ROHINGYA CRISIS: A BARBAROUS ACT OF SOVEREIGNTY
India has always been considered as a nation reserving respect for human rights. Human rights shall be reserved for each and every individual irrespective of the country he belongs to. For the regulation of human rights, certain councils have been formed and conventions and covenants have been brought into action by the United Nations. The Office of High Commissioner for Human Rights (OCHCR) is an expertise body working towards human rights and ensures human rights through different chartered as well as treaty based bodies. This office includes United Nations Human Rights Council as the lead, Human Rights Council Complaint Procedure and others alike, and certain treaty based bodies such as Committee on Economic, Social and Cultural Rights (CESCR), Committee on Elimination of Racial Discrimination (CERD) and many more. These committees’ primary emphasis is on preservation of human rights and enforcement of these rights across the globe.
India is a signatory to the majority of such committees and have been successful in sustaining the goals of these committees. One of the major area where India lacks behind in imparting rights humanely is refugees. Though refugee laws in India are the most cultured worldwide, India is still facing major crisis for the same. Refugee laws are the most effectively implemented ones in India but still India is being criticized for inadequate treatment of refugees. India has been able to muddle through the crisis of refugees excluding the Rohingya refugees.
India has been a home to a lot of refugees including the Faili kurds, Roma, Rohingyas in Myanmar, refugees from Bhutan, Bidoons in Gulf states, Dominicans of Haitian descent in Dominican Republic, Sri Lankan refugees, Tibetians, etc. All these refugees, except for the Rohingyas have been living peacefully in India and reserves all the rights analogous to those reserved by fellow citizens of India. One of the major reasons for the Rohingyas being discriminated is that the Rohingya refugees are an ethical minority and the number of Rohingyas add up to the maximum percentage of refugees residing in India.
Around 40,000 Rohingya refugees have been residing in India since the riots of Rakhine State in 2012. Around 16,500 of the refugees have been registered and the rest don’t even have visas neither are they registered with the Indian Government as refugees. These refugees are not given the status of refugees and are considered as illegal immigrants residing and settled in India for about 5-6 years. These refugees are stateless as we say and do not even have proper house to live or any other basic amenities. These Rohingya refugees are being subjected to different forms of crimes and are being exploited as they belong to none of the states across the globe. Rohingya refugees are not guaranteed any sort of human rights and a serious debate is going on in the country pertaining to the issue. These refugees were not disturbed earlier when they had come but the Indian Government is of the opinion that these refugees do not reserve any rights under the territory of India as they are not refugees and merely are illegal immigrants residing in India.
Rohingya refugees are facing discrimination since decades and this stands as one of the major reasons that they were forced to flee the territory of Myanmar and have been wandering through riots since and have finally settled in India with hundreds of inhumane rights and have been facing violence and what not.
Rohingya refugees have their origins in Buddhist dominated state of Burma in Myanmar. There are nearly 135 official ethnic groups recognized in that state. Though the Rohingya refugees have their origins there, they are not appended in those 135 ethnic groups. Hence, are treated as outcasts. One of the major reasons for this discrimination is that Rohingyas don’t speak Burmese but spoke a language of their own Rohingya, which is very much similar to Bengali. The Burmese government tried to deport Rohingyas to the State of Bengal as they thought that they originally belonged to Bengal and hence, spoke Bengali. Because of the language difference, the Rohingyas were referred to as Bengalis, foreigners or even terrorists. The government, therefore, successfully designated this minority as the “other” and were not given legal recognition and hence, were stateless. The Burmese government stated that this persecuted minority belong to Bangladesh with other Bengali Muslims.
Since 12th century, the Rohingyas lived in Rakhine state, one of the poorest states of the then Burma. This state couldn’t satisfy even in providing basic services and opportunities. After independence, Rohingyas were refused natural citizenship on the grounds that in order to claim citizenship, a fluency in one of the national languages is mandatory. The Rohingyas spoke their own language but the language was and is still not legally recognized. Citizenship was denied, on the basis that they were foreigners and they were rendered stateless. They closed Rohingya social and political associations. They also transferred private Rohingya businesses to the government, incapacitating the group fiscally. Further, the Rohingya suffered forced labour, subjective detainment and physical assaults.
