Deadly Persecuted Diaspora in South East Asia : An Examination of Rohinghya Refugee Crisis and Refugee Status in India

KR Shiyas, a Law Student in Government Law College Thrissur, Kerala, writes about the deadly persecuted diaspora in South East Asia, Rohingya Muslims. Along with offensive stand taken by Myanmar, neighboring India also takes hostile stand against Rohingya Muslims. Shiyas is currently working with a collective of refugee studies, who are also planning to give legal aids to both legal and illegal refugees.

Deadly Persecuted Diaspora in South East Asia : An Examination of Rohinghya Refugee Crisis and Refugee Status in India

"I ran. Rode on the back of trucks, in buses;

walked over fields and roads and mountains,

in the cold and mud and rain;

on a boat that leaked and almost sank

and up a beach where babies lay face down in the sand.

I ran until I couldn't run until I reached a row of huts

and found a corner with a dirty blanket

and a door that rattled in the wind

But war had followed me.It was underneath my skin,

behind my eyes,and in my dreams.

It had taken possession of my heart"

These are the few lines from the Children's author Nicola Davies in response to UK Government's decision to not allow lone refugee children a safe haven in the UK on 2016 April. Days and Nights are passed but the refugees around the world are still walking. Refugee Crisis is one of the major perplexities of 21st Century. In 1951 the United Nations High Commissioner for Refugees (UNHCR) was established, there were an estimated 1 million refugees within UNHCR's mandate. Today that number has grown to an estimated 17.5 million refugees. Since last few years the South Asia became more turbulent and the conflicts inside the sovereign states intensified migration of oppressed. The recent development in Rakhine State of Myanmar and persecution of Rohingya Muslims is not a good omen in the ongoing refugee crisis around the world. The latest Confrontation between Myanmar Security force and Arakan Rohingya Salvation Army (ARSA) intensified the ethnic cleansing of Rohinghya Muslims in Myanmar. Thirteen thousand of Rohingya have fled to Bangladesh and India since the August 25 attack against the State Security force by the insurgency. According to the UNHCR report of Mixed Movement in South East Asia 2016 due to the violence in northern Rakhine state Myanmar, on 2016 October and November as many as 43,000 Rohingya refugees were estimated to have crossed from northern Rakhine state into the Cox's Bazar district of Bangladesh on foot and by boat across the Naf River by 31 December 2016. An additional 31,000 newly-arrived Rohingya refugees were identified in Bangladesh in January and February 2017. Thousands of Rohingya refugees were also believed to have traveled to India over land via Bangladesh in 2016, including 1,000 who have already registered with UNHCR, continuing what has been a steady low since 2012. Hence the registration of Refugees in Delhi office of UNHCR declined 30% after 2013 which compared to the previous year statistics. The movement of Rohingya Refugees resurrected after the wake of attacks on border posts in northern Rakhine state (nRS), Myanmar, on 9 October and November 12,13 (2016) followed by the military operation in the state. The Rohingyas are one of the most vulnerable populations in the world by any reckoning. An estimated between one and 1.5 million Rohingyas in Rakhine State in Myanmar are concentrated in the three townships of North Rakhine State Maungdaw, Buthidaung and Rathedaung. India, Bangladesh and Malaysia are the main countries have been chosen by the Rohingya Refugees. The UNHCR report on refugees in South East Asia reiterate that an estimated 43,000 Rohingya refugees, mostly from Maungdaw in northern Rakhine state, had led either overland to Cox's Bazar, Bangladesh, or by boat across the Naf River, which separates Bangladesh and Myanmar in 2016 and Since 2012, at least 13,000 Rohingya have entered India, virtually all via Bangladesh. Based on UNHCR interviews, Rohingya in India traveled in family units about 30% larger than Rohingya who traveled to Malaysia and came to India.

Who are Rohingyas ? What is their Legal status ?

