Anti-Sikh riots of 1984 and other state organised riots against minorities, seeking justice at the United Nations
Photo by Mat Reding on Unsplash
In the late 1990s I worked for the Sikh Human Rights Group, a group that now enjoys consultative status with the United Nations. An area that is tragically still relevant today is where the state organises disturbances and escalates conflicts involving minorities.
The monopoly of legitimate violence in the global system has been claimed by the State. Indeed it is possible to consider the State as a kind of firm operating in the global market for security. In these circumstances the legal regulation of violence and provision of security focuses on violence between States (international humanitarian law) and violence within the State (criminal law and human rights law).
This neat picture bears increasingly less correspondence with events since 1945 and, even more so, since the end of the Cold War. Most violence in the international system has taken the form of organised disturbances within States, on some occasions with spill-over causes or effects from neighbouring States. A majority of these involve minority issues or indigenous peoples and these conflicts are a major factor in the oppression and marginalisation of these groups.
Organised disturbances take many forms, from patterns of systematic harassment, intimidation, beatings and lynchings to riots, guerrilla activity and fully-fledged civil war. Article 1.1 of The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities affirms that “States shall protect the existence of the national or ethnic, cultural, religious and linguistic identity of minorities.” The term ‘existence’ implies and presupposes the physical integrity of the individual member of a minority community in lawful exercise of the rights contained in the rest of the Declaration. This essay is an attempt to develop interpretation of art. 1.1 and contribute to elaboration of the path-breaking commentary by Mr Eide.
On art. 1.1, he commented that, “Protection of minorities is based on three requirements: Non-exclusion, non-assimilation and non-discrimination. The first requirement is to protect the existence of minorities. This includes their physical existence, the continued existence on the territories on which the minorities live, and the continued access to the material resources required to continue their existence on those territories.”[1] Majorities may organise disturbances to prevent the enjoyment of this most fundamental bundle of rights. These may be through systematic programmes of harassment or intimidation. A more serious breach occurs when the State’s duty of care for the physical integrity of its citizens is violated by physical beatings, lynchings and criminal damage to community centres or places of worship. Involving a still graver danger to minorities and greater breach of law are riots. Above this threshold we have serious internal disturbances in which it is arguable that provisions of international humanitarian law or the Genocide Convention may be applicable.
DISCRIMINATION IN TREATMENT OF ORGANISED DISTURBANCES BY MAJORITY AND MINORITY COMMUNITY GROUPS
Since under the principle of international legitimacy the State reflects the will of the nation, whether in a formally democratic State or not, it frequently adopts the colour of the majority community. National security forces such as police, are therefore, frequently ineffective in either preventing such violence, even when aware of the situation in advance or in holding the perpetrators responsible after the event. The result is that, on the one hand, the perpetrators of such organised disturbances are effectively freed from all national or international legal responsibility. On the other, the affected group may decide to protect itself, creating or adding to a cycle of violence.
This problem is most visible in the occurrence of riots. These are common in most parts of the world, from Europe with its history of anti-Semitic pogroms to present-day anti-refugee and anti-Roma activities, to North America where white supremacist groups target black churches. One of the best documented cases which highlights many of the problems in the last two decades has been the anti-Sikh riots in Delhi in 1984. Apart from the Government itself, over a dozen reputable Indian and international NGOs have collected material on the riots in which thousands were raped, while others were hacked to death or burned alive, and property was destroyed, including places of worship. Estimates of the number of victims run from a few thousands in Government reports to tens of thousands in reports by NGOs. The Republic of India has now accepted that the riots took place, that they were organised so that, for instance, Sikh houses were identified in advance, that Sikh policemen were disarmed in advance, that rioters were transported in, that the police took no action against the rioters and indeed often assisted over the three days before the Army was called out, and has conducted various investigations. However, very few individuals have been successfully prosecuted and none of the alleged main instigators who belonged to the then ruling party. Witnesses in these cases are routinely threatened by local party workers as well as alleged criminals. Indeed, in Delhi the main election pledge to the Sikhs of the Bharatiya Janata Party has been and continues to be, to successfully prosecute the criminals.
The key themes of the Delhi riots which are repeated in many less well-known instances around the world are the complicity or lack of effective action from local political forces; inaction or active involvement in criminal acts by the police; planned action against the minority in an action which at that time is claimed is spontaneous; lack of effective prosecution of criminal elements, especially of the senior organisers who are effectively given political protection; continuing denial of political responsibility.
It is frequently found that whereas perpetrators of organised violence from the majority community are treated as vigilante groups, perpetrators from the minority community are treated as guerillas. Whereas the criminal law is applied to the former, states of emergency are applied in response to the latter. Whereas there is a search for individual culprits in the case of vigilantism, there is a fundamental difficulty in distinguishing between combatants and non-combatants in cases of guerrilla warfare with the result that mere sympathisers or even those opposed to violence are brutalised by the removal of human rights protection in areas governed by special states of emergency legislation.