Since the 1970s, various crackdowns on the Rohingya in Rakhine State have constrained several thousands to flee to neighboring Bangladesh, too as Malaysia, Thailand and other Southeast Asian nations. Amid such crackdowns, refugees have frequently announced rape, torture, incendiarism and murder by Myanmar security forces. While the historical identity of the Rohingya were at the center of the conflict between them and the state of Burma, the cases of assault on the humanitarian community by the Myanmese army turned it into what is known as an example of ethnic cleansing and the genocide.
After all the inhumane activities and victimization, the riots again found the epicenter in Rakhine. In June 2012, Muslim youths were accused of a rape and murder of a Rakhine woman. One of the accused was in fact a Buddhist but the police held Rohingya Muslims responsible for the crime. Revolting this, one certain mob set ablaze a bus, believing the accused to be in the bus and many Rohingyas were found dead because of the fire. Countering the attack, both Rakhines and Rohingyas, out of aggression, started hurting each other’s communities. The means adopted by the Rakhines were tougher than the Rohingya Muslims and hence, a majority of them were victimized. As a result, a state of emergency was declared and a number of refugee camps were set up for both the communities, majorly for Rohingyas. Rohingyas were not allowed to leave their settlements, officially due to security concerns, and were the subject of a campaign of commercial boycott led by Buddhist monks. These refugee camps were also attacked and Rohingyas tried to cross the borders through sea. Many of them were hit by the cyclone and were recorded dead. These refugees ended up nowhere and were left hanging in the middle without any possibility of their survival.
With the evolution of time, the Rohingya case turned into a refugee crisis, and Myanmar, Bangladesh and India endured their causes and fates. What has been neglected so far is frequently the instance of the fluid and complex ethnic identity with various roots, because of the politics of the modern era, which fortified an expansive term called “Rohingya”.
Myanmar’s treatment of its Muslim Rohingya minority appears to be a “textbook example” of ethnic cleansing. Rohingyas have been suffering since decades, all kinds of discriminations and inhumane activities.
Aung San Suu Kyi, a Burmese politician and a Nobel prize winner in her various speeches made a mention of sufferings and shared her views about displacement and suffering of “all communities” in the latest violence. The respected politician did not make a mention of the Rohingya community being displaced and suffering all varieties of discriminations.
What did they suffer?
The Rohingya military regime has been banned, their right to freedom of movement and the choice of their place of residence within the State. According to the law, Rohingya in the northern state of Arakan must request routine permission before traveling to other villages. However, this law does not apply to Rakhine residents in the same state of Rakhine. Travel restrictions continued to increase following the outbreak of sectarian violence in Sittwe, the capital of Rakhine State in February 2001. The inability to travel freely prevents the Rohingya’s ability to earn a living, access to medical care and freedom of movement, which is a fundamental human right that hampers other human rights. Article 13 of the Universal Declaration of Human Rights states that everyone has the right to freedom of movement and residence within the borders of each State. Such restrictions imposed are totally arbitrary and disproportionate and the fact that these restrictions are imposed just because they are Rohingyas and do not belong to any of the recognized ethnicities of Myanmar is totally absurd. Such restrictions are randomly applied and hence, are illegal.
Rohingyas were exploited for forced labour in infrastructure projects, specifically road construction which is the most famous practice in Myanmar. But the only way out from this discrimination was bribery. Bribery was the savior of Rohingyas against this discrimination. But because of limited pay, it was not possible either. This practice prevented the Rohingyas from earning a livelihood and food for themselves and family.
Confiscation, evacuation and typical villages of Non-Rohingya:
Many Rakhine Buddhists and non-Rohingya Buddhists are relocated to specially established villages in Arakan from other parts of Arakan State. There were approximately 26 model cities where there are about more than 100 families. Every single family received acres of land that was confiscated from the Rohingyas. On these lands, educational institutes, health centers, etc. were built through forced labour of Rohingyas. In addition to this, expansion of military farms (not Rohingya military), shrimp farms and rice fields were established on the land seized from Rohingyas. The land taken from Rohingyas was used against them and they did not even get compensated. These activities were in clear violation of International obligations to which Myanmar is a signatory. Myanmar has not only been exploiting Rohingyas but have also been failing to comply with the conditions agreed to under different international conventions and treaties.
The Rohingya community was even deprived of the right to establish a family granted under Article 16 of Universal Declaration of Human Rights. Their names have often been removed from their family lists by the authorities.
