Mizoram Government’s High-Level Committee on Internally Displaced Persons (IDPs)

 The Mizoram government has taken a significant step towards addressing the challenges faced by Internally Displaced Persons (IDPs) from Manipur. Under the leadership of Lalchamliana, the High-Level Committee on IDPs has been established. Additionally, an executive committee has been formed to implement decisions related to the IDPs. These initiatives aim to provide relief and humanitarian assistance to those affected by ethnic clashes.

Leadership and Purpose

Lalchamliana, the Minister for Home and Disaster Management, is heading the High-Level Committee on IDPs in Mizoram. The executive committee, with H. Lalengmawia as the member secretary, is responsible for the implementation of decisions pertaining to the IDPs. The primary objective of these committees is to ensure effective measures for the well-being of the IDPs.

Refugees and Displaced Population

Mizoram currently provides shelter to more than 40,000 refugees from Myanmar who fled their country due to the military junta. Additionally, there are 772 refugees from Bangladesh who have sought refuge in Mizoram, escaping the crackdown by the Bangladesh army. Moreover, almost 9,000 IDPs from Manipur are facing ethnic clashes and are in need of support and assistance.

Provision of Relief and Assistance

The executive committee, in collaboration with various departments, is working towards providing relief and humanitarian assistance to the IDPs from Manipur in Mizoram. Liaison with concerned departments ensures the effective implementation of relief measures and addresses the urgent needs of the affected population.

Mizoram Kohhran Hruaitute Committee (MKHC)

The Mizoram Kohhran Hruaitute Committee, representing major churches, plays a crucial role in supporting the efforts of the committees. Their involvement ensures a collaborative approach in addressing the challenges faced by the IDPs and provides additional support in humanitarian initiatives.

Ensuring Oversight and Supervision

The High-Level Committee on IDPs is entrusted with overseeing and supervising the provision of relief and basic humanitarian assistance. Through these committees, the Mizoram government aims to ensure that the IDPs receive the necessary support, including access to food, shelter, healthcare, and other essential services.

Refugee of a kind: ‘I need to breathe free and feel equal to my fellowmen’

 I am a man without a land. In the American foreign service, I served periodically as a Refugee Officer, helping refugees from Bhutan, China and Haiti. Now I am a refugee of a kind. In my mind, I belong to no land.

India was the land of my birth. I had no intention of leaving the country. But I fell in love, and the person was American, disallowed to work in India. I moved to the US. I worked in business, for a UN agency and then became a diplomat. Never have I felt ashamed to belong to the country of my birth or the country of my adoption. Now I do.

The US Supreme Court has decided that a football coach can create a religious sideshow by going on his knees on the field, praying publicly and inviting others to join him. The coach did so on public school grounds against a sensible school policy in a district where other religions like Judaism, Hinduism and Islam exist. The US Constitution prohibits State approval of any religion. He was not praying privately; he was making a demonstration of his Christian prayer, asking, in effect coercing, his non-believing players and their friends, as well as other players, to join him and make a public spectacle of his faith. This in a country where more than half the people do not go to a church or temple and one-fifth does not believe in god.

It is exactly like a school teacher praying before a class or a government boss reading scripture before subordinates. A student who doesn’t believe in religion or a subordinate who finds the text repugnant is cowed into silence and subservience. A society that allows that has a hollow reverence for its faith and forces its beliefs on people it cannot win by its values. Leaders who do that are doing no better than conquistadors who won converts by the sword. The US Supreme Court has six Catholics and one Episcopalian who was brought up Catholic — totally unrepresentative of the country — and is forcing values down the throat of a resistant and resentful people.

When India became independent and Pakistan declared itself a Muslim country, many wanted to make India a Hindu nation. Leaders who saw the wisdom of making India secular and a harbour for people of all faiths foiled that thrust. A struggling new nation, India grew from diverse contributions. A Christian could become a governor or a cabinet member, a Zoroastrian could be a defence chief, a Muslim could be the president of the country.

Just as some whites in the US resent the rise of blacks into affluence and power, there has been among some in India a seething resentment against Muslims: those who lost their homes in Pakistan or believe in an ultra-nationalist Hindu India. That resentment has been now fanned into a frenzied zeal to marginalise the Muslims. Laws to deny them citizenship. Policies to bar them from public service. Vending beef has become a crime — Muslims have been lynched for that sin. Mosques have been harassed, their services disrupted. 

The intolerance has extended to churches. Their events interrupted, pastors detained on spurious charges. In an ostensible democracy whose Constitution promised religious freedom, it is now an offence to change faith. Even to marry a person of a non-Hindu faith is subject to intimidation masquerading as a need for official approval.

India lives today under what Gandhi called “lawless laws”. Its Constitution proscribes an official religion but its leaders openly flout that provision. Official events begin with Hindu incantations; Hindu priests preside over government celebrations; senior leaders display their Hindu piety at assorted temples. These leaders are not exhibiting their spiritual fervor. They are demonstrating their ardour to trample on the Constitution and create a pseudo-religious State.

I believe in freedom, including the freedom of faith, the freedom to believe in what I choose, and the freedom to change my mind and embrace another faith. I should be able to court and marry another person of whatever faith. I should be able to do all this without fear. I need to breathe free and feel equal to my fellowmen.

Source: The Telegraph, 9/09/22

Rohingyas a step closer to justice

 The Gambia’s case against Myanmar under the international Genocide Convention, for the alleged genocide committed against the ethnic Rohingyas, is now all set to be heard and judged by the International Court of Justice (ICJ), following its rejection of Myanmar’s preliminary objections on the grounds of the court’s jurisdiction and the Gambia’s legal standing. Besides rejecting Myanmar’s objections, the ICJ also ruled that the Gambia’s application filed on 11 November 2019 was admissible, thereby allowing the case to proceed on merits. The Rohingya victims of genocide, as well as all peace-loving people who believe in the rule of law, can be certain now that we are one step closer to justice. The ICJ decision really is a huge step towards an overdue reckoning with the Myanmar military’s atrocities against the Rohingyas.