This apparent discrimination in treatment of organised disturbances appears to violate article 6 of The Declaration on Race and Racial Prejudice, “The State has prime responsibility for ensuring human rights and fundamental freedoms on an entirely equal footing in dignity and rights for all individuals and all groups.” States frequently apply states of emergency when faced with organised distrubances by their minorities. In these circumstances they insist on derogations from their international obligations to human rights laws, for instance, to the International Covenant on Civil and Political Rights [ICCPR]. However, this does not imply that there is no international regulation on those occasions. There are non-derogable articles in the ICCPR and, moreover, there have been moves to apply humanitarian law to internal conflicts also. The 1977 Protocols Additional to the Geneva Conventions consciously applied to these situations. Under article 1(4) of Protocol 1, international humanitarian law also applied to national liberation movements fighting racist regimes and alien occupation. Though this may have been intended to apply, de facto, to the struggle against apartheid in South Africa, it clearly has the potential to be applied to a wider range of armed conflicts. Protocol 2 was consciously aimed at internal conflicts, arguably whenever armed groups possess belligerant status; in other words, effective control over a territory recognised by relevant parties. In these instance, humanitarian law is applied to States or entities with State-like international status or effective powers.
INTERNATIONAL RESPONSIBILITY FOR CRIMINAL ACTS
The Genocide Convention of 1948 codified customary international law. Under art. 2 genocide is defined as, “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” Mr Eide has observed that, “The right to existence in its physical sense is sustained by the Convention on the Prevention and Punishment of the Crime of Genocide”.[2] Under art. 6 those charged with genocide could be brought to trial under national laws or an international penal tribunal. Since the nature of genocide is such that the perpetrators are not private citizens but hold official positions, it is unlikely that local courts would either try or effectively punish such offenders. The adoption of the Statute of the International Criminal Court in 1998 has brought about the possibility of a permanent international tribunal. Moreover, the Statute covers “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender…or other grounds.”[3] This is a much wider coverage than genocide. However, States have been slow to ratify the ICC.
HOLDING MINORITY GROUPS RESPONSIBLE FOR ORGANISED DISTURBANCES
A dramatic shift occurred with the judgement of the International Court of Justice in the Nicaragua case in 1984. Article 3 common to the Geneva Conventions was held to be jus cogens, in other words, applicable to States irrespective of their reservations. It could also be held to be applicable to armed groups, however effective their control over permanent territories or recognition by States. This is significant insofar as, theoretically, it makes it possible to hold non-State actors responsible for abuses of human rights and humanitarian law. However, minority groups may also be responsible for lower levels of violence such as riots. In these instances, those individuals found culpable under national criminal legislation should be held responsible. In sum, minority groups do not have a clear international status or platform under current, State-centric international law, and therefore only States can be responsible in international law for any violations of human rights or minority rights, and not minorities.[4]
CONCLUSION
States bear primary responsibility for effectively protecting individuals or either minority or majority communities, and for effectively holding responsible perpetrators of organised disturbances. The Commission on Human Rights in its resolution 1999/34 recognised that “accountability of perpetrators of grave human rights violations is one of the central elements of any effective remedy for victims of human rights violations.” Where violations have taken place the effective implementation of domestic laws are important tools in redressing the grievances of the victims, re-validating the rule of law within the State, and assisting reconciliation. Although it may be possible for information to be brought before the Committee on the Elimination of Racial Discrimination, or for an action to be brought before the Human Rights Committee, not all States are parties to the Optional Protocol.
Currently, there is the confidential procedure for consideration of communications about human rights violations provided for under Economic and Social Council resolution 1503 (XL VIII) and Special Rapporteurs of issues such as Religious Intolerance, and Freedom of Thought and Expression. In instances in which effective protection from the State is not forthcoming there is a need to develop international machinery so that violations or fears of violations may be transmitted to relevant international institutions, including the Working Group on Minorities. Given the pivotal role of organised disturbances as a precondition for preventing the enjoyment of the range of minority rights the establishment of a Special Rapporteur on organised disturbances would also be a positive step. The monitoring of the implementation of national measures against organised disturbances can be a central task.
The occurrence of organised disturbances is an effective mechanism for the denial of the human rights of minorities, not only in terms of their physical existence, but also their access to other minority rights. Article 4.2 of The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief urges that, “All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the ground of religion or other beliefs in this matter.” ‘Appropriate measures’ must include explicit treatment of organised disturbances including repeated threats, beatings, lynchings, and attacks on buildings. Specific bureaucratic and legal codes need to be established to prevent and punish conspiratorial anti-minority behaviour. It is also important that the implementation of these codes should be monitored.
Given the importance of minority issues to armed conflict in the global system, and that the escalation of organised disturbances is a crucial part of the escalation of minority issues into minority conflicts, and for preventing the enjoyment of minority rights, there is need for bringing together a study of this area by the an expert from the Working Group on Minorities, in its growing role as the focus for minority issues in the United Nations.
[1] Mr Eide, Commentary to the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, p.2.
[2] Mr Eide, Commentary to the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, p.2.
[3] Document A/CONF.183/9, art.7, para.1 (h).
[4] Mr Gilbert, quoted in Observations to the Commentary to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, E/CN.4/Sub.2/AC.5/1999/WP.1 p.8.