This article is written by Yash Singhal from Vivekananda Institute of Professional Studies,  New Delhi. The article deals with minority rights in the light of the Kabul Gurdwara attack and how it is included under International Terrorism. It also provides various International Conventions which can be applied to this case.

Introduction

The United Nations was established on 24 October, 1945 after the failure of the League of Nations to prevent another World War. It has the responsibility to maintain peace and security among the member nations through the force of International Law. Any conflict arises out of indifferent perspective by one group towards another group on the basis of discriminatory grounds such as race, caste, sex, religion etc. Every state has the duty to protect every individual irrespective of their identity as a part of Human Rights accepted worldwide. The United Nations has passed Conventions in this regard for their ratification by member states and make them obligatory in nature.

Why Human Rights?

An individual residing in a country shall be assured of certain basic rights required for a dignified life. The guarantee of standard human survival beyond the boundaries of social, economic or ethnic characterisation enables the need for adoption of Human Rights. These rights include the right to life and liberty, freedom of speech, freedom of opinion, freedom from torture, the right to education. 

The United Nations designed a comprehensive framework to protect Human Rights through the Charter of the United Nations and Universal Declaration of Human Rights(UDHR). The promotion of the protection of these human rights is guaranteed through the provisions of UDHR. The United Nations Human Rights Council is the specialised authority to address the breach of human rights at an international level by member states. It produces Universal Periodic Review once every four years as a record of the measures taken by each state in compliance with the conventions of the United Nations and its sub bodies on the promotion of Human Rights.

What are Minority Rights?

The Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities defined minority as a group of individuals that are numerically less in comparison to other groups with no position of dominance and regularly subjected to suppression. Their linguistic, ethnic and religious characteristics are different from the rest of the population.

The proportion of the population of all linguistic, ethnic, religious, racial communities in a country determines the minority status. The population of a community being low in comparison to other communities subject it to the minority status within that country.

It shall be upon that country to make adequate provisions to protect the rights of their minority groups without inciting a sense of inferiority among them. It is a duty of the member state to spread awareness about the requirements of these minority rights and delicately convince the majority to accept those rights as a means of establishing equality. 

The minority rights are provided on the pretext of these groups vulnerable to discrimination on the hands of majority groups. They are not privileges but an affirmative practice of safeguarding minority interests. These are steps to bring all citizens to a minimum level of equality in pursuance of equity and humanity driven society.

Kabul Gurdwara Attack

On 25 March 2020, a few gunmen entered Kabul Gurdwara Sahib in the capital city of Kabul, Afghanistan, in police uniform to open fire on worshippers. The guard at the entrance was shot dead by these gunmen to launch an hour long siege on the religious site. They started by killing all the worshippers in the central hall and continued with searching room to room to kill everyone present in the complex at that time. The attack led to the death of 25 people with around 8 injured. The Afghani police ended the siege by killing these gunmen.

The attack was planned to kill the maximum number of people at a time when the hall was full with worshippers as reported by Sikh minority Parliamentarian Narinder Singh Khalsa. Few witnesses claimed that hand grenades were used to destroy the structure while continuous gunshots were heard. Some people took cover under the table and many rushed outside the complex to save their lives. 

It is not the first instance of the Sikh community being subjected to attacks in Afghanistan. There are around 300 families of the Sikh community in the country and have constantly observed discriminatory practices against themselves. In 2018, a suicide bomber targeted the community with the attack claimed by ISIL killing more than a dozen people in the city of Jalalabad.

ISIS was suspected of carrying out the attack on the Kabul Gurdwara but they rejected any such claims until the arrest of a Kerala man recruit of ISIS who was identified as the mastermind of the attack. It has also been contended that the Taliban had a connection with ISIS monitored attack.

International terrorism

The attack on the religious place which killed 25 innocent people is an act of terrorism which instilled fear in the minds of the whole country. Any violent act which is against the law of the land to intimidate civilians for political aims is defined as terrorism. This particular act will be considered terrorist activity.

The radical measures adopted by an individual or a group to put the lives of innocent people in danger or for the fulfillment of political ambitions in other countries in exchange for sacrifice of human lives are included in the broad terminology of international terrorism. Terrorist activity is brought under the ambit of international terrorism when the activity becomes a global threat while violating the provisions of international conventions of preventing international terrorism passed by the United Nations and its subsidiaries. 

Declaration on Measures to Eliminate International Terrorism

The United Nations General Assembly Resolution 49/60 adopted in 1994 included  Declaration on Measures to Eliminate International Terrorism to counter the activities on global level by the member states while publicly condemning such acts that put innocent civilian lives in danger. Such acts have been identified as criminal and unjustifiable in every manner. Any activity which has the potential of disturbing the peace and tranquility of a state through illegal measures breaching the human rights of individuals while provoking a state of terror in the region, with the shockwaves travelling beyond the intangible boundaries of the country to the global community has been categorised as international terrorism.

Action Plan by India

In the 49th session of the United Nations General Assembly, India proposed a Comprehensive Combat Action Plan against International Terrorism as means to safeguard civilians from any harm. India firmly believes terrorism to be a great threat to promotion of human rights, democracy and political rights within a nation. While appreciating the social division of each country into various groups, individual and collective identity must be catered to equally without discrimination or prejudice. 