Hundreds of Rohingya refugees have been victims to systematic crimes against humanity, for example, rape and murder, physical assaults, deportations, forced displacement, torture, persecution and even denial of food. When women, men and Rohingya children fled their homes to save themselves, soldiers and police often opened fire and people died or were seriously injured. Often the elderly and people with disabilities were not able to escape from the security forces and they were burned dead in their own houses. The death toll was vulnerably high with reported killing of dozens of women, children and men by security forces in Myanmar. If this was not enough, their whole villages were burnt down. They were treated as outcasts and not nationals or citizens and related rights were denied.
LEGAL STATUS AND RECOGITION
Rohingya refugees have been considered and treated as illegal immigrants residing inside the territory of India. They are treated as societal outcasts and are subjugated to all sorts of crimes from rapes to trafficking to murders. These refugees have been kicked out of different nations. firstly, from Myanmar on the grounds that they do not belong to any of the 135 diversities contemporaneous in the country, then from Bangladesh because of being in excessive numbers and have finally found their place of habitation in India after decades. Now the Indian Government is also trying to deport them because of the reasons best to the Central Government. What is common in all the nations is the question of nationality of these refugees, which has never been taken into consideration by any of the abovementioned nations.
The Indian Government snubbed the legal recognition of these refugees and they are the victims of statelessness since past four decades. Since the riots in 1982, Rohingyas have been deprived of nationality in every nation they resided. Nationality has been declared as a fundamental right reserved by an individual by the UNHRC (United Nations Human Rights Council). These refugees are not only victimized but also treated as outcasts and have been refused nationality since long.
International Court of Justice (ICJ), through the Nottebohm case has justified the prominence of nationality and has held that “Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, with existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.”
Nationality has ‘gradually evolved’ from a State’s attribute to ‘a conception of nationality which, in addition to being the competence of the State, is a human right. “The arbitrary deprivation of nationality, especially on discriminatory grounds such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, is a violation of human rights and fundamental freedoms.” The countries that have deprived the grant of nationality are signatories to this convention and the argument that they have put forward for not granting nationality is completely absurd. Such discrimination on the basis that Rohingyas are ethnically diverse is completely arbitrary and against the aim of UNHRC. Additionally, protecting the citizens and residents against statelessness is the primary obligation of the state and the State shall be able to comply with it despite everything. The fact reserves a specific mention in the Human Rights Council ‘……that the prevention and reduction of statelessness are primarily the responsibility of States, in appropriate cooperation with the international community.’
Also, Article 15 of the UDHR states that “Everyone has a right to nationality, no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Rohingya refugees have been stateless since they flee from Burma and have been trying to settle down since. They are not welcomed in the state they originally belong to and have been forced out of the country depriving them nationality and making them stateless. Since 1982, the Burmese citizenship law has been refusing to recognize Rohingya as one of the country’s 135 ethnicities, rendering them stateless, restricting their rights to job, education, marriage, religion and free movement. With no official citizenship, they have no recourse to passports or visas required to avail legal immigration.
Nationality defines who you are and where you come from. Nationality is a sense of identity.
Without any national identity, an individual is referred to as an illegal immigrant and reserves no rights and freedoms. Being a legally recognized national of any nation is nothing but an entitlement to an array of basic rights. Reserving no identity of any nation is as good as being treated like a shuttlecock between different and various countries till it touches the ground. Nowhere an individual without a national identity is treated humanely and is destitute of all the rights (fundamental and human) as well as personal freedoms. Rohingyas, since decades are treated as illegal colonists and have been experiencing all genres of inhumane behavior by either Buddhists of Rakhine or they be Bangladeshis or them be Indians. They have been exposed to all kinds of illegal activities and are not receiving justice as they are treated as illegal immigrants and do not have any recognition which make the Courts mere buildings where they can never think of entering for imparting justice to themselves.
Taking the scenario described above, UN had accurately defined Rohingyas as ‘the world’s most persecuted ethnical minority’.
