The bare knuckled fight for rights

The past year has been the bleakest of times. At least, for those of us, who believe we are stronger together.  And in invoking that particular slogan, I speak more broadly than the US election. Today many of those acts of international and regional solidarity born and crystallised by war are under threat, or seem so. Under threat by seeming disregard for their ‘founding impulse’ and the laws they constituted. Therein, I invoke, the micro aggressions unleashed by transatlantic electoral processes, and the macro aggressions enacted in the town lands of constituent members of the UN, most luminously Syria, but not exclusively. Held there are acts of international lawlessness: violations of the laws international human rights and armed conflict. Those acts, then, have laid bare the omnipresent forces of regression, and in doing so, exposed previously supposed certitudes about international law and its protective capacity as tenuous. 

The multiple imperatives to protect schools as safe spaces of learning

 

Crossposted courtesy of the Oxford Human Rights Hub (February 2, 2016).

As of January 10 2017, 57 states have endorsed the Safe Schools Declaration, setting out the importance of protecting schools during armed conflict. This post summarises a mini seriesprobing the international legal protection of education, and the Declaration, in the context of non/international armed conflict. Each of the four postings (published here and here) begins by recallingthe violated spaces of learning of the recent past.  Again and again, such attacks have caused senior representatives of the United Nations to state: ‘even wars have rules’.  Of course, there is credence to the view that those rules, in the words of Antonio Cassese, ‘hold Armageddon only partially at bay’.  Certainly today — from San’a to Aleppo and beyond — they remain apparently  ‘all too often checkmated by sheer power’.  And, this necessarily places pressure on foundational humanitarian rules.

Eight reasons why the Safe Schools Declaration matters

Crossposted courtesy of The Right to Education Project (November 27, 2016), summarising a mini series of four postings on the international legal protection of education.

The testimonies of these two teachers, one Yemeni, one Syrian, evoke the egregious hurt and harm of attacks on schools. These attacks, among others, illume the imperative of conducing compliance with foundational rules of international humanitarian law, in particular, as recalled recently by the Security Council in relation tothe Syrian attack above, the obligation to distinguish between civilian objects and military objectives, and the prohibition on indiscriminate attacks. Undergirding this is an another imperative of respecting the civilian character of schools.  The two are deeply interconnected. The international legal protection accorded schools from attack is necessarily contingent on their civilian character. It is of these dual imperatives that the Safe Schools Declaration was born. Led by the Governments of Norway and Argentina, 56 states have thus far signed the Declaration and committed to implementing the associated Guidelines.  And this matters.

Law of peacemaking and the promise of a new beginning for children

Courtesy of the Oxford Human Rights Hub (October 23, 2016).

The act of peacemaking may be viewed as the promise of a new beginning. It is latent within the sui generis legal form of the self-constituting process, and the often layered human rights transformation at its substantive epicentre. In the complex and evolving legality that constitutes peacemaking, international human rights claims often have heightened performativity. Or in other words, international human rights law (itself born of international peacemaking processes) is both applicable to, and performative within, the self constituting process of peacemaking. However, the layered human rights transformation is often partial: children and their rights are particularly likely to be invisible in the successive processes and agreements that constitute peacemaking. Yet, there is an international legal obligation to respect and ensure their rights ‘in’ and ‘through’ peacemaking,  as affirmed by the Committee on the Rights of the Child and underwritten by the Security Council. Further, as noted in an earlier posting,  peacemakers may for multifarious reasons — some principled, others political — commit to ‘transforming children’s rights as part of human rights’. So, why, then, are children mostly invisible in peacemaking?

Seizing 'the radical progressive potential of peace processes'* for children

Cross-posted IntLawGrrls (September 16, 2016).

