Annex I: The legal protection framework for minorities

Various instruments in international humanitarian law (IHL) and international human rights law (IHRL) protect the rights of minorities in peacetime and during violent conflict. This annex is an overview of the key legislation and principles forming the protection framework for religious and ethnic minorities and other vulnerable groups affected by the conflicts in Syria and Iraq. It also identifies gaps, shortcoming and ambiguities in the existing framework and highlights challenges to applying the protection framework in practice.

International humanitarian law

The 1907 Hague Convention, four 1949 Geneva Conventions and the Additional 1977 Protocols form the core of IHL. The fourth Geneva Convention specifically relates to the protection of civilians during conflict.213 It requires parties to the conflict to distinguish between civilians and combatants, to spare the civilian population and civilian property, and prohibits excessive and disproportionate use of military force. The four Geneva Conventions, but not the Additional Protocols, have been universally ratified and are therefore universally applicable. IHL obliges conflict parties to ensure that all people, without discrimination, receive necessary provisions, and stipulates that conflicting parties must cooperate with humanitarian operations. Civilians must be treated humanely at all times during conflict, and their physical and mental health must be protected. They must have access to humanitarian assistance, healthcare, be protected from further violence and treated with dignity. Civilians must also be able to access their political, religious and judicial rights and their starvation is forbidden. Furthermore, the destruction and appropriation of civilian property not justified by military necessity is prohibited.214

  • Non-discrimination is a core principle of IHL, under which all protected people “shall be treated with the same consideration by parties to the conflict, without distinction based on race, religion, sex or political opinion”.215 However, IHL includes provisions for protecting women and children specifically. Among these are the protection of women against any attack on their honour such as rape, indecent assault end enforced prostitution.216 “Pregnant women and mothers of children under the age of seven who are living in a neutral country shall benefit from any preferential treatment accorded to the nationals of that country”.217 Similarly, expectant mothers, mothers of children under seven and children under 15 in occupied countries are entitled to any special benefits accorded to them prior to the occupation.218
  • Women who have been detained by occupying powers have a right to be accommodated separately from men, and to be supervised and searched by women rather than men. If women have been detained with other members of their family, the family unit should be kept together.219 Under Protocol II of the Fourth Geneva Convention, there are similar provisions to protect women in non-international conflicts.220 IHL dictates that women who are pregnant or have dependant infants and have been arrested, detained or interned for reasons related to armed conflict should have their cases considered as quickly as possible.221 Expectant mothers who have been detained are entitled to additional food and access to appropriate treatment. In international armed conflict, it has not been possible to prohibit the use of the death penalty for pregnant women and the mothers of young children although IHL recommends avoiding the death penalty in such cases.222 In non-international armed conflict, however, the death penalty is prohibited for pregnant women and all of mothers of young children.223 Women who are not part of the armed conflict are accorded special protection against hostilities, which includes access to appropriate medical care and release from besieged areas to access medical care.224
  • IHL includes protection against child labour and the use of children in conflict. Children under 15 who have been or orphaned or separated from their families as a result of conflict should receive ‘maintenance’ payments, access to education and the ability to practise their religion.225

Although many provisions of IHL are now accepted as customary law – general rules by which all states are bound – the nature of contemporary conflict can make it difficult to distinguish between civilians and combatants. The nature of this conflict also makes it difficult to monitor IHL, which is increasingly violated by parties to conflict.226 Applying IHL in conflicts involving non-state actors is more complex than in armed conflicts between two states. Article 3, which is common to all the Geneva Conventions, applies to non-international armed conflicts, whether between a state and a non-state armed group or between non-state armed groups, of which there are many in Syria and Iraq. Non-state armed groups must fulfil certain criteria including having a certain level of organisation and, under Article 1 of Protocol II, being able to control part of a territory. Vité argues that this is likely to result in many armed conflicts being covered by Common Article 3 but not Additional Protocol II.227

Recently, IHL norms on women, peace and security have been developed. Significant developments in this area include the following UN Security Council resolutions: 1325 on how women are affected by conflicts and their right to protection and participation in peacebuilding; and 1820, recognising CRSV as a tactic of war.

