Rohingya Conflict

Rohingya Conflict

Rohingya Deportation case

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

Mains level : Paper 2- Issues with the deportation of Rohingya

The article highlights the issues with the order passed by the Supreme Court allowing the deportation of Rohingya refugees.

Context

  • Recently, in its order in Mohammad Salimullah v. Union of India, the Supreme Court rejected an application to stay the deportation of Rohingya refugees to Myanmar.

Principle of non-refoulement

  • The Supreme Court noted the petitioners’ reliance on a judgment of the International Court of Justice (ICJ) dated January 23, 2020, which recorded the genocidal conditions that resulted in 7.75 lakh Rohingyas being forced to take refuge in Bangladesh and India.
  • The Supreme Court relied on the word of the government that the principle of non-refoulement, or forcible repatriation to a place where the refugee’s life is in danger, applies only to signatories to the UN’s Refugee Convention of 1951 or its 1967 Protocol.
  • It must be stated that a UN Special Rapporteur was not heard, as the Court felt that serious objections had been raised to her intervention.
  • The Supreme Court accepted that the right not to be deported flows not from the right to life and liberty under Article 21, which applies to all human beings, but from the right to reside and settle in India under Article 19(1)(g), which applies to citizens alone.

Why the judgement needs reconsideration

1) India has recognised genocide as an international crime

  • India is a signatory to the Convention for the Prevention and Punishment of the Crime of Genocide (the Genocide Convention, 1948),
  • Acceding to the Convention in 1959, India has recognised genocide as an international crime, and that the principles of the Convention are “therefore already part of common law of India”.
  •  India has also ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the International Covenant on Civil and Political Rights (ICCPR) have a bearing on non-refoulement.
  • Article 6(1) of the ICCPR, which mirrors Article 21 of our Constitution.
  • A number of other UN conventions particularly those dealing with the rights of women (CEDAW) and children (CRC) also have a non-refoulment element in it and both of which have been declared by the Supreme Court to be part of our domestic legal framework.

2) Prevention of genocide

  • The leitmotif of the Genocide Convention is prevention.
  • Prevention is also central to Article I, under which the contracting parties confirm that genocide is a crime under international law, “which they undertake to prevent and to punish”.

3) Preemptory norm

  • It is increasingly accepted in public international law, that non-refoulement and other protections emanating from the Genocide Convention, are peremptory norms that apply to state parties as well as non-parties.
  • That non-refoulement is jus cogens, a norm from which there can be no derogation whatsoever. I
  • At least three high courts (Gujarat in 1998, Delhi in 2015, and Calcutta in 2019) have held that non-refoulement is part of the right to life and liberty protected by Article 21 of our Constitution.

What should the Supreme Court do

  • There are two possible solutions.
  • The first is that in its interim order, the Court specifies that the Rohingya refugees may not be deported unless “the procedure prescribed for such deportation is followed”.
  • It is a long-held principle of Indian jurisprudence that the word “procedure” means “due process”, or a procedure that is just, fair, and reasonable.
  • The Supreme Court can, thus, suo motu clarify that due process requires that they not be deported as long as there exists a reasonable threat of persecution in Myanmar.
  • Alternately, since the order in question is an interim order, the Supreme Court could swiftly hear the main petition on its merits, and clarify the law on non-refoulement and Article 21. 

Conclusion

The order on the deportation of Rohingya refugees needs reconsideration by the Supreme Court considering the India’s treaty obligations on the genocide.

Rohingya Conflict

India’s refugee Policy & Issues with it

Note4Students

From UPSC perspective, the following things are important :

Prelims level : 1951 Refugee Convention

Mains level : Paper 2- Need for refugee protection policy framework in India

The article highlights the issue of the lack of refugee protection framework in India and suggests enacting domestic law to deal with the issue. 

India’s record on refugee protection

  • India, for the most part, has had a stellar record on the issue of refugee protection.
  • But this moral tradition has come under great stress of late.
  • New Delhi has been one of the largest recipients of refugees in the world in spite of not being a party to the 1951 Refugee Convention and its 1967 Protocol.

Confusion in policies for immigrants and refugees

  • Much of the debate in India is about illegal immigrants, not refugees, the two categories tend to get bunched together.
  • Our policies towards illegal immigrants and refugees is confused is because as per Indian law, both categories of people are viewed as one and the same and are covered under the Foreigners Act, 1946.
  • The act offers a simple definition of a foreigner — “foreigner” means “a person who is not a citizen of India”.
  • There are fundamental differences between illegal immigrants and refugees, but India is legally ill-equipped to deal with them separately due to a lack of legal provisions.
  • Also, India is not a party to the 1951 Refugee Convention and its 1967 Protocol, the key legal documents pertaining to refugee protection.