The word 'Rohingya' is a historical name for the Muslim Arakanese. Arakan was a Hindu kingdom in the distant past.The Mongolian [Burmese-speaking Rakhaing] invasion of 957 put an end to the Chandra dynasty and Hinduism in Arakan. The Mongols later assimilated with the locals-the Rohingya Muslims and the Magh [Bengalis, according to this account] Buddhists. In the 15th century, a number of Muslim Kings ruled Arakan, which was a golden period in the history of Arakan. During this period, Rohingya Muslims played a dominant role in the political life of Arakan. Burmese rule of Arakan [atter 1784] was short lived but bloody and brutal. Historically, the Rohingya's association with Arakan is much older. The ancestors of the people, now known as the Rohingyas, came to Arakan more than a thousand years ago. They became [an] integral part of the Arakan [Littoral] socially, politically and economically. On the other hand, the Burmese have always been identified as the plunderers and despoilers.

The old name for Rakhine State was Rohang from which the term Rohingya was derived. And now today two main blocks have emerged in the myanmar ie, Pro-Rohingya and Anti-Rohingya. The segmentation was politically charged by the local power players within the state after 1992. The pro bloc takes the view that the Rohingyas settled in Burma in the ninth century, which, through the ages,have mixed with Bengalis, Persians, Moghuls, Turks and Pathans, in line with the historically pluralistic population of Arakan State . The latter takes the view that the Rohingyas are a modern construct,comprising, principally, of illegal Chittagonian Bengalis that arrived as a by product of British colonial rule. The 1982 Burma Citizenship Law divided citizens by three different categories: citizens, associate citizens, and naturalized citizens. Citizenship status comes with three colour coded citizenship scrutiny card. The previous parliamentary government(before 1962,the civilian government,he added by Prime Minister U Nu, a social democratic politician) listed 144 ethnic groups in Burma.

But General Ne Win put only 135 groups on a short list, and then was approved by his BSPP regime's constitution of 1974. In its census,Myanmar deliberately excluded Rohingyas from the list of the country's 135 official ethnic groups. One of the most important arguments Ne Win's government put forth in favor of the exclusion is that the citizenship law recognizes citizens those whose families had settled in the country before independence in 1948 (Tran,2015).

Fate of Stateless

Women and girls are the major sufferers in this conflict. As per latest UNHRC interview had conducted between refugees in India, Malaysia and Bangladesh average age of Refugee women and girls are just 22. Here only 39 percent Rohingya Refugees were literate and 45 percent have got some education. Another important finding during survey that most of the girls were married before the attainment of the majority as per universal adult franchise. 41 percent of girls were married before 18 years either by self or by the family and 18 percentage before 16 years. 41 percent women on move chose the husband by self and 42 percent by family and rest by the various agents. Among all these Refugee women and girls only 39 percent have income generating skill. Reports add that 8,000 Rohingya women and girls registered with UNHCR in those countries between the ages of 14 and 34 meaning they were born stateless, following Myanmar's enactment of its 1982 Citizenship Law and had traveled in mixed movements from Myanmar and Bangladesh since 2012.

Murders, Rape, Sexual Violence, Missing…..

On 2017 OHCHR had been conducted an important survey among the Rohingya Refugees in Bangladesh. The report was an eye opener around the globe. As per the report, the Refugees including women and Children had been gone through a number of heinous occasions and some of them lost their lives. The OHCHR team conducted in depth interviews with 204 victims and witnesses Of the 204 individuals, 77 were men, 101 were women and 26 were children.

Testimonies of witnesses (including victims):

• 134 (65%) reported killings.

• 115 (56%) reported disappearances (including persons having been "taken away" by the security forces and not heard of since).

• 131 (64%) reported beatings.

• 88 (43%) reported rape.

• 63 (31%) reported sexual violence.

• 131 (64%) reported burning or other destruction of property.

• 81 (40%) reported looting/theft of property

Testimonies of victims: Of the 204 persons interviewed, many reported having been personally victim of a violation

• 26 (13%) reported having been personally shot or stabbed (the OHCHR team has photographic evidence on file).

• 91 (45%) reported that a family member had disappeared.

