Chibok. Rafah. Peshawar. Garassa. Donetsk. Aleppo. Sana’a.
The recent violations of spaces (of lower and higher) learning have evoked near universal condemnation. Held there are ‘the dictates of public conscience’. Undergirding, if not sparking, this collective sense of injustice is a supposition: the spaces of learning are supposedly inviolable from attacks /acts of violence. From this, a supposition of law might follow: ipso facto the spaces are protected as inviolable as a matter of international law. But is this so?
Of course, the multifarious spaces of learning, as holders of embodied subjects of rights, principally learners, and their rights to, in and through education, are necessarily accorded protection under international human rights law. The concomitant duo dimensional obligation to protect the embodied rights holder within the space from acts of violence, and the space as a safe space of learning continues within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflicts. Indeed the latter triggers international humanitarian law—and the principles of distinction between civilians and combatants and civilian objects and military objectives, or in other words the humanitarian obligation to refrain from attacking learning spaces as civilian objects, and embodied persons in relation to the space, as civilians. The international legal protection, then, may be viewed as doubling itself: the human rights and humanitarian obligations are—complementary and mutually reinforcing. Of course, either way the—supposed—inviolability of the space is a partial international legal actuality; under both bodies of law the space may be lawfully delimited.
The differing legal bases for that delimitation, however, have oppositional protective effects. The inviolability of the space may yield to ensure, under international human rights law, the protection of the embodied rights-holders and under international humanitarian law, a military objective including both a military contribution and advantage. Therein illumines the limits of substantive (as opposed to legal) convergence between the two bodies of law—and a fissure in international legal protection. Yet this fissure may be viewed as critical to ensuring the efficacy of international humanitarian law itself—and thereby also its limits on the (vulnerability creating) effects of armed conflict. Or in other words, it is a particular expression of the equipoise upon which international humanitarian law pivots: the lawful transformation of learnings spaces from civilian object to military objective (whether by nature, location use or purpose) facilitates military necessity whilst the principle of distinction, among other rules, limits the (vulnerability creating) effects of non/international armed conflict.
On this view, the potential extraordinary ‘embodied vulnerability’ created by the legal permissibility of the military transformation of learning spaces whether by armed forces/groups is as a trade off—a necessary accommodation to the extraordinary context of non/international armed conflict. Its legal expression within treaty and customary law includes concomitant legal safeguards—or at least, as opined elsewhere, for three of the four points of vulnerability.* The principal point of international legal equivocation then, relates to the fourth point of vulnerability: there is no express rule to respect and ensure respect for the civilian character of civilian objects generally and spaces of learning specifically; that is, except if the space is, of great cultural importance. Of course its legal embodiment obligation may be inferred from the international legal limits on the (vulnerability creating) effects of non/international armed conflict as expressed in both treaty and customary law.
Foremost it may be viewed as constituent element of basic rules according protection to the civilian population and civilian objects and more specific rules informing their content, as expressed in treaty and customary law. The basic rule on parties to conflict to take precautions against the effects of attacks, and specific rule to ‘avoid [to the extent feasible] locating military objectives within or nearly densely populated areas’, among other analogous rules, may be considered as presupposing such protection. And this is reinforced by the onerous scope of the principle of distinction between civilian objects and military objectives: in case of doubt, learning spaces (as objects ordinarily dedicated to civilian purposes) are presumed not to be ‘used to make an effective contribution to a military action’. Undergirding these arguments is the intransgressible character of these rules. Equally, though, its legal embodiment may be determined from a second source: humanitarian rules relating to the protection of education, most particularly treaty and customary rules relating to children’s entitlement to special respect and protection. And these two sources of embodiment are bound by a third: the general obligations to make the law known and this including ‘in’ and ‘through’ spaces of lower learning.
Thus the continuation of education in the space is a constituent element of ensuring knowledge and practice of humanitarian rules—and thereby self and collective protection from egregious violations of international humanitarian law. Rather than destabilising the equipoise, the existence of such a rule may be viewed as a prerequisite to upholding its equilibrium. Unsurprisingly then, the Security Council, in engaging with applicable law in three of four of its recent thematic resolutions on children supposes such a rule.
[The Security Council]
(a) Urges all parties to armed conflict to respect the civilian character of schools in accordance with international humanitarian law;
(b) Encourages Member States to consider concrete measures to deter the use of schools by armed forces and armed non-State groups in contravention of applicable international law [….] S/Res/2143 (2014), para. 18 (a) and (b)
However the precise point of delimitation remains unanswered: when, if at all, may the space be lawfully transformed by, for example, military use? This is probed in the second part of this two part mini-series.
* See also ‘Converging law, four points of vulnerability and the supposed inviolability of spaces of learning’ Rights-Streams (13th January 2016); Centre for Criminal Justice and Human Rights, University College Cork, Ireland (29th January 2016).