COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of Discrimination and Protection of Minorities
Forty-fourth session
Agenda item 18
...
...

2.     The 1950 study's much-quoted general conclusion seems to be at the heart of a widely shared, important misunderstanding. It concerns the continued validity of the minority protection clauses contained notably in those international agreements and declarations made between the First and the Second World Wars in favour of peoples not affected by the peace treaties which ended the latter. They can be seen to be of direct relevance to the victims of the infamous ethnic cleansing and relocation campaigns which have been conducted under the direction of the Presidents of the former Yugoslavia and of Iraq, respectively. We are referring to the inhabitants of Bosnia and Herzegovina and about Iraq's so-called "un-Iraqi" Assyrians, Kurds, Turkomans and Shiites.

3.     Received wisdom holds that the wide-ranging formal protection enjoyed by these peoples under the League of Nations minority protection system has not survived the dissolution of the League in 1946. Yet, the 1950 study of the United Nations [Secretariat] ... suggests otherwise in its lesser-known but no less relevant case-by-case section. Concerning Yugoslavia, the protection regime laid down by the Treaty of Versailles of 1919 is thus said to be gone only "as regards the minorities which assisted Yugoslavia's enemies" (p. 65). Accordingly, the League of Nations' individual-oriented protection and redress system may be activated in the actual case of Bosnia and Herzegovina, should its authorities or other imaginative diplomats or concerned citizens be interested. And in the equally current case of Iraq, the authors of the United Nations study on page 51, expressed the view that the dissolution of the League of Nations did not annul but merely "suspended" Iraq's all-important and even constitutive Iraqi Declaration of 30 May 1932 with its wide-ranging minority protection and other "obligations of international concern".

4.     In fact, this so-called suspension of solemnly undertaken obligations in favour of minorities has been less a matter of international law than it has been an ill-founded, opportunistic practice. For the United Nations General Assembly, on 12 February 1946, unanimously adopted the resolutions proposed by its League of Nations Committee. Its resolution 24 (I), section I, paragraph 1 specifies that:

     "The General Assembly reserves the right to decide, after due examination, not to assume any particular function or power, and to determine which organ of the United Nations or which specialized agency brought into relationship with the United Nations should exercise each particular function or power assumed."

5.     Iraq, of course, was never relieved of its 1932 obligations; Iraq's territorial integrity, independence and sovereignty are thus subject to review by the United Nations General Assembly. Accordingly, the Sub-Commission may find it useful to look more closely at the substance of these readily and individually invokable obligations. Concretely, it may want to consider ways and means for the peoples concerned to obtain prompt and effective application of these conveniently forgotten yet valid national and international guarantees. The suggestion of human rights monitors, made by the Special Rapporteur on Iraq (E/CN.4/1992/31; S/24386), might be developed further for registering both related human rights violations and the individuals who took part in same - for later prosecution. The beneficiaries of former League of Nations guarantees might be helped by special representatives communicating directly with the Security Council for it to take prompt and adequate corrective measures.

6.     The text of the 1932 Declaration of the Kingdomn of Iraq follows [reproduced in UN document: E/CN.4/Sub.2/l992/NGO/27; see also: E/CN.4/367; on the Internet at: www.solami.com/a3a.htm#DECLARATION]:
...

GE.92-13969/0899K (E)
...
...
Editor's Note

Paragraph 5 of the above UN document - available in English, French and Spanish - is followed by an annex, consisting of a verbatim reproduction of Iraq's 1932 Declaration (except for its unrelated articles 3, 7, 8, 11 an 12 which, together with related League of Nations and United Nations texts, are reproduced in full at: www.solami.com/a3a.htm and .../UNGA.htm, respectively).

COMMISSION ON HUMAN RIGHTS
Fiftieth session
Agenda item 12
....

 1.     Together with the former Yugoslavia (E/CN.4/Sub.2/l993/NGO/29) and the Baltic States (E/CN.4/Sub.2/1993/NGO/27), Iraq presents the most challenging - and potentially the most rewarding - case of valid but forgotten or disregarded international minority protection guarantees (E/CN.4/Sub.2/1992/NGO/27). And given the unbearable humanitarian tragedy of the peoples involved, the Governments may find it useful to take a fresh look at these instruments and possible pathways for their prompt and effective application.

2.     In early 1992, following the Gulf war, the Good Offices Group of European Lawmakers proposed an original plan of its own. It communicated its ideas, archive material and analysis primarily to the decision-makers of the parties to the conflict, thus contributing to the legal and political underpinnings for the increasingly accepted unprejudicial interim solution covering the "illegally occupied", contested or destabilized territories of the former Kingdom of Iraq.

