Republished by permission. First published by Slaw: Canada’s online legal magazine on 2 January 2024.
The buried children have been haunting me. It’s difficult to celebrate the turning of the year while thousands of children remain lost in the rubble of humanitarian catastrophes caused by disasters, political turmoil, and armed conflicts around the world.In 2023, apocalyptic stories of children and families lost through earthquakes, landslides, wildfires, atrocities, and war crimes filled the news. The Middle East and Ukraine dominated headlines while Afghanistan, Myanmar, and other places were pushed from attention.An insistent question began to intrude. “What if it was your kids under the rubble?” In late November 2023 this question suddenly came close to my family.
A disaster close to home
As I wrote this column, I was visiting family in a small community in North America. For privacy reasons, the location is not disclosed here.
Heavy rain led to a sudden landslide that swept away two houses and buried six people in the debris, including a whole family of three children and their parents. One child remains missing.
Other families were displaced. Some may never be able to return to their homes which sit on fragile slopes.
The whole town is reeling from the shock and the losses of their neighbours, friends, and family members. Local and regional search and rescue teams spared no effort in their painstaking search for the missing child. People in the town and neighbouring communities have pitched in to donate goods, clothing, funds, and services to help rehouse and provide relief to those affected, including psycho-social support for children and adults.
Local authorities have acted promptly and competently with compassion and transparency. Local and regional media reported with truth and care. Townspeople and regional authorities are remaining courteous in their advocacy for planning to prevent and mitigate the impact of future slides which are likely given the local topography and extreme weather events linked to climate change.
This little town demonstrates the power of local communities and independent media to establish a tone of truthful, respectful compassion for others. Community care for neighbours has not been hampered by partisan political divisions.
In too many other disasters around the world, the unimaginable suffering of civilian populations is accompanied by official obfuscation, failure to correct governance or planning failures, and attacks on independent media, humanitarian workers, and human rights monitors. In too many places around the world, families are made more vulnerable in the face of disasters when communities are fractured and polarized by political conflict, often fueled by propaganda.
There are no “natural disasters”
According to the United Nations Office for Disaster Risk Reduction (UNDRR), “there are no natural disasters.” Not all natural hazards – such as hurricanes, earthquakes, fires, floods, and slides – result in disasters. Disasters occur when hazards lead to significant damage, loss of life, or disruption to vulnerable communities. Some disasters originate from human-made hazards, such as chemical spills or nuclear leaks. Many hazards become disasters because of governance failures such as poor land use planning, inadequate building codes, or erosion of soil from deforestation.
The role of armed in creating or exacerbating humanitarian disasters is . In 2015, the members of the UN General Assembly endorsed – by consensus of all States – the Sendai Framework for Disaster Risk Reduction (DRR). One of the guiding principles of the Framework states: “Managing the risk of disasters is aimed at protecting persons and their property, health, livelihoods and productive assets, as well as cultural and environmental assets, while promoting and protecting all human rights, including the right to development…” But there is a glaring gap in the Sendai Framework – it is “conflict blind.”
Despite clear connections between conflict and disasters, as well as neglect or violation of human rights during armed conflict, the negotiation of the Sendai Framework encountered resistance by some States to explicit recognition of conflict as a driver of vulnerability to disaster risks. Such concerns were framed as unhelpful “politicization” of DRR, resulting in the omission of any mention in the Sendai Framework of the role of conflict in causing or exacerbating disasters. As a result, domestic policies to implement the Sendai Framework may fail to adequately take conflict into account as an important risk factor.
Many disasters are undoubtedly politicized and subject to powerful economic interests. Three decades of weak international action on climate change demonstrate how short-term political and economic interests take priority over the prevention and mitigation of globalized catastrophes. While the December UN Climate Change Conference () agreement is hailed as “historic,” critics point out that its incremental “half-measures” contain a “” that will make it difficult to limit global warming.
These failures cannot be divorced from decades of diplomatic failures to implement a primary purpose of the UN – the prevention of armed conflicts. The weakness and political polarization of the Security Council through the veto power of its five permanent members has thwarted international action to prevent or halt wars and atrocities in Afghanistan, Myanmar, Ukraine, and the Middle East.
These armed conflicts have been facilitated by foreign political, economic, and military support. They are fraught with false propaganda aided by media aligned with belligerents. Truthful reporting is difficult when independent journalists in conflict zones face risk of death, attacks, or false charges and arbitrary detention facilitated by politically aligned prosecutors and courts. The hope of independent justice and non-partisan aid is blocked when truth tellers are silenced and false propaganda prevails.
Children and women are most affected by disasters
In most humanitarian disasters, children and women comprise the majority of those killed, injured, or displaced. While examples are legion, four situations have been on my mind in 2023, including the asymmetrical war in the Middle East. News and polarized opinions about Israel and the Occupied Palestinian Territories have smothered media attention for those experiencing human rights and humanitarian crises in many other places, including Afghanistan, Myanmar, and Ukraine.
