As of January 10 2017, 57 states have endorsed the Safe Schools Declaration, setting out the importance of protecting schools during armed conflict. This post summarises a mini series probing the international legal protection of education, and the Declaration, in the context of non/international armed conflict. Each of the four postings (published here and here) begins by recalling the violated spaces of learning of the recent past. Again and again, such attacks have caused senior representatives of the United Nations to state: ‘even wars have rules’. Of course, there is credence to the view that those rules, in the words of Antonio Cassese, ‘hold Armageddon only partially at bay’. Certainly today — from San’a to Aleppo and beyond — they remain apparently ‘all too often checkmated by sheer power’. And, this necessarily places pressure on foundational humanitarian rules.
However, there is also credence to the view of the President of the International Committee of the Red Cross that international law only seems to be at breaking point. Or in other words it is a juristic illusion caused by the development of the law itself, in conjunction with the exponential rise in communication technology. After all, the potentiality of the laws of international human rights and armed conflict to protect our ‘embodied vulnerability’ to hurt and harm has never been stronger, and knowledge of violations of those same laws never been broader. Simply, there are more rules to break, more of which may be viewed as peremptory, and more mechanisms for conducing compliance. Except, there is a gap, or more specifically a point of indeterminacy, in the international legal protection of education. There is no express humanitarian rule to respect and ensure respect for the civilian character of civilian objects generally, and spaces of learning specifically (save for where the space is, of great cultural importance).
The holders of our cultural heritage, then, are accorded more determinate protection than the holders of children’s rights ‘to’, ‘in’ and ‘though’ education. Yet ensuring those rights, most particularly the right to take part in cultural life as constituent element of children rights ‘in’ and ‘through’ education, may be viewed as key to protecting our cultural heritage into the future. Layered there is a question: is this reflective of our collective sense of justice? Of course, as opined in posting one and developed in posting two, such a rule may be inferred from general basic humanitarian rules according protection to the civilian population and more specific rules informing their content, in conjunction with thematic humanitarian rules relating to protection of education and children’s entitlement to special respect and protection. This interpretation is supported by two safeguards: international human rights law as both a complementary body of law and as an expression of the laws of humanity, and those dictates of public conscience, as determined by treaty and Charter bodies.
Though cogent legal arguments may be developed to substantiate the existence of such a rule, there remains the challenge of interpreting in rules. It is for this reason that the Safe Schools Declaration and associated Guidelines may be viewed as turning point. The Guidelines, to use Thomas Franck’s language, contribute ‘determinacy’ to the law; they may be viewed as reflecting agreement about the existing law, and in doing so, clarifying its content and scope. And this is fundamental to ‘conducing’ compliance with the law. The more determinate the rule, the easier it is to make the law known, and the harder it is to ‘justify noncompliance’.
Coupled with the recent attacks on schools, engagement with this discrete dimension of the international legal protection of education, led by the Governments of Norway and Argentina (in conjunction with the Global Coalition to Protect Education from Attack), has contributed, at least partially, to increased engagement with applicable law by Charter and treaty bodies alike. Latent there are the multiple imperatives to ‘respect the civilian character of schools’. It unlocks children’s multidimensional rights ‘to’, ‘in’ and ‘through’ education as noted by eminent scholars and treaty and Charter bodies. Herein lies its rights-multiplying effect for developing our individual and collective civil, political, social, economic, and cultural potential. Education itself, as argued in posting three and four, is part of the solution to conducing compliance and safeguarding (if not demanding more from) the law into the future.