3.     These territories, provisionally, would be administered by the United Nations or under its supervision, based on corresponding General Assembly decisions and formulas inspired by the United Nations Trusteeship System and the Free Territory of Trieste Agreement (UNTS 49,3). And they would reflect the international minority protection guarantees contained in the still valid Declaration of the Kingdom of Iraq of 30 May 1932 (reproduced in: E/CN.4/Sub.2/l992/NGO/27; see also: E/CN.4/367). Other elements of this lawmaker plan provide for the recognition, by the General Assembly, of Trustees, Community Elders or Special Minority Representatives who, chosen for their competence by the peoples covered by these international guarantees, are to participate in all related negotiations and to advise all involved United Nations bodies.

4.     On 14 February 1994, the Iraqi Delegate to the Commission on Human Rights sought to demonstrate how well successive Iraqi Governments, particularly since 1954, have provided for the protection and non-discrimination of their Assyrian, Kurdish and Turkoman minorities in particular with regard to their cultural heritage, their racial, religious and linguistic specificity and their human rights.

5.     Notwithstanding the compelling contrary findings notably of the Commission's Special Rapporteur on Iraq (A/46/647; A/47/367 Add,1; E/CN.4/1992/31; 5/24386; E/CN.4/l993/45; E/CN.4/l994/58), the Iraqi Delegate based himself essentially on corresponding constitutional provisions and numerous Iraqi laws. He didn't question the continuous validity, in international law, of the pre-eminent Iraqi Declaration of 30 May 1932.

6.     In the hands of far-sighted and imaginative politicians with an agenda for generations rather than for the next United Nations decision on Iraq, this constitutive document may help to address effectively and promptly the human rights tragedy of the Iraqi people as a whole, not excluding the minorities living in Northern Iraq.  For it contains international minority protection guarantees and a mechanism to enforce them by providing - in combination with General Assembly resolution 24 (I) of 12 February 1946 - that a suitable United Nations body, in case of "any infraction, or any danger of infraction of any of these obligations" may "take such measures and give such directions as it may deem proper and effective in the circumstances" (arts. 10 and 16).

7.     Also, the January 1992 statement of the Iraqi Vice Prime Minister Tariq Aziz - "Iraq would be the first to recognize Kurdish independence" (E/CN.4/1992/31, para. 108) - was subsequently confirmed to reflect official Iraqi policy ^2/. Conceivably then, the Iraqi tragedy may be brought to an early end without jeopardizing Iraq's legitimate core interests - and with due regard to the legitimate concerns of Iraq's neighbours. This may be achieved with the help of the United Nations by way of a creative use of this widely underestimated 1932 Declaration.

8.     Giving tangible and exemplary meaning to the concepts of pacta sunt servanda and international minority protection guarantees, the United Nations General Assembly, based on its resolution 24 (I) of 1946, may find it indicated to assign the related powers and functions, e.g., to the Trusteeship Council. It may declare that part of the Mosul Vilayet which is not under Iraqi Government control to be off limits with regard to the economic sanctions imposed on Iraq. Also, the General Assembly could request the International Court of Justice urgently to render an Advisory Opinion (Art. 96 of the Charter of the United Nations) on related questions, e.g. on the continued validity, under jus cogens and in international law, of sanctions the maintenance of which inadvertently produce effects in contradiction to international conventions.

9.     Such measures could promptly unlock the apparent present gridlock and lead to politically unprejudicial, humanitarianly acceptable and economically self-sustaining principled interim solutions. Eventually, these may go beyond the Mosul Vilayet and cover the Baghdad and/or the Basra vilayets.

10.    As suggested for the cases of former Yugoslavia and others, the measures thus envisaged could take the form of temporary United Nations Protectorates, Trusteeships or similar arrangements. They could significantly - and in a mutually stabilizing manner - alter the political equation in the respective region. They could precede and facilitate the lifting of the economic sanctions on all of Iraq.

11.    The proposed measures could bring to the populations concerned the overdue relief, without prejudice to their ultimate political fate. In the case of the Mosul Vilayet's Yezidi and the Muslim, Christian and Jewish Arabs, Armenians, Assyrians, Kurds, Turkomans and others, this would entail in time the eventual, freely-decided re-attachment of their ancestors' territory to either Iraq or Turkey, its attachment to Syria or Iran, or its eventual independence.

12.    Also, in the cases of the Christian, Shiite and Sunnite inhabitants of the Baghdad and the Basra vilayets, further developments are conceivable which seem worthy of these peoples' great cultural past. This might include interim solutions for Palestinians of all faiths who, in the event, may need complementary solutions and fallback positions. However, that road may be opened only by a deliberate - and sanctions-relevant - dissolution of existing structures into a federated state involving notably the Kingdom of Jordan.
 

