The ticking bomb of Rohingya statelessness has exploded. Since, August 25, 2017 within less than two months, more than half a million Rohingya Muslims and Hindus, women, children and men have had to flee from their homes in the Rakhine state of Myanmar (Burma) as the Myanmar (Burma) army and gangs of Burmese Buddhist let lose a reign of mass rape, killing, torture and systematically burning down their villages. According to the UN High Commissioner for Refugees (UNHCR), there are nearly a million one million Rohingya refugees are now being sheltered in overcrowded camps and makeshift shelters inside Bangladesh.
Since August this year (2017) Myanmar (Burma) security forces killed hundreds of men, women and children during a systematic campaign to expel Rohingya Muslims, Amnesty International has said in a new report. As on October 14, 2017 the International Organisation for Migration (IOM) has registered 537,000 new arrivals in Bangladesh since 25 August, when Myanmar security forces began a campaign against Rohingya Muslims. The violence against the Muslim Rohingya by the Buddhist majority of Myanmar, has a long history. The Rohingya are considered illegal immigrants by the Myanmar government, despite evidence that the Rohingya have inhabited Myanmar continuously for hundreds of years prior to colonial rule.
While the UN Secretary General Antonio Guterres has said that it was a “textbook example of ethnic cleansing”, Aung San Suu Kyi has denied any ethnic cleansing and dismisses numerous claims of sexual violence against Rohingya women as “fake rape”. The Burman and Buddhist dominated leadership of the country has long treated them as illegal Bangladeshi infiltrators. In addition, the Rohingya “Muslim” identity has injected into their situation of humanitarian distress a globalized Islamophobic dimension. The 969 campaign led by Burmese Buddhist monks, which proposes to defeat Islamic expansionism in Buddhist Myanmar is a virulent, Islamophobic campaign led by extremist Buddhist monks.
Myanmar’s government has said it was responding to attacks by Arakan Rohingya Salvation Army (ARSA) a Muslim insurgent organisation. The ARSA, had come into existence in 2012 in response to the rampant anti-Muslim violence. Myanmar government claims that ARSA is linked with international Islamic terrorist groups. A 2016 report by International Crisis Group (ICG) linked ARSA with Saudi Arabia and identified Ata Ullah a Pakistan born Rohingya, as its leader. ARSA denies that it is connected with any international Islamic Jihadi organisation. Security analysts have said that there are no credible links between the ARSA and any known terrorist organisations. Some analysts see them as a “paper tiger that… will only prove a justification… for more severe military operations”.
The United Nations and others have said the military response of Myanmar government was disproportionate. Amnesty International has accused Aung San Suu Kyi and her government of telling “untruths” over what it described as ethnic cleansing of minority Rohingya Muslims in Myanmar. According to a report in the Washington Post on September 11, 2017, “ARSA probably has a only a few hundred fighters. There is little evidence foreigners have joined the fight.” The Burmese government has rejected the unilateral ceasefire offered by ARSA and refused to enter into talks with them.
Bangladesh, one of the poorest countries of the world, has perhaps the world’s worst land-man ratio. The country needs to be praised and thanked by the world community for sheltering nearly a million refugees, particularly in these days when the rich countries of Europe and the USA have slammed their doors on the hapless refugees from Syria and Iraq. For Bangladesh, the human catastrophe is a nightmare. Yet the country has courageously stepped up to deal with the unprecedented crisis. Medicines, water and food are in short supply, and the UNHCR has sent out an appeal for help.
Bangladesh has backed the call for a Commission of Enquiry by Yanghee Lee, UN special rapporteur on the situation of human rights in Myanmar, on the same lines as those set up for Syria among others. As Dhaka struggles with a growing crisis, aid on the ground has been provided by Malaysia and Denmark. India has sent about 700 tons of relief for distribution among the refugees.
