A Rohingya boy carries an older relative up a muddy path at the Kutupalong extension site, built on land allocated by the Bangladesh Government. © UNHCR/Paula Bronstein
They traverse on foot, sail on the sea, lost in wilderness they trot and trot, and with each step ahead, they are pushed a lifetime away, from a place called home. A journey of life and death they are compelled to undertake.
They are just like you and me, but not as lucky, humans called refugees; they are the people escaping war, natural disaster or persecution. Unfortunate beings who move to another land not to build a better life, but to keep themselves from dying. When they move ahead, they leave behind all the comfort and material wealth they once enjoyed, they are forced to part; with their jobs, fame, position; with their family and friends. And with their future hanging in an indefinite limbo they try to build their temporary homes in a borrowed piece of land. But not all host countries are receptive and not all refugees are embraced with open arms. Some are treated as uninvited intruders, shunned by the host Governments and the people alike. Looked with suspicion, their camps burnt, supplies cut.
The 1951 Geneva Convention is the main international instrument of refugee law. The Convention clearly spells out who a refugee is and the kind of legal protection, other assistance and social rights he or she should receive from the countries who have signed the document. The Convention also defines a refugee’s obligations to host Governments and certain categories of people, such as war criminals, who do not qualify for refugee status. The Convention was limited to protecting mainly European refugees in the aftermath of World War II, but another document the 1967 Protocol, expanded the scope of the Convention as the problem of displacement spread around the world.
Article 1 (A) (2) of the 1951 Convention defines a refugee as an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.
One of the major rights that the refugees enjoy is the right of ‘Non-refoulement’ which is guaranteed under Art. 33(1) of the 1951 Convention, ‘Non-refoulement’ refers to the obligation of States not to refoule, or return, a refugee 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 a political opinion”. This right of ‘Non-regfouelment’ is universally acknowledged as a human right.
India has had an age old tradition of according humanitarian protection to refugees and asylum seekers. In India refugees are considered aliens under the ambit of the term ‘alien’. Enactments governing aliens in India are the Foreigners Act, 1946 under which the Central Government is empowered to regulate the entry of aliens into India.
The Constitution of India guarantees certain Fundamental Rights to refugees. Namely, right to equality (Article 14), right to life and personal liberty (Article 21), right to protection against arbitrary arrest (Article 22), right to protection on respect of conviction of offences (Article 20), freedom of religion (Article 25), right to approach Supreme Court for enforcement of Fundamental Rights (Article 32), are as much available to non-citizens, including refugees, as they are to citizens.
Even though India has not ratified the 1951 Convention and the 1967 Protocol to it, but it did accede to various Human Rights treaties and Conventions that contain provisions relating to protection of refugees. As a party to these treaties India is under a legal obligation to protect the human rights of refugees by taking appropriate legislative and administrative measures under Article 51 (c) and Article 253 of the Constitution, and also under the same laws it is under the obligation to uphold the principle of ‘Non-refoulement’. India is a member of the Executive Committee of the office of the United Nations High Commission for Refugees which puts a moral, if not legal obligation, on it to build a constructive partnership with UNHCR by following the provisions of the 1951 Refugee Convention.
If we talk about the Rohingya Refugee crisis, it is regarded as one of the major refugee crises in the world today. The United Nations has termed these refugees, as ‘stateless’ i.e. those who are constantly moving from one place to another in search of shelter. They have also been described as one of the most persecuted minorities in the world by the UN.
The Rohingya people are an ethnic group, who have lived for centuries in the majority Buddhist Myanmar. Nearly all the Rohingya in Myanmar live in the western coastal state of Rakhine. There was an estimated about 1 million Rohingya living in Myanmar before the 2016-2017 crisis. On 22 October 2017, the UN reported that an estimated 603,000 refugees from Rakhine, Myanmar has crossed the border into Bangladesh since August 25, 2017. This number increased to 624,000 by November 2, 2017 and over 625,000 by December 6, 2017.
The Rohingya maintain they are indigenous to western Myanmar with a heritage of over a millennium and influence from the Arabs, Mughals and Portuguese. Historically, the region was an independent kingdom between Southeast Asia and the Indian Sub Continent. Rohingya legislators were elected in the Parliaments of Myanmar until persecution increased in the late 20th century. The Rohingya have faced military crackdowns in 1978, 1991-1992, 2012, 2015 and 2016-2017. UN officials and Human Rights Watch (HRW) have described Myanmar’s persecution of the Rohingya as ethnic cleansing.
