The Rohingya refugee crisis is one of the worst humanitarian crisis to have affected the south and south-east Asian region in recent times. At least half a million Rohingya people have fled Myanmar since late August 2017 along with first-hand accounts of widespread destruction and the gravest of human rights abuses in their home province. Their forced migration constitutes the quickest exodus from a single country since the Rwandan genocide in 1994[1] and the largest in Asia since the 1970’s. Rohingya Muslims are considered to be among the world’s most persecuted people. The predominantly Buddhist Myanmar considers them Bangladeshi, but Bangladesh says they’re Burmese. As a result, they’re effectively rendered stateless.[2] In this contribution, I have identified and ascertained some of the constitutional and international provisions that are applicable in the determination and adjudication of this dispute.

This casenote will be divided into the following parts:

  • Part I shall expound a brief timeline of the events;
  • Part II shall briefly outline the dispute and the present situation;
  • Part III shall expound the Indian policy and stand on the Rohingya crisis
  • Part IV shall deal with the present legal systems and frame works in place
  • Part V: shall deal with the concluding remarks on the issue.

 

Part-I: A Brief Timeline of the Rohingya’s in Myanmar[3]

The genesis history of the Rohingya people in Myanmar (formerly known as Burma) traces back to the 8th century kingdom or Arakan. From the 9th century till 14th century there was an advent of Islam within the region, through Arab traders, leading to the development of close ties between Arakan and Bengal. In 1784, the conquering of Arakan by Burman King Bodawpaya, led to an exodus of Rohingya refugees to Bengal. In 1790 the British sent their diplomat Hiram Cox to aid and assist the refugees leading to the establishment of the town of Cox’s Bazaar where the Rohingya’s still live today.

Subsequently in 1824 the British colonised Burma and established their dominance on Burma, which lasted until the Japanese invasion of Burma in 1942. This invasion led to British retreat and leading to attacks on Rohingya Muslims by the Burmese population. This is where the dispute finds its roots for subsequent events that followed. The British liberated Burma from the Japanese occupation in 1945 with the help of Burmese nationalist led by Aung San and Rohingya fighters. After the liberation the Rohingya’s felt betrayed as the British did not fulfil their promise for a separated autonomous territory of Arakan .

In 1948 tensions increased between the government of the then newly independent Burma and the Rohingya Muslims due to the increasing Rohingya call for the territory of the Arakan, joining the then newly formed Muslim majority state of Pakistan. The government ostracised the Rohingya population, leading to a resistance by the Rohingya people led by armed group called Mujahids in 1950. This insurgency gradually died down.

In 1962 General Ne Win and his Burmese Socialist party  (military junta) through a coup d’état seized control of Burma and took a hard-line against the Rohingya people. In 1977, the junta began the operation Dragon king, with the aim of screening the foreign population of Burma, thus leading to an exodus of more than 200,000 Rohingya Muslims to Bangladesh, amidst allegation of human rights abuses. In 1978 Bangladesh struck a UN brokered deal for repatriation of the refugees, under which most of the refugees returned to Burma. In 1982, the junta passed a new immigration law declaring all people who migrated to Burma during British rule as illegal immigrants. This was applied to the entire Rohingyan population. In 1989 Burma was renamed to Myanmar, which has been a contested issue.

In 1991 more than 250,000 Rohingya Muslims fled amidst claims of religious persecution and grave human rights abuses and atrocities being committed by the Myanmar army. The army claimed it was bringing law and order to Rakhine (formerly known as Arakan). Through diplomatic efforts, around 230,000 Rohingya Muslims returned to Rakhine between 1992 and 1997.