Notes

1/     This written statement has been prepared in cooperation with the Good Offices Group of European Lawmakers and its research branch, CORUM (P0B 2580, 1211, Geneva 2). Its editor, J.A.Keller, is alone responsible for eventual errors and omissions. He wishes to express his gratitude for the assistance and numerous services provided by the United Nations Office in Geneva, by the director of the United Nations Geneva Library and by the League of Nations archivist and their staff.

2/     Private communication to the Secretary of the Good Offices Group of European Lawmakers (POB 2580, 1211, Geneva 2) by the then-Iraqi Chargé d'affaires in Geneva. This state of affairs may in particular reflect the spreading awareness of the legal difficulties awaiting any Iraqi Government wishing to export oil from the Mosul Vilayet (Northern Iraq which, in 1925, was only conditionally attached to the Kingdom of Iraq). Such risks might be avoided through negotiations. In the absence of corresponding agreements with the original Arab, Armenian, Assyrian, Kurdish and Turkoman landowners concerned, the latter might find effective judicial protection of their property rights through coercive enforcement measures wherever Iraqi oil will eventually be exported to - simply by invoking said Iraqi Declaration of 1932 (arts. 14 and 16).

GE.94-12011  (E)

COMMISSION ON HUMAN RIGHTS
Fifty-first session
Agenda item 12

1.          The International Committee for European Security and Cooperation traditionally has availed its good offices for the analysis, debate on and eventual resolution of conflicts of an international character, particularly those involving or eventually affecting European interests. When its governing body decided to concentrate its energies on the political, ethnic and religious problems of the area some called Kurdistan, while others refered to it as South-Eastern Turkey, Mosul Vilayet or Northern Iraq, it had not only looked at this area in terms of Europe's strategic oil interests. For this cross road of commercial and cultural exchanges between East and West was also known as the craddle of civilization, as the birth area of major religions. And the further its research and consultations progressed and penetrated the surface of this world of 1001 nights, the more the researchers found themselves confronted with a multitude of gross human rights violations. But the more they also learned to appreciate the history of this area and of its peoples as a source of inspiration for addressing, with a better vision, some contemporary human rights, economic and political problems which had festered and poisened the atmosphere for decades in that and other trouble spots of the world.

2.          Through direct testimonies, the I.C.E.S.C. had become concerned about what appeared as a persistent pattern of gross violations of human rights in Iraq. This included violations of Iraq's constitutive minority protection and other international obligations. If Iraq was to retain its independence and continued existence as a sovereign State, there was no way around strict and unbroken observation of these permanent obligations. Iraq chose to ignore this. Its leaders had their chance. Yet they hardly ever missed an opportunity to demonstrate their capacity for excesses. They failed too many of their fundamental obligations for too long. They failed them dishonorably. And the family of nations owed it to itself to draw the proper conclusions.

3.          One of the lessons of this failed experience was that if minority protection guarantees were to be reliable and to help resolve actual or future political trouble spots anywhere in the world, the beneficiaries of such guarantees should be given tangible instruments in order to effectively communicate related problems to the guaranteeing powers and obtain prompt redress. As repeatedly suggested by the Special Rapporteur on the Situation of Human Rights in Iraq, the answer might be Human Rights monitors. Duly nominated by the people concerned, these monitors would not only provide a permanent check on Iraq's application of the post-Second World War humanitarian instruments, but they would also help enforce Iraq's comprehensive and still binding international minority protection obligations of 1932 which - as the I.C.E.S.C Representatives repeatedly had pointed out in their statements to the Commission - Iraq incurred as a permanently valid sine qua non condition for its independence and continued existence as a sovereign State.

4.          It was also important to note that Iraq's violations of its fundamental international obligations were neither new nor neglectable or any further tolerable. They went back to the very beginning of this artificially created State which was carved out of the debris of the Ottoman Empire. Indeed, genocidal practices were carried out against Assyrians in 1933, i.e. only one year after Iraq gained its independence. Most of the Kurdish Jews were driven out of Iraq after 1948. On the background of the Algiers Agreement of March 1975, genocidal practices were started in 1975 against the Yezidi as a religious Kurdish minority. As the Special Rapporteur had indicated in his report E/CN.4/1993/45 (paras 89-126), the genocidal practices against the Kurds as a whole had come to a peak in 1988 with the infamous Anfal program involving the destruction of over 4000 villages, including poison gas attacks against some Kurdish villages.

5.          Furthermore, first-hand information obtained by the I.C.E.S.C. indicated that some 300000 Yezidi were still being kept in 7 concentration camps. Reportedly, the decision had already been taken to forcefully dislocate them to God knows where - as soon as the UN embargo will be lifted (as part of the Anfal program, some 180000 other Kurds purportedly were also forcefully moved "South" and were never heard of again; see the annexed list of wantonly distroyed Yezidi villages, as compared to the two Yezidi villages Iraqi diplomats cared to admit to still exist).

