Armed Conflict in the Classroom:
Is the right to education during international armed conflicts currently
under-protected by international humanitarian law and international human rights law?
Student: Monica Jane Murray (12812757) - monicajanemurray@gmail.com
Supervisor: Prof. dr. T. G. Gill
Acknowledgements:
I would to extend special thanks to Prof. Gill for acting as my supervisor and for all of the effort and insight that accompanied this undertaking.
I am also sincerely grateful to dr. Boomgaard for acting as my second reader.
Finally, thank you to both of my parents who gave me the privilege of studying at the University of Amsterdam.
Dedication:
Abstract:
Armed conflict is cited as being one of the key factors contributing to the decline in access to education across the world. On this premise, the extent of the protection offered to the right to education during international armed conflicts by international humanitarian law (IHL) and international human rights law (IHRL) is considered. Taking into account primary sources of law, such as the International Covenant of Social, Cultural and Economic Rights (ICESCR) and the Fourth Geneva Convention, in addition to existing customary international law, an exploration is conducted as to both the existence of a right to education, and the provisions in place to maintain and protect it. While IHRL establishes the right to education, (seen most generally by Article 13 of the ICESCR, which obligates States to establish a system of free and compulsory education) and provides guidance as to its implementation, IHL indirectly supports the right through a series of prohibitions, preventing conduct that could damage the right (such as its rules on civilian targeting), as well as explicitly requiring the provision of education in limited circumstances (such as occupation). The relationship between the two regimes is considered, and it is submitted that the two bodies should work in tandem in respect of the right to education, with more explicit IHRL obligations guiding less specific provisions of IHL. Subsidiary sources, including academic writings and interpretative statements from treaty-monitoring bodies, are utilized in evaluating if the protection offered by the international frameworks is sufficient in achieving its goal of continuing access to the right to education during international armed conflicts. Violations by states of existing
provisions play a substantial role in the disrupting of the right to education, and therefore, the effectiveness of a range of enforcement mechanisms utilized to respond to such breaches are analyzed. As a result of this evaluation, it is subsequently concluded that while the
framework of IHL and IHRL can protect the right to education during conflict to an extent, there are some gaps that are contained within the existing provisions and would require some form of adaptation in order to permit the full enjoyment of the right. Moreover, since
violations by states of their obligations cause such a detriment to the right to education, it can be seen that the effective enforcement of breaches will continue to play a large role in the future protection of the right.
Key words: Right to education, International Covenant on Social, Economic and Cultural Rights (ICESCR), War crimes, Child soldiers, CESCR General Comment No. 13, Fourth Geneva Convention
Table of Contents:
Introduction………...1
1. The right to education - the source of the obligations:
A. International human rights law: the source of the right to education……...3
B. The right to education under international humanitarian law………..6
C. The relationship between international human rights law and humanitarian
law, and its subsequent extraterritorial applicability………...10
2. The substantive content of the right to education:
A. Obligations towards the right to education in international human rights
law………...14
B. Prohibitions and duties towards the right to education in international
humanitarian law………18
3. Enforcing violations of the obligations owed towards the right to
education……….23
Conclusions and suggestions for reform……….33
Bibliography………...37
Introduction:
There can be little doubt as to the importance of education in enabling meaningful
participation within society. To this end, the United Nations has chosen education as one of its sustainable development goals, recognizing that access to education is crucial for “the full realization of [children’s] rights and capabilities1”. The Universal Declaration of Human Rights also designates education as being necessary for the fundamental development of the human personality2. In spite of this, it is estimated that around one in five children of school age - around 263 million worldwide - are not in school at all3. Half of these children are currently living through some form of conflict4.
International humanitarian law (IHL) and international human rights law (IHRL) are the branches of law applicable during periods of armed conflict. In nature, these two regimes function differently. International humanitarian law creates obligations for those participating in conflict and this can result in limited rights for individuals. International human rights law begins by affirming the existence of a right and then details the corresponding obligations which need to be respected for the right to be enjoyed. Human rights treaties therefore form the basis of rights; and humanitarian prohibitions allow for the active, albeit indirect,
protection of these rights during conflict. Because of this variance in address, the approach of these two branches of law to the right to education will be different. Notwithstanding the applicability of these regimes during international armed conflict, the fact that so many children are currently unable to attend school is demonstrative of the fact that access to education is suffering manifestly during periods of conflict.
The research focus of this thesis is therefore to examine if the right to education during international armed conflicts is currently under-protected by these branches of law.
To answer this question, it is necessary to consider several sub-questions. What is the source of the regulations of IHL and IHRL which protect the right to education, and to whom do any
1 General Assembly Resolution 70/1 ‘Transforming our world: the 2030 Agenda for Sustainable Development’
25 September 2015 (A/Res/70/1).
2 Universal Declaration of Human Rights (adopted 10 December 1948, UNGA Res 217 A(III)) art 26(2)
(UDHR).
3 UNESCO Institute for Statistics, ‘Education Data Release: One in Every Five Children, Adolescents and
Youth is Out of School’ (2018) <http://uis.unesco.org/en/news/education-data-release-one-every-five-children-adolescents-and-youth-out-school> accessed 28 April 2020.
subsequent obligations apply? How do these two regimes interact? What is the substantive content of any duties contained within IHL and IHRL in respect of the right to education? How are violations of existing obligations enforced? And finally, what is the scope of protection offered to the right to education during international armed conflict?
In response, a partially descriptive approach is taken: what is the current law, when does it apply, who does it apply to? However, in order to truly consider the scope of protection offered to education by the respective regimes of IHL and IHRL, it is necessary to also provide some evaluative response to the answers to these previous questions. As such, some normative statements are expressed following the determination of the existing framework. While the descriptive aspects of this thesis primarily consider existing treaties, customary law and the relevant guidance provided by international bodies, some areas of review, including the question of how the regimes react, in addition to any evaluative stances as to the current framework, adopt a more theoretical approach and rely more heavily upon academic findings.
The thesis is structured as follows: The first chapter considers the source of the obligations concerning the right to education, within both IHL and IHRL. In addition, the relationship between human rights and humanitarian law during conflict is investigated. The second chapter explores further what the substantive content of these obligations entails. The third chapter considers some of the enforcement mechanisms that exist to respond to breaches of these obligations.
The thesis will conclude with a summary of findings, ultimately answering the question: is the right to education during international armed conflict currently under-protected by
international humanitarian and human rights law? Suggestions for reform to the existing legal framework in order to reinforce any existing protection will ultimately close the thesis.
