identifies perpetrators and crimes allegedly committed to make an application to the PTC for an arrest warrant or summons to appear. In the present case the Prosecutor has already submitted this application. This application involves a specific reference to the crimes within the jurisdiction of the Court alongside evidence of those crimes. (Article 58 of the Rome Statute).
• Once the PTC considers the arrest warrant application and is satisfied that ‘there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court’ and the arrest is necessary, the next step is to confirm the charges before trial once the arrest warrant is issued and executed (Article 61 of the Rome Statute).

Amongst these many steps, the article focuses on the very initial stage of investigation and the charges that the Prosecutor may include in its arrest warrant application (step 2) or during the confirmation of charges before trial (not expected to occur anytime soon in this Situation). It  is one of the first crucial steps in the court’s process as it substantiates that the prosecutor has sufficient evidence to potentially prosecute this crime. Once the Prosecutor has considered the information available to him, procedurally he has to meet the following test under Article 53 of the Rome Statute to initiate an investigation and include the crime in its arrest warrant application before the PTC.

‘In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a) The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b) The case is or would be admissible under article 17; and

(c) Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice’

The Prosecutor adopts the subjective test of ‘reasonable basis’ in determining which crimes should be prosecuted as there is no absolute obligation to investigate each crime. The commentary of Article 53 and particularly on the subjective reasonable basis test by Karel De Meester quotes the PTC II’s decision on the authorisation of investigation in the ‘Situation in the Republic of Kenya’,  ‘the Chamber must be satisfied that there is a sensible or reasonable justification for a belief that a crime falling within the Court’s jurisdiction ‘has been or is being committed’ (para. 35). Regulation 29 of the OTP further expands on the test and procedure whereby the Prosecutor provides an internal report that analyses the seriousness of the information, interests of justice, gravity of the crimes, an element that is also relevant to the  issues of admissibility under Article 17 of the Rome Statute.

Article 17 of the Rome Statute deals with two main elements for admissibility, 1) complementarity and 2) gravity.  If a State which has jurisdiction of the crime is not investigating or prosecuting the crime then the ICC can and similar to other crimes there is no evidence that Israel is taking steps to investigate such attacks on schools. Moving to the second, more complex element of gravity, there is currently no given test or definition of gravity but over a period of time the ICC case law has provided guidance. The assessment of gravity of a crime comprises qualitative  (nature, impact, manner of committing the crime) and quantitative (scale and number of the crime) factors ( PTC I in Abu Garda (para 31). Given that there is no one defined standard of gravity, the Prosecutor has a wide discretion in concluding whether a crime is sufficiently grave for its application upon considering multiple quantitative and qualitative factors. It cannot be said with certainty that the Prosecutor has received information on attacks on schools and to what extent, but given the public documentation of these attacks there is some clear gravity to them if the same is considered by the Prosecutor. The attacks have been wide scale, persistent and deadly for many civilians taking shelter in these schools. Furthermore, at this initial stage the Prosecutor is not likely to go as in depth into the intricacies of the alleged attacks therefore an assessment of gravity is more broad at this stage. PTC II Situation in  the Republic of Kenya noted that at this stage of preliminary examinations, gravity ‘should be examined against the backdrop of the likely set of cases’ (para 58).

While the Prosecutor has to consider the Article 53 threefold test, even after meeting this test the Prosecutor can conclude that he does not have sufficient basis for prosecution for various reasons (Article 53(1)(c) and (2) of the Rome Statute). There can be several factors of a case influencing the Prosecutor’s end decision, such as the period these charges would require at trial, the amount of money to further investigate them, the likelihood of proving them (success rate) and more. Though the extent of consideration given to these factors is highly internal, on average of the ICC cases, the Prosecutor has charged defendants with 12 core international crimes. This is not a small number and can be a good illustration of ICC’s capacity to bring lengthy charges. Some academics have previously noticed that one of the primary factors that influence the prosecutor’s charging decision is the ‘failure to obtain convictions’. Some prosecutors may want to charge the defendants with all possible crimes to increase the probabilities of successfully proving some crimes if not most or all. This can prove to be unpragmatic and taint the credibility of the Court in the long-term as it would have failed to eliminate and separate the crimes that are actually very severe, have strong evidential basis and, most importantly, will not waste the court’s scarce resources.