 

Part- II: The Present Dispute

The present on-going humanitarian crisis aggravated in 2012 when violent rioting between the Rohingya and the Rakhine Buddhist erupted, and more than 100 people were killed. Tens of thousands fled to Bangladesh seeking refuge, and nearly 150,000 were forced into camps in Rakhine.[4] In 2016, there have been violent conflicts between the Rohingya militant group Harakah al-Yaqin and the army, forcing more than 25,000 people to flee to Bangladesh bringing first-hand accounts of rape, torture and arson committed against them.[5]

As per the United Nations High Commission on Refugees, around 429,000 refugees have fled Myanmar since violent crackdowns intensified a month ago following a series of attacks on security posts.[6] The United Nations has expressed grave concerns and has branded and categorised the cruel military operation against the Rohingya Muslims in Rakhine state crises as a “text book example of ethnic cleansing”.[7]

Finally, after more than 8 years of unfolding of the present crisis, the United Nations Security Council decided to hold its first public meeting to address this issue. UN Secretary-General Antonio Guterres told the council that the current outbreak of violence has “spiraled into the world’s fastest-developing refugee emergency, a humanitarian and human rights nightmare.” “We’ve received bone-chilling accounts from those who fled, mainly women, children and the elderly,” he said.[8] However, no conclusive action was taken at the end of the session to mitigate the crisis.

Myanmar has constantly maintained its stance that brutal acts of terrorism and not religious persecution is to be blamed for the unfolding crisis. Myanmar National Security Advisor, U Thaung Tun has further added that “no ethnic cleansing or genocide” is taking place in Myanmar, and these charges should not be lobbed lightly.[9] Myanmar’s special envoy told the Council the country realises the humanitarian situation needs to be addressed. He said thousands fled because of fear due to terrorism, and that Myanmar is cooperating with the Red Cross.[10] Myanmar has denied rights groups’ accusations that it is trying to drive the minority community out of Rakhine state, saying it is only targeting militants.[11]

The UN Secretary-General proposed three things for the Myanmar government to do: [12]

  • Firstly, end the military operations,
  • Secondly, allow unfettered access for humanitarian support, and
  • Thirdly, ensure the safe voluntary and sustainable return of the refugees to their areas of origin.

On the field, the United Nations has established a fact finding mission and investigators have started collecting testimony from fleeing Rohingya Muslims pointing to human rights violations by Myanmar’s military and security forces. While the United Nations is still in the process of getting Myanmar’s permission to enter the country, it has already started collecting and gathering evidence from refugees and medics in the border town of Cox’s Bazar in neighbouring Bangladesh.[13]

 

Part III: The Indian Perspective and Stand

India is one of the countries, where the Rohingya people have come to seek refuge. According to various agencies, there are about 40,000 Rohingya refugees currently living in, Jammu, Hyderabad, Delhi-NCR, Haryana, UP and Rajasthan states of India.[14]

Despite the international appeal to not deport or refoul the Rohingya refugees back to Myanmar on account of well-founded fear and threat of persecution, the Indian government has decided to deport Rohingya refugees. This decision is presently being contested at the Supreme Court of India, where a group of refugees have challenged the government decision. Kiren Rijiju, a Minister of State for Home Affairs for India, has communicated that India has based the decision to expel and refoul the refugees (even those with UNHCR papers) on the following grounds:

  • Immigrants are susceptible to recruitment by “terror” groups
  • They “not only infringe on rights of Indian citizens but also pose grave security challenges”
  • Influx of migrants also leads to social, political and cultural problems
  • The idea to “ensure the demographic pattern of India is not disturbed”[15]
  • Being illegal immigrants, they can be deported.

India is not a signatory to the 1951 Convention Relating to the Status of Refugees and to the 1967 Protocol Relating to the Status of Refugees. It doesn’t have a comprehensive codified legislation pertaining to or reflecting its refugee policy. While it has no formal asylum policy, cases are decided on ad-hoc and case-to-case basis. This informal regime is broadly in line with international instruments.

The Indian authorities rely upon The Passport (Entry of India) Act, 1920, The Passport Act, 1967, The Registration of Foreigners Act, 1939, The Foreigners Act, 1946, and The Foreigners Order, 1948, with regard to the entry of refugees. These legislations along with India’s Constitution provide the legal framework to govern the status of refugees in India and currently govern the entry and exit of all refugees, treating them as foreigners without due consideration of their special circumstances.