6.          And, of course, the conditions of attachment had never been met under which the League of Nations attributed the Mosul Vilayet in 1926 to the then still dependent Kingdom of Iraq rather than to Turkey. In fact, for the inhabitants of the Mosul Vilayet, the human rights situation had continually and gravely deteriorated ever since. The conditions for corresponding external intervention on humanitarian grounds clearly were spelled out as any "infraction or danger of infraction" of Iraq's internationally guaranteed minority protection obligations. On the background of the Special Rapporteur's already ten voluminous reports on human rights violations by Iraqi agents, the conclusion was inescapable that these conditions had long been fulfilled.

7.          To the surprise of nobody then, none of the numerous UN resolutions on the human rights situation in Iraq really had made a dent on the behavior of the regime in place. As a justification for its abhorrent practice of mutilations, the Iraqi Government stated in its reply of 19 January 1995 (E/CN.4/1995/138, p.8) that "the severest punishment of the death penalty was no longer adequate or a deterrent" and that some of these new punishments, "such as the amputation of a hand, are an application of Islamic law". It was doubtful that outside Iraq many Muslim wished to be seen to be associated with such a reading or interpretation of the Holy Koran, and even though there were not too many clear voices to object, no Islamic scholar or religious leader was known to have felt comfortably about the fact that the Baa'thist regime of Iraq continuously abused the Islamic religion and its tenets in order to prolong the political survival of some criminal and bankrupt leaders.

8.          What's more, and regardless where such atrocities occured, the torture and mutilation of children marked a low point of civilization. The testimonies that were pouring in showed ears and even a nose of a child cut off by Iraqi agents. The I.C.E.S.C. had participated in a programm providing for some of these children to come to Geneva for testimony before this UN Commission. The case against the rogue regime of Baghdad had become such that a line had to be drawn by this Commission if it wanted to remain useful, credible and to serve as a deterrent against such human aberrations. To these effects, the I.C.E.S.C. shared the recommendations which the Good Offices Group of European Lawmakers had previously addressed to the governments concerned and to those interested in prompt and effective changes of the human rights situation in Iraq.

9.          The Commission on Human Rights was thus called upon to take note of the international minority protection obligations which Iraq solemnly entered into with its Declaration of 30 May 1932 (E/CN.4/367; E/CN.4/Sub.2/1992/NGO/27), providing, a.o.,

a)     that "Full and complete protection of life and liberty will be assured to all inhabitants of Iraq without distinction of birth, nationality, language, race or religion",

b)     that these and other minority protection stipulations "constitute obligations of international concern and will be placed under the guarantee of the League of Nations",

c)     that Iraq may not alter or abrogate them unilaterally, and

d)     that in case of "infraction or danger of infraction" of any of these international minority protection guarantees, the United Nations General Assembly, in line with its Resolution 24 (I) of 12 February 1946 as the legal successor of the League of Nations, may now "take such measures and give such directions as it may deem proper and effective in the circumstances".

10.          Accordingly, the interested governments were in a position to take appropriate actions, e.g. by way of the Commission

a)     inviting its Special Rapporteur and the General Assembly to consider the matter of gross violations of human rights in Iraq also in light of the rights and obligations the United Nations inherited from the League of Nations as the guarantor of the religious and other minority protection rights bestowed notably on the Assyrians, Kurds and Turkomans of the Mosul Vilayet, and to take urgently effective corrective measures and to give such directions as it may deem proper and effective in the circumstances;

b)     recommending that the General Assembly request, on an urgent basis, an Advisory Opinion of the International Court of Justice on whether or not Iraq is still bound by the constitutive Declaration of the Kingdom of Iraq of 30 May 1932 and, in the event at the earliest opportunity, to attribute to the United Nations Trusteeship Council, or to another suitable United Nations body, the corresponding powers and functions referred to in its Resolution 24 (I) of 12 February 1946, i.e. those powers providing for the effective enforcement of said international obligations in those territories over which - in international law - Iraq never acquired full sovereignty, particularly in the Mosul Vilayet whose conditional attachment to Iraq may thus promptly be revoked, reversed or otherwise changed with appropriate unprejudicial interim measures (E/CN.4/1994/NGO/48), in accordance with the legitimate interests and aspirations of the peoples concerned, and in line with the applicable rights and UN Charter provisions; and

c)     inviting the General Assembly and other involved United Nations bodies to take into consideration and enforce the existing and future international minority protection obligations as contributing instruments for security, stability and rehabilitation in the Near East and other parts of the world (E/CN.4/Sub.2/1993/NGO/27; E/CN.4/Sub.2/1993/NGO/29; E/CN.4/1994/NGO/54), and to provide for direct contacts between the involved United Nations bodies and Special Representatives which are duly appointed by the beneficiaries of these international human rights guarantees.
 