The act of peacemaking may be viewed as the promise of ‘a new beginning’.  The promise is latent within the complex and evolving legality that binds the self-constituting process, and the often layered human rights transformation at its substantive epicentre. Therein, as illuminated and crystallised by Christine Bell, lies the ‘radical progressive potential of peace processes’.*  Like the progression of the process itself, it is made possible, at least partially, by legal and political imagination.  The challenge is to seize this creativity to ensure children are part of this ‘new beginning’. Or in the words of George Bernard Shaw, it is about ‘dream[ing] things that never were and [...] say[ing] 'why not?'' The aim of these six principles, informed from a critical and constructive probe of peace processes from a juristic, human rights and child-rights perspective, is to support this act of legal and political imagination. 

Meta-engagement with international law, understated effects and engagers

Fourth of a series of four postings cross-posted IntLawGrrls (September 15, 2016)

Images of violated spaces of learning — untouched since the moment of flight — have a visceral luminosity that belies the absence within. Latent there are the attacks or acts of violence of the recent past: the incursions of spatial and bodily inviolability, or as opined in postings one and two, violations of the duo dimensional international legal obligations to protect embodied learners, and their spaces of learning from attack. Lesser stated (if there is no rapid recovery response or alternative) is the multi-dimensional hurt and harm that lies beyond: the violations of the rights to, in and through education (as documented in posting three of this series). And the hurt and harm beneath: domestic embodiment of those rights may be partial and/or access to public affairs or remedies limited. Or in other words, the vulnerability shift from ordinary to extraordinary embodied vulnerability may precede, undergird and be exacerbated by the attack. The sole form of redress, then, may be international law. 

Knowledge and practice of rights 'in' and 'through' the inviolable spaces of learning

Third of a series of four postings, courtesy of IntLawGrrls (May 5, 2016).

‘I felt that humanity has ended. I mean, a place of learning, to be hit in this way, without warning… where is humanity? …It is supposed to be illegal in any war to strike such places…’  Director of al-Shaymeh School, Hodeidah, Yemen (as cited in ‘Our kids are bombed’ Schools under attack in Yemen (Amnesty International, 11th December 2015), 17).

 

Held there is a widely held supposition: the multifarious spaces of lower and higher learningare supposedly inviolable from acts of violence. Such spaces are, after all, holders of embodied rights-bearers, principally learners, and their multidimensional right to education. Thus viewed inviolability is three-dimensional: spatial, bodily and inner. So too is the right as expressed in international law: the human rights treaty and Charter bodies (and eminent scholars) have illuminated the right as multi-dimensional, encompassing multiple composite rights ‘to’, ‘in’ and ‘through’ education. And it is of continuing applicability at the shift from ordinary to extraordinary ‘embodied vulnerability’ to hurt and harm. The right has been invoked by those same bodies within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflicts. Too often attacks on spaces of learning (and the embodied rights-holders within) form part of this vulnerability shift.

Geneva (III), politicking and possibility for Syria’s invisible 43%

 

Updated and revised version of the original, cross-posted courtesy of the Oxford Human Rights Hub (February 17, 2016). 

2015 faded into the new year with a glimmer of hope for the people of Syria. A hope propelled by renewed international engagement, as expressed within the Vienna Statements of October 30, 2015 and November 14, 2015 — and underwritten by Security Council Resolution 2254.  Two years since the dissolution of Geneva II, the UN Special Envoy for Syria reconvened formal negotiations between representatives of the Syrian government and opposition for January 25, 2016. In the face of continuing egregious violations of international humanitarian law, the proximity talks began a week late and were suspended — three days later.

Neither this, the time gap since Geneva II, nor the escalation of the conflict are unusual: peace trajectories recurrently stall, fracture and reconfigure, sometimes escalating and de-escalating over decades. More unusual is the form and intensity of that escalation: the ever increasing parties to the (increasingly internationalised) non-international armed conflict  and the layers of international lawlessness — the exponential rise in international crimes layer on the violations of international human rights law that sparked the protests and internal disturbances of March 2011.