• 96 (47%) reported that a family member had been killed

• 89 (44%) reported having been beaten.

• 26 (13%) reported having been raped, of whom 2 were girls. Among the 101 women interviewed

• 24 (24%) reported having been raped.

• 33 reported having suffered other forms of sexual violence, of whom 5 were girls.

• Among the 101 women interviewed 28 (28%) reported having suffered other forms of sexual violence.

• Taken together, 52 (52%) of the 101 women interviewed reported having been raped or subjected to other forms of sexual violence.

• 102 (50%) reported that their own property had been burned or destroyed.

• 76 (37%) reported looting or theft of their own property.

The Myanmar Armed Force (Tatmadaw), The Border Guard Police Force of Myanmar (BGP), GoM ( Government of Myanmar) Police Force are the main Security forces in the country. The Pro Bhudhist State Villagers in the Rakhin State also came up in the dress of security force with permission of state agencies to suppress the Rohingya Peoples. One of the Rakhin state villager said before the OHCHR team that.

"I know Buddhist boys in my village who have been given military uniforms and weapons.We can distinguish them from the regular military, even when they wear uniforms. There are Buddhist villages next to our village. They had a marketplace there, where both we Muslims and Buddhists went,we used to see them there every day. I know many of the young boys,those of my age, I used to talk with them."

These testimonies have resemblance with the Government of Myanmar officials. The Government has clarified that it has an "accelerated BGP training program with loosened admission criteria and trainees deployed as regular BGP". Many victims and witnesses interviewed by OHCHR claimed that several of their immediate and/or extended family members, neighbours and other Rohingya civilians in the nRS were killed in different circumstances and by different methods by the Myanmar army, police and Rakhine villagers.

Refugee Status in India and International Law

Recently Minister of State for Home Affairs Kiren Rijiju said that UNHCR registration was irrelevant, minister adds "They [UNHCR] are doing it, We cannot stop them from registering [the Rohingyas]. But we are not a signatory to the accord on refugees, As far as we are concerned they are all illegal immigrants. They have no basis to live here. Anybody who is an illegal migrant will be deported". This inhuman decision by the Minister Sparked new dialogues in Refugee Crisis in the sub-continent. On December 18, 2015, the Lok Sabha witnessed the extraordinary introduction of three bills to enact an asylum regime. Since the house first sat in 1952, no bill, neither from the government nor a private member, had attempted to create an asylum regime, although several members of Parliament had openly talked about the need for refugee protection.In 2015, India ranked twenty-third on a list of countries hosting the highest number of refugees. Most of the Refugees are from neighboring Countries like Afghanistan, Sri Lanka, Myanmar and Tibet. The latest decision by the Delhi is not a welcome move in the context of current Rohinghya Crisis in the Myanmar.As per the UNHRC report 2016, 13000 Rohinghya Muslims were entered in India via Bangladesh and they are not officially recognized either by UNHRC office nor GoI. Recently Security forces of Myanmar laid Land Mines to prevent the perching of Rohinghya Muslims from the country to Bangladesh. On these turbulent time, what is the duty of Largest Economic Power in the Sub-continent?

The 1951 Convention, which was drafted as a result of a recommendation by the newly established United Nations Commission on Human Rights, was a landmark in setting standards for the treatment of refugees.

