The debate on the conditions of religious minorities in contemporary societies is more interesting due to the consideration of the 72nd anniversary of the Universal Declaration of Human Rights but unfortunately, it is still not adequately exercised by many signatory states. The striking example of the fact is ongoing religious intolerance by India towards the detrimental Islamic communities of Kashmir.
UN declaration entailed to respect human rights and fundamental freedoms but did not go beyond that and the universal declaration mainly focused on individual level. In this sense, the UN declaration only shapes the same approach of other western declaration on human rights, and in particular, the Declaration of the Rights of Man and of the Citizen propagated in France in 1789 and 1793, and the American Declaration of Independence on 1776. In all these historical antecedents – founded on different occasions and antithetical to tyranny – the existence of human rights were guaranteed within a specific state model. Similarly, the Declaration was proclaimed to reaffirm the inalienability of the rights of every individual in the face of the barbarism and orders of the Second World War. This purpose deprived the Declaration of its juridical immediacy, giving it a character of moral commitment, which could at most inspire national legislation without being assisted by any judicial effectiveness. Consequently, the declaration based on the centrality of the relationship between the individual and the state of origin. Although it seems evident today, that on the contrary, human rights are prior to the state legal systems.
As underlined about the rights to Religious Freedom by the best Italian ecclesiastical Doctrine; according to which the juridical organization of society is certainly subsequent to this rising other religious problems, and that the religious aspects at least in the human dimension are certainly prior to politics. It is understandable that the acceptance of such an approach is reflected in the fact that the United Nations declaration does not pay attention to the issue of minorities and to the affirmation of some rights, including the right to the self-determination of people. In addition, the convention for the protection of Human Rights and fundamental freedoms adopted by the Council of Europe in 1950 uses the term minority on one occasion and with the restricted meaning of national minority without referring to the principle of self-determination of people. In fact, all these International conventions subtend the Western vision of the relationship between public power and communities, completely incompatible with the formation of a right of a single community to its own self-determination.
We have to remember that in the historical level in the western world, the hand of Christian unity determines the management of multi-religiousness after the protests and Schism and by the failure of European project or ‘respublica christiana’. This has been entrusted to the political principle of tolerance. In fact, after the birth of the first formal nation-state, the peaceful coexistence of several religious communities within a state legal system is guaranteed by the principle of tolerance in Europe. According to the Harvard Institute, in 1848 the non-Catholic cults were simply tolerated in accordance with the laws of Republican Constitution, and then by the Article 1 of the constitution of the Kingdom of Italy. Only recently in Western Democratic systems, the new problems of a social political and juridical nature drives from migratory phenomenon from the multicultural and multi-religious contemporary societies. It prompts a transformation of the principle of tolerance from a political principle in a juridical principle, which is concretize today in the affirmation and recognition of a real right to difference.
These considerations mark the distance that exists between the traditional Western model of relations between public authorities and religious communities with respect to the eastern and more precisely Islamic vision of these systems or relations. Differences that motivated are the refusal of the some Islamic countries to sign the United Nations declaration in 1948, on the basis of the failure to provide for the right of self-determination of people and the affirmation of the conception of the right to Religious Freedom in which the profile of religious personalities were too much accentuated in line with colonial ideologies.
On the other hand, classical Islamic law is based on an ontological pluralistic conception of the legal model with the Muslim State as a political social aggregate characterized by the protection of specific religious freedoms. In which, those groups that in western vision would not hesitate to define a pejorative sense minorities in Islamic context become in effect protected communities. That is the protection path signed between whom Islamiyah and non-Muslims which provides for the recognition of confessional freedom and juridical autonomy. The federative constitutional model outlined by the charter of Medina is therefore the archetype aimed at guaranteeing the political unity of the Islamic community and unifying element is identified preciously in the fundamental and founding principle of freedom and confessional autonomy of non-Muslim communities. It is no coincidence that this have also concretely contributed to the drafting of International Covenant on Civil and Political Rights of 1966, which seeks greater attention for the right to the self-determination of people –as explicitly stated in articles 1 and 3.
Presently, the Declaration of Marrakesh further enhanced the protection of the identity of minorities, which bases on the recovery of the original Islamic state archetype indicated by the Medina Charter. It was looked for the development of a concept of citizenship inclusive of the various religious and cultural groups. In respect to which it is necessary to assure the protection of rights and our freedoms.
Although the 1966 International pacts expressly state the obligation of signatory states to guarantee members of minorities the full exercise of the cultural, religious and linguistic rights, the vulnerability of religious minorities is still a fact today.
For various reasons, we have to underline that minorities are still exposed to attacks from the state and from various private entities and organizations involved for various reason in the conflicts that blooded many countries.
The technological development of contemporary society is not in fact the determinant of overall improvement in the condition of minorities, which on the contrary may be subject compared to the past to farther new forms of discrimination and persecution. Also in consideration of the dependence of modern digital technologies for the concrete exercise of fundamental rights, including the right to access information and in time of pandemic also the right to religious freedom too. Beyond the regional system of protection of Human Rights, the legal instruments available to the International Community for the protection of minority rights are still not enough to protect minorities and are essentially tools. The prosecution before the international criminal court of the crime of genocide and operation represents the first tool however, not without difficulties due to the limits imposed by the same criminal case. Fewer obstacles are in encountered instead with the reference to the crime of persecution, which is most recently defined by the article 7 of the state of the international criminal court consisted international and severe deprivation of fundamental rights contrary to international law and committed by reason of identity of a particular group or Community. Also true, nonviolent or coercive means but capable of producing which affect a serious dementia in the enjoyment of fundamental rights.
To this case, it is therefore also possible to repress a simple discriminatory conduct such as the limitation of access to the work by group members, as well as restriction in economical or judicial field. In fact for the purposes of the confusability of the crime is crucial above all the criterion of identifiability of the religious group as the effective target for violating liberal killing or discriminatory measures. This construction is the factor advantage of allowing both government restrictions and acts of facility, systematically perpetuated by private group and organizations against particular communities to be contemplated as per secondary conducts. From a legal point of view, therefore the most recent doctrinally prudential evolution of the crime of religious persecution allows us to believe that the government restriction in the phenomena of intolerance perpetrated to the detriment of communities settled in Kashmir and Jammu are abstractly framed in the crime of persecution.
Moreover, these abuses were made possible through prior modification of the Indian constitution and the subsequent adoption of various measures directed to repress the expression of descent including the closure of the internet and telephone networks as well as the arbitrary detention of journalists, activists and politicians. The situation has father worse than the last year, in fact, the covid-19 pandemic representing the propitious opportunity to justify the adoption of factor and new government restriction of minorities and in particular on the Islamic communities of Kashmir in Jammu. In addition to all the other serious restriction already imposed by the Indian government, the only mobile network available in Kashmir at the moment in the midst of a pandemic is the 2G network.
In conclusion, the persecution suffered by the Kashmiri, both in the form of government restriction of fundamental freedoms, freedom of religion and communication, and violent episodes of deprivation of personal freedom certainly aggravate the situation. It is a crime against humanity and discriminatory to the fundamental human rights and international customary or treaty law.