India requested all member states to adopt diplomatic measures to combat the terrorism with international support across borders for a constructive model accepted all around the world. The communication shall be developed to improve information delivery systems from a particular country to the other country, which will be useful in sensitive data delivery on the suspicion from intelligence agencies to be transmitted to the target region with immediate effect. This would give the target country enough time to prepare themselves on security grounds to combat the situation as well carry out any covert action to eliminate the terrorist outfits without them being aware of any such covert operation.

This framework was rejected by the European states on the pretext that it does not involve the self-determination issues and only deals with individual criminal responsibility of member states. Self-determination is the “right of every country and individual alike to form their own political opinions and status along with social, economic and cultural development”.

Regional Efforts

Regional cooperation has been advised in order to counter the threat of terrorism. The geographical position of countries has been the basis of forming regional associations to promote cooperation among the members as means to provide assistance in matters such as financial, cultural, social, political and security. It is not unusual for all these associations to place terrorism as a primary matter of concern.

Organisation of American States, South Asian Association of Regional Cooperation, the Commonwealth of Independent States, League of Arab States, the Organisation of the Islamic Cooperation, Organisation of African Unity are some regional associations that came into existence on the directions of the United Nations to promote regional interdependence associations for supporting of members among themselves for greater good of the region itself.

International Conventions regarding the Attack

Universal Declaration of Human Rights 1948 (UDHR)

Article 2 of the UDHR provides the rights within the Declaration to all individuals irrespective of any distinction made on the grounds of race, colour, sex, language, religion, political or other such matters. 

Article 3 is the guarantee of right to life for all with dignity, liberty and security.

Article 30 has been the significant clause to disregard any interpretation as to the provisions of the Declaration through an act that destroys any of the freedoms enshrined herein. 

This Declaration has identified human rights of the worshippers regardless of their religious denomination and the subsequent attack as a barbaric act in violation of the freedoms enshrined in the Declaration itself. This provides for an immediate action against the accused according to clauses of the Declaration.

Convention on the prevention and punishment of the Crime of Genocide 1948

Article 2 defines genocide as an intentional act to destroy a religious, national, ethnical or racial group, undertaking measures as killing members of the group, serious bodily injury or harm, wholly or in part destruction of a group, prevent births within the group, transfer of children to other group. 

Article 3 states what could be included within the jurisdiction of the Convention. Genocide, attempt to genocide, conspiracy to genocide, incitement to commit genocide are among those included.

The killing of Sikh community as the cause of target killings in the form of genocide of religious minority to wipe out their population in Afghanistan has been included as a part of the Convention. The United Nations and its subsidiaries needs to take strict actions to restrict any such acts of genocides in the future.

UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities 1992

Article 1 has advocated for the state responsibility in the matters of protection of national or ethnic, religious and linguistic identity of minorities.

Article 4 provides the minorities with the right to enjoy their fundamental and human rights without any form of discrimination against them within the state.

The Sikh community has observed numerous instances of discrimination meted out against them in Afghanistan due to their minority status. The Afghanistan government has lacked implementation of the Convention in full force to provide the Sikh community with enough assurance of a dignified life or even survival for that matter. 

Global public condemnation shall be the driving force of change in the situation of religious minorities in every country. It is the basic human right to respect every individual while guaranteeing equality of opportunities.

Legal Implications of the attack

Fleeing the country

Sikh community is a religious minority in Afghanistan due to their population of around 300 families only. Any genocidal attack like this makes the community uncomfortable about their safety in the country and whether the government is even doing enough to safeguard their interests. In such a scenario, the community flee their country of origin against the threat of religious persecution to seek asylum in other countries. 

Article 14 of the Universal Declaration of Human Rights gives the right to seek asylum by anyone facing persecution. The nations ratifying the International Covenant on Civil and Political Rights have the legal responsibility to accept asylum seekers as a matter of human rights.

The neighbouring nations are most likely to experience the asylum seeker influx, with India and Pakistan being the prime hubs due to their notable Sikh population.

Cases against involved persons in India

According to the reports, Mohsin, a man from Kasargod, Kerala was involved in the attack as a part of the terrorist outfit. The National Investigation Agency(NIA) of India took charge by registering a case against the Indian nationality suspects indicated to be involved in the conspiracy. 

The NIA registered the case under Unlawful Activities (Prevention) Act, Indian Penal Code, and NIA Act. This is the first instance of NIA registering a case for attacks outside India. 

The whole conspiracy is beyond the territorial jurisdiction of Afghanistan and has its links in various other countries where the terrorist outfit has recruits working actively.

Amendments to Security Laws in Afghanistan

The Afghan government must take this terrorist attack as a warning to amend their existing security laws by having provisions for strict punishment for those engaging in such activities. Also, an Act establishing an agency to probe into any form of intelligence information. This agency will take immediate steps by informing the security forces before commission of any such act. 

Minority rights need to be taken seriously by the government by taking suggestions from minority groups’ representatives themselves on desired laws. The trust of these minority groups needs to be restored to public authorities to prevent any sort of violence or arms conflict in future against the government.

Conclusion

The Kabul Gurdwara Sahib attack is not an attack in isolation but has garnered attention from all corners of the world due to its barbaric nature of mass killing of religious minorities by few gunmen in police uniform. The xenophobia among the people has increased beyond the sentiments of brotherhood and sisterhood. It is a matter of international terrorism with ISIS being the mastermind behind the attack while jeopardising innocent people within the place of worship. The International Conventions by the United Nations and its subsidiaries have provided for promotion of peace within member states but such acts of genocide have been the reasons behind non-fulfillment of the goal of the UN. The strict implementation of the Declarations by International Organisations by every member nation shall go a long way in minimising such activities.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: