publications

<<previous  |  index  |  next>>

VI. Legal Standards

The government of Afghanistan is obligated under international human rights law to ensure the right of everyone to education. This right must be met in a non-discriminatory manner.

Threats, intimidation, and attacks against students, teachers, and school officials, as well as on the schools themselves, undermine the right to education. Ensuring this right, crucial for Afghanistan’s future development, means providing the necessary security so that students—girls and boys—and their teachers can safely and securely attend school—and that there is a school to attend.

Attacks by the Taliban and other groups on students, teachers, and schools are not just criminal offenses. They are human rights abuses that infringe upon the right to freedom of education. When committed as part of the ongoing armed conflict in Afghanistan, these attacks are serious violations of international humanitarian law, which are war crimes, as are acts and threats of violence with the primary purpose spreading terror among the civilian population.

The Right to Education

Afghanistan is one of the most socially conservative and impoverished countries in the world. Nevertheless, the government of Afghanistan is obligated to ensure that all Afghan children receive an adequate education, and that girls are educated equally as well as boys.

Afghanistan’s Constitution, adopted in 2004, provides that education “is the right of all citizens which shall be provided up to the level of the B.A. (lisâns), free of charge by the state” (article 43). The state must “devise and implement effective programs for a balanced expansion of education all over Afghanistan, provide compulsory intermediate level education” (article 43), and “adopt necessary measures for promotion of education in all levels” (article 17). The state must also “devise and implement effective programs for balancing and promoting education for women, improving of education of the nomads and elimination of illiteracy in the country” (article 44).449

The Afghan government in its National Development Strategy, outlining a framework for the country’s development, has also committed to “expand access to Primary and Secondary education, increase enrollment and retention rates, strengthen curriculum and quality of teachers,” and “remove gender disparities with respect to both access to education and quality of education.”450 By the end of 2010, the government has set as a benchmark that “net enrollment in primary school for girls and boys will be at least 60% and 75% respectively; a new curriculum will be operational in all secondary schools, female teachers will be increased by 50%; 70% of Afghanistan’s teachers will have passed a competency test, and a system for assessing learning achievement, such as a national testing system for students, will be in place.”451

Afghanistan’s international legal obligations also bind it to ensure the right to education in a non-discriminatory manner. The right to education is set forth in the International Covenant on Economic Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child, and the Convention on the Elimination of Discrimination against Women (CEDAW), of which Afghanistan has ratified.452

Recognizing that different states have different levels of resources, the right to education is considered a “progressive right”: by becoming party to the international agreements, a state agrees “to take steps . . . to the maximum of its available resources” to the full realization of the right to education.453 Accordingly, international law does not mandate exactly what kind of education must be provided, beyond certain minimum standards: primary education must be “compulsory and available free to all,” and secondary education must be “available and accessible to every child.”454

Although the right to education is a right of progressive implementation, the prohibition on discrimination is not. The Committee on Economic, Social and Cultural Rights, the international body that interprets the ICESCR, has stated: “The prohibition against discrimination enshrined in article 2(2) of the [ICESCR] is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination.”455 Thus, regardless of its resources, the state must provide education “on the basis of equal opportunity,” “without discrimination of any kind irrespective of the child's race, colour, sex, language, religion, political or other opinion, national ethnic or social origin, property, disability, birth or other status.”456

While international law permits the maintenance of separate educational systems or institutions for girls and boys, these must “offer equivalent access to education, provide a teaching staff with qualifications of the same standard as well as school premises and equipment of the same quality, and afford the opportunity to take the same or equivalent courses of study.”457

CEDAW details areas in which the state must eliminate discrimination and ensure access for men and women on an equal basis:

(a) The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training;

(b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality.458

Particularly relevant to Afghanistan, where so many girls and women have been excluded from education, are the provisions of CEDAW requiring the state to ensure:

(c) The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particulary those aimed at reducing, at the earliest possible time, any gap in education existing between men and women;

(d) The reduction of female student drop-out rates and the organization of programmes for girls and women who have left school prematurely;

(e) The same opportunities to participate actively in sports and physical education;

(f) Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.459

International Humanitarian Law and Attacks on Schools

Threats, intimidation, and violent attacks on students, teachers, and the school buildings themselves are criminal offenses in violation of the laws of Afghanistan. They are also human rights abuses that undermine the right to education under international human rights law. And when these attacks are committed as part of the ongoing internal armed conflict in Afghanistan between armed opposition groups, including the Taliban and Gulbuddin Hekmatyar’s Hezb-e Islami, and Afghan security forces and foreign armed forces, particularly the U.S.-led Combined Forces Command Afghanistan (CFC-A), international humanitarian law applies.

International humanitarian law—also known as the laws of war—is the set of rules governing the conduct of parties to international and internal armed conflicts. Because the current conflict in Afghanistan is not between two governments, but between a government and opposition armed groups, it is considered an internal armed conflict (the participation of foreign forces on behalf of the Afghan government means that it is an “internationalized” internal armed conflict.) Applicable law can be found in article 3 common to the four Geneva Conventions of 1949 and customary international humanitarian law. Afghanistan is not a party to the Protocol Additional of 1977 to the 1949 Geneva Conventions Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), but most of its provisions are considered reflective of customary international law.

International humanitarian law is binding on states and non-state belligerents, such as the Taliban and the Hezbe-e Islami. International humanitarian law requires parties to an armed conflict to respect civilians and other persons no longer taking part in hostilities. The law forbids at all times attacks directed at civilians or civilian objects: operations may only be directed against military objectives.460 Schools are protected as civilian objects, unless being used by the enemy’s armed forces.461 Students, teachers, and school administrators fall under the protection granted to civilians as long as they are not taking a direct part in hostilities.462

International humanitarian law also forbids acts or threats of violence the primary purpose of which is to spread terror among the civilian population.463 Thus the threat of attacks, such as those made through night letters, with the intent of keeping students and teachers away from school out of fear of violence, also violates the protection provided civilians.