Divided International Response
Unfortunately, the international community’s response to the violence against the Rohingya people has been woefully inadequate. The UN, the United States, and the Organisation of Islamic Countries have issued standard condemnations and Muslim-majority Indonesia has been the most active, sending their foreign minister for urgent talks with Myanmar.
While many Western governments have condemned Myanmar military’s action against the Rohingya Muslim people, the UK government is continuing to provide military training to troops in, Myanmar, despite the troops being involved massive violence that has left hundreds dead, thousands of homes burned, and tens of thousands fleeing to Bangladesh. Britain’s government has been criticised for continuing to fund the Burmese military, despite it being accused of ethnic cleansing. Sir Michael Fallon, the Secretary of Defence of the UK has refused to review training provided for Myanmar’s military, despite calls to suspend the programme from 157 MPs and peers.
India and China are close neighbours of Myanmar and they are also the key regional powers. It is unfortunate that both have acted unsympathetically towards the Rohingya. China and Myanmar have closes economic and diplomatic ties. In the United Nations Security Council, China has used its veto to block attempts to substantially address the issue of abusive treatment of the Rohingya by Myanmar army. Recently, Chinese Foreign Minister Wang Yi told U.N. Secretary-General António Guterres, that China supports efforts by the Myanmar government to protect its national security and opposes recent violent attacks in the country’s Rakhine state. Wang emphasised that China “understands and supports” Myanmar’s efforts to protect its security in Rakhine. China is advocating that “Myanmar and Bangladesh resolving the problem via dialogue and consultation.”
India, which is expanding its military engagement with Myanmar has announced its support for Myanmar in its fight against Muslim terrorist who are trying to establish an independent Rohingya state, by destroying Myanmar’s territorial integrity. India has also said that it will deport 40,000 Rohingya who have fled to India for asylum. The Indian Government claims that the Rohingya refugees are connected with “terrorist” organisations. The government claims that it is in possession of secret intelligence information showing Rohingya links to ISIS and Pakistani militants. It also claimed that the Rohingyas were involved in plots by ISIS and other “extremist groups” to ignite communal and sectarian violence in India. However, the government is yet to produce any concrete evidence of the involvement of Rohingya refugees with international Islamic terrorist organisations or their participation in any kind of terrorist activities in India.
It appears that Indian authorities are concerned about ARSA’s reported links with Pakistani groups. It is also concerned that some of the activists of ARSA were “trained in Afghanistan”. India is also worried that Pakistan’s ISI could use the Rohingya refugees in promoting terrorist activities in India. It would seem that the growing influence of Russia and China on Myanmar is a matter of worry for India, which is preventing it from supporting Bangladesh’s call for a Commission of Enquiry. Many Indian and international analysts believe that Indian government’s treatment of the Rohingya stems from the ruling Bhartiya Janata Party (BJP’s) “Islamophobia” as well as domestic political calculations that a tough line on Muslim refugees will play well with the party’s Hindu nationalist base. India is aspiring to be global power, yet it seems that its diplomatic policy is guided by fear of China increasing its influence on Myanmar and the possibility of Pakistan’s intelligence agencies using the Rohingya refugees to commit acts of terror in its territory. It is sad that while a consensus is finally being developed around the fact that there is genocide taking place in Myanmar, India the most populous democracy in the world is seemly more concerned with “terrorist threat” these desperate men and women might pose.
The Indian move to deport the Rohingya refugees is a clear violation of international law. The principle of non-refoulement is a part of customary international law .It expressly prohibits states from returning a refugee to a territory where they will be subject to persecution. The international community should decisively condemn the actions of India and exert pressure on the state to comply with their legal obligations.
In Sri Lanka, the Rohingya Muslim refugees are facing an uncertain future as Buddhist monks belonging to an extremist Sri Lankan nationalist organisation attacked the houses of the Rohingya refugees in September this year. The monks forced the police to arrest the Rohingya refugees as “illegal immigrants”. The 31 refugees, including women and children, were sent away to the detention camp at Boosa, primarily meant for terror suspects, in South Sri Lanka. Then, Sri Lankan government has said that the Rohingya refugees were being kept in Boosa detention camp for their “safety” and their stay there would be temporary.