ANNEX

Following the Algiers Agreement of 1975, the Iraqi Government carried out what amounts to a predecessor to its notoriously genocidal Anfal program which the Special Repporteur on the Situation of Human Rights in Iraq has documented in his 1993 report (E/CN.4/1993/45, paras 89-126). It thus destroyed between July and December 1975 the following Yezidi villages and rounded up, confined and held ever since under quarantine some 300'000 Yezidi inhabitants in seven concentration camps situated near their ancestral villages (2) in the Shingal (Mosul) area.

Bakran, Barane, Borig, Depa, Duhole, Fayada, Ganne, Gatre, Girr-e-Araba, Girr-e-Gaure, Girr-e-Jame, Girr-e-Zirhe, Girr Zarik, Gund-e Fakira, Gund-e Jaffriya, Gund-e Khifsha, Gund-e Khinne, Gund-e Miskova, Gund-e-Pir Majdin, Gund-e Sheikh Baehri, Gund-e Sheikh Beshar, Guh-bel, Gund-e Hamde, Sheikh Halaf, Gund-e Hauweria, Gund-e Khidr Zohro, Gund-e Sheikh Khidr, Gund-e-Shune, Gund-ke-Ali Sorhe, Gund-ke Kushna, Halike, Hamadan, Karse, Khana Sor, Khane Shifra, Kolkan, Koyso Kecik, Kullakhan, Mamise Nakhsha Auty, Naniria, Nuhre, Oyse, Peelon, Rashd, Servar, Shenanik, Shkafta, Sikkenie, Simoka, Sinune, Sorka, Teraf, Tirbika, Usifa, Utjajime

Yezidi villages which still exist but are "Arabicized"

Ain Serni, Ba'adra, Bait Nar, Beristak, Bosa, Chorisa, Gabara, Issia, Jarachiya, Kandala, Karsafra, Mahmuda, Makubla (greater), Makubla (little), Mam Rasha, Nasiriya, Neiltshapa, Sheichan, Sheikhka, Taftiya
 

NOTES

(1)     Reflecting the mandate given by the Constitutive General Assembly of the Mosul Vilayet with its "Declaration of Separation from Iraq" of 20 October 1992, this paper was prepared in cooperation with the Good Offices Group of European Lawmakers and its research branch, CORUM (POB 2580, 1211 Geneva 2), with the participation notably of B. and D.Baghistani, M.Best, D.Hariri, P.Keller, S.Keller, D.Kreuter Grant, P.Martin, D.Morrow-Patty, R.J.Parsons, A.Poulin, P.Querio, F.Ruiz, W.Simon, W.Spalding, C.Vieira dos Santos and P.Wainwright. The editor, J.A.Keller, was alone responsible for eventual errors and omissions. He wished to express his gratitude for the assistance and numerous services provided by the United Nations Office in Geneva, by the director of the United Nations Geneva Library and by the League of Nations archivist and their staff.

(2)     1. Al Uruba (original Kurdish name: Sorava); 2. Al Andalusa (Guh-bel); 3. Al Yarmuk (Burg); 4. Al Kadisa (Duhule); 5. Hut-tin (Dugirke); 6. Nahia; 7. Al Tamim (Khana Sor).

**     This document is issued as received from the organization concerned.

GE.95-12405

COMMISSION ON HUMAN RIGHTS
Subcommission on Prevention of Discrimination
and Protection of Minorities
Forty-seventh session, Agenda item 6
...

1.   The International Committee for European Security and Cooperation, traditionally, refrains from taking side in conflicts, particularly in the non-European parts of the world.  Instead, it seeks to respond to corresponding suggestions by promoting among the parties concerned a better understanding of the often forgotten roots of a given conflict, and to offer its good offices and related research, analysis and communication services in particular (E/CN.4/1995/NGO/47; E/CN.4/1995/NGO/51; E/CN.4/1995/NGO/52).  In this sense, the present paper focuses on Kashmir the territorial dispute over which has been the subject of close attention by the Security Council and other UN bodies.  And though the hostage situation there may be "resolved" one way or another by the time of publication of this paper, an objective account of the publicly available information may still be helpful for effectively addressing the issues involved, including those which are seen to have given rise to said abduction of 5 European and American nationals on a trekking trip in Kashmir and to similar but less publicized hostage-takings.