There are various fallacies in the reasons given by the authorities justifying India’s decision to refoul the Rohingya population. Some of them are:

  • India has a history of accepting refugees from its neighbouring states. The Tibetan peoples, the Chakmas tribe of Bangladesh, Afghans and ethnic Tamil’s from Sri Lanka have been given refuge by India. About a 100,000 Tibetans can take land on lease and seek employment in private sector. Similarly 100,000 Tamil refugees get aid from the state government of Tamil Nadu. If nothing else, the long-standing custom of accepting refugees lies in the teeth of the present decision to deport all Rohingya Muslims.
  • The incumbent government in 2016 allowed allowed Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan to buy property for self-living, obtain driving licences, receive PAN (Personal Account Number) and Aadhaar IDs (Social Security id’s), etc.
  • While security concerns should not be shrugged of easily, it is pertinent to note that till date no single Rohingya refugee has been charged with acts constituting or amounting to terrorism. So there has been no evidence to suggest or justify the governments claim that these immigrants/ refugees are susceptible to recruitment by terror groups.
  • While Myanmar has refused to accept the Rohingya people as its citizen’s there are other issues that do come up, as witnessed in India’s failure in deporting the 11 Rohingya refugees, who entered India without any valid documents. More than five years have passed, by they still languish behind bars.[16] Being adjudged as stateless people complicates things as there is literally nowhere for them to go if deported from India.
  • India’s decision to deport Rohingya Muslim’s is also in violation of its constitutional provisions and customary international law pertaining to non-refoulement of refugees. This is expounded in the next part.

 

Part IV: The Legal Framework

This section will be dealing with two parts, one being the provisions envisaged in the Indian Constitution and second being the international legal regime encompassing the customary international law.

Domestic Legal Framework

In addition to the above stated legislations, the following provisions envisaged in the Indian Constitution, encompass the right to life and equal treatment for all. The important articles are produced herein below:

  • Article 14, of the Indian Constitution states the following “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.
  • Article 21, of the Indian Constitution states that “No person, shall be deprived of his life or personal liberty, except according to procedure established by law”.

The Supreme Court of India in National Human Rights Commission vs. State of Arunachal Pradesh [1996 AIR 1234, (1996) SCC 1 742] has categorically held the following:

“20. We are a country governed by the Rule of Law. Our Constitution confers contains rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise, and it cannot permit any body or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its Constitutional as well as statutory obligations. Those giving such threats would be liable to be dealt with in accordance with law. The State Government must act impartially and carry out its legal obligations to safeguard the life, health and well-being of Chakmas residing in the State without being inhibited by local politics. Besides, by refusing to forward their applications, the Chakmas are denied rights, Constitutional and statutory, to be considered for being registered as citizens of India”.

The Supreme Court of India in the case of Committee For C.R. of C.A.P. & ORS Vs. State of Arunachal Pradesh and Ors [Writ Petition (Civil) 510 of 2007] (Chakma Citizenship case) upheld the above stated dictum. Therefore, confirming the proposition that since Article 21, the Right to Life, of the Constitution covers all “persons” and not just citizens, the State is duty bound to protect the lives of citizens and aliens alike, thus including refugees, asylum seekers, displaced and stateless people.[17] This is how the principle of non-refoulement or non-return, which bars a country from deporting a refugee to any country where they might be persecuted or tortured, has been interpreted as inhering in Article 21.[18] Article 14 should also be broadly interpreted as to include aliens and prevent any discrimination and to be provided with equality before law and equal protection of the law.

International Legal Framework

As stated above India is not a signatory to the Refugee Convention of 1951 and its additional protocol, therefore other provisions would be identified and analysed which provide protection to the Rohingya refugees.