Pakistan, is home to about 250,000 Rohingyas. Most of those these people live in an area called Arakanabad in the outskirts of Karachi. They have been in Pakistan for more than 35 years, having fled earlier bouts of conflict and violence, with some arriving as far back as the 1960s. The Rohingyas in Pakistan are stateless persons as according to Pakistani policy, the Rohingya do not qualify as asylum seekers or refugees. But since the government has not specifically explained what rights stateless people have, the future of the Rohingya in the country remains in flux.
A small number of Rohingya refugees has managed to reach Nepal’s capital Kathmandu. Unfortunately, despite their claims for asylum and the reports of atrocities by Myanmar’s forces, Nepal government has not recognized them as refugees. The recent August attacks and widespread global news about Rohingyas has brought Kathmandu’s media attention to the miniscule Rohingya presence in the country. And not all of it has been welcoming. The AP1, a conservative Nepali TV channel, has been misrepresenting the situation of Rohingya refugees in Nepal in their stories, providing a sensationalised narrative by citing uncorroborated and false figures on the apparent increased influx of Rohingya Muslims. The channel has also been airing footage on a press statement issued by an Indian junior minister, Kiren Rijju that India has resolved to deport 40,000 Rohingya living in India in an attempt to drum up fears that these 40,000 may then attempt to come into Nepal. The United Nations High Commissioner for Refugees in Kathmandu has verified 147 Rohingya in Nepal. Around 100 others have applied for asylum.
The plight of the Rohingya in India, Nepal and Sri Lanka, where they are being hounded and facing deportation and the non-threatening but coldhearted attitude of Pakistan highlights the difficulty the international community faces finding them a long-term home.
Association of Southeast Asian Nations
Since 2014 an estimated 94,000 Rohingya asylum seekers have fled to neighbouring countries in South East Asia risking deadly sea journeys. The commonly preferred destination was Malaysia, which hosts approximately 142,000 people. Indonesia currently has approximately 1,000 Rohingya refugees, excluding unregistered asylum seekers, mainly based in Aceh.
There is no existing legal framework in ASEAN to deal with refugees and forced migration. In the Southeast Asian region, only the Philippines, Cambodia and Timor Leste are signatories to the 1951 Refugee Convention. ASEAN prefers to focus on its economic functions, while avoiding to engage with more pressing political and human rights issue in the countries of the region.
Indonesia, ASEAN’s largest Muslim-majority country, has taken a quieter approach, sending its foreign minister to Myanmar several times. During a visit last week she told Channel News Asia that Indonesia preferred “constructive engagement”. Last year, the Indonesian government had entered an-ad hoc agreement with Myanmar, to allow a one-year transit for Rohingya refugees, who were supported by various NGOs, the local government, and the local community, with the expectation of a speedy resettlement in a host country. Indonesia’s foreign minister, Retno L.P. Marsudi, had visited Rakhine to make a donation to schools there. At his invitation a Myanmar delegation consisting of Myanmar cabinet members and Rohingya Muslim leaders visited Indonesia to study its history of communal conflict resolution. So far, Jakarta has not tried to initiate a regionally united response towards Myanmar.
On January 19, 2017, Malaysia convened a special meeting of the 51 Organization of Islamic Cooperation member governments during which Malaysian Prime Minister Najib Razak lambasted Myanmar’s treatment of the Rohingya and the “appalling deaths” and “atrocities” they faced. Myanmar Ministry of Foreign Affairs spokesperson Aye Aye Soe welcomed Indonesia’s approach, but rejected Malaysia’s and other harsh international criticism of Aung San Suu Kyi’s handling of the Rakhine crisis. Malaysia’s initiative was criticized for breaking ASEAN’s tradition of non-interference in domestic affairs had angered Myanmar.