But India refused to sign the 1951 Covenant and 1967 protocol relating to the status of refugees. The Convention, in its article 1, gives definition of the term "refugee". The term applies to any person who "as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling, to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it". The Covenant also prohibit refoulement
. Article 33 stipulates that "no Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion,nationality, membership of a particular social group or political opinion.
Article 34 concerns the naturalization and assimilation of refugees. Other provisions deal with such rights as access to courts,education, social security, housing and freedom of movement". The 1951 Covenant benefit only persons who had become refugees as a result of events occurring prior to 1 January 1951. The creation of refugees doesn't stop by the second world war and UN forced to formulate new protocol relating new refugees, that was 1967 protocol.
The 1967 Protocol
extended the application of the Convention to the situation of "new refugees", i.e.persons who, while meeting the Convention definition, had become refugees as a result of events that took place after 1 January 1951. And number of other international treaties and covenants have contain the provisions related with refugees.
The 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in time of War
: article 44 of this Convention, whose aim is the protection of civilian victims, deals with refugees and displaced persons. Article 73 of the 1977 Additional Protocol stipulates that refugees and stateless persons shall be protected persons under parts I and III of the Fourth Geneva Convention. The 1954 Convention relating to the Status of Stateless Persons: defines the term "stateless person" as a person who is not considered as a national by any State under the operation of its law. It further prescribes the standards of treatment to be accorded to stateless persons. The 1961 Convention on the Reduction of Statelessness a State party to this Convention agrees to grant its nationality to a person born in its territory who would otherwise be stateless. The Convention specifies that a person or groups of persons shall not be deprived of their nationality on racial, ethnic, religious or political grounds.
The 1967 United Nations Declaration on Territorial Asylum
: this Declaration of the United Nations General Assembly lays down a series of fundamental principles in regard to territorial asylum. It states that the granting of territorial asylum
"is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State."
It upholds the basic humanitarian principle of non-refoulement and recalls articles 13 and 14 of the Universal Declaration of Human Rights, which spell out, respectively, the right to leave any country and to return to one's country and the right to seek and enjoy asylum. The task of international protection includes the prevention of refoulement, assistance in the processing of asylum seekers, providing legal counsel and aid, promoting arrangements for the physical safety of refugees, promoting and assisting voluntary repatriation, and helping refugees to resettle
(article 8 of the Statute of the Office of the UNHCR).
Unfortunately India hesitated to ratify all above treaties and covenants related with Refugee Protection except UDHR and 1984 Torture Convention.

144 countries have signed refugee covenant in 1951 and India has not. India's reasons for refusing to sign the Convention have never been clearly communicated. Refugees on Indian soil are instead subject to the control provisions of domestic legislation such as the Passports Act of 1967 , the Registration of Foreigners Act of 1939 and the Foreigners Act of 1946, all of which define a person of non-Indian nationality as a 'foreigner', independent of their specific legal status. While India is not a signatory of the 1951 Refugee Convention, it is still obliged to adhere to the principle of non-refoulement, which forms a crucial part of customary international law. The principle of non-refoulement is one that is binding on every state whether or not that state has ratified the 1951 Refugee Convention or its 1967 Protocol. Article 3 of 1984 Torture Convention states that

1. No State Party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

In different occasions Supreme Court reiterates that International Treaties are binding with the Judicial Process in India. Article 51 is the one of important Constitutional provision which mandate the International law application with the domestic law of the country. Article 51 Promotion of International Peace and Security; The state shall endeavor to –

a) promote international peace and security

b)maintain just and honorable relations between nations

c) foster respect for International Law and Treaty obligations in the dealings of organized people with one another and

d) encourage settlement of International dispute by arbitration.

In People's Union for Civil Liberties v. Union of India, the Supreme Court observed that "It is almost an accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law." In Kesavananda Bharati V. State of Kerala Sikri, C.J observed that "while referring to the provisions of the UN Charter on human rights, observed: in view of Art 51 of the directive principles, this Court must interpret the language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to by India."

While international legal clauses may be invoked in Indian courts, their implementation is subject to there being no existing conflict between domestic and international law and, further, no violation of the spirit of national legislation and the Indian Constitution. If any conflict does exist, it has been well established that it is the domestic law which shall prevail.

The political and religious leaders in Arakan State planned, organized, and incited attack against the Rohingya and other Muslims with the intent to drive them from the state or at least relocate them from areas in which they had been residing particularly from areas shared with the majority Buddhist population. On these time the refoulement of 40000 Refugees by the Government of India will only result in dreadful persecution of Rohingya Muslims by the Myanmar state authorities. It is high time for India to enact a Refugee Protection Act to uphold the dignity of the Humanity and to procure the harmony of Sub-Continent.

(Author is a Law Student in Government Law College Thrissur, Kerala )