1. The right to education - the source of the obligations:
1.a. International human rights law: the source of the right to education:
Introduction:International human rights law is the compilation of provisions (both within treaty and customary law) that regulate the behavior of a government in order to grant protection to the individual5. In theory, IHRL should apply at all times -both peace and war6. However, states are entitled to derogate from some human rights norms during times of public emergency, and this can limit the application of IHRL during armed conflict7. The existence of a right to education under IHRL will be explored in this chapter.
The right to education under international human rights law:
With the creation of the United Nations came the expectation of some form of international rights acknowledgement8. The Universal Declaration of Human Rights (UDHR) was the first time the right to education had been recognized within an international instrument9, stating that “everyone has the right to education”10. This general right was later codified into several binding treaties11.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) is the first international treaty detailing the existence of a general right to education. Education in the context of the ICESCR is described as being “both a human right and an indispensable means of realizing other human rights”12. Article 13 of the ICESCR echoes the UDHR, stating that
5 Michelo Hansungule, ‘The Historical Development of International Human Rights Law’ in Azizur Rahman
Chowdhury and Jahid Hossain Bhuiyan (eds), An Introduction to International Human Rights Law (Brill 2010) 1.
6 Jann K. Kleffner, ‘Scope of application of International Humanitarian Law’ in Dieter Fleck (ed), The
Handbook of International Humanitarian Law (3edn OUP 2013) 72.
7 Mary Ellen O’Connell, ‘Historical Development and Legal Basis’ in Fleck (n6) 13.
8 Mary Ann Glendon, 'The Rule of Law in the Universal Declaration of Human Rights' (2004) 2 Nw U J Int'l
Hum Rts 1, 1.
9 Klaus Dieter Beiter, The Protection of the Right to Education by International Law (Martinus Nijhoff
Publishers 2006) 86.
10UDHR (n2) art 26.
11 Tristan McCowan, ‘Reframing the Universal Right to Education’ (2010) 46 Comparative Education 509, 511. 12 Committee on Economic, Social and Cultural rights (1999) General Comment No. 13, ‘Implementation of the
International Covenant on Economic, Social and Cultural Rights’ 8 December 1999 (E/C.12/1999/10) 2. (The Committee is henceforth referred to as the ‘CESCR’) (General Comment No. 13).
“the State Parties to the present Covenant recognize the right of everyone to education”13. This article also establishes a minimum requirement of “free and compulsory primary education” as well as the progressive introduction of free and accessible secondary level education, as well as fundamental education for those who did not receive or complete primary education. Any educational implementation is directly linked to a State’s finances. Article 14 further creates a duty for states not already providing primary education, within all
(emphasis added) territories under its jurisdiction, to create a detailed plan within two years
of ratification specifying when this will be implemented. This implementation must occur within a “reasonable amount of years”14. These provisions are to be read in accordance with Article 2(2) of the treaty, which prohibits discrimination of any kind15. The Convention on the Rights of the Child (CRC) establishes similar, but not identical rights related to
educational access as the ICESCR16. Both conventions make clear that primary school education is to be compulsory and free17, although the CRC fails to establish a clear timeline like the ICESCR as to when after ratification this must occur. The lack of an implementation deadline makes the CRC appear weaker than the ICESCR in respect of educational rights.
Other treaties reiterate the need to provide education for particular groups who traditionally have faced access problems18. These treaties do not create additional rights to education but establish an additional layer of protection for such groups, whereby states must ensure the equal provision of any education they offer, often through practical action. These groups include women19 and those with disabilities20.
It can be seen that the principal aim of international human rights law in establishing a right to education is to require that states provide primary education indiscriminately. Logically,
13 The International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered
into force 3 January 1976) 993 UNTS 3 art 13 (ICESCR).
14 Ibid, art 14.
15 General Comment No. 13 (n12) 8.
16 For example, the CRC makes no reference to the introduction of a progression towards free higher education
unlike the ICESCR. See Geraldine Van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff Publishers 1998) 236.
17Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990)
2515 UNTS 3 art 28(a).
18 For example, Tanya Guyatt, ‘Millions of Girls Are out of School – But Data Shows that Gender Alone Is Not
the Main Culprit’ (UNESCO Sustainable development goals blog) < http://uis.unesco.org/en/blog/millions-girls-are-out-school-data-show-gender-alone-not-main-culprit> accessed 15 April 2020.
19 Convention on the Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979,
entered into force 3 September 1981) 1249 UNTS 13, art 10 (a).
20 Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May
focusing on this obligation is the obvious choice; this minimum educational provision is the largest burden that will be consented to by states, and receiving the skills acquired through primary education, like reading and writing, are fundamental for existing within today’s society. However, in situations of protracted armed conflict, it must be considered if this goal is suitably tailored to the needs of those unable to access education.
As a matter of fact, some states do not and cannot comply with their educational obligations during armed conflict21; as demonstrated by the huge number of children currently not
attending school. While there is no standard age defined for the recieval of primary education it is generally accepted to be directed towards children22. If a conflict causes prolonged educational denial, this can result in large numbers of (young) adults both lacking basic skills23 and being too old to return to primary school. Education - or a lack thereof - outlives conflict and if a State has not implemented some form of foundational education program for (young) adult learners (which there is no immediate obligation to do within the ICESCR), then there is no effective mechanism allowing a return to education for those who – through no fault of their own - have outgrown the primary level stage. In this regard, IHRL, by not placing more emphasis on the need for basic education programs for those returning to learning post-conflict, does not sufficiently protect the right to education in the face of the realities of war. The consent of states to a change such as this (which would involve a reallocation of finances) is of course the largest barrier post-war education will face.
Conclusion:
IHRL establishes a minimum right to education for all children through various treaties. The current nature of armed conflict means that this obligation is often insufficiently achieved, resulting in sections of populations who have received little to no basic education. While IHRL – if adequately respected - has the potential to provide at least base-line education during both times of peace and war, it is not adequately equipped to account for the realties of armed conflict, during and after which the introduction of learning in addition to the primary level is imperative.
21 Derogations and violations are explored further in Chapter 2.A. 22 General Comment No. 13 (n12) 9.
23 Adila Pašalić Kreso, ‘The War and Post-War Impact on the Educational System of Bosnia and Herzegovina’
1.B. The right to education under international humanitarian law:
Introduction:This chapter will begin by considering the functioning of international humanitarian law (IHL) in respect of individual rights, before addressing whether IHL establishes a specific individual right to education.
Can international humanitarian law establish individual rights?