How absence of policy framework creates problems

  • The absence of legal framework for refugees leads to policy ambiguity whereby India’s refugee policy is guided primarily by ad hocism and ‘political utility’.
  • At the same time, the absence of a legal framework increases the possibility of the domestic politicisation of refugee protection and complicates its geopolitical faultlines.
  • The absence of a clearly laid down refugee protection law also opens the door for geopolitical considerations while deciding to admit refugees or not.
  • For example, India’s decision in the recent case of admitting Myanmarese refugees fleeing to India was influence by the possibility of irking the Generals in Naypyitaw.
  • However, hypothetically speaking, if New Delhi had domestic legislation regarding refugees it could have tempered the expectations of the junta to return the fleeing Myanmarese.

Why India has not signed convention and protocol on refugee protection

  • The definition of refugees in the 1951 convention only pertains to the violation of civil and political rights, but not economic rights, of individuals.
  • If the violation of economic rights were to be included in the definition of a refugee, it would clearly pose a major burden on the developed world.
  • This argument, if used in the South Asian context, could be a problematic proposition for India too.
  • India also need to argue that the North is violating the convention in both letter and spirit, and make its accession conditional on the Western States rolling back the non-entrée (no entry) regime.
  • The non-entrée regime is constituted by a range of legal and administrative measures that include visa restrictions, carrier sanctions, interdictions, third safe-country rule, restrictive interpretations of the definition of ‘refugee’, withdrawal of social welfare benefits to asylum seekers, and widespread practices of detention.”
  • In other words, India must use its exemplary, though less than perfect, history of refugee protection to begin a global conversation on the issue.

Way forward

  • What other options do we have to respond to the refugee situation we are faced with?
  • The answer perhaps lies in a new domestic law aimed at refugees.
  • The CAA, however, is not the answer to this problem primarily because of its deeply discriminatory nature.
  • What is perhaps equally important is that such a domestic refugee law should allow for temporary shelter and work permit for refugees.
  • India must also make a distinction between temporary migrant workers, illegal immigrants and refugees and deal with each of them differently through proper legal and institutional mechanisms.

Consider the question “What are the reasons for India’s not singing 1951 Refugee Convention? What are the options India can explore for refugee protection? 

Conclusion

Our traditional practice of managing these issues with ambiguity and political expediency has become deeply counterproductive: It neither protects the refugees nor helps stop illegal immigration into the country.

Rohingya Conflict

Places in news: Bhashan Char Island

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Bhashan Char Island and its location

Mains level : Rohingya Crisis

Bangladesh has transported more than 1,600 Rohingya refugees to a low-lying island in the first phase of a controversial planned relocation of 1,00,000 people.

Can you see, what the so-called champions of tolerance and human rights doing to the refugees in their own country!

Bhashan Char Island

  • Bhasan Char also known as Char Piya, is an island in Hatiya, Bangladesh.
  • Located 34 kilometres (21 miles) from the mainland, its name in Bengali means “floating island.”
  • The island was formed with Himalayan silt in 2006 spanning 40 square kilometres.
  • It is underwater from June to September annually because of the monsoon, and it has no flood fences.
  • In June 2015, the Bangladeshi government suggested resettling Rohingya refugees on the island under its Ashrayan Project.
  • The proposal was characterized by the UN Refugee Agency as “logistically challenging”.

Extraditing to another hell

  • Bhashan Char is a flood-prone island that emerged from the sea 20 years ago.
  • The refugees had been coerced into going to this flood-prone island which is also vulnerable to frequent cyclones.
  • This compact island is too small to occupy and nurture the Rohingya population and there is chronic overcrowding in camps.

Rohingya Conflict

India-Myanmar relations

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : India-Myanmar relations

The Foreign Secretary and Chief of the Army Staff have recently visited Myanmar reflected India’s multidimensional interests in the country.

Try this question:

Q.Myanmar is the key in linking South Asia to Southeast Asia and the eastern periphery becomes the focal point for New Delhi’s regional outreach. Analyse.

