A question asked by All India Anna Dravida Munnetra Kazhagam’s Vijila Sathyananth in the Rajya Sabha last week was muddled, showing how easily – and perhaps deliberately – the matter of refugees is mixed up with illegal migration.
The three-part question asked whether the government was “working on identifying Rohingya Muslims who have entered the country from Myanmar over the past five to seven years”, whether the Rohingya “have been staying illegally in various pockets in the country”, and “whether it is also a fact that there are over 40,000 Rohingyas who had fled their homes in Myanmar’s Rakhine State and crossed to India to take refuge here”.
The response, by Minister of State for Home Kiren Rijiju, did little to clarify the conceptual confusion. Instead, the minister appears to have taken the opportunity to amplify the rhetoric against the Rohingya, a beleaguered community with no country to call its own. “As far as we are concerned they are all illegal immigrants,” Rijiju said in an interview later. “They have no basis to live here. Anybody who is an illegal migrant will be deported.” Responding to another question, he said state governments had been instructed to constitute task forces at district levels to identify and deport “the illegally staying foreign nationals”. The “issue of illegal immigration” was also being discussed bilaterally with neighbouring countries, he added.
Fitting the definition
The Rohingya fit the definition of refugees as set out in the United Nations Convention on the Status of Refugees: people forced to flee their country because of “a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group”. The Office of the United Nations High Commissioner for Refugees reports that more than 1,68,000 Rohingya have fled Myanmar following a “security crackdown” in Rakhine. The Rohingya consider themselves indigenous citizens of Myanmar, but the country claims they are from neighbouring Bangladesh. Ethnic-religious tensions between the majority Buddhists and the Muslim Rohingya have resulted in violence, including looting, house burning and sexual violence.
The core principle of the Refugee Convention is non-refoulement, which asserts that refugees should not be returned to a country where they face serious threats to life or freedom. India is not a signatory to the convention, as Rijiju pointed out. However, the principle of non-refoulement, now considered a rule of customary international law, is binding on all states whether they have signed the convention or not.
Rijiju should also have consulted the Ministry of External Affairs before submitting his reply – examining the Government of India’s officially stated positions on refugees was clearly not part of his homework.
“People seeking shelter in India have never been turned back,” India said in a statement to the Third Committee of the General Assembly in November 2016. “We have time and again demonstrated our abiding commitment to the principles of protection of all those who seek shelter.”
India has consistently delivered statements emphasising the plight of refugees in various global conflict and crisis situations, and even cautioned against “diluting the principle of non-refoulement”. It has also regularly reiterated its “commitment on protection of refugees and cooperation with the UNHCR in discharging its core mandate and responsibilities”. The UNHCR refers to the office of the UN High Commissioner on Refugees.
Since 1995, India has been member of the UNHCR’s Executive Committee, which reviews and approves the agency’s programmes and budget, and addresses all issues relating to international protection.
Any move towards refoulement of the Rohingya refugees would not only violate the Refugee Convention and customary international law, it would also raise serious concerns about the legitimacy of India’s membership of the executive committee.
Meanwhile, refugees belonging to the “most persecuted minority” in the world are attempting to cling to survival and dignity in countries where they have sought shelter. Bangladesh has hosted Rohingya refugees for decades, but newer arrivals face significant challenges – they are housed in two overcrowded camps in unsanitary conditions and have limited employment options.
The Rohingya have also undertaken dangerous sea voyages, hoping to find refuge in Malaysia, Thailand and Indonesia. According to the UNHCR, between 2012 and 2015, an estimated 1,12,500 of them risked their lives on human traffickers’ boats in the Bay of Bengal and the Andaman Sea. When these countries cracked down, the traffickers reportedly abandoned their human cargo. The boats were then intercepted and towed out to sea by the navies of the three countries in what the International Organization for Migration has termed a case of “maritime ping-pong”.
Rohingya in India
In India, some 16,500 Rohingya are registered with the UNHCR, and are spread across Jammu, Hyderabad, Delhi, Rajasthan and Haryana. The UN agency issues identity cards to registered refugees and documents to asylum-seekers to help prevent arbitrary arrests, detention and deportation. The authorities also issue Long Term Visas to refugees to ease their access to public services, bank accounts and employment in the private sector.
According to the UNHCR, because of recent changes to documentation processes, some refugees have reportedly been facing challenges in accessing public services and opening bank accounts with their existing documentation. “It is important for refugees to become self-reliant and have access to employment and basic services,” the agency said. It has asked that Long Term Visas and refugee cards continue to be recognised by the authorities so that refugees can access services.
The situation in Rakhine state, meanwhile, shows no signs of improvement. Earlier this year, Myanmar’s government refused to cooperate with a UN fact-finding mission appointed to investigate allegations of ethnic cleansing and human rights abuses in the country. Last month, concluding a 12-day visit to Myanmar, UN Special Rapporteur Yanghee Lee stated in no uncertain terms that the policies of the administration led by Nobel Peace Laureate Aung San Suu Kyi were no different from those of the previous military government. Lee’s report catalogued “incidents of Rohingya being targeted for applying to be verified as citizens, as well as village administrators and other Muslims targeted for being ‘collaborators’ for working with the authorities – leaving many Rohingya civilians terrified, and often caught between violence on both sides”.
Media reports this week indicated that Suu Kyi’s government has despatched hundreds of troops to Rakhine, raising fears of more instability and violence, including human rights violations by the military. Several countries have pressed Myanmar to address the crisis. Last month, the United States asked that the UN fact-finding mission be allowed to carry out its work. The Organisation of Islamic Cooperation has urged Myanmar to “ensure human rights for the Rohingyas” and to “sit with Bangladesh, Indonesia and Malaysia” to find a solution.
India has so far remained silent. Its Act East policy presumably translates into a “Don’t Act” approach in the matter of human rights. Nevertheless, it is going to get harder for New Delhi to explain the dissonance between its foreign policy and its statements of principle at the global high table.
Rijiju’s assertion that the refugees would be “deported” must be backed up by convincing explanations on the process of deportation in the absence of a proper domestic legal framework on refugees. Discussions with neighbouring countries, if any, must underscore the creation of a safe environment for the Rohingya, wherever they might be, and must include a commitment by Myanmar to respect the rights of its indigenous communities and address the pervasive, systemic violence they face.
Here is an opportunity for India to assert its position as a regional leader, conscious of its human rights and humanitarian law obligations, and capable of evolving solutions to complex regional problems.
At the UN Summit for Refugees and Migrants in September 2016, Minister of State for External Affairs MJ Akbar stated that “preventing armed conflicts, countering terrorism, building and sustaining peace through facilitating sustainable development and governance will prevent people from being forced to leave their homelands”.
That is precisely the message that must go from New Delhi to Naypyidaw.
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