Protecting Human Rights in Emergency Situations: The Example of the Right to Education
The focus of this chapter is on the protection of human rights in emergency situations, with particular reference to the right to education since education is not only a human right in itself but also ‘an indispensable means of realizing other human rights’.1 Thus, protecting the right to education in emergency situations can reinforce the protection of other human rights by creating a more favourable environment for the realization of human rights – for example, by empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, and protecting the environment.2
Six decades after the UDHR,3 the commitment to realizing the human right to education has been a signal failure. It has seen the goals of Education for All4 and the educational targets of the Millennium Development Goals5 continually subsumed to the logic of economics, which, in turn, sees education as nothing more than an instrument of the market. This failure to conceptualize education as a human right not only impacts negatively, to a certain extent, on the progressive realization of the right to education but also impacts on the realization of other human rights since education contributes to realizing other human rights. For some, moreover, the consequence of this is a complete denial of the right to education.
For much of my mandate as United Nations (UN) Special Rapporteur on Education,6 I have paid particular attention to groups of persons traditionally marginalized and particularly vulnerable to exclusion from education. In so doing, I have attempted to establish the causes and circumstances surrounding their exclusion and the challenges that must be faced in order to promote the realization of their right to education. It has become clear from this that there remains an urgent need to redouble efforts to safeguard the right to education for those people – especially children, adolescents and youths – who are denied any possibility of attending school or attaining an education as the result, direct or indirect, of an emergency situation impacting their community.
For the purposes of this chapter, ‘emergency’ refers to any crisis situation arising from natural causes (such as earthquake, tsunami, flood or hurricane), from armed conflict, which may be international (including military occupation) or internal (as defined in international humanitarian law), or from post-conflict situations that impair, interrupt, delay or deny the right to education, impede its development, or hold back its realization. Such situations put people’s health and lives at risk and threaten or destroy public and private assets, limiting the capacity and resources to guarantee human rights and uphold social responsibilities. Recurrent and/or combined emergencies in impoverished regions may, of course, have a multiplier effect, with devastating consequences for school infrastructure, teaching and the educational opportunities generally of the children living in those regions.
Emergency situations are becoming increasingly frequent the world over.7 However, the impact on each person directly involved in an emergency, while invariably brutal, may also vary, as will people’s personal reactions. At no time should such situations entail suspension of domestic and international obligations to guarantee the human rights of all those affected. State institutions, the international community, organizations, and individuals that offer assistance when they arise, should be guided by those rights, rather than responding on the basis of often unwarranted and incorrect assumptions or financial risk. Further, those that do offer assistance should act with those impacted rather than for them.
Article 26 of the UDHR acknowledges that everyone has the right to education, which should be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms, and should further ‘promote understanding, tolerance and friendship’. Education can and indeed should play a key role in promoting cooperation and human understanding. Yet we would do well to heed history and recognize that education can be of a kind that does not build peace but increases social and gender inequalities and may well fuel conflict. In this respect, it is likely, and necessary, that the debate on the role of education in generating conflict and also on the ways in which education can help build a lasting peace will continue.
Indeed, there is a disjunction between social, cultural and economic structures and educational activities carried out in times of emergency. There is an urgent need to close this gap because, although the impact of every emergency is different, there is one prevailing characteristic common to all: the interruption, degradation or destruction of education and educational systems.8
This chapter is divided into eight sections. Section 2 deals with the protection of education in emergencies, stressing the importance of education in emergency situations. Section 3 examines briefly the international legal and political framework for the protection of education in emergencies. Section 4 considers the role of donors in the implementation of the right to education in emergencies, while Section 5 considers the question of education providers in emergency situations, noting that there is no single agency to which states requiring educational assistance can turn in an emergency. Section 6 identifies groups that are more vulnerable to violations of the right to education in emergency situations. Section 7 considers selected issues on three aspects of the right to education, namely the curriculum, quality and shared learning, while Section 8 offers some recommendations.
There is a multiplicity of proposed definitions and conceptions of ‘emergency’ and the stages or time frames they reflect. The focus here will, however, be on the period from early response to an emergency to the initial stages of reconstruction, since it is during these stages that what are perhaps the worst violations of the right to education occur.9 It is during this period that educational systems and opportunities are destroyed, that the limited attention paid by the humanitarian agencies involved, and the relative absence of clear programmatic principles, indicators or funding, are most clearly revealed.