India-Myanmar relations

  • There are two lines of thinking that drive India’s Myanmar policy: engagement with key political actors and balancing neighbours.
  • For Myanmar, the visit would be viewed as India’s support for its efforts in strengthening democratization amidst criticisms by rights groups over the credibility of its upcoming election.

Non-interference in internal politics

  • The political logic that has shaped India’s Myanmar policy since the 1990s has been to support democratization driven from within the country.
  • This has allowed Delhi to engage with the military that played a key role in Myanmar’s political transition and is still an important political actor.
  • A key factor behind the military regime’s decision to open the country when it initiated reforms was, in part, to reduce dependence on China.

India as an alternative

  • By engaging Myanmar, Delhi provides alternative options to Naypyidaw.
  • This driver in India’s Myanmar policy has perhaps gained greater salience in the rapidly changing regional geopolitics.

Recent initiatives

  • Like in other neighbouring countries, India suffers from an image of being unable to get its act together in making its presence felt on the ground.
  • The inauguration of the liaison office of the Embassy of India in Naypyidaw (the capital) may seem a routine diplomatic activity.
  • However, establishing a permanent presence in the capital where only a few countries have set up such offices does matter.
  • Interestingly, China was the first country to establish a liaison office in Naypyidaw in 2017.
  • India has also proposed to build a petroleum refinery in Myanmar that would involve an investment of $6 billion.

Strategic calculus

  • This is an indication of Myanmar’s growing significance in India’s strategic calculus.
  • It also shows India’s evolving competitive dynamic with China in the sector at a time when tensions between the two have intensified.
  • Another area of cooperation that has expanded involves the border areas.
  • Furthermore, the recent announcement that India was transferring a Kilo-class submarine to Myanmar demonstrates the depth of their cooperation in the maritime domain.

The balancing act

  • For Delhi, the balancing act between Bangladesh and Myanmar remains one of the keys to its overall approach to the Rohingya issue.
  • Delhi has reiterated its support for “ensuring the safe, sustainable and speedy return of displaced persons” to Myanmar.
  • By positioning as playing an active role in facilitating the return of Rohingya refugees, India has made it clear that it supports Myanmar’s efforts and also understands Bangladesh’s burden.
  • For Delhi, engaging rather than criticizing is the most practical approach to finding a solution.

Conclusion

  • For India, Myanmar is key in linking South Asia to Southeast Asia and the eastern periphery becomes the focal point for New Delhi’s regional outreach.
  • Delhi’s political engagement and diplomatic balancing seem to have worked so far in its ties with Myanmar.
  • Whether it has leveraged these advantages on the ground to the full is open to debate.
  • The aforementioned initiatives could be the beginning of change on the ground by establishing India’s presence in sectors where it ought to be more pronounced.

Rohingya Conflict

In news: Bhashan Char Island

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Bhashan Char Island and its location

Mains level : Rohingya Crisis

Bangladesh has announced that it will not move the Rohingyas settled on the Bhashan char island amid Corona pandemic.

Try this question from CSP 2018:

Q.Which one of the following pairs of islands is separated from each other by the ‘Ten Degree Channel’?

(a) Andaman and Nicobar

(b) Nicobar and Sumatra

(c) Maldives and Lakshadweep

(d) Sumatra and Java

Bhashan Char Island

  • Bhasan Char also known as Char Piya, is an island in Hatiya, Bangladesh.
  • The island was formed with Himalayan silt in 2006 spanning 40 square kilometres.
  • It is underwater from June to September annually because of the monsoon, and it has no flood fences.
  • In June 2015, the Bangladeshi government suggested resettling Rohingya refugees on the island under its Ashrayan Project.
  • The proposal was characterized by the UN Refugee Agency as “logistically challenging”.

Rohingya Conflict

ICJ ruling on Rohingyas

Note4Students

From UPSC perspective, the following things are important :

Prelims level : ICJ

Mains level : Rhohingya settlement issue

 

  • The International Court of Justice (ICJ) ruled that Myanmar must take effective measures to protect its Rohingya Muslims, including protecting evidence relating to allegations of genocide.
  • It is important to note that these directions are “provisional measures” until the ICJ can finally decide if Myanmar has been committing genocide against the Rohingya. The final verdict could take years.

What is the case against Myanmar?

  • Last year, the Republic of the Gambia moved the ICJ against Myanmar over alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide.
  • The Gambia urged the ICJ to direct Myanmar to stop the genocide, ensure that persons committing genocide are punished, and allow the “safe and dignified return of forcibly displaced Rohingya”.
  • The Gambia and Myanmar are parties to the Genocide Convention that allows a party to move the ICJ for violations.
  • Disputes between the Contracting Parties are settled according to Article 9 of the Genocide Convention.

