Summary of the study:
In its eighteenth issue, Kalamoon, the Syrian Journal of Human Sciences, published a study by Mr. Fadel Abdul Ghany, Executive Director of the Syrian Network for Human Rights (SNHR), entitled ‘State Persecution and Minority Right to Self-Determination,’ in which he analyzed legal development in the judicial treatment of minorities under the United Nations and its effectiveness. The study concluded that the state bears primary responsibility in the event that minorities claim the right to self-determination, and called on the countries of the world to respect and promote the rights of minorities to avoid disturbances and conflicts and demands for the right to self-determination.
The 11-page study addresses the extent of responsibility of governments in the countries they rule concerning minorities demanding the right to self-determination, noting that addressing minority-related issues is very important at the level of international law because this issue is linked to several other sensitive issues and concepts such as concepts of respect for freedoms and human rights, and the concepts of state, separation, self-determination, and sovereignty. As the study notes, wrongful handling of minority-related issues has long led to conflicts, regional and international interventions, states’ domestic exploitation of minorities, and civil and international wars, and thus poses a threat to local, regional and international security and peace.
As the study adds, there is no agreed legal definition of the word ‘minority’ in international law, for several reasons, most notably the changing nature of minorities between one country and another for historical, political, or social reasons. The report refers to the 1992 United Nations Declaration on the Rights of Minorities, noting that this is the first reference document concerning minorities. However, despite all the progress that has been made, which has achieved significant development in the right direction, the United Nations system remains largely unable to compel many United Nations member states to commit to fulfilling their obligations to protecting minority rights. The organs of the United Nations lack any ability to impose serious punitive measures that might deter those member states from infringing or violating the rights of minorities, with the exception of the United Nations Security Council (UNSC), which is wholly dominated by the five permanent members whose interests take precedence over international law and fundamental human rights principles. The study refers to the Security Council’s gross failure to protect minorities in several countries around the world.
In a related context, the study notes that, due to its non-binding nature, the 1992 United Nations Declaration on the Rights of Minorities failed to establish mechanisms for monitoring and accountability, which may lead to state agencies being asked to implement the articles of the declaration. The study raises an important question, namely “What if the organs of the state itself are the ones violating the rights of minorities, and doing so on a large scale?” The study adds that while the Minority Rights Declaration addresses the rights of minority citizens of the state, it offers no such rights to those who are deprived of citizenship, as is the case, for example, with the Kurds of Syria, denied nationality by the Assad regime.
The study addresses the state’s duties towards minorities, focusing primarily on five main points, namely the protection of the physical existence of minorities; non-discrimination against minorities; adoption of appropriate legislative measures for minorities through consultation and participation with minorities. These measures should meet all the provisions of the Declaration and include penalties in case of violation; finally, they should ensure minorities’ right to self-determination, and show the importance of effective participation.
The study goes into greater depth in discussing the right of people to self-determination, stressing that this is firmly established in international law, in particular by common article 1 of the International Covenants on Human Rights, which applies to indigenous people and to people under occupation or foreign colonization. In the case of minorities, the report points out, the 1992 United Nations Declaration on the Rights of Minorities did not refer to the right of minority groups to self-determination; instead, the Declaration classifies the rights of persons belonging to minorities as individual rights, although these can, in reality, only be exercised in a collective framework, whereas the rights of peoples are classified as collective rights. This, however, does not prevent persons belonging to a national or ethnic minority from asserting self-determination when acting as a group, in which case they are considered a collective people and are no longer classified as a minority.
Considering the aforementioned information, the study finds that the demand of minorities for self-determination is organically linked to the right of minorities specifically to participate, which was affirmed by the 1992 Declaration. Through participation, minorities express their identity and existence, guarantee their survival and protection, and can assert their involvement in political decision-making at the local and national levels, and participate in all State institutions, including exercising their right to elect leaders. On this particularly delicate point, the study emphasizes that minorities are often unable to attain proper representation according to the political structure used in those democratic states that adopt the majoritarian voting system. The study suggested a solution to this problem, namely considering the introduction of a mechanism for allocating seats for minorities within the framework of a majoritarian voting system, as well as allocating seats for a certain percentage of women. The aim of these special measures for minorities is not to give them a privileged status, but to acknowledge that because minorities are often vulnerable, special measures are required to strengthen minorities’ status and bring them to the same level as that of the majority; these include not only guaranteed political participation but also ensuring that this is effective participation in order to give minority representatives the power to take important decisions affecting the lives of their communities. It is this type of genuine participation that leads to the establishment of a cohesive and pluralistic society based on dialogue and democracy. The study finds that when minorities feel that they can control their fate and contribute to political change within the society as a whole, the demand for self-determination and separation is likely to fall to a minimum or even end.