2.   Hostage-takings anywhere by anybody - be it an ordinary criminal, a guerilla group or government agents - are cowerdly and most reprehensible acts which cannot be tolerated by any responsible authority, nor must they be belittled or encouraged by those involved in efforts to fight human rights abuses by the authorities in place.  Perhaps in each case which hits the front pages we, the citizens, as the sovereigns of our societies, are predictably - and self-damagingly and dangerously so - not enough outraged, determined and capable to act on the level of the problem.  For our senses have become numb to such aggressions due to non-violent but no less real routine hostage-takings by striking employees of airlines, marine companies and other providers of public services.  This being said, and thus without in any way encouraging the degrading practice of hostage-takings, there appears to be no harm to try to shed light on the causes of such actions of dispair, to listen particularly to weak voices trying to communicate related grievances, and to seek ways and means to effectively alleviate them also by helping to re-establish the manifestly broken-down communication channels of the involved competing social and political forces.  In this sense, a closer look at the case at hand may offer insights and indicate possible pathways which may also be useful in other situations.  The I.C.E.S.C. has not yet received responses to all of its related communications; it thus presents, with all due reservations, the following personal account by a close Indian observer of the scene:

3.   "On the background of almost half a century of festering wounds inflicted on the Kashmir people after Britain withdrew from the Subasian continent, guerillas appeared in the Kashmir Valley in early 1990 in the wake of the retreat of Soviet forces from Afghanistan.  They stirred up the religious situation and caused public disorder.  They destabilised the local government, weakened the law enforcement machinery, and thus gave rise to an exodus of most of the ethno-religious minorities.  In response, the central authorities brought in security forces.  A climate of general uncertainty and fear descended upon the land and its people and human rights violations became rampant."

4.   "Kashmir is an attraction for naturalists, tourists and trekkers.  While trekking in the mountains of South Kashmir (Indian part), 4 Europeans and 2 Americans were kidnapped around 4 July 1995 by a group of armed men.  The names of the hostages are Paul Well and Keith Monigam (Britons), Donald Freid and John Childs (Americans), Dirk Hesert (German) and Hans Christian Ostro (Norwegian).  John Childs somehow managed to escape and was saved when an Indian helicopter spotted him over the barren mountains and picked him up."

5.   "In his subsequent statement, Mr. Childs said that there were 16 persons - 12 from the Pakistani part of Kashmir - 2 from Afghanistan, and 2 local Kashmiris acting as guides.  He specified that the kidnappers carried sophisticated weapons and communications equipment."

6.   "A hitherto undeclared militant group calling itself Al-Faran claimed responsibility for this kidnapping in a statement written.  In subsequent oral communications with the State authorities the kidnappers' spokesman spoke with a Pushtu accent (which is not spoken in the Kashmir Valley).  Al-Farhan demanded the release of 21 militants arrested by the Indian security forces in the course of their operations.  Among those demanded to be released were 3 top activists of groups based outside the Indian part of Kashmir, namely Masood Azhar of Kousar Spoty in Bhawalpur, Pakistan,  Sajjad Khan, chief of Harakatul Mujahideen of Rawalakot (Pakistani part of Kashmir), and the chief of Harakat-e-Jehad-e-Islami.  The latter two groups had merged to form Harakatul-Ansar, which has been listed as a terrorist group by the U.S. State Department."

7.   "These kidnappings took place soon after the U.S. Ambassador to India, H.E. Frank Wisner, had paid a visit to Kashmir and met with leading dissident leaders.  Nevertheless, one dissident group, namely Jamiat-ul-Mujahideen, issued a statement saying that Kashmiris expected nothing from the Americans."

8.   "One Indian newspaper, The Tribune of 23 July 1995, reported that the abductors had forced the hostages to march over some difficult mountain terrain, and that they were beaten up and suffered minor injuries when, due to their being exhausted, they balked at going any further.  Meanwhile, Indian authorities denied that any armed clashes took place between the security forces and the kidnappers."

9.   "The United States called upon the Al-Faran group to release all the captives unharmed.  Both the U.S. and the United Kingdom urged the chief of the Islamabad-based Jamiat-e-Ulema to use his influence and good offices with Harakatul-Ansar for the release of the captives.  Similar appeals were made by the Pakistani Prime Minister, the Organisation of Islamic Countries, and other organizations and personalities. In exchange for a prompt and unharmed release of the hostages, I.C.E.S.C. offered to sponsor a duly nominated representative so that the grievances which lead to the hostage-takings may be heard directly at the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities.  The Indian government demonstrated considerable restraint in not storming the hideout of the kidnappers so as not to endanger the lives of the hostages.  Representatives of the American and the British embassies in New Delhi were moved to Srinagar to negotiate the release of their own and of the other nationals."