Converging law, equivocation and delimits on the supposed inviolability of spaces of learning

Second of a series of four postings, published, courtesy of IntLawGrrls , as a mini two-part series (20th and 22nd January). 

The recent violations of spaces (of lower and higher) learning have evoked near universal condemnation. Held there are ‘the dictates of public conscience’. Undergirding, if not sparking, this collective sense of injustice is a supposition: the spaces of learning are supposedly inviolable from attacks /acts of violence. From this, a supposition of law might follow: ipso facto the spaces are protected as inviolable as a matter of international law.  But is this so? 

Of course, the multifarious spaces of learning, as holders of embodied subjects of rights, principally learners, and their rights to, in and through educationare necessarily accorded protection under international human rights law. The concomitant duo dimensional obligation to protect the embodied rights holder within the space from acts of violence, and the space as a safe space of learning continues within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflictsIndeed the latter triggers the international humanitarian law—and principles of distinction between civilians and combatants and civilian objects and military objectives, or in other words the humanitarian obligation to refrain from attacking learning spaces as civilian objects, and embodied persons in relation to the space, as civilians. The international legal protection, then, may be viewed as doubling itself: the human rights and humanitarian obligations are—complementary and mutually reinforcing. Of course, either way the—supposed—inviolability of the space is a partial international legal actuality; under both bodies of law the space may be lawfully delimited. 

Converging law, four points of vulnerability and the supposed inviolability of spaces of learning

First of a series of four postings, published Centre for Criminal Justice and Human Rights, University College Cork, Ireland (29th January 2016).

Chibok. Rafah. Peshawar. Garassa. Donetsk. Aleppo. Sana’a.

Disparate places, among others, bound by attacks—acts of violence—on the supposed inviolable spaces of lower and higher learning, schools and universities, among others. The attacks and their impact—the hurt and harm—on children and adults’ embodied selves resonate far beyond their geographical axis. Or, to invoke the Martens Clause, they may be supposed as violating ‘[…] the laws of humanity and the dictates of public conscience.’ And, in doing so, they undergird the continuing juristic shift of the past century towards the international legal protection of our ‘embodied vulnerability’ to hurt and harm of all forms.* Like other serious violations of international law, then, the attacks transcend the—sometime—distance between us.  But is the clarity of our collective sense of justice reflected in the law?

Converging law, Security Council resolutions and (un)intended international legal effects

Courtesy of IntLawGrrls (12th November 2015).

As opined elsewhere,* international human rights law may be viewed as the juristic holder of our ‘embodied vulnerability’ to hurt and harm. And, as such, it transcends time and space; it continues to be seized, shaped and expressed by those made vulnerable. However it is also in flux: its legal expression is partial and ‘embodied vulnerability’ itself is fluid. Consider treaty law: layered beneath the content and framing of substantive treaty provisions is the treaty making process; constructive ambiguity may be co-opted as a tool to promote agreement; notable absences may signify an agreement shortfall—or alternatively unexpressed or as yet unfelt/imagined vulnerability. Viewed in this way, the imperative of deepening the connection between ‘embodied vulnerability’ and its legal expression is ongoing. And this is evidenced by the adoption of multiple thematic human rights treaties in the past quarter of a century. However, two conflicting dynamics undergird the prima facie certainty of the law: the ever present forces of progression and regression. The Security Council is an extraordinary source of those forces; and the thematic resolutions on children a particular expression of their sometimes progressive, other times regressive effects. 

Converging law, (un)intended vulnerability and international peace and security

Courtesy of IntLawGrrls (22nd October 2015).