It is wellknown that the international justice system is a long-drawn complex process, which may take years to conclude. But at least the world court’s decision to proceed on substance should worry the Myanmar’s military junta that they can no longer shrug off their responsibilities for their murderous campaign against a minority ethnic group. Myanmar’s official reaction to the ICJ ruling indicates that the junta is now beginning to realise the gravity of the world court’s ruling. A statement issued by the Ministry of International Cooperation and published by the military-owned news portal Myawady says, “Myanmar is disappointed that its preliminary objections were rejected, while it notes that the court has now determined the matter.” It then admits, “Myanmar noted that this judgement will become not only a source of international law, but (will) also set a precedent for future cases.” The statement adds, “Myanmar reaffirms its position in a declaration over the ratification of the convention and respects its obligations under the convention without any violation of them.”

The ministry ends its statement with a commitment that “it will endeavour its utmost efforts to safeguard the country’s sovereignty and national interest and continue to undertake appropriate steps for the country.” Justifying its preliminary objections, the Myanmar government argued that the preliminary objections raised were believed to be strong as a matter of law and a matter of fact. And then it notes Judge Xue Hanqin’s dissenting opinion and votes against the court’s finding that it has jurisdiction and that the application is admissible. Myanmar raised four preliminary objections to the jurisdiction of the ICJ and the admissibility of the application. In its first preliminary objection, Myanmar argued that the court lacked jurisdiction, or alternatively that the application was inadmissible, on the grounds that the “real applicant” in the proceedings was the Organisation of Islamic Cooperation (OIC).

According to the second preliminary objection, the application was inadmissible because the Gambia lacked standing to bring this case. In its third preliminary objection, Myanmar asserted that the ICJ lacked jurisdiction or that the application was inadmissible since the Gambia cannot validly seise the court in light of Myanmar’s reservation to Article VIII of the Genocide Convention. In its fourth preliminary objection, Myanmar pleaded that the court lacked jurisdiction, or alternatively that the application was inadmissible, because there was no dispute between the parties under the Genocide Convention on the date of filing of the application. The court unanimously rejected three preliminary objections, and the other one (on the Gambia’s standing for bringing the case) was rejected by a 15-1 vote. The ruling on the admissibility of the Gambia’s application, too, was decided by a 15-1 vote. In both these decisions, the dissenting member of the court was Justice Xue Hanqin.

One other interesting thing to be noted is that both the ad hoc judges, Navanethem Pillay and Claus Kress, representing the Gambia and Myanmar, respectively, were in agreement with the majority of the court. Earlier on 23 January 2020, following the Gambia’s application, the ICJ issued provisional measures against Myanmar to prevent any genocidal acts in its territory against the Rohingyas and to protect them. It also asked Myanmar to take effective measures to prevent the destruction and ensure the preservation of evidence related to the alleged atrocities, and submit periodical reports to the court on all measures taken to give effect to this order, until a final decision on the case is rendered by the court. The ICJ, in its latest verdict, noted that Myanmar indeed had submitted reports on the measures taken to give effect to that order on 22 May 2020, 23 November 2020, 20 May 2021, 23 November 2021, and 23 May 2022. The court also said that the Gambia, too, had submitted comments on each of these reports.

The significance of the ICJ’s order on provisional measures were not only related to the prevention and protection of a vulnerable ethnic group, but the recognition of the Rohingyas as a distinct ethnic group in Myanmar. We don’t know what actions Myanmar has taken so far and how the Gambians have evaluated them. But, according to the ICJ, Myanmar overtly maintains its obligation to the ICJ. The unfortunate fact, however, remains that there has not been any progress at all in repatriating about one million Rohingya refugees now living in Bangladesh, and the reason, according to the UNHCR, is Myanmar’s failure to create an environment where safe and dignified return of the Rohingyas is possible. The ICJ’s decision to proceed on the merits to examine the Gambia’s genocide allegations against Myanmar also gives us an opportunity for a diplomatic push on repatriation.

The Gambia has submitted its main arguments in October 2020 within the time frame fixed by the court. So, it is expected that Myanmar will now have to submit its response soon. As Canada and the Netherlands have joined the Gambia in its pursuit for justice for the Rohingyas, we hope the legal course will gather new strength. With the legal proceedings moving forward, it is high time for us to pile up political pressure on the Myanmar military junta, too.

KAMAL AHMED

Source: The Statesman, 27/07/22

UNHCR 2022 Global Trends Report

 

Findings of the report

• The report noted that, 100 million people were forced to go back to their homes in 2021, due to violence, war in Ukraine, food insecurity, human rights abuses, climate crisis, and other emergencies from Africa to Afghanistan.
• There were 23.7 million new internal displacements worldwide, due to disasters. It shows the decrease of seven million, or by 23 per cent, as compared to the last year.
• On Earth, 1 in every 78 people is now displaced.
• Largest displacement, 6 million, occurred in China in 2021 due to disasters, followed by the Philippines (5.7 million) and India (4.9 million).
• Most of the disaster displacements were temporary.
• Majority of internally displaced persons returned to their home areas. However, 5.9 million people across the world remained displaced at the end of 2021 due to disasters.

People moving back to homes

According to UNHCR, the number of people who were forced to flee their homes has increased in past decade. It stands at the highest level since records started. By 2021 end, number of people displaced by war, persecution, violence, and human rights abuses was 89.3 million, which has increased by 8% and has doubled as compared to figure 10 years ago.

Displacement amid Russian Invasion of Ukraine

Russian invasion of Ukraine has caused the fastest and largest forced displacement crises after World War II from Africa to Afghanistan and beyond. It has pushed the figure over 100 million.

Displacement in India

In India, around five million people were internally displaced due to disasters and climate change in 2021.