Independent from the 1951 Refugee Convention, the rights of these Refugees are protected under Universal Declaration of Human Rights, 1948 (UDHR) and International Covenant on Civil and Political Rights. It is now well settled that Universal Declaration of Human Rights is codified as part of the international customary law, therefore being binding on all states.[19] The International Court of Justice has addressed the status of the Declaration implicitly in several opinions. The principle that human rights obligations may be imposed upon states through customary international law was established in one of the Court’s early cases, in which the Court observed that “the principles underlying the [Genocide] Convention are principles which are recognised by civilised nations as binding on States, even without any conventional obligation.”[20] Similarly, Article 3 of UDHR, guaranteeing “the right to life, liberty and security of person,” may be too general to be a useful international norm[21], although protection of the right to life has been cited frequently as falling within customary international law.[22] Furthermore, Article 5 envisages protection from cruelty, torture, inhumane and degrading treatment, or punishment. Article 6 enshrines the right to be recognised everywhere as a person before the law. Article 7 provides for equality before the law and equal protection of the law. Article 8 provides for effective legal remedy by competent national tribunals for acts violating their fundamental rights envisaged by the constitution or any other law. We have seen in Part-A, how the fundamental rights, envisaged in Article 14 and 21 of the Indian Constitution, would also apply to refugees, therefore providing an interconnected network of domestic provisions and these international human rights laws to protect the rights of refugees.

The principle of non-refoulment is also an integral part of customary international law. Article 38(1)(b) of the ICJ Statute recognises “custom as evidence of a general practise accepted as law” and the Rohingya people are protected under customary international law. The UN High Commissioner for Refugees(UNHCR) has determined this and provided a positive detailed response to queries raised by the Federal Constitutional Court of the Federal Republic of Germany pertaining to the customary status of the principle of non-refoulment.[23] The UNHCR has analysed and held:

“3. The view that the principle of non-refoulement has become a rule of international customary law is based on a consistent practice combined with a recognition on the part of States that the principle has a normative character. This conclusion is supported by the fact that the principle has been incorporated in international treaties adopted at the universal and regional levels to which a very large number of States have now become parties. The principle has, moreover, been reaffirmed in the 1967 United Nations Declaration on Territorial Asylum. Finally, the principle has been systematically reaffirmed in conclusions of the UNHCR Executive Committee and in resolutions adopted by the United Nations General Assembly”.[24]

Furthermore, India’s constant practise of accepting refugees and issuing and granting of long term visas has been a uniform practise dating as back to 1947 partition. This reflects, that India too has acted in a manner consistent with the principle of non-refoulment and has not been a persistent objector to the principle of non-refoulment. Clearly, India has stood up and been counted when it comes to accepting refugees and has developed a system where the vetting of refugees is conducted by UNHCR, resulting in being the host nation to the biggest refugee populations in South-Asia. Also, keeping in light India’s policy of accepting refugees from Sri Lanka, Afghanistan, Pakistan, Tibet, Bangladesh, Myanmar, the reaction of the Government of India in the present case, is incoherent and does not make sense.

Furthermore, a breach of its customary international obligation of non-refoulment, would also constitute an international wrongful act as envisaged under the ILC Articles in Responsibility of States for Internationally Wrongful Acts (2001).[25] Article 2 provides for elements of an internationally wrongful act, which includes two elements, namely: the act or omission, both being attributable to state under international law and constitute a breach of the international obligation of the state. Article 3 states that this act is characterised as internationally wrongful, and is not affected by the characterisation of the same act as lawful under internal law. Article 26 envisages compliance with obligations arising under peremptory norms of general international law. As stated above, non-refoulment is a principle reflected in customary international law. By refouling the Rohingya people to Myanmar it would be aiding or assisting Myanmar in committing grave human rights violations and international crimes and would attract responsibility under Article 16 of the ILC Articles.

 

Part V: Concluding Remarks

Based on the analysis of the relevant national and international legislation it can be concluded that India would violate its constitutional and international obligations, if it were to refoul Rohingya people back to Myanmar where there is a well founded fear of being, persecuted for reasons of race, religion, nationality, membership of a particular group, or political opinion. Furthermore, Myanmar has only shown hostilities, through conduct and its policy, and by declaring them as Bangladeshi, effectively rendered them as stateless people. If India were to go ahead and refoul them, it would consciously expose them to cruelty, torture and inhuman degrading treatment and persecution, therefore also committing an internationally wrongful act, as envisaged in the ILC Articles stated above.