The role and content of education in emergency situations are also a source of conceptual disagreement, especially where a distinction is being made between education in emergencies and education in non-emergency situations. An educational vision based firmly on respect for human rights, and more particularly the human right to education, will help clarify the conceptual issues.
The consequences of brutal armed conflicts and of natural disasters for education have become increasingly visible. Either can strike in any region, often without warning. No state is exempt, and all have differing forms and levels of resources upon which they can draw to deal – or otherwise – with the consequences, and in all (now) the civilian population is the chief casualty. Statistics on conflict-related emergencies remain disturbingly vague, as most are based on estimates, which vary dramatically. In 2003, the UN Children’s Fund (UNICEF) stated that 121 million children were affected by armed conflict,10 yet, in 2000, the UN Educational, Scientific and Cultural Organization (UNESCO) had put the figure at 104 million.11 A comprehensive review in 200412 estimated the number of children and adolescents affected by armed conflict and without access to formal education to be at least 27 million, most being internally displaced persons (90%). More generally, approximately half of children who receive no education live in states where there is or recently has been armed conflict and where, in some states, net school enrolment is below 50%.13
The number of refugee and displaced children receiving no education outside the camps of the Office of the United Nations High Commissioner for Refugees (UNHCR) remains unknown, as does the number of illiterate young people, adolescents and adults who have no educational opportunities. In 1998, hundreds of schools in Central America were damaged by Hurricane Mitch, and many others were turned into shelters. In Aceh, Indonesia, 1,000 teachers were lost after the tsunami in 2004, and 50& of schools were destroyed, leaving 140,000 elementary students and 20,000 junior high school students with nowhere to study. The tsunami destroyed 112 schools in Sri Lanka.14
Even though natural disasters are ‘statistically less lethal’ than conflicts, causing one-third of the number of deaths, natural disasters in the 1990s affected seven times the number of people affected by conflict.15 Notably, natural disasters are on the rise, occurring three times as often in the 1990s as they did in the 1950s. There are no reliable data permitting a comparison of the impact of natural disasters and the impact of armed conflicts. There are reliable data, however, showing that around 90% of those affected by natural disasters live in states with limited capacity to cope with that impact.16
Statistics in themselves are not always sufficient to show the degradation and destruction of education systems when an emergency arises, particularly in the case of armed conflict when teachers, students and parents become the targets of violence. Few statistics record the impact of violence in schools themselves in times of conflict, despite reports that levels of teacher violence against students also intensify. Parents keep their children at home to avoid the risks involved in the trip to and from school and also to avoid falling victim to landmines. Further, during times of conflict, schools can become recruitment centres for children, who are forced to become soldiers, this in itself being a direct attack on children’s education and lives.
The killing of students and teachers and the bombing and destruction of schools have escalated sharply over the past four years in terms of victims and brutality,17 and in certain states, Afghanistan being a notable example, there is a clear gender dimension. Such attacks are directed against girls’ schools, the sole intent being to intimidate and prevent girls from accessing education.18
It is my firm view that security in schools, meaning not only physical, psychological and emotional safety but also an uninterrupted education in conditions conducive to knowledge acquisition and character development, forms part of the right to education.19 This means that states have a responsibility to punish perpetrators and devise effective methods of protection.
Emergencies impact particularly severely on people with disabilities. In her now well-known report, ‘Impact of Armed Conflict on Children’,20 Graça Machel noted that, for every child killed, three are seriously injured or permanently disabled. More specifically, she found that armed conflict and political violence are the leading causes of injury and physical disability, and are primarily responsible for the desperate conditions of over 4 million children who currently live with disabilities and for the lack of basic services and/or minimum support. This lack of support is compounded by broad economic decline and health problems that frequently accompany emergencies generally. The lack of clear statistical data on emergencies does not, and cannot, hide the clear fact that the impact of emergencies on education has been enormous.21
2.2 The Importance of Education in Emergencies
Learning encompasses our past and future at once; it is an aspect of life that comprehends everything that makes development possible. To learn is to adapt, to cooperate, and to transform our environment. It is the process by which people communicate, put forward ideas and bring them to fruition; learning is the organizing principle of every society. Nearly all communities affected by emergencies organize themselves rapidly. They identify representative leaders, provide assistance to their people, and determine priorities and needs:22 these include education, which is always demanded by populations affected by emergencies.