Responsibility to Protect

The Responsibility to Protect (R2P) is a non-legally binding commitment that was endorsed by UN member states in 2009. It recognises that:

  • individual states have the primary responsibility to protect their own populations from genocide, crimes against humanity, war crimes and ethnic cleansing, and incitement to them; the international community has a responsibility to encourage and assist states in fulfilling this responsibility
  • the international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes
  • if a state is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the UN Charter

Despite extensive debates, there are still uncertainties over the meaning and implementation of R2P and concerns over how to achieve a balance between the sovereignty of individual states and the protection of civilians when decisions about whether to invoke R2P will inevitably be driven by political agendas.228

International criminal law

International criminal law (ICL) comes into force when there are serious violations of IHL, including crimes against humanity, preventing access to humanitarian assistance, acts of genocide and war crimes. ICL covers domestic and international conflicts, and an individual can be held accountable for breeches of it.

Violations of ICL can be investigated and tried by the ICC. Neither Iraq nor Syria is a signatory to the ICC, which means that its jurisdiction could only be extended to these countries if the UN Security Council refers the situation to the court. Human rights organisations argue that the ICC should be given the authority to investigate violations of ICL in Syria and Iraq.229

International human rights law230

Unlike IHL, which applies only during armed conflict, IHRL applies during peacetime, although some of its provisions may be suspended during armed conflict.231 The 1984 International Bill of Human Rights consists of the Universal Declaration of Human Rights (UDHR),232 the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), and the 1996 International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols.

There are nine core human rights treaties, including the ICESCR and ICCPR. The others are:233

  • International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (1965)
  • Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979)
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (1984)
  • Convention on the Rights of the Child (CRC) (1989)
  • International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) (1990)
  • International Convention for the Protection of All Persons from Enforced Disappearance (CPED) (2006)
  • Convention on the Rights of Persons with Disabilities (CRPD) (2006)

In addition, there are numerous universal human rights instruments, which address the following issues:

  • Right of self-determination
  • Rights of indigenous peoples and minorities
  • Prevention of discrimination
  • Rights of women
  • Rights of children
  • Rights of older people
  • Rights of people with disabilities
  • Human rights in the administration of justice, and protection of people subjected to detention or imprisonment
  • Social welfare, progress and development
  • Promotion and protection of human rights
  • Marriage
  • Rights to health
  • Rights to work and to fair conduct of employment
  • Freedom of association
  • Slavery, slavery-like practice and forced labour
  • Rights of migrants
  • Nationality, statelessness, asylum and refugees
  • War crimes and crimes against humanity, including genocide234
  • Humanitarian law

IHRL, established by treaty or custom, outlines the obligations and duties of states to fulfil and protect the rights of the people under their jurisdiction. This includes the right to life, freedom from torture and freedom of movement, as well as economic and social rights such as those to food, housing, clothing, health, livelihood and an adequate standard of living. In short, IHRL “enables individuals and groups to claim certain behaviour or benefit from government.”235 Although there is no specific IHRL provision for access to humanitarian assistance, it has been argued that the right to life means a right to a minimum level of assistance, and that the guarantee of social and economic rights enables individuals to claim a right to humanitarian assistance.236 IHRL also provides the basis for protection and treatment of IDPs.

Refugee law

The main instruments for international refugee protection are the 1951 Refugee Convention and the 1967 Protocol. Refugees are people who are outside their country of nationality, and are unable or unwilling to return to their country of origin, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”.237 Protection provided by the convention applies to all refugees, regardless of their religion, race, country of origin, sex, age, disability or sexuality – and no refugees can be expelled or forced to return to their country of origin against their will.238 According to the convention, refugees should have access to courts, primary education, work, and legal documentation including travel documents. The principle of ‘non-refoulement’ is central to the convention, meaning that refugees and asylum seekers cannot be forcibly returned to an area where they are likely to be persecuted.

Most Arab countries have not ratified the 1951 Refugee Convention and its 1967 Protocol. There are regional agreements covering the rights of refugees but these have never really been implemented: the Declaration on the Protection of Refugees and Displaced Persons in the Arab World was adopted in November 1992; and the Arab Convention on Regulating the Status of Refugees in the Arab Countries was adopted by the League of Arab States in 1994. Furthermore, many Arab countries lack domestic laws governing the status of refugees.239

As refugees have to be in fear of ‘persecution’, which is not explicitly defined,240 conflict-affected populations do not automatically have refugee status. Where conflicts have sectarian dimensions, it is more likely that refugee law will be triggered. However, refugees are still protected by IHL and IHRL, which may provide more protection than refugee law as they are binding for all parties to a conflict. People with refugee status come under the mandate of UNHCR for protection, humanitarian assistance and basic needs. UNHCR and other organisations aim to meet the longer-term needs of refugees when a situation becomes protracted.

