“‘Emergency situations’ affecting education are defined as all situations in which man-made or natural disasters destroy, within a short period of time, the usual conditions of life, care and education facilities for children and therefore disrupt, deny, hinder progress or delay the realisation of the right to education. Such situations can be caused by, inter alia, armed conflicts - both international, including military occupation, and non-international, post-conflict situations, and all types of natural disasters” (Report of the Committee on the Rights of the Child on its General Discussion on the Right of the Child to Education in Emergencies Situation, 2008).
Education is a human right and should be guaranteed and protected for all people, at all times. However, in emergencies States often encounter difficulties in guaranteeing and protecting people’s human rights particularly the rights of members of already marginalised groups, such as persons with disabilities. This may be due to loss of power and the lawlessness that ensues, the destruction of infrastructure or because of the redirection of resources. In any case, emergencies lead to an increased likelihood that the right to education will be violated. It is therefore important that international law and the international community act to minimise and ameliorate the harmful effects of emergency situations.
In emergencies, human rights law applies in all contexts; people do not lose their human rights because of conflict, famine or natural disasters. However, depending on the nature of the emergency, different regimes of international law also apply. Vis-à-vis the right to education these are: international human rights law, international humanitarian law (or the law of armed conflict), international refugee law and international criminal law.
(See accordions below for more information, also see Protecting Education in Insecurity and Armed conflict: An International Law Handbook for a comprehensive overview of applicable law during conflict and insecurity.)
Human rights are interrelated and interdependent, and should be enjoyed holistically. However, education is often neglected in response to emergency situations, not generally being seen as immediately life-saving. Yet, the value of education to those affected by emergency situations should not be underestimated and is consistently highlighted by parents and learners themselves as crucial in bringing stability, emotional and physical protection, and continuity. (See video by the INEE on the importance of education in humanitarian responses.)
Education is a right in itself. It enables the full development and flourishing of all humans – aims that are especially pertinent in emergency situations. Moreover, education can also play an instrumental role in disaster relief, post-conflict and peacebuilding efforts.
Education can help child soldiers, internally displaced persons, refugees and all those affected by emergencies to reintegrate back into society, and overcome the negative effects that emergencies can have on people.
Schools can provide safe spaces for children to build friendships, play and learn. In addition, education empowers students by giving them a voice, and a safe space to communicate their feelings and concerns.
Furthermore, education can play a preventative role. Human rights education enables people to recognise they are rights-holders and to respect the rights of others. Education for peace and responsible citizenship can likewise promote peace and tolerance for others. Conflict often arises when education has been misused, through for instance systematic discrimination, biased curricula or incitement to hatred, which contributes to increased tensions. There is evidence that this may be minimised through a focus on providing quality education, concerted efforts to teach human and shared values, and to use education as an active tool in peace building efforts. For more information, see INEE Conflict Sensitive Education web page.
Education is vital in building sustainable peace and development.
The right to education is primarily protected by the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. In addition, a number of treaties exist protecting different aspects of the right to education, in different contexts, places and for different categories of people (see Right to Education Project’s page on International Law).
Certain aspects of the right to education are non-derogable, ie under all circumstances, States are bound by the minimum core obligations of the right to education. This includes ensuring the right of access to public educational institutions and programmes on a non-discriminatory basis, and compulsory and free primary education. However, States’ ability to guarantee the right to education may be compromised during emergencies. In these instances, other actors (the UN, NGOs, other States, etc.) may provide assistance in or facilitating the fulfilment of the right to education.
International humanitarian law seeks to limit the effects of armed conflict by regulating the conduct of parties.
Armed conflict often has a devastating impact on education. Examples of which include, inter alia, attacks on teachers, students and schools; compromised safety; increased risk of indoctrination and discrimination by parties involved in armed conflicts such as occupying powers; reduced availability of resources and a higher prevalence of practices like child labour, child soldiers, and gender-based violence.
Education is principally protected in international humanitarian law by the Geneva Conventions and its Additional Protocols. The key obligations include:
- Protection of civilian persons and objects including schools, teachers and students. This is underpinned by the ‘principle of distinction’, that is, there is a fundamental difference between civilian and military persons and objects, and only military persons and objects may be subject to direct attack. (Hospitals may never be used as military bases but in certain circumstance schools can.) (Articles 48 and 51 Additional Protocol 1; Article 13 Additional Protocol II.)
- Protection of orphans and children separated from their families. This includes providing education to all those aged fifteen and below (Article 24 Geneva Convention IV).