11.  The Commission on Human Rights has repeatedly heard testimonies about the growing desert in the knowledge and application of the international humanitarian law, of the human rights conventions and of the thus-enshrined unequivocal prohibition and condemnation of the practice of hostage-takings, be it by private persons, state agents or those under the latters' control.  These practices have been recognized as gross violations of human rights and fundamental freedoms.  The practice of blackmailing the legal authorities into releasing duly arrested persons violates the human rights of both the kidnapped persons and of those who were to be protected against further rights abuses by the arrested persons in question.  It undermines the Rule of Law at a time of increasing social, economic and political instability, unrest and even upheavals, i.e. when respect for the related principles are more than ever called for lest the ships of states further loose their stability, orientation and sense of purpose.

12.  I.C.E.S.C. invites the Subcommission and all in a position to be of help to take note of this state of affairs and to assist in every possible way not only in the prompt, principled and hostage-friendly resolution of the cases concerned, but also in making them less likely through securing the channels of communication to all those who consider themselves deprived of human rights and fundamental freedoms and have a story to tell to the world.  I.C.E.S.C. intends to continue to avail its good offices to that effect - as its token contribution to increased respect for human rights and fundamental freedoms, to improvement of living conditions, and towards strengthened peace and security in any part of the world.

1.     Following the suggestion made by the Representative of Nicaragua to consider migrant workers as a minority which should be covered by the Working Group, the speaker expressed the view that this growingly important issue deserves a more suitable framework for debate - lest the achievements in the domain of minority protection risk to be further diluted.

2.     The speaker pointed to the evolution of the term minorities since the 1st World War. Then, in the wake of the break-up of the Ottoman Empire in particular, borders were redrawn radically over much of Europe and the Near East, and many constituant parts of national, religious and linguistic entities thus found themselves forcibly confronted with new frameworks, legal systems and neighbors.

3.     In order to accomodate, appease and secure these newly created and isolated and thus - if not physically, then socially and politically - uprooted and destabilized groups and minorities, the complement of the Versailles Treaty of 1919, ie. the League of Nations, provided for corresponding international minority protection obligations which were placed under the surveillance and guarantee of the international community. Indeed, much of the League of Nations’ work concerned minorities. And though that attempt to organize the business of the family of nations and to harness the forces of its members towards peaceful ends failed, this failure, by most accounts, occurred not because but despite of the League’s relatively succesful minority protection mechanism and work. At any rate, the speaker was of the opinion that there were still lessons to be learned from that experience, and he expressed the hope that after 47 years of the Sub-Commission’s existence, this newly created Working Group will finally be able to effectively address the issues related to minorities à fond and in a constructive and mutually beneficial way.

4.     The Sub-Commission’s Special Rapporteur, Francesco Capotorti, had amply demonstrated in his excellent report on minorities of 1977 (UN Sales Nr. E.91.XIV.2) that after the 2nd World War, for "at least 20 years, ... the question of international protection of minorities was no longer topical. The system of protection built up under the League of Nations had collapsed with the demise of that organization, and the Universal Declaration of Human Rights adopted in 1948 by the General Assembly of the United Nations did not mention the question of the treatment of persons belonging to ethnic, religious or linguistic minorities. Moreover, the emphasis placed in the international legal order on the imperative need to ensure respect for basic human rights seemed to imply that it was no longer necessary to protect in any special way the interests of minority groups or, more specifically, of individuals belonging to such groups." (p.ii).

5.     Indeed, as was pointed out in the UN Secretariat’s "Study on the Legal Validity of the Undertakings Concerning Minorities" of 1950 (E/CN.4/367), the United Nations Charter focused on and "recognized a new concept which did not appear in the Covenant of the League of Nations, the concept of human rights and non-discrimination. The protection of human rights is a substantial element in the protection of minorities. The obligations regarding the protection of minorities provided that minority groups should enjoy personal and civil liberties, in fact what has been termed human rights, and that they should not be subjected to discriminatory measures as compared with other elements of the population." "Consequently, might it not be said that the United Nations Charter, by adopting the concept of human rights, which to a large extent coincides with the idea of the protection of minorities, intended to substitute the former concept for the latter and thus implicitly abrogated the special obligations regarding the protection of minorities?" The authors of said authoritative study answered themselves by saying: "The question might be answered in the negative ..." (p.19).

6.     Nevertheless, in the opinion of the speaker, a dilution of the term minority had indeed occured, and the special rights and protective measures which were granted to specific groups had suffered accordingly. With the re-emergence of wide-spread identity problems in the form of ethnic, religious and linguistic tensions as telltale signs of inadequately organized or goverened, unstable and potentially explosive societies, effective and trust-worthy minority protection tools involving international guarantees are more than ever called for. The trend towards ever more diluted and ever less enforced rights must be reversed and not favored, as would be the case if minority status were extended to refugees, asylum seekers, frontaliers, migrant workers, etc. To these effects, the speaker recommended to the Working Group to see to it that corresponding opportunities not be missed.