Refugee law does not apply to IDPs or economic migrants. However, people may choose, or be forced, to move at different stages so it is increasingly challenging to distinguish between refugees, IDPs, forced migrants and economic migrants.241 As these categories become more fluid and overlap, it is more difficult to determine people’s needs and rights for assistance and protection. IHL offers protection against forced displacement, the seizure of property and belongings, and during displacement. Under IHRL, refugees’ and IDPs’ right to freedom of movement is protected. This includes freedom of movement within the country in which they are legally resident, freedom to leave any country and the right to return to their own country.

Palestinians form a unique refugee group governed by their own international laws and in receipt of assistance from their own refugee agency, the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). Unlike UNHCR, which operates worldwide, UNRWA operates only in the West Bank and Gaza Strip, Lebanon, Jordan and Syria. Palestinians displaced from Syria who flee to a country where UNRWA operates, such as Jordan or Lebanon, can seek assistance from UNRWA but not automatically from UNHCR, which is prevented from assisting refugees in receipt of assistance from another UN agency. The legal status of Palestinian refugees in Turkey and Egypt is ambiguous because they do not automatically come under the UNHCR mandate.242 As Palestinians do not come under the 1951 Refugee Convention and the 1967 Protocol, their rights to protection and representation are not as strong as those of other refugee groups.243

Internal displacement and the law

IDPs are people who have for some reason been forced to leave and remain away from their homes but remain within the borders of their own country. Refugee law does not cover them because they have not crossed an international border. The primary responsibility for promoting and protecting the rights of, and providing humanitarian assistance to, IDPs lies with national authorities. IDPs retain all the rights they had before they were displaced, but they usually find it more difficult to access those rights following displacement. The Guiding Principles on Internal Displacement (1998) are based on international standards developed from human rights law and human rights instruments to provide protection and assistance to IDPs. These principles collect, in one place, the standards that apply to IDPs and the obligations of states and humanitarian agencies to assist and protect IDPs. Although the Guiding Principles are non-binding, the human rights laws and instruments on which they are based are legally binding.244

According to Iraq’s National Policy on Displacement: “No person will be arbitrarily or unlawfully forced to remain within a certain territory, area or region, nor shall he or she be made to leave a certain land, area or region”. IDPs are guaranteed their rights to property ownership, and to compensation if their property is destroyed – rights that must be respected by the government and its security services.245 In contrast, the Syrian government has refused to recognise IDPs, instead referring to “people who have left their homes”, meaning that aid agencies have to balance need against semantics in order to support IDPs in Syria.246

Statelessness and the law

The UN General Assembly adopted the Convention Relating to the Status of Stateless Persons in 1954. It was designed to protect and guarantee the rights of those who did not come under the 1951 Refugee Convention. A stateless person is defined by the convention as someone who “is not considered as a national by any state under the operation of its law”247 and has the same rights as citizens to freedom of religion and education of their children. For other rights, stateless people are entitled to the same treatment as other non-nationals, including the right to employment, housing and freedom of association. States hosting stateless people are required to allow freedom of movement and to provide identity and travel documents. States that are party to the Convention Relating to the Status of Stateless Persons cannot expel stateless people and should facilitate their ‘assimilation and naturalisation’.

The 1961 Convention on the Reduction of Statelessness is designed to prevent cases of statelessness arising. The convention fulfils Article 15 of the Universal Declaration of Human Rights, which states that everyone has a right to a nationality. To prevent statelessness, states are required to give citizenship to children who are born on their territory or who are born abroad but whose parents are their nationals. States are also prohibited from withdrawing citizenship from a national if this would result in statelessness, and to avoid making people stateless if territories are transferred into the control of another party.