The Bali Process
The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Process) was initiated in 2002. It was set up with the objective of raising regional awareness of the consequences of people smuggling, trafficking in persons and related transnational crime. It is a forum for policy dialogue, information sharing and practical cooperation to help the region address these challenges. The Bali Process, an international high-level forum on people smuggling, human trafficking and related transnational crimes co-chaired by Indonesia, resulted in the Regional Cooperation Framework (RCF), which aimed to push for more practical arrangements between its 45 member states, including the implementation of burden-sharing and collective-responsibility principles. While the framework was seen as a much-welcomed step forwards, it is non-binding and stipulates no consequences for non-adherence.
The Bali Process was started to deal with the problem of refugees and migrants being smuggled by traffickers on boats. It has 48 member countries and international organisations including the UN Refugee Agency, was founded in 2002 to develop strategies on people smuggling, human trafficking and transnational crime. Though it was set up with the objective of developing comprehensive long term strategies to address the crimes of people smuggling and human trafficking as well as reducing migrant exploitation by expanding safe, legal and affordable migration pathways, it has failed to address the issue. Indonesia and Australasia have been at loggerheads on the issue of accepting Rohingya refugees escaping by boat through the Andaman Sea. The most promising developments was the creation in 2016 of an ASEAN Regional Trust Fund to support victims of human trafficking, and the adoption in November 2015 of the ASEAN Convention against Trafficking in Person, Especially Women and Children. The lack of success of the Bali Process underlines the fact that so long as human rights violations in countries of origin and the root causes of forced migration are not solved, the flight and plight of those people will continue.
ASEAN’s principle of non-interference in the internal affairs of member states needs re-evaluating now that the Rohingya crisis has directly impacted ASEAN member states. Clearly, members of ASEAN have to do more than appeasing Myanmar through friendly gestures. It is no longer sufficient or morally justifiable for ASEAN to cite its non-interference principle as a buffer to shirk its responsibilities. It will have to step up pressure on the Myanmar government to stop the persecution of and discrimination against the Rohingya people through persistent diplomacy. A stronger diplomacy is also needed to allow and ensure the admission of humanitarian aid agencies into the Rohingya area. Furthermore, a legal system to deal with the refugee issue in the region should be put into place.
Dire Situation of Aid
IOM’s latest Needs and Population Monitoring Report of October 18, 2017, estimated that over half of the 582,000 new arrivals are women and girls. The report noted that of the total population, 33,542 (4 per cent) were registered and living in two UNHCR refugee camps. The remaining 96 per cent (761,116) were living in makeshift settlements, spontaneous sites and host communities. Based on sampling techniques across the sites, the assessment identified lactating mothers (9.2 per cent) and pregnant woman (4.9 per cent) as the two highest number of vulnerable groups within the population. An estimated 3.6 per cent of the total number of households were female-headed and 2.2 per cent headed by elderly persons.
According to the Office of UN High Commissioner for Human Rights, as of now about US $ 434 million are required to provide the necessary care for the Rohingya refugees in Bangladesh. At a recent meeting in Geneva, the international donor community announced pledges for more than US$344 million to augment the delivery of critical humanitarian assistance to Rohingya refugees and host communities in Bangladesh. The conference was co-organised by the UN Migration Agency (IOM), the UN Refugee Agency (UNHCR), and the Office for the Coordination of Humanitarian Affairs (OCHA) along with Kuwait and the European Union as co-hosts. This is a great improvement in the international response, which till now has been woefully inadequate. So far only about 27% of the funds have been committed by the international governments.
These very generous pledges must now quickly translate into life-saving relief for the vulnerable refugees and support to host communities who have been stretched to the limit. In Bangladesh, aid agencies are worried they do not have the capacity to deal with the huge influx of refugees, most of whom are arriving hungry and without clothes or supplies. Mark Pierce, Bangladesh country director for the Save the Children Fund, has said that, “many people are arriving hungry, exhausted and with no food or water”. The aid agencies have pointed out that the demand for food, shelter, water and basic hygiene support is not being met due to the sheer number of people in need. If the basic needs are not met, the suffering will get even worse and lives could be lost.”