IHL is the branch of international law that regulates the conduct of parties to an armed conflict24. During the course of an international armed conflict, these parties are states25. Multilateral treaties and customary international law form the two primary sources of this branch of law. Traditionally, the presumption existed that any rights created by IHL were owed only to enemy states, correlative to the duties imposed by the status of being a contracting party26. Individuals were presumed to be “mere beneficiaries” of the regime27. This view was derived from the classical international law perspective whereby states were the only subjects, and as such the only entities capable of possessing international rights and duties28.
However, the International Court of Justice (ICJ) in the LaGrand case considered the way in which treaties could be determined to establish individual rights, representing the shift of view as to the inclusion of individuals within the scope of international law 29. According to this case, to ascertain the existence of any rights one should consider the text of the treaty provision30. Any treaty interpretation must be conducted under the rules of the Vienna
24 O’Connell (n7) 11.
25 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva
Convention) (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287 art 2 (Fourth Geneva
Convention).
26 Anne Peters, ‘Direct Rights of Individuals in the International Law of Armed Conflict’, MPIL Research Paper
Series No. 2019-23 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3506742> accessed 21 June 2020, 3.
27 Ibid, 5.
28 Christian Walter, ‘Subjects of International Law’, Mac Planck Encyclopaedia of Public International Law <
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1476> accessed 18 June 2020.
29 Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law, (Cambridge
University Press 2016) 37.
30 LaGrand Case (Germany v. United States of America), International Court of Justice (Judgment) I.C.J.
Convention on the Law of Treaties31. As such, the “treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”32. Under the auspices of this analysis, it becomes apparent that some IHL provisions (albeit a limited amount) do appear to grant individual rights, for example, Article 3 of the Hague Regulations which states that anyone captured by an enemy State has “a right to be treated as [a] prisoner of war”33. While the purpose of this Convention is to regulate generally the conduct of warfare, this particular provision directly speaks to its recipient as a captured person; giving to them a tangible and specific expectation of conduct which is claimable against the duty holder. As such, the establishment of a
specific right can be inferred. It will now be examined if a similar analysis applies to the education-related provisions contained within IHL.
Does international humanitarian law establish a right to education?
IHL does contain some provisions which address education during specific circumstances, namely the internment or evacuation of children, and occupation by a belligerent state:
In the Fourth Geneva Convention, Article 94 states that in situations of internment “the education of children and young people shall be ensured”34. Article 24 stipulates that “The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources and that … their education are facilitated in all circumstances”35.
Similarly, Article 78(2) of Additional Protocol I (AP I) establishes a duty for states to provide education for children who have been evacuated due to conflict36.
31 United Nations, Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
January 1980) 1115 UNTS 331.
32 Ibid, art 31(1).
33 Hague Convention (IV) and Annexed Regulations concerning the Law and Customs of War on Land (adopted
18 October 1907, entered into force on 26 January 1910) (Hague Regulations) art 3.
34 Fourth Geneva Convention (n25) art 2. 35 Ibid, art 24.
36 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims
of International Armed Conflicts (Protocol I), 8 June 1977 (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, art 78(2) (AP I).
International law imposes a general duty upon Occupying States to maintain and restore public order and safety37. There is also a specific obligation on any Occupying Power to “facilitate the proper working of all institutions devoted to the care and education of children”38. The fact that IHL only contains provisions related to education in specific
circumstances is indicative of a presumption that obligations towards education for sovereign states within their territory are to be found within their domestic law (derived from the rights set out in human rights treaties39) even during armed conflict.
AP I additionally requires that “children must be granted special respect and shall be
protected against any form of indecent assault. The Parties to the conflict shall provide them with the care and aid they require”40. Neither the Protocol nor its commentary41 however, specify what the scope of care and aid is. It is therefore submitted that in this instance, IHL should be interpreted through the lens of human rights law. Education is crucial for children’s development, and therefore can reasonably be subsumed into part of the care they require. As such, during the course of armed conflict, states should continue to comply with their
educational obligations. The primary responsibility lies with the national State, but other Parties to the conflict must also refrain from interfering with the right to education as far as possible42.
Provisions do not have to utilize the word “rights” specifically in order to grant them to individuals if one views their contents as speaking directly to the individuals concerned43. It is the expression of the provision which determines it as a right and therefore establishes corresponding obligations. None of the provisions discussed can therefore be considered as affirming an individual right to education. They do not address individuals in the same way as human rights treaties do - placing the individual as the core of the provision and giving them a specific expectation of behavior to rely upon against the duty holder. States are the
37 Hague Regulations (n33) art 43. 38 Fourth Geneva Convention (n25) art 50.
39 Wayne Sandholtz, ‘Domestic law and human rights treaty commitments: The Convention against Torture’
(2017) 16 Journal of Human Rights 25, 29.
40 AP I (n36) art 77(1).
41 Yves Sandoz, Christophe Swinarski et al (eds), Commentary on the Additional Protocols, ICRC, Geneva,
1987 (AP Commentary).
42 Office of the High Commissioner of Human Rights, Frequently Asked Questions on Economic, Social and
Cultural Rights, Fact Sheet 33, 11 < https://www.ohchr.org/Documents/Issues/ESCR/FAQ%20on%20ESCR-en.pdf> accessed 6 July 2020.
43 Lawrence Hill-Cawthorne ‘Rights under International Humanitarian Law’ (2017) 28 European Journal of
addressees of the provisions, and they only establish a general expectation of behavior by the Parties, guided by IHL’s underlying purpose of limiting “the suffering caused by warfare and [alleviating] its effects”44 through the regulation of Parties’ conduct. The corresponding benefits to education from these obligations thus are a consequence, not a cause. It would subsequently be wrong to assert that these derived benefits create a claimable right under IHL, even though the provisions mandate the provision of education.
In addition to these general obligations, IHL contains several prohibitions which if properly respected indirectly protect the right to education in practical ways. Firstly, the customary principle of distinction between civilians and combatants prevents attacks upon children45; and Additional Protocol I prohibits attacks against civilian objects – thus providing some protection to schools46. Article 77 of the Protocol further prohibits the recruitment of children under the age of 15 as soldiers, thus taking them out of the education system47. All of these sources assist in increasing access to the right to education – not by establishing the right, but by protecting the essential elements necessary for exercising the right.
Conclusion:
While in limited circumstances IHL may create individual rights, it does not do so in respect of education. Here, civilians are mere beneficiaries of the benefits of the obligations imposed. However, this demonstrates that IHL can protect the right to education even if it does so indirectly instead of framing obligations as being correlative to specific rights.
44Hans-Peter Gasser, ‘International law and the protection of war victims’ International Committee of the Red
Cross (1998)
<https://www.icrc.org/en/doc/resources/documents/misc/57jm93.htm#:~:text=The%20objective%20of%20inter national%20humanitarian,of%20humanity%20on%20the%20other.> accessed 18 June 2020.