Although I am opposed to the current tendency to treat education as no more than a tool, I recognize that, beyond the human rights imperative, education also provides physical, psychosocial and cognitive protection that can be both lifesaving and life-sustaining. Education offers safe spaces for learning, as well as the ability to identify and provide support for affected individuals, particularly children and adolescents. Education mitigates the psychosocial impact of conflict and disasters by giving a sense of normality, stability, structure and hope during a time of crisis, and provides essential building blocks for social reconstruction and future economic stability. Education can also directly save lives by protecting against exploitation and harm, including abduction, recruitment of children into armed groups, and sexual and gender-based violence. In addition, it provides the knowledge and skills to survive in a crisis through, for example, the dissemination of lifesaving information about landmine and cluster bomb safety, HIV/AIDS prevention, conflict resolution mechanisms and peace building.23
Humanitarian aid traditionally focuses on the three classic areas of food, health and shelter. Assistance, however, should be geared to people’s overall needs and welfare, which as noted above, clearly implicates education. Aid that merely supplies calories for the stomach and water for the throat reduces people to things.24 More searching questions should therefore be asked as to why education does not automatically form a fourth arm of humanitarian aid.
3. International Legal and Political Framework
The international legal and political framework of education in emergencies is the product of several global developments – the ever-increasing number of natural disasters, the changing nature of conflict and the fight against terrorism – and an unwavering perception of what education should be and the quality and kinds of education that should be available.
The obligation of states to respect, protect and fulfil the right to education endures throughout emergency situations. In addition, the right to education inheres in each person regardless of legal status, whether ‘refugee’, ‘child soldier’ or ‘internally displaced’. This introduces a complexity, however, that has been previously anticipated;25 although each person has the same right to education, few individuals have the same educational needs. Moreover, states have the primary responsibility in law for guaranteeing education, even if they lack the capacity needed to do so. This is why, since the international community’s legal undertakings have been conceived to fully meet people’s needs, these undertakings include the provision of educational cooperation, as provided for in Article 28(3) of the UN Convention on the Rights of the Child (CRC).26
Although states are, rhetorically, collectively committed to adopting a human rights perspective on the provision of education, these commitments have not translated frequently enough into collective responses to emergencies.
3.1 Legal Framework
The UDHR establishes, in Article 26, the right to free compulsory elementary education. Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)27 defines the scope of this right more precisely, requiring that education should be available to all who have not received or completed primary education. The CRC also obliges states to ensure, without discrimination of any kind, access to education for all children living in their territories.28 Its Article 28 protects free compulsory primary education, urges states to develop accessible secondary education and other forms of education, and encourages international cooperation in educational matters. In support of this, it refers to the best interests of the child (Article 3) and the right to life and to survival and development to the maximum extent possible (Article 6).
The threat to each of these principles becomes more acute in times of emergency, and particular care and effort are needed to secure them. Special attention must also be paid to the real aims of education, which are interpreted by the Committee on the Rights of the Child (CRC) as transcending mere access to formal schooling and embracing a broad range of life experiences and learning processes that enable children, individually and collectively, to develop their personalities, talents and abilities and live a full and satisfying life within society.29 Moreover, under Article 22 of the CRC, states are obliged to ensure that a child who is seeking refugee status receives appropriate protection and humanitarian assistance, and enjoys all rights as set forth in the convention. This includes the obligation to provide prompt and full access to education and rapid integration into the regular education system.30 In addition, under Article 39 of the CRC, states should, inter alia, take all appropriate measures to promote physical and psychological recovery and social reintegration of child victims of armed conflicts. Of particular importance is Article 38, which calls on states to respect and ensure respect for international humanitarian law in relation to children.
The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict31 has the potential to reduce the number of children recruited into regular armies and irregular armed groups and to mitigate the implications for their educational opportunities.32 It has been followed by several UN Security Council resolutions, most notably Resolution 1612 (2005),33 which establishes a monitoring and reporting mechanism for children and armed conflict. However, the accountability mechanisms of the CRC34 remain weak, for they provide for no more than state party reports. Nonetheless, the CRC has shown a special interest in, and commitment to, the issue of education in emergencies, as reflected in its guidelines for submission of reports, its written and oral questions, its recommendations, and the 2008 Day of General Discussion on education in emergencies.35
The Convention Relating to the Status of Refugees36 also provides that refugee children should be accorded the same treatment as is accorded to nationals with respect to elementary education (Article 22(1)) and treatment no less favourable than that accorded to foreigners with respect to education other than elementary education (Article 22(2)). In 1993, the UNHCR adopted a policy on refugee children that includes the guiding principle that, in all actions concerning refugee children, the child’s best interests should be given primary consideration.37 Quality education is always in a child’s best interests.