Creation of Statelessness
Understandably, in the face of such a colossal humanitarian crisis, the global attention is focused on refugees. However, we know from experience since the end of the Second World War, that despite the massive efforts made by the UNHCR and the global humanitarian community to help and assist the victims of forced eviction, through relief, rehabilitation, integration in host country and third-country resettlement, the problem has not gone away, rather it has increased. By 2011 the number of refugees who were outside their home countries had increased to nearly 43 million of which about 12 million were stateless persons. The plight of the Rohingyas demonstrate that they did not have to cross international borders to become refugees. They had become “refugees” in their homes when they were stripped of their citizenship and rendered “stateless”.
Statelessness has emerged as a serious issue in the region of South and South East Asia. Myanmar, Bangladesh and India have a shared colonial past that has shaped their present borders and histories to a great extent. The colonial and post-colonial history of this region, starting with the Treaty of Peace between the British and the King of Ava in 1826, and nearly two hundred years’ history of repeated fixing of both internal and external boundaries between different units of the country and as borders with outside regions have left the people of the region divided on ethnic, religious and cultural lines.
Not just Myanmar, the citizenship laws of the postcolonial states of India, Pakistan and Sri Lanka were highly influenced by the self-perception of the “majority” who claimed to constitute the “nation”. Ethnic bias, cultural, linguistic, religious prejudices, gender discrimination and political concerns of the emerging ruling elite shaped the policy for granting as well as denying citizenship. South Asia hosts the fourth largest concentration of refugees in the world. Nongovernmental and semi-governmental agencies, working with refugees and the displaced claim that the number of persons living in refugee-like situations in the region is much higher than the official estimate. Large number of the displaced who have crossed international borders in this region, are treated as undesirable aliens or illegal immigrants by host governments. South and South East Asian states have no national laws which define or distinguish refugees from others who cross the borders. Moreover, none of the governments have signed the 1951 UN Convention Concerning the Status of Refugees and its 1967 Protocol.
The international community’s engagement with the problem of statelessness is rather recent. The UN Convention Relating to the Status of Stateless Persons of 1954 and Convention of Reduction of Statelessness of 1961 exclusively deal with the issue of statelessness. These two legal instruments explain statelessness mainly in two ways de jure and de facto. A stateless person as defined by the 1954 convention is generally equated with the term de jure statelessness. Besides, the Convention also refers to the category of de facto stateless persons – “who remain outside the country of their nationality and hence are unable, or, for valid reasons, unwilling to avail themselves of the protection of that country”. International law requires that States establish safeguards in legislation to address statelessness occurring at birth or later in life, acquisition and loss of nationality and to standards of treatment of stateless persons.
The major weakness of international protection mechanism for the stateless persons is non-applicability of international law within the sovereign jurisdiction of sates, where the majority of stateless persons live. The states control their borders, frame the immigration policies and decide who should be allowed to enter its territory and who should be rejected. The present immigration laws, policies and practices of most states do not make a distinction between the stateless persons and other migrants.
Stateless persons cannot return to the country which has taken away their citizenship. The increasing use of immigration detention for punitive purposes, criminalisation of irregular migration and pushing them back into states from where they are escaping or into the sea by a growing number of states, is a matter of serious concern. In the light of the massive violation of human rights of the Rohingya people and the resultant humanitarian crisis there is an urgent need for states to recognise the special characteristics and the circumstances of the stateless persons. The fact that the stateless Rohingyas have no country to return to needs poses a serious political crisis for the entire region. The states and the civil society of South and South East Asia need to address the issue of creation of statelessness urgently in the interest of peace, prosperity and political stability of the region.