United Nations High Commissioner for Refugees (UNHCR)

UNHCR is a United Nations agency, that was set up to aid and protect refugees, stateless people and forcibly displaced communities. The body assist them in their voluntary repatriation, resettlement or local integration. Headquarter of UNHCR is in Geneva, Switzerland.

What the 1971 refugees have to do with Indian politics today

 

Sanjib Baruah writes: Even if half a century later, the civil war that split Pakistan has had a decisive impact on the ideological battle over India’s national identity.

The civil war in East Pakistan in 1971 — that saw a huge influx of refugees to India — and which led to the break-up of Pakistan and the birth of Bangladesh, is remembered in India mostly for its impact on the subcontinent’s geopolitical landscape. The consequences of the presence of those refugees on our domestic political order do not receive much attention.

The standard story is that most refugees returned home soon after the liberation of Bangladesh. This is partly responsible for the unfounded myth that India’s domestic political order was insulated from the refugee influx. This is, of course, not how the refugee influx is remembered in Assam and other Northeastern states.

There are good reasons to doubt the narrative of near complete repatriation. Indeed, the Indian government has itself cast serious doubts on this narrative on various occasions. The fact that the political effects of the refugee influx have been most pronounced in a region long relegated to the periphery of Indian policy is surely another reason why this myth has persisted.

The fact that the Assam Movement (1979-1985) broke out in the same decade as the Bangladesh liberation war is not an accident. Those six years of political turmoil saw the collapse of four elected ministries, the outbreak of an armed insurgency, and three spells of president’s rule. The violent elections of 1983, including the horrendous Nellie massacre, are also part of this history. The troubles that began with the refugee influx eventually led to the coming of the hard state to Assam in 1990 when the whole of Assam was declared a “disturbed area” under the Armed Forces Special Powers Act (AFSPA).

The AFSPA regime has remained in force in Assam partly because the legacies of the Assam Movement remain live, unresolved issues in the state’s politics. If these are considered among the effects of the Bangladesh liberation war, the geopolitical benefits that accrued to India need to be balanced against these significant domestic political costs, even though they are concentrated in a single “peripheral” region.

There would have been no Assam Movement had there been no Bangladesh liberation war. The sheer size of the refugee population gave new life to old fears that migrants from eastern Bengal risk turning Assam’s khilonjia or autochthonous peoples into minorities in their own lands. It is not just the presence of refugees or their numbers that produced this anxiety. The phenomenon that sociologist Kamal Sadiq calls “suffraged non-citizens” gave political force to those fears. Since the exercise of franchise in India relies on rudimentary documents that can easily be obtained through informal means, the distinction between citizens and non-citizens becomes blurred. The perception that the number of voters had risen abnormally in the aftermath of the refugee influx became the trigger for the Assam Movement.

Had all refugees gone back to their homes, the foreign nationals’ issue would not have rankled Assam and the country for all these years. Indeed, it has been the conventional wisdom in Assam that the Assam Movement failed in its primary objective. This made the Assam Accord, which ended the Assam Movement, a hallowed document in the state’s political discourse. When the BJP began to move on the citizenship amendment bill, the resistance to it in Assam focused entirely on the fact that it grossly violates the Assam Accord.

A barely hidden secret about the refugee influx was that a majority of those who fled East Pakistan to India were Hindus. This was only to be expected since the Yahya Khan regime viewed the liberation movement as an Indian conspiracy and its repressive backlash fell upon most of the region’s Hindu households. Of the estimated 9.7 million refugees who migrated to India in 1971, 70 per cent were Hindus. The West Pakistani generals had calculated that by forcing millions of East Pakistani Hindus to flee to India they would weaken Bengali nationalism as a political force. Their aim, as the sociologist, late Partha Nath Mukherji, observed at the time, was “to uproot the Hindus, not to eliminate them, and in this they seem to have succeeded admirably”.

Ironically, while Indian officials liked to describe the Pakistani military’s massacre of East Pakistanis as genocide, “the best case for branding these atrocities as genocide”, as Gary Bass of Princeton University puts it, “was one that India did not dare make”. They feared that “publicising anti-Hindu genocide could have splintered Indians on communal lines . . . possibly setting off riots”. The architects of the Assam Movement, of course, saw the influx for what it was: That there were both Hindus and Muslims among the refugees, but that a clear majority were Hindus.

The Yahya Khan regime’s strategy of demographic engineering met its match in prime minister Indira Gandhi. She was determined to send the refugees back. Indeed, stopping the refugee influx and ensuring the safe return of the millions already in India were the key goals of India’s military intervention.

Whatever the official rationale for the Citizenship (Amendment) Act of 2019, it marks a decisive break from the Indian policy of refusing to yield to the demographic engineering strategy of the West Pakistani generals who ran the war in East Pakistan. The CAA effectively accommodates the Hindu refugees of 1971, that is the majority of the refugees (and also people of other minority faiths, which was added for euphemistic reasons). But it excludes refugees that are Muslim. Rather remarkably, top BJP leaders continue to claim that they are working to implement the Assam Accord. But obviously they can do this only by shifting attention to the accord’s secondary clauses that are unrelated to the foreign nationals’ question.

The CAA is built on a fundamentally different set of assumptions about the idea of India than the one that informed Indian policy in 1971. With its adoption, it could be said that the civil war that split Pakistan has come to have a decisive impact on the ideological battle over India’s national identity, even if half a century later.

Baruah is Professor of Political Studies at Bard College, New York.