ROHINGYA CRISIS: INDIAN PERCEPTION
India has been a home for hundreds of thousands of refugees since decades. Refugees in India are looked upon as more opportune than its own citizens sometimes. India has been benevolent in welcoming refugees in addition to the presence of 120,000 Tibetan refugees, settled in different parts of India. From the first Indian Prime Minister Jawaharlal Nehru to the incumbent Narendra Modi, India has been providing all necessary assistance to the Tibetans, including the government-in-exile in McLeodganj, a suburb of Dharamshala in Himachal Pradesh. Furthermore, India provides a shelter to hundreds of thousands of refugees originally belonging to Sri Lanka, Afghanistan, Pakistan, Bangladesh, internal Kashmiri refugees and even some 40,000 Rohingyas from Burma. Also, UNHCR in India is very active and plays a two-function role, depending on the refugees involved. The Indian government is trying to help the refugees in Tibet and Sri Lanka in their own affairs.
India has always opened the doors to shelter many immigrants may it be refugees from any nation. India took a welcoming stand for sheltering Rohingyas as well but the circumstances changed when recently the government decided to deport them stating them to be ‘illegal immigrants’. Before this stand of government, India always took a humanitarian stand. Even when the Rohingyas had fled to Bangladesh, India, out of its gratitude initiated an “Operation Insaniyat” to provide aid of food and relief material as Bangladesh did not have enough resources to comply with all the residents and refugees.
Rohingyas were an internal problem of Burma. However, due respect to sovereignty of a nation cannot extend to turning a blind eye towards human rights excess within its boundaries. India had same rules, regulations and guidelines for refugees but implementation is the epicenter of the problems suffered by the Rohingyas. The government is taking the stand to deport these Rohingyas because of security reasons and believes that if the Rohingyas continue to reside illegally in India, the nation would soon suffer a security threat from other nations. Further, the government takes the stand that the resources are not sufficient to comply with the needs of Indian citizens as well as the refugees. Many projects undertaken would be at stake and the development of the nation would be hampered.
What the government fails to recognize is that any individual inside the territory of India is governed by the Constitution of India. Article 21 of the Indian Constitution does not talk about India ‘citizens’ but talks about ‘all persons’. Foreigners and citizens are treated alike once they are in the territory of India. Once they enter India, they are protected by the Constitution and cannot be returned. It is odd that the officials have not been shown the guidelines of the home ministry regarding refugees where it is said that persons fleeing persecution will not be treated as illegal immigrants and will be granted long-term visas.
Except for the Constitution, India is a member of United Nations is bound by majority of the treaties and is a signatory to majority of the conventions and covenants. Similarly, India is also a signatory to New York Declaration for Refugees and Migrants. This body recognizes the rights of the refugees to asylum and also affirms the principle of non-refoulement. The Rohingya’s is a long history of unresolved political conflict for recognition of ethnic identity and citizenship in the wake of colonialism’s retreat from Southeast Asia. India, as a member of the international community, must do its bit to ensure that the roots of the conflict are addressed and the rights of the Rohingya safeguarded.
The government of India, in the present petition filed in the Hon’ble Supreme Court, filed by two rohingya refugees, contests the plea of petitioners that the Rohingya refugees are illegal immigrants residing in India for a while, this does not make them the citizens of India or Indian national and hence, do not reserve any rights and stand to be deported. The Central Government makes the contention on the grounds of security threat to the nation. But then it is one thing to be concerned about national security and quite another to criminalize an entire community.
India, on the Rohingya crisis has adopted a silent stand. China, however, have successfully been able to maintain a neutral ground with both Myanmar and Bangladesh. Indian Prime Minister during his 3 day visit to Myanmar refused to resort to the Rohingya crisis and stayed silent. India is simply following a ‘do nothing’ approach for the concerned crisis. What India fails to cogitate is that if the Rohingyas are deported, they will have nowhere else to go and would have to suffer violence wherever they go. Rohingyas cannot even return to the place of their origins because it would be to like giving themselves to inhumanity and go through a lot of misery again and to eternity.
All the countries have the right to push out the foreigners under International law and deport them to another country or their own court for recognition of their nationality. The situation of India cannot be so easily defined. As Myanmar refuses to acknowledge Rohingya Muslims as citizens, it becomes impossible for the Indian government to deport them there, making the advisory infructuous. Also, the Indian Constitution talks about equality of law and equality before law reserved for every individual and not just an Indian citizen. This treats foreigners and citizens alike. Also, Article 21 of the Indian Constitution ensures right to life and personal liberty which guarantees the right to live with dignity. The irony is, despite the Constitution, Rohingyas are in a miserable situation on the land of India. Though the Constitution guarantees personal freedoms and reserves certain fundamental rights. Rohingyas are prohibited for activities like getting married, establishing an identity, deprived of employment, forced labor, victims of rape and murder and what not.