The Convention on the Rights of the Child also requires states to “take all feasible measures to ensure protection and care of children who are affected by an armed conflict.”464 This is reflected in international humanitarian law, which provides that children are entitled to special respect and attention.465 One of the “fundamental guarantees” in Protocol II is that: “Children shall be provided with the care and aid they require, and in particular: . . .They shall receive an education, including religious and moral education, in keeping with the wishes of their parents, or in the absence of parents, of those responsible for their care.”466

Afghanistan ratified the Statute of the International Criminal Court in 2003. Although Afghanistan retains primary responsibility and duty to prosecute individuals for war crimes, if it is unwilling or unable to do so, the International Criminal Court is empowered to exercise its jurisdiction over the most serious crimes of international concern. Under the statute, war crimes during an internal armed conflict include attacks intentionally directed against the civilian population and against civilian objects, including “buildings dedicated to . . . education . . . provided they are not military objectives.”467 Afghanistan has yet to adopt implementing legislation that would put the provisions of the Rome statute into effect in domestic legislation but by ratifying the statute is obligated to do so.




[449] Constitution of Afghanistan (1382) (adopted in January 2004, the year 1382 in the Afghan calendar by the Constitutional Loya Jirga (Grand Council)).

[450] I-ANDS (Afghan National Development Strategy) Summary Report, pp. 21, 43.

[451] Ibid., p. 44.

[452] International Covenant on Economic, Social and Cultural Rights (ICESCR), 003 UNTS 3 (entered into force January 2, 1976),art. 13; Convention on the Rights of the Child, U.N. Doc. A/RES/44/25 (entered into force September 2, 1990), art. 28; Convention on the Elimination of Discrimination Against Women (CEDAW), U.N. Doc. A/34/46 (entered into force September 3, 1981), art. 10. See also the Universal Declaration of Human Rights, U.N. Doc A/810 (adopted December 10, 1948), art. 26. Afghanistan ratified the ICESCR in 1983, the Convention on the Rights of the Child in 1994, and CEDAW in 2003.

[453] ICESCR, art. 2(1). See also Convention on the Rights of the Child, art. 28. But see Committee on Economic, Social and Cultural Rights, General Comment 13: The Right to Education, para. 44: “The realization of the right to education over time, that is ‘progressively,’ should not be interpreted as depriving States parties’ obligations of all meaningful content. Progressive realization means that States parties have a specific and continuing obligation ‘to move as expeditiously and effectively as possible’ towards the full realization of article 13”; and Committee on Economic, Social and Cultural Rights, General Comment 3: The Nature of States Parties Obligations, contained in U.N. Doc.E/1991/23, December 14, 1990, para. 2: “Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.”

[454] Convention on the Rights of the Child, art. 28.

[455] Committee on Economic, Social and Cultural Rights, General Comment 13: The Right to Education, para. 31. See also, Committee on Economic, Social and Cultural Rights, General Comment 11: Plans of Action for Primary Education, U.N. Doc. E/C.12/1999/4 (May 10, 1999), para. 10; and Committee on Economic, Social and Cultural Rights, General Comment 3: The Nature of States Parties Obligations, para. 2 (stating that the obligation to guarantee the exercise of rights in the International Covenant on Economic, Social and Cultural Rights without discrimination is “of immediate effect”).

[456] Convention on the Rights of the Child, arts. 28(1), 2(1). See also ICESCR, arts. 2, 13; CEDAW, art. 10. The Committee has interpreted the prohibition on discrimination and the right to education in article 2(2) and 13 of the ICESCR in accord with the Convention against Discrimination in Education, adopted December 14, 1960, General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO), 429 UNTS 93 (entered into force May 22, 1962), and the relevant provisions of CEDAW. Committee on Economic, Social and Cultural Rights, General Comment 13: The Right to Education, para. 31.

[457] The Committee on Economic Social and Cultural Rights, has found that certain separate educational systems or institutions for groups, under the circumstances defined in the Convention Against Discrimination in Education, do not constitute a breach of the Covenant. Committee on Economic, Social and Cultural Rights, General Comment 13: The Right to Education, para. 33 and note 16.

[458] CEDAW, art. 10.

[459] Ibid.

[460] See International Committee of the Red Cross, Customary International Humanitarian Law, (Cambridge: Cambridge Univ. Press, 2005), chapters 1 and 2, citing, for example, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (adopted June 8 1977, and entered into force December 7, 1978), art. 13.

[461] Ibid., rules 7 and 9, citing various treaties and other evidence of state practice. Article 51(3) of Protocol I states that “[i]n case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.”

[462] Ibid., rules 1, 5, and 6, citing Protocol II, art. 13(3).

[463] Ibid., rule 2, citing Protocol II, articles 13(2) and 4(2)(d). The U.N. Secretary-General has noted that violations of article 4 (prohibiting “acts of terrorism”) have long been considered war crimes under customary law. U.N Secretary-General, “Report on the establishment of a Special Court for Sierra Leone” S/2000/915 (2000).

[464] Convention on the Rights of the Child, art. 38.

[465] International Humanitarian Law, rule 135, citing Protocol II, art. 4(3).

[466] Protocol II, art. 4(3).

[467] Rome Statute of the International Criminal Court, (adopted July 17, 1998, and ratified by Afghanistan February 10, 2003), art. 8(2)(e)(iv).


<<previous  |  index  |  next>>July 2006