Source: Indian Express, 15/12/21

Refugee protection in India calls for the adoption of a specific law

 In December 2019, the Indian government introduced the Citizenship (Amendment) Act, 2019, which sought to make “illegal migrants" from Afghanistan, Bangladesh and Pakistan who are Hindu, Sikh, Buddhist, Jain, Parsi or Christian eligible for citizenship. Subsequently, in May 2021, the Union ministry of home affairs (MHA) began inviting applications for Indian citizenship from non-Muslims from Afghanistan, Bangladesh and Pakistan residing in 13 districts of Gujarat, Rajasthan, Chhattisgarh, Haryana and Punjab.These developments, extending protection to selective communities, highlight the inconsistency in the treatment and protection of refugees and asylum seekers in India.

As of June 2021, the United Nations High Commissioner for Refugees (UNHCR) has documented 208,065 “persons of concern" in India. However, India is not a signatory to the 1951 Refugee Convention under which the UNHCR operates. Nor does it have a domestic legislation regulating the entry and stay of refugees. There is no distinction made between ‘foreigners’ and ‘refugees’ under Indian law. The Foreigners Act of 1946, Passport Act of 1967, Extradition Act of 1962, Citizenship Act of 1955 (amended in 2019) and the Illegal Migrant (Determination by Tribunals) Act of 1983 are some of the laws applicable to both. Under these laws, foreigners can be detained and forcibly deported, even if they are refugees escaping their countries of origin in fear of death.

India is conducted on an ad-hoc basis through administrative decision-making. Since there is no official legislative or administrative framework for refugee-status determination, the government has taken to determining the status of different groups of refugees in different ways.

Protection under international law: Under international law, refugees have two broad rights: the right to seek asylum in another country, and the right not to be returned to a country where they face a threat to their life. These are also principles enshrined under the 1951 Refugee Convention and its 1967 Protocol, which puts an obligation on state parties to grant them entry and protection. In order to stay neutral in the Cold War politics of that era and partially on account of the Eurocentric bias of the Convention, India has been reluctant to sign it. Another sore point for New Delhi had been that it does not account for national security interests.

However, other specialized international laws and human-rights principles are also applicable for the protection of refugees. Instruments like the Universal Declaration of Human Rights (UDHR), Convention Against Torture (CAT), Declaration on Protection from enforced disappearances, the UN Principles on Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC) are also often invoked to provide additional protection.

The administration of refugees in India: The bulk of the refugee population in India originates from Sri Lanka, Tibet, Myanmar and Afghanistan. However, only Tibetan and Sri Lankan refugees are recognized as such by the government. They are provided protection and assistance directly through specific policies and rules formulated by the government. Presently, there are around 94,069 Sri Lankan refugees living in the country, whereas the number of Tibetan refugees has gone down to 85,000 from 1,50,000 since 2011.

On the other hand, around 43,157 refugees from Myanmar, Afghanistan and elsewhere are registered and protected by the UNHCR, as per its mandate under the 1951 Refugee Convention. For these refugees, the UNHCR issues its own documents of registration, which are recognized by Indian authorities to only a limited extent.

While refugees directly recognized by the Indian government are housed in camps and have access to local schools, hospitals and the domestic job market, those registered with the UNHCR don’t get the same treatment. They do not have access to the country’s healthcare facilities, for example, and face difficulties in finding accommodation and jobs. Conversely, complications can also arise for refugees belonging to countries that are classified under the government’s mandate. For example, these refugees, if detained, cannot approach the UNHCR, as it does not have the designated authority to process their asylum claims.

The judicial response: Remarkably, the Indian judiciary has been stepping up from time to time to safeguard refugees from deportation, expulsion and forced repatriation. The Constitution of India safeguards the rights of all persons within its territorial jurisdiction, citizen or non-citizen. Thus, in the light of India’s international human rights obligations, Indian courts have extended the scope of constitutional rights. These rights include protection from discrimination and arbitrary action under Article 14 and the right to life and liberty under Article 21.

In the case of U. Myat Kayew, the Supreme Court waived the requirement of surety so the refugees who could not acquire documentation could be freed to approach the UNHCR for protection. In another case, the expulsion of two UNHCR-certified Iraqi refugees was stopped after the court found their presence was not prejudicial to national security and sending them back could be harmful.

Nevertheless, the Supreme Court’s 2021 decision to allow the deportation from India of about 170 detained Rohingya refugees has been a step in the opposite direction. It was based on the government’s claim that they posed a threat to internal security of the country.

The country’s need for specific legislation: There are gaps in refugee protection in India that can be traced to the country’s differential treatment of refugees. Since the 1951 Convention is not suitable in the South Asian context, where countries like India frequently experience a large influx of refugees, adopting a national law emerges as a better choice.

Till now, Indian administrative policies and judicial interventions have served as alternatives in the absence of sound domestic legislation. However, a long-term practical solution requires that India make a shift from its charitable approach to a rights-based approach by enacting a national refugee law.

A national refugee law will streamline refugee- status determination procedures for all kinds of refugees and will guarantee them the rights they have under international law. Additionally, it could sufficiently address India’s security concerns, while at the same time ensuring that there is no unlawful detention or deportation carried out in the garb of national-security concerns.

Radhika Nair is a lawyer and socio-legal researcher.

Source: Mintepaper, 27/1021

Why India needs a refugee law

 

Sasmit Patra writes: A sustainable refugee policy is a necessary step to intelligently manage population movements and ensure transparency and predictability in our administrative actions.

Every year, millions of people are forced to abandon their homes in search of safer places to rebuild their lives. According to the UN, over 82.4 million people were forced to leave their homes in 2020 and more than 20 million of them are refugees. Over 200,000 of these refugees are currently in India.

Through its history, India has hosted people fleeing war, conflict and persecution many times — Zoroastrians from Iran, Sri Lankans in the 1980s or Afghans during varied waves of displacement, including the current one. The country also has the experience of rehabilitating Partition refugees.

Welcoming refugees lies at the core of India’s secular, spiritual and cultural values. India has taken part in 49 peacekeeping missions, in which more than 195,000 troops and a significant number of police personnel assisted the UN and international NGOs in conflict-ridden lands. The paradox, therefore, of such a welcoming country not having its own homegrown national refugee framework requires a rethink.