The study notes that state persecution of minority rights is a key factor in the claim for self-determination, adding that there are multiple ways in which a state can violate the rights of minorities, creating a state of fear, disintegration, instability, a desire to emigrate, and often leading to demands for self-determination, self-governance, and possibly separation. The study further notes that states must work intensively to avoid such violations, most notably discrimination and inequality; lack of laws and legislation; weak educational curricula and the spread of hate speech; violence and the loss of national reconciliation; and undermining political and social participation.
The study discusses the overlap between sovereignty, the responsibility to protect, and the right to self-determination, noting that sovereignty is not absolute but restricted both internally and internationally and that it does not and has never meant that a state can act with impunity against its population, and should never be invoked to justify committing human rights violations. When the state fails in its obligations to secure the rights of minorities, fails to protect them from crimes against humanity or war crimes, or when the state itself perpetrates these types of crimes, putting minorities at risk of displacement or extermination, humanitarian intervention, which includes the principle of the Responsibility to Protect, becomes a duty and a necessity, and there is no longer any justification for prioritizing state sovereignty and the principle of non-intervention in internal affairs over the wellbeing of those being persecuted. Sovereignty should never allow governments and authorities that commit crimes against humanity and the crime of genocide against minorities to escape justice.
The study adds that the concept of sovereignty has been exploited by many states, particularly dictatorships, to justify the repression and exclusion of minorities, the curtailment of their rights and the violation of human rights, on the pretext that the acts committed by the state or government against its citizens are an internal affair in which no external parties have the right to intervene. In such cases, the state uses the principle of legal sovereignty beyond its actual jurisdiction, and when any state’s government, based on the principle of sovereignty, oppresses, denies and fails to recognize minorities, then those minorities have the right to resort to United Nations mechanisms and competent regional mechanisms for the protection of minorities. In the event that such mechanisms are weak and unable to deter that State from continuing these practices against minorities, the international community must be responsible for protecting those minorities. Thus, the minority has the right to self-determination and its right must be supported in this direction.
The study stresses that any state that violates the rights of minorities is the first and main culprit, but the weak application of the United Nations’ mechanisms makes it the second. If the mechanisms of the United Nations acted as executive deterrents and defenders of human rights, then most of the world’s countries would not dare to perpetrate violations and persecute minorities. The study notes that the Charter of the United Nations has given the Security Council absolute powers to make it a dominant power, with the Security Council alone possessing the advantage of power over imposing, implementing, and following up on sanctions.
As the study adds, the history of the Security Council is fraught with multiple failures to protect human rights, because the council always prioritizes the interests of its five permanent members over international law and human rights.
The study recommends working towards the creation of a binding international convention on the rights of minorities focusing on the rights of individuals and groups, proposing the establishment of a special committee under the Convention to monitor and investigate violations of minority rights, in addition to supporting the continuing work of the Special Rapporteur on minority affairs, issuing urgent updates and reports as necessary, criticizing and condemning any violating member states’ practices and violations of minority rights. These updates and reports should be disseminated through local and international media in order to expose the practices of all states violating these rights.
The Convention must also include additional provisions enabling it to impose political, economic, and legal sanctions against the violating state, without the Security Council’s approval, so that the Convention must include a self-monitoring force, must be granted the authority to estimate the level and duration of sanctions, depending on the nature and extent of the violations committed by the state, and must have the power to suspend the membership of any state that is in clear violation of the provisions of the Convention, and in the event of non-compliance, the state in question must be expelled from the Convention and strongly condemned.
The study also calls on for the Convention to have legal force, enabling it to refer the states where widespread violations constituting crimes against humanity and war crimes, are taking place to the International Criminal Court without referring to the Security Council.