Keeping these various factors in mind, if the Prosecutor makes a charging decision then attacks against schools can be brought under three different provisions of the Rome Statute. The attacks against schools could either be prosecuted under the overall charge of ‘intentionally direct[ing] attacks against civilian objects’ (Article 8(2)(b)(ii) of the Rome Statute) in an IAC and for the NIAC different rules of customary IHL and IHRL as discussed above can be utilised. The Rome Statute does entail specific provisions towards the protection of schools as ‘intentionally directing attacks against buildings dedicated to… education…. provided they are not military objectives’ is a war crime under Article 8(2)(b)(ix) of the Rome Statute in an IAC and Article 8(2)(e)(iv) for a NIAC. These could be separate charges. If it is assumed there could be some charge addressing attacks on some schools, the next question is how could the charges be formed and what would be their scope?

Specific Charge (Article 8(2)(b)(ix) and Article 8(2)(e)(iv) of the Rome Statute– Intentionally directing attacks against buildings dedicated to….education)

Article 8(2)(b)(ix) applicable to an IAC and Article(2)(e)(iv) of the Rome Statute applicable to a NIAC state the following could be a war crime:

‘Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives’

This article has not been utilised yet for ‘intentionally directing attacks against buildings dedicated to…. education’, but it could be applied to the current situation in Palestine. The unprecedented charge for the destruction of historical and religious monuments (UNESCO World Heritage Sites in Timbuktu Mali, shrines and mausoleums) in 2015 in the case of Al Mahdi arising from the Situation in Mali, brought under Article 8(2)(e)(iv) of the Rome Statute may offer a strong argument in favour of the same provision being applied in Gaza but in relation to educational facilities. While this case was criticised by some scholars for not meeting the ICC’s core principle of gravity of the crime under Article 17(1)(d) of the Rome Statute, this has been for a number of various reasons which may not be applicable here. Namely, critics focused on the fact that the Office of the Prosecutor should have used its scarce resources to charge graver crimes committed against individuals. Still, it demonstrated  not only that protecting buildings and monuments of importance was valued by the ICC, but in the absence of a standard of gravity in the Rome Statute, the Prosecutor had a wide discretion, a discretion that could be employed for schools as well. Indeed, there is a strong case to be made in the Gaza Strip to use this charge.

The destruction of cultural property has been prosecuted in various cases at the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’), such as in Strugar (para 461), Jokić (para 113) and Prlić (para 178). However, these were not standalone charges of destruction of cultural property. The charges were in addition to other war crimes or crimes against humanity directed towards civilians. A charge for attacks against schools, could be met with similar criticism for not being grave enough, especially because historical monuments and heritage sites cannot be restored or rebuilt with the same originality and historical authenticity (Jokić para 52) unlike most schools. Much like the cases referred to above, if this charge is brought by the Prosecutor now, it would be ancillary to other charges of many other war crimes and crimes against humanity at the ICC and would set an important precedent in deterrence for attacks against schools.

One of the commentaries of Article 8(2)(b)(ix) Rome Statute takes reference from the case law of the ICTY to suggest that Article 8(2)(b)(ix) refers to educational institutions that have a special feature of ‘cultural heritage of people’ or are unique in given their history (Martić para 97). Not every school will meet this criteria; however, the destruction of some schools or other educational institutions, such as Al Israa university and its library which stored over 3000 archaeological artifacts, could be prosecuted under Article 8(2)(b)(ix). Moreover, from a bare reading of the text, it is clear that the provision does not only apply to schools which also possess cultural heritage but are for all educational institutions.

In terms of the mens rea required, the Trial Chamber in the Blaškić case (para.185) held that ‘The damage or destruction must have been committed intentionally to institutions which may clearly be identified as dedicated to religion or education and which were not being used for military purposes at the time of the acts’. As already discussed, it may be determined, through investigations and commissions of inquiry, that Israel intentionally directed attacks to buildings dedicated to education when they were not being used for military purposes at the time, and may even have done so as a form of collective punishment.