45ICRC, Customary IHL database, < https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul> accessed 21
June 2020, rule 1 (ICRC customary IHL).
46 AP I (n36) art 52. 47 Ibid, art 77.
1.C. The relationship between international human rights law and humanitarian
law, and its subsequent extraterritorial applicability:
Introduction:
It has previously been stated that both IHRL and IHL apply during armed conflict. The two branches of law have at their core broadly similar aims. IHRL exists in order to protect the fundamental characteristics of each person from sovereign overreach48. The purpose of IHL is primarily to prescribe obligations on State Parties relating to the conduct of hostilities and which govern their treatment of people who are not or no longer taking active part in
hostilities49.
While these regimes have similar aims, their contents are not identical50. Some provisions within IHL and IHRL do create the same obligations for states, however, some differ dramatically. This has led to a debate about the relationship between the two branches of law51. This chapter will consider this relationship of IHL and IHRL during armed conflict, as well as examining the possibility of the extraterritorial application of human rights norms.
The relationship between international human rights law and humanitarian law
The ICJ in the Advisory Opinion on the legality of the Palestinian Wall considered the applicability of IHL and IHRL52. The Court emphasized that ‘the protection offered by human rights conventions does not cease in cases of armed conflict’53. The Court also determined that Israel had obligations under both human rights and humanitarian law, which could be applied simultaneously54. Although this statement was an advisory opinion, and not
48 Chowdhury (n5) 1.
49 ICRC ‘Civilians protected under international humanitarian law’ (2010) <
https://www.icrc.org/en/doc/war-
and-law/protected-persons/civilians/overview-civilians-protected.htm#:~:text=The%20protection%20of%20civilians%20during,their%20public%20and%20private%20 property.&text=IHL%20provides%20that%20civilians%20under,circumstances%2C%20without%20any%20ad verse%20distinction.> accessed 18 June 2020.
50 Fiona Nairn, ‘The relationship between International Humanitarian Law and International Human Rights
Law: Parallel Application or Norm Conflict?’ <https://ssrn.com/abstract=2021839 > accessed 16 April 2020, 3,4.
51 Beth Van Schaack, ‘The Interface of IHL and IHRL: A taxonomy’, (Just Security 2013) <
https://www.justsecurity.org/1741/interface-ihl-ihr-taxonomy/> accessed 21 June 2020.
52Legal Consequences of the construction of a wall in the occupied Palestinian territory (Advisory Opinion) I.
C.J. Reports 2004, p. 136, 86
53 Ibid, 106. 54 Ibid, 109, 159.
a judgment with binding applicability55, it nonetheless indicative of the existence of the complementarity principle whereby the rules of IHL and IHRL work together, “completing and perfecting each other”56. There are three situations envisioned by the complementarity principle: instances where human rights law singularly regulates an issue, where
humanitarian law singularly regulates an issue, and finally, where both branches contain provisions regulating the same issue57. According to this principle, occasions where one regime provides regulation, and the other is silent, the existing rule will be applicable,
irrespective of it being derived from human rights or humanitarian law58. For example, IHRL creates provisions related to the accessibility of education for children with disabilities. IHL is completely silent on this matter, and so the IHRL obligations remain generally applicable during the conflict (human rights derogations will be addressed in the next chapter).
In the final situation, where both regimes contain norms addressing the same situation, the legal maxim ‘lex specialis derogat legi generali’ applies59. Divisions exist as to the specific applicability of this maxim. Some commentators interpret the ICJ in the Palestinian Wall Advisory Opinion as having created a sweeping principle that in situations of norm conflict, all of the rules of IHL will be considered as lex specialis to the rules of IHRL – that is to say, IHL, since designed specifically to regulate armed conflict is the applicable regime, and IHRL would not be permitted to provide greater rights than those granted by IHL60. However this contention, can be “dangerous”61 in situations where IHL lacks specificity and as such should be guided by IHRL.
It is submitted instead that the interpretation of lex specialis utilized by the International Law Commission’s Report on the Fragmentation of International law is the correct understanding of the principle. This report stated that in the case of norm conflict, the norm which provides
55 Advisory Jurisdiction, International Court of Justice <https://www.icj-cij.org/en/advisory-jurisdiction>
accessed 20 June 2020.
56 Kleffner (n6) 73.
57 Palestinian Wall (n52) 106. 58 Kleffner (n6) 73.
59 Ibid, 72.
60 Marko Milanovic, ‘Norm Conflicts, International Humanitarian Law and Human Rights Law’ in Ben-Naftali
Orna (ed) HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW Collected Courses of the
Academy of European Law, Vol. XIX/1 <https://ssrn.com/abstract=1531596> accessed 16 April 2020, 5.
the more specific obligation can instruct the reading of the less specific norm62. Alternatively, if a more specific norm entirely contradicts a more general norm, then the more general one can be displaced63. This approach allows for IHRL to instruct IHL in situations lacking clarity and this results in a higher degree of protection for the individual (an aim of both IHL and IHRL) than having a blanket policy whereby IHL is always considered to be lex
specialis.
Although generally the more specific norm will indeed come from IHL - since it was
specifically designed for regulating armed conflict64 - IHL, in respect of the right to education only contains “bare-bones” obligations. That is to say, IHL does not go further than simply requiring education to be provided in very limited circumstances, and does not specify how this education should be delivered. IHRL education provisions should therefore direct the application of IHL in this regard – at a minimum, free and compulsory primary education should be provided to evacuated children etc. This interpretative method of considering IHL and IHRL together both allows a clear structure detailing how education should be carried out and acts as a reinforcement mechanism for IHL that attempts to ensure the continuation of education during conflict.
The applicability of extraterritorial human rights obligations:
While this understanding of the application of the relationship between IHL and IHRL functions for states where the conflict takes place on their territory, it is perhaps more problematic when considering the obligations of third-states.
The existence of extraterritorial obligations is often found within human rights treaties. Unfortunately, the ICESCR (the treaty which can be seen to provide the most general right to education) remains silent as to its extraterritorial application65. However, the ICESCR does contain a provision stipulating the necessity of international co-operation and assistance in the application of the treaty66, which has been suggested to imply the drafters intention of
62 International Law Commission, 58th Session, Fragmentation of International Law: Difficulties arising from
the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, Finalised by Martti Koskenniemi (A/CN.4/L.682) 56.
63 Ibid, 57. 64 Kleffner (n6) 74. 65 Ibid, 75.
creating extraterritorial obligations67. The UN Committee on Economic, Social and Cultural Rights has also endorsed this view68 .