Interventions on refugee assistance in India have largely depended on interim policies and administrative decisions. Consequently, while some groups of refugees have benefitted from holistic support and solutions, others have fallen behind. Whatever be the considerations of refugees seeking a sanctuary — economic, demographic, security, or political — India has been adept in managing complications that result from such situations. Yet, we have not codified our interventions in asylum management, so that they can be showcased globally. While we laud our economic progress and achievements in communications, manufacturing, and in the industrial arena, let us not forget our successes in protecting those forced to flee their homes. Such inclusiveness is as much about the rights of these refugees as our obligations.

Over the years, refugees have contributed significantly to India’s economy — as well as culturally. The manufacturing, automotive, retail, hospitality and food industries bear the positive imprints of their endeavours.

A sustainable refugee policy is a necessary step to intelligently manage population movements and ensure transparency and predictability in our administrative actions. Treatment of refugees must receive the same attention that other human rights protection issues receive — this is consistent with the constitutional emphasis on the rule of law. This is also an important national security consideration that cannot be relegated to a bureaucratic exercise as it is currently. A national refugee management law will be in keeping with India’s leadership role in the region and amongst developing nations. The administrative gains from a standardised mechanism for refugee status determination and treatment will be immense.

The legislation will also clarify the roles of different agencies — governmental, judicial, UN — involved in refugee protection and lay down the procedures of coordination amongst them. It would also help avoid friction between the host country and the country of origin. Other states would recognise the move to grant asylum as a peaceful, humanitarian and legal act, and not an arbitrary political gesture. It will also provide a platform for dialogue on sharing responsibility and aid the search for durable solutions to the root causes of a refugee problem.

Some may argue that India continues to take the humanitarian approach to refugees, despite its security concerns and population-related issues. The absence of a national law to govern “refugees” has not created any serious impediment in coping with varied refugee flows. The spirit and content of international conventions on the subject have been respected through executive as well as judicial intervention. The country, therefore, has somehow developed an intuitive or practical balance between human rights and humanitarian obligations on the one hand and security and national interest on the other.

A refugee law can further clarify this discrepancy. Even though the courts have upheld certain rights of refugees, there needs to be greater clarity about the protection they are entitled to. The time has, therefore, come for a national law specifying the rights and obligations of refugees and the state, and the procedure to be followed while handling refugees in India.

Some may also argue that though India would like to welcome refugees, we might not always afford to do so. Historically, however, accepting refugees has not been about costs but opportunities. Had India not welcomed former refugees, many of whom are thriving businesspersons today, the nation might have lost out. Welcoming refugees generally implies an initial investment of public funds. Once refugees start working, this investment may harvest dividends. Refugees can fill gaps in the labour market or start trades that create wealth and help improve international trade and investment. Thanks to their diverse experiences, refugees bring new concepts, technologies and innovative ideas. But their ability to contribute to the economy is also contingent on policies, laws and institutions of the host country. Some countries provide initial help to refugees, after which they are expected to fend for themselves. A few countries have treated refugees like charity cases. Finding the right balance between the two is what a national refugee law can help achieve.

The law should differentiate between various categories of refugees and migrants and assign each a relevant form of protection — it should anticipate secondary movements and protect the most vulnerable. Progressive states and economic powerhouses like India, with traditional experience and values, can serve as catalysts for global humanitarian action and asylum management. The current global refugee and economic crises present an opportunity for India to better calibrate its asylum management by enacting a national refugee law.

This column first appeared in the print edition on October 6, 2021 under the title ‘The case for a refugee law’. The writer is a Rajya Sabha MP from the BJD

Source: Indian Express, 6/10/21

Examining the Supreme Court’s approach to Rohingya deportation

 Under the non-refoulement rule, states are prohibited from expelling or returning refugees, asylum-seekers, or other persons within their effective jurisdiction to any country where there exist substantial grounds for believing that they would be subjected to torture or arbitrary deprivation of life.The judiciary enjoys an uneasy relationship with international law. While on occasion, courts have made use of international law, including treaty and customary law to enlarge the scope of domestic rights (e.g. Puttaswamy), on other occasions, they have failed to consider the import of such rules. A striking illustration of the latter is the Supreme Court (SC) order rejecting a plea filed on behalf of Rohingya refugees detained in Jammu seeking to stop their deportation to Myanmar. The Rohingyas are a Muslim minority in Myanmar. Following a 1982 citizenship law, they were rendered stateless and have since been subject to persecution. However, from 2016, Myanmar’s army began clearance operations against the Rohingyas, involving mass murder and rape, triggering an exodus to neighbouring countries. In 2020, the International Court of Justice indicated provisional measures against Myanmar for alleged prima facie violations of its obligations under the Genocide Convention.

The plea before SC was motivated by reports that 150-170 Rohingya refugees detained in Jammu were going to be deported to Myanmar. The petitioners sought to argue that the deportation of Rohingyas to Myanmar, where they faced threat of persecution, would be contrary to the rule of non-refoulement under international law, which has been recognised by two high courts as part of the right to life under the Constitution.

The government opposed the petition on the ground that the non-refoulement principle was only applicable to signatories and that since India was not a signatory to the Refugee Convention (RC), it would not be required to adhere to it. It also argued that there were ensuing security ramifications.

Under the non-refoulement rule, states are prohibited from expelling or returning refugees, asylum-seekers, or other persons within their effective jurisdiction to any country where there exist substantial grounds for believing that they would be subjected to torture or arbitrary deprivation of life. Although the rule initially evolved in the context of the RC, it has subsequently been read into other international human rights law instruments such the International Covenant on Civil and Political Rights and Convention against Torture. The rule has been recognised not only a rule of customary law, but has also arguably been recognised as a peremptory norm. This means that not only does the rule of non-refoulement bind non-signatory States, it also permits no exception. Notably, in the past, India has recognised the customary character of this principle at international forums.