UNHCR is mandated to identify, prevent and reduce statelessness and protect stateless people. In November 2014, it launched an action plan to end statelessness by 2024. This includes encouraging more states to become parties to the two conventions on statelessness and to eradicate gender discrimination in nationality laws. As of September 2016, there were 89 state parties to the 1954 Convention and 68 to the 1961 Convention on Statelessness. With the exception of Turkey, which is a state party to the 1954 Convention on Statelessness, none of the other countries in the region affected by the conflicts in Iraq and Syria are party to either of the conventions on statelessness.248

The rights of minorities

Minorities have the same rights to protection as other civilians under IHL, and the same civil, political, economic, social and cultural rights as other individuals and groups under IHRL. Specific references to minorities in IHRL include Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which protects the rights of ethnic, religious and national minorities to practise their culture and religion and use their language within their own group. State parties to the ICESCR in 2009 guarantee non-discrimination in the exercise of each economic, social and cultural right enshrined in the covenant.

In addition, there are specific instruments designed to protect minorities and their rights. Under the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by consensus in 1992, states are supposed to safeguard minority rights by ensuring their survival and existence, promoting and protecting their identity, guaranteeing equality and non-discrimination, and enabling effective and meaningful participation in society. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted by the UN General Assembly in 1965, covers the rights of all people to enjoy civil, political, economic and social rights, without discrimination on grounds of race, colour, descent or national or ethnic origin. Furthermore, the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities “provides a comprehensive, although non-binding, framework for protecting the rights of minorities”.249

Despite these international provisions for protecting minority rights, there is no internationally agreed definition of what constitutes a minority group (for more information on this, see page 10). The Minorities Declaration (1992) refers to a minority as a group with a national, ethnic, cultural, religious or linguistic identity. A state does not have the final authority to determine which groups under its sovereignty constitute minority groups. It is generally accepted that minorities are in a non-dominant position, but this is not a fixed state. The term ‘minority’ is contextual and relative – minority groups can change over time or within and between countries and sub-national regions. In addition, people may not find it comfortable or necessary to identify themselves as part of a minority or may be reluctant to identify themselves as such for fear of discrimination.250

Unfortunately, there is a lack of understanding of protection for, and protection obligations towards, minority groups. Consequently, many minority groups do not recognise the benefits of IHRL.

The international framework for protection consists of IHL and IHRL based on treaty or custom. Aspects of IHL and IHRL that have entered customary law are legally binding – state parties to treaties must abide by them. Principles and guidelines, sometimes referred to as ‘soft law’, also provide some protection for people in humanitarian crises.251

Syria and Iraq are bound by the 1907 Hague Convention, the Geneva Conventions and Additional Protocol I. The states affected by the conflicts in Syria and Iraq are parties to the following core treaties of IHRL (see table below). 252

Refugees are protected by the 1951 convention and its 1967 Protocol, but not all countries in the region are signatories to them, and the terminology for determining who qualifies as a refugee is open to interpretation. As previously noted, Palestinians are an anomaly in refugee law and can consequently fall outside the protection framework. Although the Guiding Principles for IDPs are rooted in the international legal framework, IDPs are not specifically protected in law and Syria has refused to recognise IDPs. The conventions providing protection against statelessness have few state parties at present, although UNHCR has an action plan to address this. The rights of minority groups are protected in law but there is no agreed definition of minorities and the understanding of their rights and protection needs is not well understood, presenting many challenges.

Essentially, the effective use of IHL and IHRL in conflict situations relies on the ability and willingness of parties to the conflict to implement them. In conflicts involving non-state armed groups, the command and control of combatants and understanding of obligations under IHL can be weak – actors may be unaware of their obligations or choose to ignore them. At the same time, political concerns can make the international community reluctant to act, and therefore refrain from declaring genocide or invoking R2P. Monitoring the implementation of IHL and IHRL requires on-the-ground access to gather first-hand evidence.

 EgyptIraqJordanLebanonSyriaTurkey
ICESR State party State party State party State party State party State party
ICCPR State party State party State party State party State party State party
ICERD State party State party State party State party State party State party
CEDAW State party State party State party State party State party State party
CAT State party State party State party State party State party State party
CRC State party State party State party State party State party State party
ICMW State party No action No action No action State party State party
CPED No action State party No action State party No action No action
CRPD State party State party State party State party State party State party

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