- During civilian internment, detaining powers shall ensure the education of children and young people either within internment or outside. Also, internees shall be granted the opportunity - through granting all possible facilities - to receive education, continue their studies, and take up new subjects, participate in sports and recreational activities (Article 94 Geneva Convention IV).
- The special protection of children, this includes the obligation of parties to the conflict to provide children with the care and aid they require, whether because of their age or for any other reason. This can be construed to include appropriate education (Article 77 Additional Protocol I).
- In times of belligerent occupation, occupying powers shall facilitate the working of educational institutions and ensure, where possible, that education is provided by persons of the learner’s own nationality, language and religion (Article 50 Geneva Convention IV).
- In civil conflicts, children shall receive an education, including religious and moral education consistent with the religious and moral convictions of their parents or guardians (Article 4 Additional Protocol II).
Although refugee law largely overlaps with human rights and humanitarian law, there is a special regime that protects the unique position and rights of refugees in totality.
According to the Convention relating to the Status of Refugees the term ‘refugee’ applies to those who “...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
According to Article 22 of the Convention relating to the Status of Refugees, refugees shall be given the same treatment as nationals with respect to primary education and treatment as favourable as possible with respect to other education levels.
The narrow definition of the term ‘refugee’ means that those who cross national borders for reasons other than a well-founded fear of persecution (natural disasters, famine, the effects of climate change, and socio-economic deprivation) are not protected by refugee law. This category of displaced persons are of course protected by international human rights law but there are no specific legal instruments that address their unique situation, leaving them especially vulnerable to human rights violations including their right to education.
Note: like some refugees, internally displaced persons (IDPs) have fled their homes because of emergencies. The distinction is that IDPs have not crossed national borders and remain under the protection of their own State. There is no convention for internally displaced persons (IDPs) equivalent to the 1951 Refugee Convention at international level, although there are Guiding Principles. But at the regional level, the African Union’s 2009 Convention for the Protection and Assistance of Internally Displaced Persons, stipulates: “States Parties shall provide internally displaced persons to the fullest extent practicable and with the least possible delay, with adequate humanitarian assistance, which shall include (…) education (…)” (Article 9(2)(b)).
For more information, see Right to Education Project’s page on Migrants, Refugees and IDPs.
International criminal law is based upon the principle of individual responsibility for international crimes, including war crimes, crimes against humanity, crimes of aggression and genocide.
Education as such is not protected in international criminal law. However, the targeting and destruction of educational property may constitute a war crime (Articles 8(2)(a)(iv) and 8(2)(b)(ii) of the Rome Statute of the International Criminal Court).
International criminal law is relatively underdeveloped and untested in relation to education but there is scope to protect education in two ways:
Firstly, if certain groups are deliberately deprived of education and if other criteria are met, it may constitute persecution, which the Rome Statute deems a crime against humanity (Articles 7(1)(h) and 7(2)(g)).
Secondly, there is the possibility that if educational content such as curricula, textbooks and lessons is used to incite genocide, this may constitute an international crime (Article 25(3)(e)).
For further information, see sections 3.3 and 5.3 of Protecting Education in Insecurity and Armed conflict: An International Law Handbook.
‘Law of Armed Conflict’ or ‘International Humanitarian Law’:
- Geneva Convention III relative to the Treatment of Prisoners of War, 1949 (Articles 19, 38, 72 and 125)
- Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, 1949 (Articles 24, 50, 94 and 108)
- Protocol Additional to the Geneva Conventions and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (Articles 48, 51 52, 77 and 78)
- Protocol Additional to the Geneva Conventions and relating to the Protection of Victims of Non- International Armed Conflicts (Protocol II), 1977 (Articles 4 and 13)
- Customary International Humanitarian Law (Rules 7, 38 and 40)
In addition, some human rights instruments refer specifically to International Humanitarian Law:
- Convention on the Rights of the Child,1989 (Article 38)
- African Charter on the Rights and Welfare of the Child (1990) (Articles 22 and 23)
International Criminal Law:
- Rome Statute of the International Criminal Court, 1998 (Articles 7(1)(h), 7(2)(g)), 8(2)(a)(iv), 8(2)(b)(ii) and 25(3)(e))
For more information, see International Instruments - Education in Emergencies
For international instruments on the Right to Education, see here.
For international instruments on Refugees and IDPs, see here.
For international instruments on Child Soldiers, see here.
In addition to the 'hard law' instruments listed above, there are also 'soft law' instruments (ie, instruments that are not legally binding) protecting education in emergencies:
- International Safe Schools Declaration (2015) which includes the Guidelines for Protecting Schools and Universities from Military Use. There are currently (as of 26/04/2016) 52 endorsements of the Declaration.