All in Law of Peace(making)

Law of peace(making) and transforming children's invisibility

Courtesy of the Blog of the Groningen Journal of International Law (August 22, 2017).

The law of international human rights came into being through an international peacemaking process, in particular the successive processes that gave birth to the Charter of the United Nations. The law as developed affirms children’s legal standing and agency as subjects of human rights. There is a concomitant international obligation to affirm the same in relation to the successive processes of peacemaking and give effect to those rights through the resultant agreements, as recalled by treaty and Charter bodies. Yet children are mostly invisible in such processes. Its extent is laid bare by a cursory review of collections of peace agreements. Of the close to eight hundred peace agreements in the United Nations database, for example, approximately ninety-five include a reference to children. The extremity of their invisibility raises a multiplicity of questions. Is it justified from the perspective of the law of peace(making)? May children’s human rights yield to the pursuance of peace?  And if not, why are children (mostly) invisible in peacemaking? These questions sparked and structured a probe of peace processes from a juristic, human rights and child rights perspective.

The bare knuckled fight for rights

 Courtesy of IntLawGrrls (March 10, 2017)

The past year has been the bleakest of years. 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 seemingly 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, as documented by the Independent International Commission of Inquiry on the Syrian Arab Republic, among others. 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. 

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

Courtesy of 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. 

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

Updated and revised version of the original, 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, Security Council resolutions and (un)intended international legal effects

Courtesy of IntLawGrrls (November 12, 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 (October 22, 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. 

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

Courtesy of the Oxford Human Rights Hub (March 22, 2014).

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 (January 8, 2014). 

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%?' courtesy of Human Rights in Ireland, (January 9, 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.