Article 14 of the ICESCR limits the obligation of providing free and compulsory education to territories falling within a State’s jurisdiction69. In the Palestinian Wall Advisory Opinion, the ICJ determined that states are bound by the ICESCR when they act as Occupying powers, thus exercising territorial jurisdiction70. Therefore, Occupying Powers should ensure the availability of free and compulsory primary education “to the maximum of its available resources”71. Non-Occupying states who are party to the ICESCR also have an obligation to respect the territorial states obligations under the Covenant, and as such must refrain (as far as possible) from interfering with access to the right to education being provided by the territorial state72 . This wide scope of application of the ICESCR prevents third-states from disrupting education extraterritorially and permits the continued exercise of the right by the local population.
Conclusion:
This thesis endorses the approach of the International Law Commission whereby the complementary functioning of the regimes should be respected in order to grant the highest protection possible to the right to education. Finally, third-states must refrain from interfering with education, and additionally, in some specific circumstances (such as Occupation) there is an obligation to comply with one’s positive international human rights obligations
extraterritorially.
67 Fons Coomans, ‘Application of the International Covenant on Economic, Social and Cultural Rights in the
Framework of International Obligations’ (2007) 11 Max Plank Yearbook of the United Nations 360, 363.
68 CESCR, General Comment No. 24 (2017) on ‘State obligations under the International Covenant on
Economic, Social and Cultural Rights in the context of business activities’ 10 August 2017 (E/C.12/GC/24) 29.
69 ICESCR (n13) art 14. 70 Palestinian Wall (n52) 112. 71 ICESCR (n13) art 2(2).
2. The substantive content of the right to education.
2.A. Obligations towards the right to education in international human rights law: Introduction:
This chapter will address the content of the right to education contained within the ICESCR, before considering how this right is affected by situations of armed conflict.
The substantive content of the right to education in the ICESCR:
Since the ICESCR contains the most detailed expression of the right to education found within IHRL, its substantive content shall be the focus of this section. It perhaps seems contradictory to suggest that children will be obliged to attend school during situations of armed conflict, however, regular civilian life often continues during conflicts, and attending school can provide a sense of normality for those living through an intrinsically abnormal time. In addition, accessing education is believed to significantly reduce instances child soldier recruitment73.
The principle educational obligation of the ICESCR, is the duty of states to take immediate action towards providing free and compulsory primary education74. These dual conditions are specifically chosen to increase access to education. By making education free, restrictions upon education due to personal financial uncertainties (such as those caused by armed conflict) are limited75. Moreover, the compulsory element of the provision prevents parents from opting out of sending their children to school76, and further prevents states from
allowing some groups (such as only children of a particular sex, or religion) to attend, but not others. This is again reinforced by the ICESCR’s prohibition of discrimination in the
exercising of Covenant rights77.
73 Theresa S. Betancourt, Stephanie Simmons et al, ‘High Hopes, Grim Reality: Reintegration and the Education
of Former Child Soldiers in Sierra Leone’ (2008) 52 Comparative Educational Review 565, 565.
74 ICESCR (n13) 13(a).
75 CESCR General Comment No. 11 (1999), ‘Plans of Action for Primary Education (Art. 14 of the Covenant)’
10 May 1999 (E/1992/23 6).
76 Ibid, 7.
This obligation forms part of the ICESCR’s minimum core obligations. The content of these obligations is the lowest common denominator of state input necessary to exercise the minimum essential levels of the rights contained therein78. If states do not immediately take steps towards fulfilling these duties then they are “failing to discharge their obligations under the Covenant”79. They are obligations of conduct, and not of result, and so in determining if a failure has occurred in respect of these obligations, the economic resources of the State are taken into account80. States must fulfil these minimum core obligations “to the maximum of their available resources”81. As such determination of the successful discharge of these obligations will be different for each State, however, the flexibility of this system prevents the alienating of any State on the basis of resource and as a result successfully encourages the distribution of education – at least to an extent - in every State.
In addition to the obligation to provide free and compulsory primary education, there are other educational duties which states must take steps to progressively realize, such as the accessibility of higher education82 and fundamental learning education programs83. The extent of the fulfilment of these obligations is also directly linked to the financial capabilities of each state. While in a perfect world, all forms of education would be both free and
accessible, the ICESCR by recognizing that states are in different levels of development, again strives for some action in place of none84.
Although the nature of armed conflicts means that there will be an inevitable impact on the resources of a State, it would appear that the mere existence of a conflict does not excuse States from complying with their minimum core obligations85. While in theory this should protect the right to education, it is immensely difficult to respond to violations after the fact in situations where a State has more limited resources than it did previously.
78 CESCR General Comment No. 3 (1990), ‘The nature of States Parties obligations (Art. 2, para. 1 of the
Covenant)' 14 December 1990 (E/1991/23) 10.
79 Ibid. 80 Ibid.
81 ICESCR (n13) art 2(1). 82 Ibid, art 13(2)(c). 83 Ibid, art 13(d).
84 General Comment No. 13 (n12) 43.
85 Amrei Müller, ‘Limitations to and Derogations from Economic, Social and Cultural Rights’ (2009) 9 Human
To what extent do these obligations apply during international armed conflicts?
The UN Human Rights Committee, although discussing the applicability of the International Covenant on Civil and Political Rights (ICCPR) stated that armed conflict could constitute an event which would permit the temporary suspension of some human rights, but that these must only occur to the extent considered necessary as a proportionate response to the situation86. Any derogations must be notified to other Parties via the Secretary-General87. However, unlike the ICCPR, the ICESCR does not contain a derogation clause permitting the suspension of its contents. By their nature, derogations allow for the restriction of one right, in view of protecting another88, and restrictions upon the right to education may seek to protect the lives and health of children89. But are such suspensions lawful under the ICESCR?
The ICESCR has stated that the minimum core obligations, of which primary education forms a part, are non-derogable90. And the reasoning for this is clear; the exercise of most of these core obligations, such as water and shelter is fundamental for immediately exercising the right to life91. However, a temporary pause placed upon the right to education does not have this same instantly grave effect upon the right to life. Therefore, to prohibit the
suspension of education in order to protect the right to life would be contrary to the purpose of the inclusion of the minimum core obligations in the first place.
Therefore, it is submitted that although the ICESCR is silent on the issue of derogation, this does not mean that the partial suspension of its obligations dictated by extreme necessity would be unlawful during certain situations of armed conflict should they be utilized temporarily with the purpose of protecting civilian life. Thus, for example, should conflict become concentrated in a particular area of a State, it would not be a breach of the ICESCR to non-permanently close schools within that zone (derogations should only last as long as
86 Human Rights Committee (2001), General Comment No.29, ‘States of Emergency (article 4)’ 31 August
2001 (CCPR/C/21/Rev.1/Add.11) paras 3-4.
