On May 13, gunmen stepped into a bus carrying members of the Ismaili community in Karachi and opened fire killing 43 innocent civilians and wounding many. This attack is just one of its kind in a series of tragic attempts on the lives of religious and ethnic minorities in Pakistan, which have sadly become a regular and routine occurrence. They reflect a serious lapse in the state’s policy on the prevention of violence against minorities.

One of the main shortcomings of international law in this regard has been its failure to establish state responsibility in such cases where direct state involvement is absent. States currently guarantee only negative freedoms (non-interference of the state), which is problematic in the protection of religious and ethnic minorities — because states are not obligated to take positive measures to protect minorities, the latter become an easy target for militant groups.

While there are dedicated international conventions, such as CRC, CEDAW and CERD, for addressing the rights of vulnerable groups such as children, women and those facing racial discrimination, there is no operational convention that thematically focuses on the protection of religious minorities. Western countries have generally relied upon the protections guaranteed in the International Covenant on Civil and Political Rights (ICCPR) and similar regional human rights conventions that extend protections to minorities solely in the form of individual rights. However, other countries that do not have well-developed human rights jurisprudence in their domestic law fail to substantially safeguard minority interests.

There should be a positive obligation on states to prevent attacks on minorities within their own territory.

A repercussion of the absence of a thematic convention is that ‘minorities’ is not a well-recognised and protected category under international law. One problem is that there is no internationally agreed definition as to which groups constitute minorities, which means they are often deprived of recognition under major human rights conventions.

At another level, minorities cannot exercise the right of self-determination, which is a cardinal collective human right that vests in a group of people rather than an individual. Article 1 of the ICCPR states that “[a]ll peoples have the right of self-determination….” While an ordinary reading of the text would suggest that this indeed extends to communities of all varieties, in fact, this is not the case. International tribunals have been clear in expressing that present international law does not recognise minorities as separate ‘peoples’. There is a minority view, however, that in the extreme case where such groups are systematically disenfranchised by the government of the state they live in, a right of self-determination can mature. However, the standard for proving systematic disenfranchisement is also very difficult to meet, since international law defers to territorial sovereignty and non-interference in the affairs of individual states, particularly in times of peace.

The benchmarks for proving systematic disenfranchisement and oppression are fairly strict, which means that under the current framework, minority abuses often go unacknowledged as forms of violence. International courts usually look to proof of crimes against humanity, or circumstances approaching the qualification of genocide as adequate evidence for the presence of conflict. Under the Rome Statute, such crimes would also require state involvement at a grand or massive scale, as “part of a widespread or systematic attack” and would not include instances of targeted killings of minorities in Pakistan, which are committed by non-state actors.

In other words, states can only be held to account by the international community for war crimes committed under their watch when a civil war or an armed conflict has ensued and the laws of war (international humanitarian law) are applicable. In times of peace, such accountability and oversight is not legally possible. Likewise, any armed reaction taken by third states to protect minorities and reproach the concerned state is deemed illegal. The doctrines of humanitarian intervention or responsibility to protect (R2P) are still considered contrary to international law.

In light of this, there should be a positive obligation on states to prevent attacks on minority communities within their own territory in times of peace, and a mechanism to hold the state responsible in case of its failure to do so. There is currently no binding convention protecting the rights of religious and ethnic minorities. Obligations created by the CERD, CEDAW, CRC and CAT have been partly effective in curbing the incidence of racial and gender discrimination, torture and child abuse by defining and recognising interest groups and creating mechanisms to monitor state adherence to the conventions and their long-term goals. A similar convention could build on the framework provided by the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and the United Nations Minorities Declaration, adopted by the UN General Assembly in 1981 and 1992 respectively, as a means of defining the scope of the rights and duties of the state towards religious and ethnic communities. Such a convention could be supplemented with stronger hate speech legislation in order to counter the misuse of free speech as a means of propagating the use of violence against ethnic and religious minorities.

However, there is also a need to proceed with caution while defining state obligations in the language of human rights. With the development of the doctrines of R2P and humanitarian interventions, the categorisation of poor state policing of minority rights as a human rights abuse could potentially open the gates for foreign interference in developing countries. It is, therefore, imperative that international law is understood to proscribe the use of force or intervention tactics in case a state is unable to meet its human rights obligations, unless such an intervention is absolutely necessary as determined by the international community of states collectively to protect a minority group that is under imminent danger of extreme violence.

After all, it must be borne in mind that foreign interventions have led to worse outcomes for minorities than state ineptitude, notably through the creation and radicalisation of the militant group Islamic State in the Iraq/Syria region.

Sikander Shah is the former legal adviser to the Ministry of Foreign Affairs.

Salman Ijaz is a researcher in international law.

Published in Dawn, May 30th, 2015

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