SC, in a terse order, did not engage with the issues involved. It observed that India was not a signatory to RC and noted that there were serious objections raised as to whether the treaty could be used to interpret constitutional norms. The court overlooked the contention that the non-refoulement principle was recognised in other instruments (to which India is party), and had, in any case, acquired a customary character and would bind a non-signatory State. SC thus failed to appreciate that treaty law is not the only source of international law and that a State could acquire obligations under customary law. This oversight is striking, and the UN Special Rapporteur, who could shed light on the applicable international law norms, was not allowed to make any submissions.

The court also noted that the government had raised security concerns. While RC recognises national security as a limitation to the rule, the norm has evolved beyond the convention and arguably admits no exception. However, even under RC, such security threats are required to meet an objective criterion standard. In other words, the security threat has to be objectively examined on a case-by-case basis. It is difficult to appreciate how the detained Rohingyas, which include children and women, would en masse constitute a security threat. SC finally noted that the detained Rohingyas should not be deported unless the prescribed procedure is followed. The procedure prior to deportation is for Myanmar to confirm that the detained individuals are its citizens. As previous experience demonstrates, this would not pose any difficulty. Unfortunately, the consequences for the deported Rohingyas may be far graver.

Jay Manoj Sanklecha is an advocate practising in Mumbai and holds an LLM in international law

Source: Hindustan Times, 13/04/21

Myanmar crisis is India’s opportunity to develop long-term refugee policy

 The Ministry of External Affairs has underlined the government’s changing position on the Myanmar crisis, moving to a more pro-active stand as concerns grow worldwide about growing internal strife and instability there. On social media and in briefings, Ambassador TS Tirumurti, India’s Permanent Representative to the United Nations General Assembly in New York, who also represents India as a non-permanent member at the high table of the Security Council, and Arindam Bagchi, the government spokesman in New Delhi, signaled that change.

After a closed-door UNSC meeting on Myanmar, Tirumurti’s tweets condemned the violence, condoled the loss of lives, called for the release of detained leaders and urged maximum restraint. The social messages, significantly, said that the situation must “meet the hopes and aspirations of the people” and underlined India’s commitment to a democratic transition. There was a line about supporting peace efforts by the Association of South East Asian Nations (ASEAN, of which Myanmar is a member). However, ASEAN has been tentative, even timid, in the face of China’s support to the junta. Bagchi was more unequivocal: “Let me be very clear … We believe that the rule of law should prevail. We stand for the restoration of democracy in Myanmar.”

The language is the bluntest so far by India on Myanmar and a response to criticism of its earlier stand within and outside the country. This marks a welcome departure from the tightrope walking by befriending the military (which has not always been friendly to India’s interests) and engaging with the civilian government, which held office only for five years. It is not just the horror of troops firing into crowds of peaceful demonstrators but also at mourners in a funeral and the growing number of civilian casualties — more than 500 in the past weeks. Despite its strong-arm tactics, however, the military is still not in control.

Our concern should be two-fold: One, the people of Myanmar, who, having tasted freedom of expression, assembly and association for the first time in decades under Suu Kyi, are determined to hold on to it. In their tens of thousands, they are rallying on city streets and village squares, refusing to turn up for work, leading processions and protests, and have not been cowed by bullets, beatings, brutality and detentions. The second is the future stability and security of the North-east as well as the policies that have been emphatically espoused at the highest levels of government — the Act East and Neighbourhood First policies are anchored in the eight states of the North-east. We also cannot forget that various insurgent groups from the North-east have a history of relations with ethnic armed groups in Myanmar, where they have taken shelter and established bases and where some still live.

A few factors probably account for the steady change in South Block’s approach. The first is the growing accounts of disorder in Myanmar which appears to be escalating as the civil disobedience movement (CDM) flares in this extremely complex nation. The CDM has been innovative, energetic and driven by young people in the majority Burman and Buddhist-dominated heartland. Disobedience could lead to extensive civil disorder and worse. Already, telecommunications are cut, curfews are in place but daily shows of defiance occur, the banks are not functional, markets are shut, the only courts which appear to be open are those used to present detainees and those charged with violations of regime controls while the cases against Suu Kyi and her colleagues pile up. The battle-scarred armies of the ethnic groups, which fought the Myanmar army to a standstill over nearly 70 years but which signed a ceasefire with Suu Kyi, are girding for war again and are allying with each other. A provisional government of leaders who escaped detention has been announced.

Another would be the impact on India’s border states of the North-east. Not less than four states — Arunachal Pradesh, Nagaland, Manipur and Mizoram — have long borders with Myanmar and the last two states have taken some 1,500 persons, including a number of junior police officials, fleeing from the crackdown in the bordering Chin State. This has raised issues of Centre-state relations, with New Delhi advising the states on the border not to allow Myanmar nationals fleeing the crackdown to enter Indian territory.

Mizoram Chief Minister Zoramthanga has rejected this approach, saying that his government will accept people fleeing, on humanitarian grounds. He wrote to the prime minister saying that as the world’s largest democracy India could not stand aside: “Mizoram cannot just remain indifferent to their sufferings. India cannot turn a blind eye to this humanitarian crisis unfolding right in front of us in our own backyard.”

The Manipur government, too, has withdrawn its circular which had asked district officials along the border to “politely” turn back refugees. What many in the country need to understand is that the Chins in Myanmar and the Mizos and Kukis (and sub-groups) in Mizoram and Manipur are kin; a historical affinity connects them by ethnicity, religion, language. In the aftermath of the 1988 army crackdown on the pro-democracy movement, which killed thousands, many Chins and other refugees fled to Manipur and Mizoram. Local leaders and non-government groups, with the tacit support of central and state agencies, allowed them to live, work and even settle. They were seen as the eyes of India to look through the window on the border into Myanmar and help develop a nuanced field assessment of conditions there. This approach needs to continue.

