Rohingya crisis: Indian govt's deportation plan is ethically egregious, reflects disregard for human rights

In 1939, a German transatlantic liner MS St Louis set sail from Germany carrying about 900 passengers, mostly Jews. The passengers were trying to flee Nazi persecution with hopes of finding refuge in the United States. The US, however, turned them away. Claiming to be “humane” and in the best interest of the passengers, the US successfully sent the Jews to safe countries in continental Europe – like Belgium, France and Netherlands. As per the study of the United States Holocaust Memorial Museum, around 254 of these passengers died in killing centres and internment camps. India seems to be doing the same today with the Rohingya crisis, who have been widely recognised as the “most persecuted minorities” in the world today. It plans to deport them back to territories of their native countries where they fear persecution from Rakhine Buddhists, the military and the Government of Myanmar. [caption id=“attachment_4001069” align=“alignleft” width=“380”] Representational image. AFP[/caption] As per the Government of Myanmar, Rohingyas are not an ethnic community of Myanmar despite their claims of habiting the Rakhine State in Myanmar since the 15th Century. The government terms them as “illegal immigrants” and has denied them citizenship status, put impediments on their rights to practice their religion and other civil/political rights. There are serious access issues in relation to food, education, healthcare and jobs. The community has witnessed severe riots, governmental isolation and military crackdown.The severity of the persecution is not illusory. In fact, many organisations have termed this persecution to amount to “ethnic cleansing” which is a recognised crime against humanity in international criminal law. Some do not even shy away from calling this a genocide. Whatever be the nature of persecution it is real and leading many refugees to claim protection in neighbouring states like India and Bangladesh. As you read this article, there are hundreds of Rohingyas fleeing Myanmar to other countries, leaving their homes in search of safety in light of the heightened intensity of the crackdown by the military. Indian reaction Many such refugees have also settled in India – in Jammu and Kashmir, Hyderabad, Haryana, Uttar Pradesh, Delhi and Rajasthan. Very recently, minister of state for home Kiren Rijiju, in a response to questions raised to the government in the Rajya Sabha, outlined India’s plan to deport all Rohingya people  as they are illegally staying as foreign nationals in India. He said that the Union Government had directed the state governments to set up district task forces to identify and deport the foreign nationals. Rijiju declined to comment on the deportation process but has recently said that they were in talks with Bangladesh and Myanmar on the deportation plan. The only assurance we have from Rijiju is that the government is “not going to shoot them or throw them into the ocean”. Both the National Human Rights Commission and the Supreme Court of India have taken cognisance of the matter and have asked the government to explain itself . It is interesting to note that the government has been very careful in avoiding the term “refugees”. The Indian Government has also categorically denied the application of ‘The Convention Relating to the Status of Refugees, 1951’ (Refugee Convention) as India has not signed it. It has been widely reported that the Union Government has justified this on the ground of a) potential security threats as illegal migrants are prone to get recruited by terrorist organisations; b) they are a threat to resources. Applicable law At the outset, it must be clarified that the inapplicability of international refugee law is not precluded merely because India is not a signatory to the Refugee Convention. States are equally bound in international law by customary international law arising out of uniform, consistent practice of states over a sustained period of time. Such practices arise out of a sense of legal obligation. The International Court of Justice has in many decisions held States responsible for violating customary international law. It must also be noted that the existence of a treaty principle does not preclude the existence of a customary principle having similar content. In fact, it may influence the creation of such a rule of custom.

It is widely recognised that parts of the Refugee Convention – especially the definition of refugees and the principle of non-refoulement under customary international law corresponds largely to the one set out in the Refugee Convention. This quells Indian Government’s purported stance that this is not covered under international refugee law.

In a similar vein, it must also be noted that this is not an issue of “illegal immigration”. The Indian Government is belittling the plight of the Rohingya people by not acknowledging their refugee status. There is no doubt that considering the current situation, the Rohingyas are nothing but refugees – irrespective of when they came to India, irrespective of the legitimacy of their ethnic claims to stay in the Rakhine State of Myanmar. A refugee, according to customary international law (in its most conservative exposition), is simply anyone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. It is also widely accepted under international law that the refugee status is not contingent on any formal recognition pursuant to some or other municipal process. Principle of non-refoulement The principle of non-refoulement under international refugee law forms the core of this issue. As per this principle, under customary international law, States cannot expel, deport, or return refugees to the territories in which a refugee has a well-founded fear of being persecuted; faces a real risk of torture, cruel, inhuman or degrading treatment; or faces other threats to life, physical integrity or liberty. Quite clearly, Indian Government’s proposal to deport the Rohingyas is definitely in violation of the principle of non-refoulement. [caption id=“attachment_3959649” align=“alignright” width=“380”] Representational image. PTI[/caption] The principle is widely considered to be the cardinal principle or the most fundamental aspect of refugee protection under both treaty and customary international law – acknowledged on many occasions by the United Nations. Such resounding support for the principle of non-refoulement is telling. Obviously, States which resist limitations on their sovereign power found good merit in accepting infraction to the sovereign power of who to let in/retain within their sovereign territories in relation to refugees facing a grave humanitarian crisis. Obviously, the law in most situations provides for exceptions to balance concerns like national security. However, wherever applicable, there are limitations on a State’s margin of appreciation in the assessment of such a threat. The seriousness of the risk needs to be established through evidence, and not on the basis of fear or religious intolerance or xenophobia. Additionally, the assessment of threat requires consideration of individual circumstances of each refugee. The Indian Government has made no attempts to explain how there is a potential threat especially in light of the fact that there are very few reported cases against the Rohingyas. In any case, this potential threat doesn’t justify the proportionality of the Indian measure being called for against the entire Rohingya community. It is possible that deportation is going to be difficult given the pressure on Bangladesh and Myanmar’s position. It is also possible that the Indian Government may have a better plan when it makes its position clear on 11 September before the Supreme Court. However, the choice of such a move to deport all Rohingyas shows clear disregard of law accepted by all nations; and is ethically egregious. Even considering that the concerns of the government about resources and security are genuine – more proportionate alternatives could have been explored. International human rights and humanitarian law, on many occasions, is a reflection of the basic minimum that is expected of States. Though this may be unenforceable, it is sad that the Indian Government failed to acknowledge, let alone respect it. Even in such times of numbness and insensitivity, where everyone is an expert on security and adequacy of resources, there is little escape for the Indian Government from condemnation.