87 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171, Article 4(3).
88 Müller (n85) 562. 89 Ibid, 592.
90 CESCR (2001) ‘Poverty and the ICESCR: Statement by the Committee to the Third United Nations
Conference on Least Developed Countries’, 10 May 2001 (E/C.12/2001/10) 18.
91 See for example: CESCR General Comment No. 15, ‘The Right to Water (Arts. 11 and 12 of the Covenant)’
the situation which requires the suspension of the right does92)93. Should this situation be prolonged, states must take steps towards the practical reinstatement of education such as the creation of non-permanent learning centers outside of conflict areas in order to comply with the ICESCR.
Some commentators have pointed towards the ICESCR’s limitation clause as providing sufficient flexibility to states in emergencies, thereby justifying the lack of a derogation clause94. However, limitations are only partial restrictions placed upon a right in order to protect general public interests. As demonstrated above, some situations of armed conflict require the complete (albeit temporary) restriction of a right, and so cannot be carried out on the basis of this limitation clause. The assertion that derogations are possible under the ICESCR comes with an expectation of immediate State declaration. This goes beyond the current quinquennial reporting system of the CESCR, however this must be undertaken by states to allow for the effective monitoring of human rights by the CESCR and other international bodies and potentially by other Parties to the ICESCR. The CESCR should develop an ad-hoc reporting system to allow this to occur, in order for the highest standard of rights protection to take place.
Conclusion:
States have general obligations established by the ICESCR in regards to education. Most of these obligations can be progressively realized, however the right to free and compulsory education is a minimum core obligation which means states must immediately take steps towards it - as far as their resources allow. This can create varying levels of educational provision between states, but the provision does establish at least movement towards some education in every state. These obligations appear to be temporarily suspendable during armed conflict, but this must occur only if strictly necessary to protect the right to life of children, and with the least effect upon the right possible.
92 Müller (n85) 565.
93 Ibid, 592. 94 Ibid, 594.
2.B. Prohibitions and duties towards the right to education in international
humanitarian law:
Introduction:
In an earlier chapter, the source of the obligation to respect the right to education under IHL was given attention. In this chapter, the substantive content of that duty under IHL will be examined. The content of such IHL obligations can be considered in two distinct categories – those which apply at all times of armed conflict, and those which apply specifically to
situations of occupation. These categories do not claim to address every obligation towards education during armed conflict, but rather those with the most general applicability.
Protecting the right to education in the context of the conduct of hostilities and preventing the use of child soldiers:
a. Conduct of hostilities:
i. Children and teachers:
Attacks upon children and their teachers (or the risk thereof) have been cited as a key reason for the declining access to education during armed conflict95. The customary principle of distinction creates an obligation for those partaking in combat not to intentionally target civilian objects96. As such, the direct attack of children and teachers (assuming they retain their civilian status) is directly prohibited.
Similarly to the principle of distinction, the principle of proportionality, provided for both in customary law97 and in Additional Protocol I98, also seeks to prohibit harm to the civilian population. Attacks which may result in an excessive amount of incidental loss of life or injury to civilians, in comparison to their military advantage, are prohibited. The
determination as to the balance between collateral damage and military advantage is partly a
95 ICRC, ‘Children in War’ (2019)
<https://shop.icrc.org/children-in-war-2993.html?___store=default&_ga=2.192779811.843182831.1587901454-427069656.1551454507> accessed 26 April 2020, 11
96ICRC customary IHL (n45) rule 14 97 Ibid, rule 1
subjective decision, based upon information available at the time the attack is executed99. While the provision is designed to limit civilian casualties as far as possible, its mere existence equally recognizes that some injury will occur as a fact of war. Therefore, it is not impossible to envision a situation during conflict whereby military necessity dictates that the targeting of a legitimate military objective has to occur, even if it results in the incidental death or injury of children and therefore damages access to education. The principle of proportionality acts as a safety barrier for these situations and as such should be properly taken into account by combatants before launching any attack resulting in collateral damage - with a view to limiting this eventuality as much as possible. In situations of doubt as to the nature of the advantage, the balance must be swung in favor of the civilian population100. In spite of the relatively wide scope of protection granted by these rules, it is believed that over 24,000 instances of IHL breaches occurred towards children in 2018101. This figure includes an increase in violations by governmental forces102.
ii. Schools:
Further to the prohibition on targeting civilians, the principles of distinction and
proportionality also prohibit the targeting of, and excessive incidental damage to, civilian objects – such as schools103. This protection of schools is of course, also limited to the limited its maintaining of civilian status104. Parties to the conflict are obliged to limit, as far as
possible the effects of any potential attack. Military objectives must be located away from densely populated areas and civilians must be removed from the vicinity of military
objectives105. Therefore, should a school be used for military purposes, this should only occur after the evacuation of children and teachers. In practice, this is not always respected –
leaving children vulnerable to direct attack106. Further to this, combatants are prohibited from using children and teachers as shields that protect military objectives located inside
schools107. Should a school appear to lose its civilian status, combatants, prior to attack, must
99 Stefan Oeter, ‘Methods and Means of Combat’, in Fleck (n6) 174. 100 AP commentary (n41) para 1979.
101 United Nations General Assembly/Security Council, Report of the Secretary General (2019), ‘Children and
armed conflict’ 20 June 2019 (A/73/907–S/2019/509) para 5 (Children and armed conflict report).
102 Ibid.
103ICRC customary IHL (n45) rules 1, 14. 104 Ibid, rule 10.
105 Ibid, art 58 (a)-(b).
106 Shaheed Fatima, Protecting Children During Armed Conflict (Bloomsbury Publishing 2018) 355. 107 Fourth Geneva Convention (n25) art 28.
do everything feasible to ensure schools are in fact genuine military objectives108 and if situations of doubt arise the presumption is always in favor of schools being civilian objects109.
Despite these requirements, the number of schools being both utilized by military forces and attacked is on the rise110. Some of these attacks have been breaches of IHL, however, others arguably have been lawful on the basis of a school being transformed into a military
objective111. The UN Security Council has acknowledged that this utilization of schools as military objects is a very real impediment to the access of education, and has urged states to refrain from doing so during periods of conflict112. The problem with this military utilization is two-fold. Firstly, it prevents the immediate education of those attending the school.