The present situation provides an opportunity for India to develop a long-term approach to the issue of refugees fleeing political persecution in their homelands. India does not have a National Refugee Law nor is it a signatory to the UN Convention governing refugees.

India has allowed Tibetans, Tamil refugees from Sri Lanka, Chakmas of Bangladesh, the Lothsampas of Nepali origin from Bhutan, Afghans, Somalis and many others into this land. But these remain ad hoc approaches. This has been sought to be addressed for six “minority” communities of Pakistan, Bangladesh and Afghanistan in a long-term manner by the controversial Citizenship Amendment Act. However, the CAA does not cover many of the cases listed above. A national mechanism needs to be developed which goes beyond short-term measures and takes into account a needs-based assessment of how best to handle rapid outflows of persecuted persons.

Written by Sanjoy Hazarika

This column first appeared in the print edition on April 7, 2021 under the title ‘Relooking at Myanmar’. Hazarika is a writer and commentator on issues of NE India and its neighbourhood. He is currently director of the Commonwealth Human Rights Initiative

Source: Indian Express, 7/04/21

Treatment of Rohingya refugees by Modi government display a discriminatory attitude towards Muslims

Sending Rohingya back would mean violating the right to life, constitutional morality.

In a significant ruling on the January 23 in The Gambia v Myanmar, the International Court of Justice held that the authorities in Myanmar must take steps to protect its minority Rohingya population from genocide. Taking note of the UN fact finding mission on Myanmar and various General Assembly resolutions, the world court ruled that Myanmar shall take all measures to prevent the killing of members of the Rohingya population or causing any bodily or mental harm to them.

This world court order ought to have significant moral and legal implications for the pending case in the Indian Supreme Court (SC), which challenges the government’s proposed deportation of Rohingya refugees from India and seeks state amenities for their dignified existence. Not only is the principle of non-refoulement or not sending people back to a place where they are being persecuted — a Right to Life, Article 21, guarantee — available to all persons within India whether citizens or otherwise, this principle has been elevated to a jus cogens or non-derogable norm of international law.

Any national security exception to this principle must be rigorously and carefully proved. Infringements of Article 21 must satisfy the procedural and substantive due process test of being “fair, just and reasonable”. Refoulement does not. It is arbitrary, discriminatory, and abhorrent to constitutional morality. It is arbitrary because the policy has been decided capriciously, as a sudden volte-face to long-established policy. Discriminatory, because the only credible explanation for the volte-face is that the Rohingya are mostly Muslim. Such treatment of refugees is abhorrent to constitutional morality as it violates the absolute right to freedom from torture and non-refoulement.

Explained: How Rohingya issue reached ICJ, what its ruling means for Myanmar

Though India has not signed the Convention on the Status of Refugees, 1951, it has in place a Standard Operating Procedure of 2011, to deal with foreigners who call themselves refugees, who may be granted long term visas (LTV), if it is found that prima facie their claim is justified on account of persecution on the basis of race, religion, sex, nationality, ethnic identity, membership of particular social group or political opinion. Based on this, the MHA started issuing LTVs to persons recognised as “refugees” by the government or UNHCR. These included people from various countries, religions or ethnicities. However in 2015 and 2016, this government amended The Passport (Entry into India) Rules and the Foreigners Order, exempting Hindu, Sikh, Buddhist, Jain, Parsi and Christian illegal migrants from Afghanistan, Bangladesh and Pakistan, seeking shelter in India due to religious persecution, from the consequences of non-compliance with the provisions of the Passport Act, 1920 and the Foreigners Act, 1946. These discriminatory notifications conspicuously omit Muslim refugees and became the precursor for the Citizenship Amendment Act (CAA) passed in 2019. In the last significant hearing in the Rohingya case in October 2018, the SC refused to stay the deportation of seven Rohingya men detained in Assam since 2012, despite constitutional protections, humanitarian obligations and binding international law commitments. This resulted in the first return of refugees to Myanmar since the outbreak of the extreme violence. The government of India, in a brief affidavit claimed that Myanmar had accepted the refugees as “citizens” and the men had orally agreed to be repatriated. The SC sadly refused to interfere in the deportation despite these claims being grossly incorrect, since the men were denied access to legal counsel or to the UNHCR to determine whether their consent was freely expressed. Media reports from Myanmar later claimed that these men had not been given citizenship, as our government swore on affidavit, but the controversial National Verification Cards (that does not recognise their ethnicity).

The treatment of Rohingya refugees by this government, read along with the notifications amending the Passport Rules and Foreigners Order of 2015-2016, and the CAA, all display a discriminatory and hostile attitude towards Muslims. With the SC nearly abdicating its responsibility in protecting persecuted ethnic minorities fleeing genocide by allowing for their refoulment in October 2018, the consequences on the Rohingya population in India could be serious.

This article first appeared in the print edition on February 21, 2020, under the title ‘The Right To Not Return’. Bhushan and Dsouza are counsels for the Rohingya refugees in the Supreme Court of India. 