7.     In his second intervention, the speaker reflected on the references made by Professor Cherenenko to the minority protection régime of the League of Nations, on the opportunity indicated by others for the Working Group to develop its work with a foreward-looking yet historical perspective, and on the issue pointed out by Professor Ali Khan concerning the continued validity of minority protection obligations incurred by States in light of the 1992 Minority Rights Declaration and of possible actions and inactions taken by the Working Group.

8.     The speaker was of the opinion that said Declaration, which was brought into focus by the mandate given to the Working Group, should not be construed as a limiting factor for the Working Group's attention, neither timewise, nor as regards minority protection obligations entered into by States outside the framework of the United Nations. The President had previously expressed a similar view and declared himself open to look at the experiences gained with the League of Nations minority protection system; he expressed particularly interest for information to be provided to the Working Group on three points:

a)     Which, if any, of the minority protection obligations incurred in relation with the League of Nations are still valid in international law?

b)     What is at present the status of the related review, surveillance and enforcement powers and functions which were attributed to the League of Nations and its Permanent Court of International Justice in relation to the United Nations system?

c)     What are possible pathways for what related actions towards what objective?

9.     Indeed, article 8 of the 1992 Declaration stipulates unmistakably:
     "Nothing in the present Declaration shall prevent the fulfilment of international obligations of States in relation to persons belonging to minorities. In particular, States shall fulfil in good faith the obligations and commitments they have assumed under international treaties and agreements to which they are parties."

10.     Furthermore, the International Court of Justice, in its Advisory Opinion on the South African mandate of June 1950, expressed the opinion:

     "These obligations represent the very essence of the sacred trust of civilization. Their raison d'être and original object remain. Since their fulfilment did not depend on the existence of the League of Nations, they could not be brought to an end merely because this supervisory organ [i.e. the Council of the League of Nations] ceased to exist. Nor could the right of the population to have the Territory administered in accordance with these rules depend thereon." (I.C.J. Reports 1950, p.133)

12.     In this light, the speaker drew attention to the cases of the minority protection regimes of the Baltic States, former Yugoslavia and Iraq, all of which were concluded in relation with the League of Nations and seemed not only to have remained in force but, as detailed in the written statements submitted to the Sub-Commission, may provide effective answers to current and future minority problems (E/CN.4/Sub.2/1992/NGO/27; E/CN.4/Sub.2/1993/NGO/27; E/CN.4/Sub.2/1993/NGO/29; E/CN.4/1994/NGO/48; E/CN.4/1994/NGO/54; E/CN.4/1995/NGO/47; E/CN.4/1995/NGO/51; E/CN.4/1995/NGO/52). He pointed out that the widely quoted conclusion of the UN Secretariat's 1950 study (E/CN.4/367) was a general statement and concerned only the League of Nations' minority protection regime as a whole, but was not meant to and did not provide a generally valid assessment of the eventual continued validity, in international law, of each and every minority protection obligation entered into by States in relation with the League of Nations. In fact, the substantive part of this study concluded in almost all cases that the circumstances were not radically changed, thus leaving the obligations intact. In the case of Iraq, the study concludes:

  "1.     As regards ordinary causes of extinction of obligations, since Iraq was bound by a Declaration made before the Council of the League of Nations, the dissolution of the latter suspended the obligation, which would return into force only if the United Nations decided to take the place of the League of Nations.
   2.     As regards change of circumstances, there seems to be no special circumstance affecting the position of Iraq."

14.     Accordingly, the speaker underlined that in the above-mentioned cases at least, the UN Secretariat's authoritative 1950 study came to positive and thus highly interesting conclusions which, of course, required to be reviewed anew particularly in light of developments which occurred since then (e.g. the successor state problems are particularly acute and challenging in the cases of the Baltic States and the former Yugoslavia). He expressed the view that the Working Group, too could benefit in many ways if it invested its scarce resources also into efforts to avoid reinventing the wheel by seeking inspiration from these extremely valuable, for life-size minority protection experiences and, in the event, to seek to transfer, adapt and complement the League of Nations mechanisms and methods to present circumstances in and outside of the United Nations system.
E/CN.4/1995/NGO/47
15.     Concretely, this may involve the re-enrootment, re-enactment and development of international minority protection guarantees. And it may require the creation of a new type of human rights minitors who, upon nomination by the beneficiaries of these guarantees, would be put into office by the guaranteeing body or powers with the mandate to see to it that the guarantees in question are being observed on every level and that the beneficiaries of these guarantees have a direct means of communication with the guarantor(s) through his good offices. As such, these and other ideas might be developed into effective tools of diplomacy for getting the leaders of abused minorities to be able to consent to political solutions which otherwise might not be accessible with peaceful means.
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