The UNHCR found it necessary, however, to gear much of its work towards the protection of displaced persons, despite the lack of specific mandate within its statute for such work.38 The growing number of displaced persons and the lack of specific legal protection prompted the development of the Guiding Principles on Internal Displacement (Guiding Principles),39 on the basis of international humanitarian law and international human rights law. The Guiding Principles affirm the right to free compulsory education, and in particular the full and equal participation of women and girls (Principle 23). Although they are not legally binding, the Guiding Principles have been disseminated widely among states and international agencies and are increasingly being used to guide protection and assistance strategies.
Guidance does not, however, equate with responsibility and accountability mechanisms. Such mechanisms of greatest relevance to those member states the UN seek to assist, are poorly developed. In 2005, in an attempt to offset this lack of development, the Inter-Agency Standing Committee’s Education Cluster40 created a group which aimed to improve the predictability and accountability of response within the UN. Unfortunately, the UNHCR still lacks sufficient resources to perform the lead role it has accepted in certain components of that response.41
International humanitarian law establishes a regulatory framework protecting the right to education during armed conflicts. The Geneva Convention Relative to the Protection of Civilian Persons in Time of War42 (GCIV) states that measures should be taken to ensure that children who are orphaned or separated from their families as a result of a war have access to education.43 The 1977 Additional Protocol II44 to the Geneva Conventions, applying as it does to non-international conflicts, is of the utmost relevance today as it covers the actions of non-state armed groups. Of particular relevance here is its Article 4,(3)(a), which asserts an obligation to provide children with the care and aid they require, and more specifically the right to receive education.45
Also of particular importance is Article 8 of the Statute of the International Criminal Court (ICC),46 which states that all intentional attacks on buildings dedicated to education constitute war crimes and are therefore subject to the court’s jurisdiction.47 In 1999, the UN Security Council adopted Resolution 1261 (1999)48 condemning all attacks on ‘objects protected under international law’, including schools, and calling on all parties concerned to put an end to such practices.49
Perhaps, case law with the greatest potential for impact is that of the International Criminal Court (ICC). Such case law is still very much in its infancy, but as it develops, it offers an opportunity to send a powerful message to those who continue to undermine the right to education: the impunity with which education has been attacked for so many years must now cease.50
3.2 International Political Responsibilities
The recognition given in Articles 4 and 28 of the CRC to the need for international cooperation in order to implement the right to education has not translated fully and clearly into political responsibilities for the international community. Nonetheless, the goal of education for all set up by the World Conference on Education for All (Jomtien),51 held in Jomtien, Thailand, in 1990, certainly moved the language of human rights obligations towards a future responsibility concerning the establishment of minimum standards in basic education. Although Jomtien paid particular attention to groups vulnerable to exclusion from education, the focus on education in emergencies was scant.
The Dakar Framework for Action on Education for All (Dakar Framework)52 was adopted at the World Education Forum (World Forum),53 held in Dakar in 2000. The World Forum paid greater, albeit still insufficient, attention to the educational consequences of emergencies, placing special emphasis on children affected by conflict, natural disasters and instability. It also emphasized the need to conduct educational programmes in ways that promote mutual understanding, peace and tolerance, and that help to prevent violence and conflict. The date by which these needs should be met was set at 2015. There is an interesting statement in the Dakar Framework to the effect that ‘no countries seriously committed to education for all will be thwarted in their achievement of this goal by a lack of resources.’54 The implication is clear: any state desirous of ensuring primary education, but incapable of doing so, should be able to obtain the funds essential for that purpose.
In contrast to the political moves preceding them, the Millennium Development Goals55 do not use the language of rights and state obligations. Instead, they assign educational goals to a development rather than a rights agenda. The effect has been to narrow the view of education to that of a quantifiable access to a full primary education that is free, compulsory and of good quality by the year 2015 (Goal 2) and the promotion of gender parity by the year 2005 (Goal 3). This has also had the effect of diverting attention from other educational goals that are of specific and crucial importance in emergency situations. However, while political commitments on education are welcome, a commitment to long-term development goals is not effective in prioritizing education as a human right in emergencies, or in holding states accountable for violations.