Any solution to the Rohingya problem must be based on mutual cooperation

A woman collapses from exhaustion as Rohingya refugees arrive by a wooden boat from Myanmar to the shore of Shah Porir Dwip, in Teknaf, near Cox’s Bazar in Bangladesh, October 1, 2017. Picture taken October 1, 2017. REUTERS/Mohammad Ponir Hossain

Refugees in India

The Qissa-i Sanjan (Story of Sanjan) recounts the early years of the Parsees in India. After the fall of the Persian Empire to the Arabs, the Persians fled to the mountains of Khorasan. They lived a nomadic life for a few decades. In 785 AD, they reached Sanjan, a small fishing village on the Gujarat coast.

When the Parsees requested asylum, Jadi Rana, the ruler of Sanjan, gestured to a vessel of milk that was full to the brim. His kingdom was already full and could not accept refugees. In response, one of the Parsee priests added a pinch of sugar to the milk. This was to indicate that the Parsees would not make the vessel overflow. Rather, they would make the lives of the citizens sweeter.

Over the years, millions of similarly situated communities have found refuge in India. In the process they have added to our culture and economy. The Tibetans, persecuted in China, have found homes in Dharamsala. Thousands of Afghans live in relative peace in New Delhi. There have been instances, though, of India having deviated from her traditional hospitality. For example, asylum-seekers from Burma were jailed, and approximately 5,000 Burmese refugees were pushed back home between 1995 and 1997. However, India’s record with refugees remains largely one of acceptance.

And yet, there exists a surprising contradiction. Successive governments have refused to sign the Refugee Convention of 1951. Even today, Indian domestic law does not have a formal mechanism to deal with refugees. These issues have been brought back to public attention by petitions that are pending hearing before the Supreme Court. The petitions seek a stay on the deportation of the members of the Rohingya community living in India.

The Rohingya

The Rohingya are a predominantly Muslim minority group from the state of Rakhine in Myanmar. Today, close to a million Rohingya survive as a stateless race. No country will accept them as citizens. They have suffered rape, torture, forced labour and murder. Hundreds of thousands have fled to Thailand, Bangladesh and India. However, they have received little support from the governments or the United Nations High Commissioner for Refugees (UNCHR). The United Nations has described the Rohingya as the world’s most ignored and persecuted minority.

Efforts to deprive the Rohingya of citizenship began shortly after Myanmar’s independence in 1948. In 1977, the military government commenced Operation Nagamin (Dragon King) to identify illegal immigrants. The violence and religious persecution that followed forced more than 200,000 Rohingya to flee to Bangladesh. In 1982, former dictator General Ne Win enacted the Burma Citizenship Law, which identified 135 official ethnic minority groups as citizens. The Rohingya were not among them.

The 1982 law, thus, rendered the majority of Rohingya stateless. The international community’s silence has made matters worse. A 2015 study by the Yale Law School has concluded that the “acts committed against the Rohingya, individually and collectively, meet the criteria for finding acts enumerated in the Genocide Convention…”

The Stand of the Central Government

Before the Supreme Court, the central government has taken a stand that the Rohingya are illegal immigrants. Their presence is a threat to the country’s security. The government also states that providing refuge to the Rohingya would deprive citizens of resources. It asserts it right to deport them in accordance with procedure established by law. Significantly, the government has contended that India being a non-signatory to the Refugee Convention, the principle of non-refoulement is not applicable.

This contention appears to be untenable. Simply put, non-refoulement refers to the system of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution. The UNHCR asserted the status of non-refoulement as a principle of customary international law as far back as 1977. Thus, it is applicable to India, notwithstanding the fact that it is not a party to the refugee convention. Many recent commentators even hold it to be a jus cogens norm — a peremptory norm of international law from which no derogation is permitted.

An exhausted woman is carried after a group of Rohingya refugees arrived by a wooden boat from Myanmar to the shore of Shah Porir Dwip, in Teknaf, near Cox’s Bazar in Bangladesh, October 1, 2017. Picture taken October 1, 2017. REUTERS/Mohammad Ponir Hossain TEMPLATE OUT

It is true that some treaties (for e.g. Article 33 (2) of the 1951 convention) allow refoulement in the interest of national security. However, the general consensus is that the exception is narrowly tailored, and is to be interpreted restrictively. Developments in the field of human rights law also exclude exceptions to non-refoulement. Jurists like Sir Elihu Lauterpacht have stated the essential content of the principle of non-refoulement at Customary Law is that:
“No person shall be rejected, returned, or expelled in any manner whatever where this would compel him or her to remain in or return to a territory where substantial grounds can be shown for believing that he or she would face a real risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment. This principle allows of no limitation or exception.”

Principles of customary international law or jus cogens norms have to be read into domestic law, when there is no conflict between the two. Two High Courts – Gujarat (1998) and Delhi (2015) have held that the principle of non-refoulement is a part of the guarantee of life and personal liberty under the Constitution. However, significantly, neither of the Courts have gone ahead to stop deportation. The ultimate decision has been left with the Government in both cases.

One cannot say with certainty if the Supreme Court will allow the deportation of the Rohingya to Myanmar, Bangladesh or Thailand – countries where they have faced mass human rights violations. Principles of law aside, the scarcity of resources in countries receiving a mass influx of refugees cannot simply be ignored.

It is clear that forced migrations will continue to grow over time. There is pressing need for a more institutional response to the problem of refugee resettlement in South Asia. India, given its position in South Asia can exercise considerable influence. The limitations of international law – a law largely without sanction are well known. The necessary implication of these limitations is that any solution to the Rohingya problem must be based on mutual cooperation. Whether such a solution is found in time to prevent more death and despair, is something only the future will tell.