How did Myanmar respond?

  • Myanmar asked the ICJ to remove the case from its list, citing lack of jurisdiction of the court.
  • Myanmar alleged that the proceedings before the court were instituted by the Gambia, not on its own behalf, but rather as a “proxy” and “on behalf of” the Organisation of Islamic Cooperation (OIC).
  • Gambia is a member of the OIC, which includes 53 Muslim-majority nations.
  • Myanmar cited the Gambia’s reliance on OIC documents to allege genocide and said the Gambia did not point to specific violations of the Genocide Convention.
  • The court refused to accept Myanmar’s argument and said the fact that the Gambia “may have sought and obtained the support of other States or international organizations in its endeavour” does not take away from its right to bring a case against Myanmar.

Does the ICJ ruling indict Myanmar?

  • Although a ruling against Myanmar dents its image internationally, the order of provisional measures does not translate into a finding against Myanmar.
  • While granting provisional measures, the court is not required to ascertain whether Myanmar violated the Genocide Convention.
  • The court found that it is sufficient at this stage “to establish prima facie the existence of a dispute between the Parties relating to the interpretation, application or fulfillment of the Genocide Convention”.
  • Myanmar leader Aung San Suu Kyi’s personal appearance before the ICJ to lead the defence of the military, however, shows the great stakes her country had in the case.

Effects of non-compliance for Myanmar

  • For its part, Myanmar has denied that its military or paramilitary has participated in genocide of Rohingya and it is unlikely to alter its position.
  • Provisional measures are essentially a restraining order against a state when a case is pending and can be seen as, at most, a censure.
  • Provisional orders cannot be challenged and are binding upon the state.
  • However, limitations in enforcing decisions of the ICJ are widely acknowledged by law experts.

What are these limitations?

  • As per Article 94 of the Charter of the United Nations, all member states are required to comply with decisions of the ICJ.
  • However, any action by a state can be secured only through consent of the state in international law.
  • When a state fails to comply, the Security Council has the power to impose sanctions against it and ensure compliance when international security and peace are at stake.
  • So far, the Security Council has never taken a coercive measure against any country to get an ICJ ruling implemented.
  • Even with the stepping in of the Security Council, there are several hurdles in enforcement of ICJ decisions.
  • Any one of the five permanent members of the Security Council with veto powers can block the enforcement of an ICJ decision against itself or its ally.

Rohingya Conflict

[op-ed snap] Justice for the Rohingya

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Rohingyas - Human Rights violations

Context

Last week’s preliminary hearings at the International Court of Justice (ICJ) seeking guarantees of basic protection for Myanmar’s Rohingya Muslims offer only symbolic hope to the community. 

Plight of Rohingyas

  • Camps – thousands of Rohingyas are forcibly exiled in refugee camps in Bangladesh. It is necessary to demand accountability from Yangon. 
  • OIC – Gambia, on behalf of the Organisation of Islamic Cooperation, brought the case pertaining to genocide in 2017 committed by the Myanmarese military. 
  • Armed Forces – The forces have insisted that their actions were in response to the armed insurgency by the Arakan Rohingya Salvation Army. 
  • UN highlights Human Rights – The UN and several rights groups have documented orchestrated incidents of torched villages, mass rape and other atrocities by the military, forcing over 700,000 Rohingya to flee to Bangladesh.
  • Citizenship rights – Rohingya in Myanmar’s Rakhine state are particularly vulnerable due to the denial of citizenship and the reference by nationalist sections to them as illegal Bengali immigrants.
  • Suu Kyi – She asserted that the Army had acted proportionately in countering the rebels and accused Gambia of misrepresenting the situation.
  • Lack of testimony – the absence of an explicit reference to the Rohingya in her testimony is condemned. She has even been accused of choosing to argue the defence in person with an eye on the 2020 general election.

Arguments

  • Not genocide – Lawyers representing Myanmar said that, though violent crimes were committed during the conflict, motives of genocide against the community could not be imputed against the authorities. 
  • The ICJ has handed down guilty verdicts in a few cases relating to crimes of genocide. It didn’t pin the blame directly upon states as in the 2007 ruling on the Bosnian war of the preceding decade.
  • Proof of genocide – The challenges of establishing conclusive proof of the intention to extirpate entire communities underlies this caution. 
  • The decision regarding genocide relating to the atrocities against the Rohingya is not expected immediately. 