Thus, in my opinion, by omitting to recognise its obligation of non-refoulment, and committing the act of deporting/refouling the Rohingya people back to Myanmar, India would be in violation of its constitutional and international obligations.

                                                                                                                                                                                  

[1] Richard Roth, ‘UN Security Council finally losing patience with Myanmar’ (CNN, 29 September 2017) <http://edition.cnn.com/2017/09/28/asia/myanmar-un-security-council/index.html> accessed 29 September 2017.

[2] Ibid.

[3] Zain Al-Mahmood Syed , ‘Timeline: A Short History of Myanmar’s Rohingya Minority’ (The Wall Street Journal, 23 December 2016 <https://www.wsj.com/articles/militants-in-myanmar-spur-army-reprisals-refugee-flight-1482494401>accessed 29 September 2017.

[4] Ibid.

[5]Refer Zain Al- Mahmood Syed, (n3).

[6] Tim Gaynor, ‘As refugee crisis grows, Rohingya struggle in roadside settlements’ (UNHCR, 24 September 2017). <http://www.unhcr.org/news/latest/2017/9/59c7855b4/refugee-crisis-grows-rohingya-struggle-roadside-settlements.html> accessed 29 September 2017.

[7] Stephanie Nebehay & Simon Lewis, ‘UN brands Myanmar violence a “textbook” example of ethnic cleansing’ (Thomson Reuters, 11 September 2017) <https://in.reuters.com/article/myanmar-rohingya/u-n-brands-myanmar-violence-a-textbook-example-of-ethnic-cleansing-idINKCN1BM0Q7> accessed 29 September 2017.

[8] Refer Richard Roth, (n 1).

[9] Ibid.

[10] Refer Richard Roth, (n 1).

[11] Thomson reuters, ‘UN investigators gathering testimony on Rohingya rights violations ‘ (CBC News,  19 September 2017) <http://www.cbc.ca/news/world/myanmar-rohingya-refugees-testimony-un-1.4296870> accessed 29 September 2017.

[12] Refer Richard Roth, (n 1).

[13] Refer Thomson Reuters, (n 11).

[14] TNN, ‘Why India is refusing refuge to Rohingyas’ (Times of India, 6 September 2017) <http://timesofindia.indiatimes.com/india/why-india-is-refusing-refuge-to-rohingyas/articleshow/60386974.cms> accessed 29 September 2017.

[15] Ibid.

[16] Armstrong Chanambam and Zeet Nawaz Thouba, ‘Rohingya Muslims in India: How will India deport 40,000 ‘illegal’ refugees to Myanmar when it can’t even deport 11?'(FIRSTPOST, 19 September 2017) <http://www.firstpost.com/india/rohingya-muslims-in-india-how-can-india-deport-40000-illegal-refugees-to-myanmar-when-it-cant-even-deport-11-4054169.html> accessed 29 September 2017.

[17] Colin Gonsalves , ‘The law is clear: India can’t deport Rohingyas’ (Hindustan Times, 27 September 2017) <http://www.hindustantimes.com/opinion/the-law-is-clear-india-can-t-deport-rohingyas/story-D87h7DOSRqKrPKT8X4maUJ.html> accessed 29 September 2017.

[18] Ibid.

[19] Hurst Hannum, ‘The Status Of The Universal Declaration Of Human Rights In National And International Law’ [1995] 25 Georgia Journal of International and Comparative Law 287- 397.

[20] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15, 23 (Advisory Opinion of May 28).

[21] Refer Hurst Hannum (n 19), p.343.

[22] Inter-American Convention on the Forced Disappearance of Persons, signed June 9, 1994, reprinted in 33 I.L.M. 1529 (1994); Judgment of July 29, 1988, Velasquez Rodriguez v. Honduras, Inter-Am. Ct. H.R., Ser. C, No. 4. See also Forti v. Suarez-Mason, 594 F. Supp. 707 (N.D. Cal. 1988).

[23] UN High Commissioner for Refugees (UNHCR), The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93, 31 January 1994.

[24] Ibid.

[25] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No.10 (A/56/10), chp.IV.E.1.

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