Afghanistan: “Gender apartheid,” aid cuts, and earthquakes
Afghanistan has continued in a severe humanitarian and human rights crisis after the armed Taliban take-over in 2020. Amid the ongoing emergency, the October 2023 Herat earthquakes killed, injured, or displaced thousands in one of the poorest parts of Afghanistan.
The vast majority of casualties were children and women. Many of them were buried or injured in the rubble of collapsed buildings after they rushed into their houses to escape what they feared was a bomb or missile.
Humanitarian access has been hindered by the de facto Taliban rulers’ persecution of women and girls, and religious and ethnic minorities. Taliban edicts have limited girls’ access to education and erased women from public life, including work with non-governmental organizations (NGOs). Girls and women surviving the October earthquakes have had limited access to medical care due to Taliban restrictions that prohibit treatment by male doctors. Both male and female doctors are “few and far between” in the earthquake area. Independent UN experts have characterised the Taliban’s severe deprivation of the rights of women and girls as “,” and the crime against humanity of “gender persecution”
An International Criminal Court (ICC) of the situation in Afghanistan has been underway since 2020. recently called for transparency on the progress of the investigation and called on the States Parties to the Rome Statute of the ICC to ensure the provision of adequate resources for effective investigations.
International “moral outrage” at the Taliban’s human rights abuses had already resulted in aid cuts. The UN, foreign governments, human rights advocates, and humanitarian agencies are divided on whether and how to engage with Taliban de facto authorities. Some humanitarian organizations suspended operations after the Taliban banned women from working with NGOs. Other aid groups, including UN agencies, work where they can.
Myanmar: Politicized aid, weapons sales by China and Russia, and Cyclone Mocha
The situation of children in Myanmar has been increasingly dire since the February 2021 military coup. In the subsequent civil war and attacks on civilians by the junta, more than two million people have been displaced internally or have sought refuge in neighbouring countries.
Amid the armed conflict and the junta’s brutality, in May 2023 Cyclone Mocha devastated the region where Rohingya people were already suffering atrocity crimes. The junta thwarted the provision of aid to those searching through debris for missing children and family members. Independent media and human rights defenders are at grave risk of arbitrary detention and torture, and most independent journalists must report from outside Myanmar.
Several governments have sought to curb the Myanmar military’s impunity for atrocity crimes by instituting or supporting proceedings in the International Court of Justice under the . The ICJ indicated provisional measures ordering Myanmar to prevent genocide, but atrocity crimes continue unabated.
A of crimes against humanity are being investigated by the ICC Prosecutor, but China’s and Russia’s veto power has prevented the UN Security Council from referring the full situation in Myanmar to the ICC. China and Russia are among several foreign governments that have stoked the junta’s atrocity crimes by supplying weapons to the military.
Ukraine: Bombing of civilian infrastructure
Since Russia’s full-scale invasion of Ukraine began on 24 February 2022, Russian bombings of civilian areas have been burying children in the rubble of air strikes. In Russia itself, independent media and human rights advocates who decry the aggression against Ukraine are labeled as “foreign agents” or forcibly dissolved. Human rights defenders and peace advocates are subjected to arbitrary prosecutions in non-independent courts. Foreign journalists are vilified, charged, and arbitrarily detained as foreign agents or “spies.” European and Western governments support Ukraine, including with supplies of weapons.
While effective action by the Security Council is precluded by Russia’s veto power, other UN bodies have taken action. The UN General Assembly stripped Russia of its membership in the UN Human Rights Council (HRC). The HRC established an Independent International on Ukraine and a on Russia.
Russia’s veto power at the Security Council has not been able to prevent an ICC investigation into the situation in Ukraine, because of Ukraine’s of the ICC’s jurisdiction in relevant crimes occurring within Ukrainian territories. The ICC has issued against Russian President Vladimir Putin and Russia’s Commissioner for Children’s Rights, Maria Lvova-Belova, on charges of unlawful deportation or transfer of Ukrainian children, but so far no arrests have been possible.
Israel and Occupied Palestinian Territories: Gaza as a “graveyard for children”
Hamas and other associated groups also took hostage hundreds of Israelis as well as citizens of other countries, including a number of children. Hamas demanded the release of Palestinian prisoners held by Israel. Several hostages have been .
During a humanitarian pause in late November, mediated by Qatar, Egypt, and the US, 105 Hamas-held hostages and 240 Israeli-held prisoners were . Many Israelis have demanded government take increased action for release of their loved ones remaining as hostages. Israelis’ fear of Palestinian rocket attacks has been dramatically heightened.
As of 15 December, Israel’s retaliatory attacks against Hamas in Gaza had killed nearly Palestinians, including at least 7,729 children. These figures do not include those who remain buried in the rubble of Israeli airstrikes, which have damaged or destroyed close to 20 percent (nearly 100,000) in Gaza. Nearly 51,000 people have been injured.