The Security Council may be viewed as the juristic holder of ‘international peace and security’. Yet this is largely undefined in the Charter of its birth. And so too is its relationship with broader international law. Legal arguments abound: some view the Council unbound; others view it bound with discretion to depart for its primary responsibility (and of course there is a spectrum in between). In the search for certainty, international legal equivocation rules. Ipso facto, the Council is a holder of extraordinary power. Yet threats to international peace and security often have a legal expression—egregious violations of international humanitarian and human rights, some of which may be international crimes. Thus viewed, undergirding the Council’s engagement is a shift from ordinary to extraordinary ‘embodied vulnerability’ to hurt and harm. And it, therefore, may be supposed retracting these vulnerability shifts—by conducing compliance with applicable international legal obligations—lies at the core of its decision-making about maintaining international peace and security. And increasingly, if non-consistently, the Council so acts. It, then, is an extraordinary expression of the omnipresent interrelations between power and ‘embodied vulnerability’ to hurt and harm—and its thematic resolutions on children a particular embodiment of those same interrelations. 

Malala and the post-postcolonial child

Courtesy of the Centre for Criminal Justice and Human Rights, University College Cork, Ireland.

‘Malala is not alone’ said the deliverer of the 2014 Annual Grotius Lecture of the American Society of International Law — Radhika Coomaraswamy. Held within these four simple words are children’s indivisible worlds, where embodied vulnerability lives in continuous, dynamic juxtaposition with their evolving capacities. So too, are ‘the interrelations of subjugation and independence’ of the distinguished discussant’s response — Diane Marie Amann. Subjugated, Malala seized, shaped, and expressed her right to education. And for this act of subversion she was silenced; or at least the ultimate silencer was triggered and failed. Herein the depth of the connection between aspects of those interrelations (those of subjugation and self-determination) is held within the individual of Malala. However those four words (‘Malala is not alone’) also illumine their broader dimensions.

Dignifying the most vulnerable 'in' and 'through' Security Council Resolution 2139

Courtesy of the Oxford Human Rights Hub.

Conflict — perhaps like no other happening — illuminates our shared vulnerability to hurt and harm of unimaginable form and depth. The legal protection of rights was born of such suffered injustice. To an extent then, it may be viewed as juristic response to our embodied vulnerability. Therein lies one of the enduring paradoxes of international human rights law; the most vulnerable frequently have the least access to justice.

Consider the hundreds of thousands of besieged in Syria: over a thousand days since the conflict began rights violations cascade; violations of the rights to life, freedom from hunger and of movement layer upon violations of the rights transformers beneath — the rights to legal remedies, take part in public affairs, freedom of expression and association, amongst others. And, the sole possibility of redress is conditional on one of the most precarious of all political processes — decision-making towards peace agreements.

Geneva II, politicking and possibility for Syria's invisible 43%

Courtesy of the Oxford Human Rights Hub.

The possibility of peace in Syria may seem more like an international force (pun intended) than a beacon of hope. History though tells us to ‘believe…’.* The form of the conflict’s resolution is simply unimagined — as yet. Dig deeper though and history also tells us another story: the transformation of conflict is likely to be partial — children, particularly, are likely to be invisible within decision-making towards peace agreements. To date, the Syrian peace process substantiates this: there is no reference to children — 43% of the population — within Geneva Communiqué I and just one reference within the Communiqué of the London 11.

14 days until Geneva II: who will represent Syria’s invisible 43%?

 

Original version of '13 days until Geneva II: who will represent Syria's invisible 43%?' Human Rights in Ireland, 9th January 2014.

Over 1,000 days of conflict in Syria, the impact on Syria’s nine million children continues to deepen.

View the impact of the conflict on Syria’s nine million children on any terms and it reduces us all.

Scan a selection of media headlines: those focusing attention on the deliberate targeting of children by all sides, or the conflict’s domino effect on children's broader rights — their rights to family life, healthcare, education and freedom of violence, among many others.

Review some of the statistics: the eleven thousand plus children dead, the one million child refugees or the unknown numbers detained. Or simply read the findings of the Independent International Commission of Inquiry on Syria.

What are, these, if not a call to action? Why, then, are children — 43 per cent population —invisible within the peace agreements to date? There is no reference to children within Geneva Communiqué I and just one reference within the Communiqué of the London 11.