Overall Charge (Article 8(2)(b)(ii) of the Rome Statute– directing attacks against civilian objects)

Article 8(2)(b(ii) of the Rome Statute applicable to an IAC states the following could be a war crime

‘Intentionally directing attacks against civilian objects, that is, objects which are not military objectives’

The term ‘civilian objects’ as a broad term to give maximum civilian protection, infrastructure such as a tram (​​Milošević para 128), a house and its parts such as personal items and furniture, although obvious in some sense, have been deemed as a civilian objects. Schools would also be a civilian object unless proved to be a military objective and this Article 8(2)(b)(ii) could make room to prosecute any schools out of the hundreds attacked. Israel has previously given a justification of military necessity in attacking schools and arguing that certain schools lost their civilian objective because Hamas made them a military objective by virtue or either storing weaponry there, using it to fire at IDF or more. The principle of distinction in IHL plays a key role here as assessing whether an object is a military objective is a high threshold, one has to look at the object’s nature, location, it’s contribution to military advantage which should be definite and not potential or indeterminate (commentary on Article 8(2)(b)(ii)). The ICC has recognised the value of protecting schools in various cases. The Trial Chamber IV in the Ntaganda case established that schools play a crucial role in the ‘daily life and welfare of the civilian population’ (para 138). In Katanga, the Trial Chamber II when discussing the category of reparations for the victims of international crimes stated that building ‘schools or hospitals may be a general help to the community’ as a ‘community reparation’ (para 279).

Schools operate in diverse capacities and while during a state of war they may not be able to operate as usual, their existence can act as a shelter in the present and bring a sense of normality post the conflict. Katanga rightfully recognises their role towards restoring stability but if the schools undergo widespread destruction, like they have been in Gaza, re-building the school infrastructure over a course of years and encouraging its participation in the community could be so delayed that it loses its immediate benefits. These serve as important precedents when the prosecutor files further charges against the defendants, emphasising the importance of protecting schools.

Furthermore, the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’), in the Closing Order in Case 002, where the Court found that workers at Trapeang Thma Dam were also denied schooling (para 345) even though the defendants were not charged with specific crime of restricting access to schools. This is not the same as destroying schools but it talks about restricting access to schools, albeit in a different way than in the Gaza conflict and points to the significance of schools and the various roles it can play.

One of the critical challenges faced at the ICC once a charge is brought is establishing mens rea (intent to commit crime) under Article 30 of the Rome Statute. Although the accused in Al Mahdi admitted guilt in destroying historical and religious monuments, the trial of Netanyahu and Gallant (if it ever happens) would require the court to sift through evidence relating to the bombardment of schools where there is no evidence that they have been used for military purposes. In Al Hassan, the accused was acquitted of war crimes involving attacks against protected objects based on different pieces of evidence, some being that ‘Taking all of the foregoing factors into account, the Chamber also cannot infer that Mr Al Hassan ‘would have been responsible’ for tasking specific members of the Police to participate in the demolition operations’ (para 1053). If a charge against destruction of schools is brought, it will be a novel charge, especially in establishing intent, and each attack will undergo its individual assessment to ensure the schools were not being used for a military reason and they maintained their IHL protection. If the Prosecutor brings a specific charge for destruction of schools, the Prosecutor can be assisted by its approach of Al Mahdi.

A focused approach which emphasises the protection of schools under the Rome Statute, perhaps confining charges to those schools operated by UNRWA, could be a good approach for the prosecutor.

Conclusion

Some experts believe that the Prosecutor has charged Netanyahu and Gallant with crimes such as starvation in which ‘investigators do not need physical access to the Gaza Strip to prove’ as there is plenty of cross-border evidence to use. This could also impact the likelihood of prosecuting attacks against schools or certain schools as the Prosecutor would need an on-ground investigation, conduct a case by case analysis, inspect the schools and interview the survivors of those attacks. Previously, Israel has refused entry to human rights teams to visit Gaza for investigative purposes and also refrained from providing comment or facilitating fact finding (HRC report [para 249]). Notwithstanding the potential of this charge to succeed, if the charge is brought to protect schools and the future of Gaza’s children and their access to education, it will be hugely symbolic.