Way ahead

The more urgent concern before the court is Gambia’s petition seeking an injunction that the violence against the community cease forthwith and the government guarantee immediate protection.

Rohingya Conflict

[op-ed snap] Wrong on the Rohingya

Note4students

Mains Paper 2: International relations| Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests.

From UPSC perspective, the following things are important:

Prelims level: Basic knowledge of Rohingya refugee issue.

Mains level: The news-card analyses the issues with India’s refugee law w.r.t recent deportation of a group of Rohingya refugees, in a brief manner.


Context

  • In January, the UN High Commissioner for Refugees (UNHCR) called for a report from India on the deportation of a group of Rohingya refugees to Myanmar in October 2018.
  • India’s repatriation of the refugees contravenes international principles on refugee law as well as domestic constitutional rights.

Background

  • Refugee law is a part of international human rights law.
  • In order to address the problem of mass inter-state influx of refugees, a Conference of Plenipotentiaries of the UN adopted the Convention Relating to the Status of Refugees in 1951.
  • This was followed by the Protocol Relating to the Status of Refugees in 1967.

Principle of non-refoulement

  • One of the most significant features of the Convention is the principle of non-refoulement.
  • The norm requires that “no contracting State shall expel or return 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.”
  • This idea of prohibition of expulsion lies at the heart of refugee protection in international law.

Non-refoulement principle binding on all States including India

  • It is often argued that the principle does not bind India since it is a party to neither the 1951 Convention nor the Protocol.
  • However, the prohibition of non-refoulement of refugees constitutes a norm of customary international law, which binds even non-parties to the Convention.
  • According to the Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations, UNHCR, 2007, the principle “is binding on all States, including those which have not yet become party to the 1951 Convention and/or its 1967 Protocol.”

Constitution imposes an obligation on the state to respect international laws

  • Article 14 of the Universal Declaration of Human Rights provides that everyone has the right to seek and enjoy in other countries asylum from persecution.
  • Moreover, Article 51 of the Constitution imposes an obligation on the state to endeavour to promote international peace and security.
  • Article 51(c) talks about promotion of respect for international law and treaty obligations.
  • Therefore, the Constitution conceives of incorporation of international law into the domestic realm.
  • Thus the argument that the nation has not violated international obligations during the deportation is a mistaken one.

Domestic obligations

  • The chapter on fundamental rights in the Constitution differentiates citizens from persons.
  • While all rights are available to citizens, persons including foreign citizens are entitled to the right to equality and the right to life, among others.
  • The Rohingya refugees, while under the jurisdiction of the national government, cannot be deprived of the right to life and personal liberty.

Rohingya: world’s most persecuted people

  • The Rohingya are “among the world’s least wanted and most persecuted people,” according to a BBC report.
  • In Myanmar, they are denied citizenship, the right to own land and travel, or to even marry without permission, says the report.
  • According to the UN, the Rohingya issue is one of systematic and widespread ethnic cleansing by Myanmar.
  • Therefore, the discrimination that the Rohingya face is unparalleled in contemporary world politics.

State is bound to protect the life and liberty of every human-being

  • In National Human Rights Commission v. State of Arunachal Pradesh (1996), the Supreme Court held: “Our Constitution confers… rights on every human being and certain other rights on citizens.
  • Every person is entitled to equality before the law and equal protection of the laws.
  • So also, no person can be deprived of his life or personal liberty except according to procedure established by law.
  • Thus the State is bound to protect the life and liberty of every human-being, be he a citizen or otherwise…”

India lacks a specific legislation for refugees

  • India lacks a specific legislation to address the problem of refugees, in spite of their increasing inflow.
  • The Foreigners Act, 1946, fails to address the peculiar problems faced by refugees as a class.
  • It also gives unbridled power to the Central government to deport any foreign citizen.
  • Further, the Citizenship (Amendment) Bill of 2019 strikingly excludes Muslims from its purview and seeks to provide citizenship only to Hindu, Christian, Jain, Parsi, Sikh and Buddhist immigrants persecuted in Bangladesh, Pakistan and Afghanistan.
  • The majority of the Rohingya are Muslims.
  • This limitation on the basis of religion fails to stand the test of equality under Article 14 of the Constitution and offends secularism, a basic feature of the Constitution.

Conclusion

  • The deportation of refugees by India is not only unlawful but breaches a significant moral obligation.
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