Third of a series of four postings probing the international legal protection of the right to education within the converging contexts of emergencies, threats to international peace and security and armed conflict.
‘I felt that humanity has ended. I mean, a place of learning, to be hit in this way, without warning… where is humanity? …It is supposed to be illegal in any war to strike such places…’ Director of al-Shaymeh School, Hodeidah, Yemen (as cited in ‘Our kids are bombed’ Schools under attack in Yemen (Amnesty International, 11th December 2015), 17).
Held there is a widely held supposition: the multifarious spaces of lower and higher learning are supposedly inviolable from acts of violence. Such spaces are, after all, holders of embodied rights-bearers, principally learners, and their multidimensional right to education. Thus viewed inviolability is three-dimensional: spatial, bodily and inner. So too is the right as expressed in international law: the human rights treaty and Charter bodies (and eminent scholars) have illuminated the right as multi-dimensional, encompassing multiple composite rights ‘to’, ‘in’ and ‘through’ education. And it is of continuing applicability at the shift from ordinary to extraordinary ‘embodied vulnerability’ to hurt and harm. The right has been invoked by those same bodies within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflicts. Too often—as exemplified by the recent violated spaces of learning—attacks on spaces of learning (and the embodied rights-holders within) form part of this vulnerability shift.
Of course it is the egregious acts of violence that capture attention—the bodily hurt and harm. Yet some attacks on spaces of learning may be viewed as less about incursions of spatial and bodily inviolability and more about incursions of inner inviolability: the creative (thinking, feeling) embodied self. The attack is targeted. And the target of the attack is education itself: the containment of thought part of the targeted hurt and harm. Or more accurately, the containment of thought by distinction—on the basis of protected aspects of our innermost identity. In other words it is specific (and age-old) form of violence: gender, race, or belief based or a composite amalgam. It, therefore, violates the rights to bodily integrity and security of the person among others, in conjunction with the right to non-discrimination, individually and as constituent elements of rights ‘in’ and ‘through’ education.
Though some attacks are targeted, all attacks impact on inner inviolability, the rights ‘in’ and ‘through’ education. Relatively the broader impact is untold. Incursions of spaces of learning (or threats thereof) necessarily impact on the continuation of learning within the spaces; they may preclude access to the space into the future. Thus they have an understated effect on the right ‘to’ education and therefore the rights ‘in’ and ‘through’ education. If there is no recovery response or alternative (as required by treaty bodies), part of the hurt and harm—intended or not—is the containment of thought. And, this necessarily creates vulnerability: social, economic and cultural. Of these, the attention is often on future economic independence and productivity. Lesser noted is the impact on civil and political rights; it may preclude knowledge and practice of rights as a constituent element of rights ‘in’ and ‘through’ learning. And this has vulnerabilities effects beyond education: lessening the possibility of self and collective protection including from egregious violations of international law—present and future.
Thus the hurt and harm is multi-dimensional. Unsurprising therefore the continuance of education in emergencies is deemed an imperative as an intrinsic right—and a protective measure. For each dimension of the right, there are necessarily multiple composite legal obligations. Or in other words legal obligations to ensure the spaces, processes and content of learning are rights protecting. Of these the duo dimensional obligation to protect the space (i) from acts of violence and (ii) as a space of learning may be viewed as preeminent. It unlocks the possibility of rights based learning in the space. Yet this understates the protective effects of rights-based learning itself: the legal obligations to ensure (i) informed, accessible, safe and accountable processes of learning and (ii) integrate ‘the right to know, seek and receive information about human rights [and humanitarian rules]’* into the content of learning are also vital protective measures. It, for example, supports children (and adults) to seize, shape and express their human rights, ‘individually and collectively in association with others’ in and beyond education. Or in other words, as Radhika Coomaraswamy quipped (as she delivered the 2014 Annual Grotius Lecture of American Society of International Law) ‘Malala is not alone.’**
Ensuring knowledge and practice of rights ‘in’ education therefore dignifies. And, in doing so, it may have protective effects ‘through’ education, including for escalating conduced compliance with international human rights and humanitarian law.* Seen in this way, it creates a meta-juridical imperative to act to protect each dimension (of the multidimensional) right to education. And this begins by escalating conduced compliance with the international legal obligations to protect the spaces of learning, as crystallised in the Safe Schools Declaration and associated Guidelines (including through international assistance obligations).
*If the obligation to ensure knowledge and practice rights in education is understated, the obligation to make humanitarian rules known is more so. It is a customary and treaty rule of both non/international armed conflict and of continuing applicability in peacetime. The obligation is broad in scope and deep in content: it extends (as Yves Sandoz notes) to even the youngest children; and requires the study of humanitarian rules. Or in other words, it requires reflection upon, and engagement with, the law. And this necessarily includes its human rights complement: the content and scope of complementary international human rights obligations. A premise underlying the obligation, as Naz Modirzadeh persuasively argues ‘is that we must all know more in order to demand more.’
**See also, Malala and the post-postcolonial child (CCJHR Blog, 15th July 2014).
UNICEF Photo, Shehzad Noorani, original accessible here.