Source: Indian Express, 21/02/2020

‘4,500 immigrant kids claim they faced sexual abuse at US camps

The US government received more than 4,500 complaints in four years about the sexual abuse of immigrant children who were being held at government-funded detention facilities, including an increase in complaints while the Trump administration’s policy of separating migrant families at the border was in place, the justice department revealed this week. The records, which involve children who had entered the country alone or had been separated from their parents, detailed allegations that adult staff members had harassed and assaulted children, including fondling and kissing minors, watching them as they showered, and raping them. They also included cases of suspected abuse of children by other minors. From October 2014 to July 2018, the office of refugee resettlement (ORR), a part of the health and human services department that cares for unaccompanied minors, received 4,556 allegations of sexual abuse or sexual harassment, 1,303 of which were referred to the justice department. Of those 1,303 cases deemed the most serious, 178 were accusations that adult staff members had sexually assaulted immigrant children, while the rest were allegations of minors assaulting other minors, the report said. “The safety of minors is our top concern when administering the UAC programme,” Jonathan H Hayes, acting director of the office of refugee resettlement, said in a statement, using an abbreviation for unaccompanied children. “None of the allegations involved ORR federal staff. These allegations were all fully investigated, and remedial action was taken where appropriate.” The records do not detail the outcome of every complaint, but they indicate that some accusations were determined to be unfounded or lacking enough evidence to prosecute. In one case, a staff member at a Chicago detention facility was accused in April 2015 of fondling and kissing a child and was later charged with a crime. The report did not state whether that person had been found guilty. The documents, first reported by Axios, were made public by Democrat Representative Ted Deutch the night before a House Judiciary Committee hearing on Tuesday about the Trump administration’s policy of family separations at the southern border. That policy, which was put in place last spring, resulted in more than 2,700 children being separated from their parents under President Donald Trump’s “zero tolerance” policy of prosecuting anyone caught crossing the border illegally, including those with families seeking asylum on humanitarian grounds. For most of the four years covered by the report, the number of allegations made to the office of refugee resettlement stayed about the same from month to month. But the number of complaints rose after the Trump administration enacted its separation policy. From March 2018 to July 2018, the agency received 859 complaints, the largest number of reports during any five-month span in the previous four years. Of those, 342 allegations were referred to the justice department, the report showed. NYT NEWS SERVICE

Source: Times of India, 1/03/2019

Wrong on the Rohingya

Deportation of refugees is legally and morally problematic

In Januarys, 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.

Global framework

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. 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.

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.”

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.

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. 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 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.

The American philosopher Ronald Dworkin argues that if we claim international law to be law, we must understand it as part of the greater morality. In such a conception, the deportation of refugees by India is not only unlawful but breaches a significant moral obligation.

Thulasi K. Raj is a lawyer at the Kerala High Court

Source: The Hindu, 5/02/2019

Asean must be more active in engaging with the Rohingya issue

Myanmar should take the grouping’s help to address the crisis. Opposing it will attract international criticism

The issue of over 700,000 Rohingya refugees from Myanmar who are currently in neighbouring Bangladesh is one of the worst humanitarian crises of recent times.

A UN fact-finding mission report released in September this year concluded that there was a “genocidal intent” and called for the Myanmar military commander-in-chief and five generals to be prosecuted.

While governments and international organisations have spoken out to condemn the disproportionate and overwhelming use of force by the Myanmar military and or the inaction of the Myanmar civilian government led by Aung San Suu Kyi, the Association of Southeast Asian Nations (Asean) has largely been silent on the issue.

Governments and activists around the world want to see Asean playing an active and constructive role in helping address this humanitarian crisis. Still, many who understand the complexity of Asean’s organisational structure which makes it difficult for the body to play such a role.

The fundamental principles of Asean require member states to show mutual respect for the independence, sovereignty, equality, territorial integrity, and national identity of all nations; recognize the right of every state to lead its national existence free from external interference, subversion or coercion; and not interfere in the internal affairs of other member countries.

These principles have prevented not only individual member states but the organisation as a whole from engaging with the issue since Myanmar has not invited them to do so.

That does not mean Asean member states have completely shied away from the issue. For example, the two Muslim-majority countries -- Malaysia and Indonesia -- have spoken out. The Malaysian government, in particular, has been quite vocal on the issue and criticised Myanmar.And as the Rohingya issue continues to overshadow several other important issues of the region, Asean leaders have begun taking a more visible position, especially under the chairmanship of Singapore.

On the sidelines of the UN General Assembly in New York in September this year, Singapore Foreign Minister Vivian Balakrishnan said that Myanmar should start repatriating Rohingya refugees from Bangladesh and ensure that there is security, peace, justice and better prospects for everyone.

The regional grouping’s frustration was also evident during the 33rd Asean summit in Singapore in November, when, unlike previous Asean summits, the Rohingya issue was discussed in almost every forum .

During the summit, Thai Prime Minister Prayut Chan-o-cha said that Thailand, which will chair the regional grouping next year, sees the regional bloc as capable of playing an important role in addressing the situation in Rakhine state in a constructive, tangible and sustainable manner.

The key question is whether Myanmar would welcome such diplomatic interventions. There is a possibility that it could construe such moves as an attempt to interfere in its internal affairs.

But Myanmar has to understand that it has already internationalised the Rohingya issue following the constitution of the Kofi Annan Commission in 2016, and then the formation of an Advisory Commission for the Implementation Committee of Rakhine State last year with experts from home and abroad.

Moreover, in June, Myanmar signed a Memorandum of Understanding with the Office of the UN High Commissioner for Refugees (UNHCR) and the UN Development Programme (UNDP) to create conditions conducive for a voluntary, safe, dignified, and sustainable refugee returns from Bangladesh.

Myanmar should welcome Asean’s goodwill gesture to help address the protracted Rohingya crisis. An attempt to oppose Asean’s intent to engage will only hamper the cohesion and strength of the organisation, and invite criticism from the international community.

Besides Asean summits, platforms such as the Asean Defence Ministers’ Meeting (ADMM) and the ADMM-Plus should be utilised to explore possible ways for the body to cooperate with the Myanmar military, which not only controls the security matters of the country but also retains significant political power.

While it is true that the Asean grouping has not taken any substantive measures on the Rohingya issue in the past, the signs are that we can hope for a more active and engaging role from it, although the results of this will largely depend on the openness and receptiveness of Myanmar, as well as the level of commitment from member states.

Nehginpao Kipgen is associate professor and executive director of the Centre for Southeast Asian Studies, Jindal School of International Affairs, OP Jindal Global University. He is the author of three books on Myanmar, including ‘Democratisation of Myanmar’

Source: Hindustan Times, 20/11/2018