Secondly, it can then be lawful for the school to be attacked resulting in the destruction of educational buildings, which may never be rebuilt post-conflict. Unlike religious and cultural buildings, there is no specific provision restricting the military use of schools113.
b. Child soldiers:
The provisions of AP I prohibit the recruitment of soldiers under the age of fifteen114. AP I further creates an obligation for states recruiting those aged between fifteen and eighteen to give priority to the oldest applicants115. Despite these requirements, some states continue to use child soldiers in governmental forces116 but it is crucial that the prohibition on child soldiers is respected since any conflict participation will have a direct impact upon their recieval of education. Direct participation in the conflict risks their losing of civilian status117, and such they may be targeted, resulting in injury or death. In addition to this risk, the usage of child soldiers creates an often permanent disruption to education. Even if they escape the
108 ICRC customary IHL (n45) rule 16. 109 AP I (n36) art 52(3).
110 United Nations Security Council, Report of the Secretary-General (2019), ‘The protection of civilians in
armed conflict’ 7 May 2019(S/2019/373) para 33.
111 Ibid, paras 30 – 33.
112 United Nations Security Council Resolution 1998, adopted 12 July 2011(S/RES/1998) para 4.
113 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May
1954, entered into force 7 August 1956) art 4(2).
114 AP I (n36) art 77(2). 115 Ibid.
116 Children and armed conflict report (n101) Annex I.
117 Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against
Bosco Ntaganda, International Criminal Court Pre-Trial Chamber II 2, (Judgment) 14 June 2014
conflict physically unscathed, it has been observed that former child soldiers are unlikely to return to education – resulting in a generation of adults with reduced literacy and numeracy skills118.
Protecting education during occupation:
Situations of occupation, as defined by Article 42 of the Hague Regulations119, create further obligations for the Occupying Power with respect to education. These obligations now form part of customary international law120. The Hague Regulations firstly impose a general
obligation upon these states to restore and maintain public order and safety121. The Supreme Court of Israel interpreted this obligation in respect of the original French “l’ordre et la vie
publique”, thus widening the scope of application to include general public welfare122 and academics have endorsed this translation as being indicative of the drafter’s original intentions123. A later Israeli judgment held that this right specifically included education within its scope124. The usefulness of these decisions is of course confined to future State practice; while one can utilize judgments and academic writings as subsidiary sources of law, there is no obligation to do so.
In addition to this obligation, the Hague Regulations place a more specific duty upon Occupying Powers to provide access to education for children via local institutions125. This obligation is general in scope and applies to all establishments which provide education. It creates both a passive duty, not to interfere with the workings of these institutions, but also an active duty of assistance should the national authorities be unable to fully perform their responsibilities126. This obligation is, however, only owed towards children under the age of
118 Theresa S. Betancourt, ‘A longitudinal study of psychosocial adjustment and community reintegration
among former child soldiers in Sierra Leone’ (2010) 7 (3) International Psychiatry 60, 61.
119 Hague Regulations (n33) art 42. 120 Palestinian Wall (n52) para 89. 121 Hague Regulations (n33) art 43.
122 Christian Society for the Holy Places v. Minister of Defence, 26(1) PD, p. 574 (1971), 581. Summary
available at: David Kretzmer, ‘The law of belligerent occupation in the Supreme Court of Israel’ (2012) 94 International Review of the Red Cross 207, 219.
123 Marco Sassòli, Legislation and Maintenance of Public Order and Civil Life by Occupying Powers (2005) 16
European Journal of International Law 661, 664.
124 Tabeeb et al., v. Minister of Defence et al., 36(2) PD, p. 622 (1981) Summary, Kretzmer (n122)219 125 Fourth Geneva Convention (n25) art 50.
126 R. K. Dixit, ‘Special Protection of Children During Armed Conflicts Under the Geneva Conventions
Regime’, (2001) ISIL Year Book of International Humanitarian and Refugee Law < http://www.worldlii.org/int/journals/ISILYBIHRL/2001/2.html> accessed 15 June 2020.
fifteen127. As such, any commitments the territorial state has made towards developing secondary education in respect of human rights norms need only be granted assistance in respect of those aged fifteen or below – potentially impacting on the recieval and
continuation of secondary education. The benefit of the regime, however, is that it places education squarely within the framework of IHL. By ensuring that the provisions of IHL obligate Occupying Powers to provide education for the duration of their occupation, there is both practically a continuation of education, and more theoretically, the rescue of education from debates about the extraterritorial nature of human rights norms. While it is submitted that human rights are applicable extraterritorially, if states chose to ignore this application, IHL acts as a safety net for the exercising of the right.
Conclusion:
While IHL has an apparent framework that seeks to protect children, teachers and schools during the conduct of hostilities and occupation, there are hundreds of thousands of children unable to receive education during armed conflicts128. There is no doubt that violations of IHL contribute to this figure129. However, in addition to such violations, the IHL rules related to the military usage, and targeting of schools in particular fall too short in their protection; damaging educational access both during and after periods of conflict.
127 Fourth Geneva Convention (n25) art 14.
128 Children and armed conflict report (n101) para 118. 129 For example, Ibid, Annex 1.
3. Enforcing violations of the obligations owed towards the right to education:
Introduction:The previous chapter demonstrated that violations of IHL contribute at least in part to the number of children who currently have no access to education during armed conflict130. As such, violations must be properly responded to by international law. The right to education is protected by a wide range of enforcement bodies. It must therefore be considered if these mechanisms are sufficiently equipped to address violations of these obligations.
Domestic enforcement mechanisms: a. International humanitarian law:
Common Article 1 to the Geneva Conventions imposes an obligation on all States “to respect and to ensure respect for the present Convention in all circumstances”131. There is a multitude of methods that a State may adopt to fulfill this obligation including the dissemination of IHL. States must inform their populations of the rules of IHL, during both times of peace and war132. While dissemination is a tool of implementation, and not necessarily of enforcement, its value in protecting the right education is notable. According to the ICRC “the obligation to spread knowledge of IHL is based on the idea that sound acquaintance of the rules set forth in the law is essential for their effective application and, consequently, for the protection of the victims of armed conflicts”133. IHL provisions that protect the right to education have been considered, and those participating in conflict must be sufficiently aware of these expectations in order to successfully provide protection to education. We see that education truly can protect the right to education.
The obligation to respect the Geneva Conventions can further be fulfilled by the incorporation of IHL rules into a State’s domestic law134. States have a duty to repress
130 Children and armed conflict report (n101) para 118. 131 Fourth Geneva Convention (n25) art 1.
132 Ibid, art 144.
133 International Committee of the Red Cross Advisory Service on International Humanitarian Law, ‘The
Obligation to Disseminate International Humanitarian Law’ (2003)
<https://www.icrc.org/en/download/file/1042/obligation-dissemination-ihl.pdf> accessed 21 June 2020 (ICRC
dissemination).