Humanitarian relief efforts have been impeded by Israeli authorities, leading to severe lack of and potable water for up to 90 percent of people in Gaza. The humanitarian situation of civilians, including the children, is .
Palestinian civilians in Gaza have been made vulnerable to disaster during decades of Israeli , together with separate Israeli legal processes for Palestinians. Administrative detention without charges, as well as unfair trials in military courts, have resulted in arbitrary detention of Palestinian journalists, human rights defenders, , and children. Several Palestinian and Israeli legal aid and human rights organizations have been . Palestinian armed resistance has met with overwhelming armed retaliations by Israeli forces.
During the current war against Hamas, reporting from Gaza is limited by extreme danger for journalists and human rights monitors. As of 15 December 2023, at least 64 journalists have been killed in the war in Gaza, including 57 Palestinian, four Israeli, and three Lebanese journalists, compared with 67 deaths of journalists around the world in all of 2022. At least 19 journalists have been arrested by Israeli authorities.
US President Biden has promised steadfast support for Israel, including weapons. On 8 December 2023, the US vetoed a binding Security Council resolution for a humanitarian cease-fire. However, Biden has begun to intensify insistence that Israel ensure while exercising its right to protect Israeli citizens.
The international community is polarized. The US, Canada, the United Kingdom, and Germany provide arms to Israel. Hamas possesses arms originating in Iran.
Respected human rights organizations, including Amnesty International and Human Rights Watch, have been denounced as biased by both sides for accusing the Israeli government and Hamas of human rights violations, atrocity crimes, and war crimes.
The ICC is conducting an investigation of the situation in the Occupied Palestinian Territories. Palestine acceded to the Rome Statute of the ICC in 2015 and referred the situation to the Prosecutor in 2018. Israel has denied that the ICC has jurisdiction into alleged crimes by its citizens, because it is not a State Party to the Rome Statute. However the ICC has confirmed that the investigation to all Rome Statute crimes found to have been committed within the territories of Gaza and the West Bank, including East Jerusalem. The ICC’s jurisdiction also extends to all Rome Statute crimes committed by Palestinians in Israel. The Prosecutor announced an intensification of the investigation after his recent visits to both Israel and the West Bank. He was denied entry to Gaza. Palestinian commentators accuse him of bias for visiting affected Israeli communities.
On 12 December, a non-binding General Assembly resolution for a “humanitarian ceasefire” was adopted with a majority of 153 in favour (including Canada), 10 against (including Israel and the US), with 23 abstentions. In addition to attracting criticism from Israel, some Canadian Liberal Party Members of Parliament have spoken out against Canada’s yes-vote, reflecting public dissension in Canada.
As of 15 December, the war makes Gaza the most dangerous place on earth to be a child. At least 40 percent of casualties have been children. UNICEF has called Gaza a “graveyard for children” and a “living hell for everyone else.”
Over are among the 80 percent of Gaza’s population that has been displaced. Compounding Gaza’s “hell on earth,” torrential winter rain has flooded makeshift tents, compounded food shortages, and exacerbated already severe sanitation problems and the spread of communicable diseases amid the collapse of Gaza’s health care and hospitals.
“What if it was your child…?”
I return to the haunting question: What if it was my own children buried under the rubble? Several answers are beginning to formulate themselves in my mind in the form of 2024 New Year’s resolutions.
First, strong and coordinated civil society action is crucial to persuade governments to take meaningful action on human rights violations, conflict and climate change. However, I’ve been recalling an important adage. It has been tempting to spring into action – any action – but I am following the advice I once received from a humanitarian worker: “Don’t just do something, stand there.” Unless one is a first responder on duty or running for the lives of family members, there is time to stop and reflect on first principles – including international law – and do some research before springing into action to sign letters or petitions.
Second, before opening up my cheque-book I decided I’d better identify reliable humanitarian organizations with contacts in relevant regions and solid reputations for human rights-based, non-partisan investigation.
Third, I am seeking balanced media consumption, avoiding known sources of propaganda. Nowadays, this is difficult. I am giving preference to expert sources, including the UN Office for the Coordination of Humanitarian Affairs () and the . I am preferring commentary by recognized experts on international humanitarian law or human rights law, including the International Committee of the Red Cross (ICRC), UN Special Procedures (independent experts), or independent sources such as Opinio Juris and .
Fourth, I decided I could not give in to the fear of being criticized for taking non-partisan, researched, and considered positions that uphold the human rights of all persons, including the rights of people and groups I don’t like. Lawyers are trained to uphold the rights of persons who hold abhorrent views.
Fifth, extreme weather events are increasingly common around the world, causing floods, wildfires, and landslides. These events dramatically increase the suffering of people affected by armed conflict and human rights violations. It has become clear that I need to focus more attention on the intersections between climate change, human rights, and conflict.
Finally, in cases of children at risk, I have no right to consider my own children to be more important than anyone else’s. Sometimes a friend’s children buried under debris demand our full attention. At other times, children buried under political or physical rubble elsewhere are a call to action.