India is a state party to Article 6 of International Covenant on Civil and Political Rights (ICCPR), which upholds the right to life. In addition, the deportation of Rohingya Muslims back to Myanmar would also be a violation of Article 7 of the ICCPR in as much as it prohibits states to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm. As mentioned above, the Rohingya community is considered as the world’s most persecuted ethical minority. India needs to understand the inhumane situation and livelihood of Rohingyas. H.L. Dattu, the Chairman of National Human Rights Commission (NHRC) takes the debate to a humanitarian ground, stating that intervention of the Government (to deport the Rohingyas for security concerns) is totally inappropriate from the humanitarian perspective. Indian Government has constantly been neglecting the fact that outside the territory if India and even in some parts of India, Rohingyas are being exposed to all sorts of inhumane activities which jeopardizes their survival. If the Rohingyas are deported, the only place of survival available for them would be abyss.
Even the Hon’ble Supreme Court of India in 1996, in the case National Human Rights Commission v. The State of Arunachal Pradesh held that “Article 21 of the Constitution guarantees the ‘right to life’ to all persons and not just Indian citizens and that the state governments are under constitutional obligation to protect threatened groups of foreign nations.” This judgment is a proof sufficient to reject the stand of the Central Government to deport the Rohingya refugees to their home town where there is nothing but vulnerability. The Court additionally mentioned that under Article 51(a), it is the duty of every individual to promote international peace and security. Letting Rohingya refugees settle in India will not only establish harmonious relations with Myanmar but will also promote international peace. India played a role model by taking the ‘Operation Insaniyat’ initiative and made an inspiring impression worldwide.
Indian Government needs to understand that only a peaceful neighborhood can ensure India’s national security. If India and the Hon’ble Apex Court legally allow the Rohingyas to reside and settle in India, with all human rights implemented, it will not only impart justice to Rohingyas but also will put India at the peak of humanity.
Why can’t and why shouldn’t the Indian government deport Rohingyas?
Other than humanitarian grounds, Indian government also needs to put emphasis on the international relations with Bangladesh and Myanmar. India crucially needs to maintain harmonious relations with both, Myanmar and Bangladesh. Myanmar is India’s door to Southeast Asia; this clarifies why India has delicate stand on the Rohingya issue. India needs Myanmar for synchronizing patrols of the southern Indian Ocean. Also, Rakhine state is a significant connection for India’s hydrocarbon and trade aspirations; India has been working on maintaining a network at interfacing northeast Indian states to Sittwe port.
India’s relationship with Bangladesh deserves to be paid more attention. India needs Bangladeshi territory for the migration of individuals as well as goods. Bangladesh has stepped up to this human catastrophe, however food, medicine, and first aid are in short supply. Under Operation Insaniyat, India has been sending help to Bangladesh; altogether, 7,000 metric tons of relief aid will be traveled through the operation. Strong humanitarian assistance will boost India’s impression, however foreign policy can’t be keep running on soft power alone. It is imperative that the Rohingya in India be settled with the government’s assistance so as to diminish their powerlessness to radicalization. Importantly, India needs to get more associated with the long-haul resolution of the crisis. Enhancing connectivity with Rakhine state and establishing commercial links with the whole region will assume a bigger part in stabilizing the region.
Considering all the above factors, improving and maintain relations with Bangladesh and Myanmar, especially with Rakhine state shall be the major concern of the Indian government.
‘Everybody thinks that equality comes from identifying people, and that’s not where equality comes from. Equality comes from treating everybody the same regardless of who they are.’ Refugees residing inside the territory of a country are same as the citizens of that particular country. Indian Constitution guarantees equality to not only citizens but all persons on the territory of India. Rohingya refugees, though not originally belonging to India, have settled in India and hence, reserve all the rights and freedoms guaranteed under the Constitution of India. Everyone has a right to have to be legally recognized as a national. Rohingya refugees are no different. These refugees reserve all the rights against discrimination and exploitation irrespective of who they are and where they come from. What is important is they are settled in India and hence, deserve to be recognized by the nation.