134Laurence Boisson de Chazournes and Luigi Condorelli, ‘Common Article 1 of the Geneva Conventions
revisited: Protecting collective interests’ (2000) International Review of the Red Cross, No. 837 <https://www.icrc.org/en/doc/resources/documents/article/other/57jqcp.htm> accessed 28 May 2020.
breaches of IHL135 and this obligation specifically includes the enactment of legislation that criminalizes the gravest breaches of the Geneva Conventions, in addition to the search for, and prosecution of, any alleged perpetrator on a State’s territory. These grave breaches include the willful killing of, and causing serious injury to, all protected persons; ergo including children and teachers136.
Enacting domestic legislation that criminalizes breaches of IHL more generally is seen as form of state compliance with the less specific obligation of repression (although the extent of legislative incorporation - from all breaches of IHL to only grave breaches - varies from State to State)137. This onus of prosecution falls primarily upon Parties to the conflict – on the basis of territorial or nationality-based jurisdiction138. Criminal prosecution of non-grave breaches is, however, an option and not an obligation since it is not specifically demanded by the Geneva Conventions139. Therefore, it is submitted that states should enact legislation which permits effective prosecution of all of the more serious breaches of IHL. This goes beyond the current obligation of the Geneva Conventions; and as such would include the targeting of children and schools; in addition to the recruitment of child soldiers. The need for effective domestic prosecution systems that are capable of investigating crimes committed against children during armed conflict is critical as a first step to achieving accountability on behalf of victims140. In addition, there is the belief that this incorporation into criminal law acts as a form of deterrence, reducing some future instances of violation141. This approach of widening the scope of criminal prosecution has been adopted by the International Criminal Court and will be returned to later in this chapter.
b. International Human Rights Law:
State parties to the ICESCR have an obligation to effectively realize the rights contained within the treaty – including the right to education. The ICESCR does not specify specifically
135 Fourth Geneva Convention (n25) art 146. 136 Ibid.
137 Jesse Medlong, ‘All Other Breaches: State Practice and the Geneva Conventions’ Nebulous Class of Less
Discussed Prohibitions’ (2013) 34 Michigan Journal of International Law 829, 840.
138 International Committee of the Red Cross Advisory Service on International Humanitarian Law, ‘Universal
jurisdiction over war crimes’ (2015) < https://www.icrc.org/en/document/icrc-advisory-services-international-humanitarian-law > accessed 20 June 2020 1.
139 Fourth Geneva Convention (n25) art 146.
140 United Nations Security Council, Resolution 2427, 9 July 2018 (S/RES/2427).
141 Hyeran Jo and Beth A Simmons, ‘Can the International Criminal Court Deter Atrocity?’ (2016) Faculty
the form that this effectuation must take. However, the CESCR in interpreting the domestic scope of the treaty has stated that there is an implicit expectation upon State Parties to provide access to domestic remedies for rights violations142. This can be achieved through both administrative and judicial remedies, however any administrative decisions should ideally be subject to judicial review143. An immediate domestic mechanism for protesting alleged violations of the right to education is crucial for its individual enjoyment. If states are not party to the ICESCR Optional Protocol this is the only way, within the treaty framework, in which individuals may directly invoke this right.
Regional Enforcement Mechanisms:
a. The role of regional human rights tribunals:
For reasons of reduced space, only the Council of Europe’s system of human rights
protection will be considered and utilized to exemplify the workings of regional mechanisms. The European Court of Human Rights (ECtHR) rules on alleged violations of the European Convention on Human Rights (ECHR). Article 2 of the ECHR Protocol No.1144 precludes the denial of a right to education.
The ECtHR has considered various violations of the ECHR during international armed conflicts in its jurisprudence145. In respect of the right to education, states can derogate from convention rights during times of emergency146. However, this derogation must not conflict with State’s existing international obligations. Therefore, States party to the ECHR and the ICESCR must continue to attempt provision of the minimum content of the right to education during war. The tandem working of these treaties precludes the reliance upon regional
mechanisms as a reason for a State failing in their obligations.
142 CESCR, General Comment No. 9 (1998) ‘The domestic application of the Covenant’ 3 December 1998
(E/C.12/1998/24) para 3.
143 Ibid, para 9.
144 Protocol No. 1, European Convention on Human Rights (adopted 20 March 1953, entered into force 18 May
1954) art 2.
145 European Court of Human Rights Press Unit Fact-sheet – Armed conflicts
<https://www.echr.coe.int/Documents/FS_Armed_conflicts_ENG.pdf> accessed 15 June 2020.
146 European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953)
The ECtHR notably allows for the submission of cases from individuals directly147. This submission can only take place when the domestic remedies available in the State alleged to be in breach have been exhausted148, permitting States to rectify the situation of their own accord. Should a case reach the Strasbourg Court, any judgment is binding on the State party149, and can include direct compensation or other remedies for victims150.
While this system is effective in its allowance of direct victim participation and consequential compensation or remedy, it is not without flaws. Firstly, the scope of the right is limited: it only applies to Member States, as is the case with any regional body. Moreover, the time it takes for cases to be heard at all stages of the domestic system, and then at the ECtHR, can be extensive depending upon the number of domestic courts in a State and their application waiting times. This means that changes to the existing educational system may happen too late to benefit the victim’s bringing the case and its difficult to envision any amount of monetary compensation that could adequately compensate for a prolonged lack of education.
International Enforcement Mechanisms:
a. War crimes and international criminal law:
The most serious breaches of IHL have been categorized as war crimes by the International Criminal Court (ICC)151. Violations related to the right to education include: intentionally directing attacks toward schools not used for a military purpose152 and conscripting or
enlisting those under fifteen into the armed forces153. Notably, international criminal law goes further than IHL in specifically prohibiting the targeting of schools as non-military
objectives. The intentional violation of protection granted to all civilian persons and objects (deliberately targeting children154 or intentionally causing excessive collateral damage155) is
147 Rules of Court, European Court of Human Rights (Updated 1 January 2020)
<https://www.echr.coe.int/Documents/Rules_Court_ENG.pdf> accessed 13 June 2020, Rules 46-47.
148 ECHR (n149) art 35(1). 149 Ibid, art 46(1).
150 Ibid, art 13.
151 Rome Statue of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2001) 2187
UNTS 3, art 8.
152Ibid, art 8 (b)(ix). 153 Ibid, art 8(b)(xxxvi). 154 Ibid, art 8(b)(i)-(ii). 155 Ibid, art 8(b)(iv).