Despite being able to trace Rohingya History to the 8th century, Myanmar law does not recognize the ethnic minority as of the eight “national indigenous races” and consequently Rohingya have been denied citizenship under the 1982 Myanmar nationality law. They are also restricted from freedom of movement, state education and civil service jobs.
In 2017, the Permanent People’s’ Tribunal a United Nations-backed International Court based on Bologna Italy, found Myanmar guilty of genocide against the Rohingya people.
After the killings of nine border police in October 2016, the Government of Myanmar blamed what it claimed were fighters from an armed Rohingya group into the villages of Rakhine State. A security crackdown on villages where Rohingya lived ensued; during which government troops were accused of an array of human rights abuses including extra-judicial killing, rape and arson-that the Government denied.
In February 2018, the Associated Press released the video showing what they say is the site of massacre and at least five undisclosed mass graves of Rohingya in Myanmar. The UN’s special rapporteur to Myanmar said violence against the Rohingya bear the hallmarks of genocide.
About one million Rohingya have fled Myanmar since the brutal military action in 1977. The majority have taken refuge in Bangladesh, but other countries in Asia and the Middle East have also opened their doors to one of the world’s most persecuted communities.
In August 2017, the Government of India had announced that it was planning to deport all 40,000 Rohingya refugees living in the country. On September 18, 2017, the Government told the Supreme Court in an affidavit that the continued illegal immigration of Rohingya to India had “serious national security ramifications and threats”. India’s selective-securitization approach is apparent in the Citizenship (Amendment) Bill, 2016 which amends the Citizenship Act of 1955 to exclude Muslim (illegal) migrants from Afghanistan, Pakistan and Bangladesh from being eligible for citizenship. Moreover, in 2015 and 2016 the central government issued notifications to exempt certain groups of (illegal) migrants (Hindus, Sikhs, Christians, Jains, Parsis and Buddhists) from the provisions of the Foreigners Act, 1946 and the Passport Act (Entry into India) Act, 1920 some of which prescribe imprisonment for immigration violations for up to five years and deportation.
Since India is not a signatory to international refugee Conventions, it is using that as a cover to prevent Rohingya from accessing programmes that would help them with food and health care. Civil Society groups such as the Rights to Food have tried to monitor and intervene, but increasingly they are dealing with a backlash from the Government that does not even consider the Rohingya to be refugees, seeing them instead as illegal migrants, and therefore making moves to try to kick them out of the country.
In response to this move, two refugees in 2017 filed a plea with the Supreme Court to direct the Government not to deport them and other members of their community. They argued that they met the basic conditions for refugee status and that the Indian government should provide them with “basic amenities to ensure that they can live in humane conditions as required by international law.”
The plea also said that the “proposed deportation is contrary to the Constitutional protections of Articles 14, 21, and 51 (c) of the Constitution of India. This act would also be in contradiction with the principle of ‘Non-refoulement’, which has been widely recognised as a principle of customary International law”. It also said that India had ratified and is a signatory to various conventions that recognise the principle of ‘Non-refoulement’, which prohibits deportation of refugees to a country where they may face threat to their lives.
The petition further said that India has traditionally been hospitable to host of refugees and displaced people both from South Asia and across the world.
The case is being heard by a top court bench, headed by Chief Justice of India, Dipak Mishra.
Recently one more shocking incident pertaining to Rohingyas made it to the news. On the intervening night of April 14 and 15, 2018, a fire had broken out at a Rohingya refugee camp near Kalindi Kunj in South Delhi that quickly engulfed the whole camp in which more than 200 residents of the camp lost all their belongings including the identity cards and special visas issued by the United Nation. Initially it was being speculated that the fire was due to a short circuit but a criminal complaint was filed by public interest lawyer and activist Prashant Bhushan against a BJP Youth Wing leader Manesh Chandela after he allegedly admitted on social media to burning down a Rohingya Refugee camp. But sadly no action was taken by the Delhi Police to register a case against the alleged perpetrator.
I would like to conclude by saying that it’s time that the world at large should come together to resolve this issue of ethnic cleansing and take an appropriate action against the guilty nation.
“Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression and resistance.”
– Robert Kennedy