UN resolution should rally world behind Rohingya

 Since the overwhelming exodus of Rohingya refugees to Bangladesh in 2017, the Rohingya problem has gained attention. To continue housing more than 1.1 million refugees in Bangladesh, however, is proving to be an incredibly challenging endeavor given the recent emergence of other national and international challenges.

A ray of light is provided, nonetheless, by the recent Rohingya resolution passed by the UN General Assembly’s Third Committee. The resolution was jointly introduced last week by members of the Organization of Islamic Cooperation (OIC) and the European Union (EU), who all agreed that it was urgent to confront Myanmar’s reprehensible treatment of the Rohingya people and other minorities. This is good news since, up until now, the international community has not taken sufficient action to relieve the pressure on Bangladesh and to prevent Myanmar from abdicating its responsibility to its citizens.

The resolution is simply the first of several that must be taken to make sure that the Myanmar government creates a secure environment for Rohingya refugees to return to; it does not, however, guarantee that the repatriation process for those refugees would be accelerated. It is crucial that the resolution be turned into rapid action because the UN and humanitarian aid groups both have vital roles to play in this situation.

The perpetrators of the crimes done against the Rohingya population can finally be brought to justice with the assistance of the international community. Making sure that the refugees can finally and safely return home requires that we approach this catastrophe with the urgency that it demands. While Bangladesh’s attempts to host the refugees demonstrate a level of generosity that the rest of the world has yet to show, it is time for the international community to take action to share the burden.

The human rights situation of Rohingya Muslims and other minority communities in Myanmar was also raised in the resolution adopted by the third committee of the General Assembly. The Permanent Mission of Bangladesh to the United Nations said in a statement that the Organization of Islamic Cooperation (OIC) and the European Union (EU) jointly presented the proposal to the Third Committee of the General Assembly.

109 countries co-sponsored the resolution, the highest since 2017. In addition to finding the root cause of the Rohingya problem, the resolution calls on Myanmar to fully cooperate with all UN human rights bodies, including the UN Secretary General’s Special Envoy to Myanmar, to create an environment suitable for the voluntary, safe and sustainable return of the Rohingya to Rakhine State.

The statement commended “Bangladesh’s continued cooperation with the ICC, IIMM, and other accountability mechanisms to ensure justice and accountability for human rights violations against the Rohingya.” This year’s resolution also called on UN member states to continue humanitarian assistance for the Rohingyas in Bangladesh under the principle of ‘Responsibility and Burden Sharing’.

In addition, the important role of regional countries and organizations such as ASEAN in the development of Myanmar’s political and human rights situation has been highlighted. Special emphasis is placed on the speedy implementation of the five-point recommendations adopted unanimously by ASEAN. It is hoped that the international community will be more alert and aware of the Rohingya issue at the United Nations. It can be said that the task of repatriating Rohingyas will be relatively easy if such a proposal is unanimously accepted by the Security Council in the future.

The main question is whether the Rohingyas sheltered in Bangladesh will be able to return to their homeland. As long as this goal is not achieved, there will be no relief for Bangladesh. Despite being overpopulated and plagued by socio-economic problems, Bangladesh has given shelter to the displaced Rohingya fleeing from Myanmar on humanitarian grounds.

But this humanitarian step has become a burden for Bangladesh now. Rohingyas coming to the country has created a multidimensional crisis. The environment of Cox’s Bazar area has become polluted. Population density has increased. Rohingyas are involved in various criminal activities including drug smuggling and are worsening the law and order situation in the country. This situation is not only a threat to Bangladesh’s internal security but also to regional security.

In this reality, an acceptable solution to the Rohingya crisis has become very important. And this solution can be done only through the repatriation of Rohingyas to their homeland. The international community should apply effective pressure on Myanmar so that the country agrees to take back its citizens. It is expected that the international community will play a stronger role in the Rohingya issue after the unanimously adopted resolution at the United Nations.

Rohingyas do not deserve any kind of support or aid in any form.These people like some disturbed countries in africa and Pakistan etc are crookest ,criminals pretendng to be very poor destitute dressed in shabby out-out or half naked just to chet public and continue with their hidden motive of wpreading Islam in the world.Just give them a finger and they will cut your hand,perhaps the arm itself.There has to be noconcern of world body for such menacious creatures wandering around in human form.The whole non-Islamic world has to be worried and concerned for such muslims migration backed with crafty underhanded device to diffuse Islam.Especially the West (European) countries are being befooled by them by sneaking into their countries.At home these people hate all other non-muslims but do not take shelter within own Islamic countries which are 57 in the world.UNO must act against such elements and those who mischievously brainwash them and give some financial support.The money the guys who push then into europe and other counteries is later shared by Islaic fanatics and Mullah.the circle goes on.Once these socalled migrants get earn some money they keep om supportin(sending money)to those Mullahs or mischievous muslims to continue with their dirty jobs.UNO must act and control the birth rate in all those poor countries.NO any kind of support in any form to such people.If atall help then the it must be like as said "Give them fishhing rod but not fish"and keep them away from healthy civilized society.

Source: The Statesman, 25/11/22

Cold hearts: Editorial on mature democracies adopting harsher anti-immigrant stance

 In the US and Europe, Ukrainian refugees are being welcomed even as hurdles mount for Syrian, Afghan and Central American asylum seekers

Five years after a massive exodus of Rohingya refugees from Myanmar turned the global spotlight on the sufferings of the community, their future remains uncertain, caught in the crosscurrents of a hardening world willing to forego traditional humanitarian values. Myanmar, where the army is accused of mass murder and sexual violence against Rohingyas, does not want the community to keep its independent identity. Bangladesh, which hosts 750,000 Rohingya refugees, has made it clear that it believes that Myanmar should take back those from the community who fled. India, which hosts 40,000 Rohingyas, embarrassed itself last week after it quickly extinguished hope that it might drop its animus towards the community. Hardeep Puri, a former diplomat who is now Union minister for urban affairs and housing, announced on Twitter that the Centre would provide shelter to Rohingya refugees in a New Delhi settlement. Soon, the home ministry put out a public statement rebutting Mr Puri’s claims and insisting that it plans to deport illegal Rohingya refugees. The United Nations, which has described the Myanmar government’s actions as “genocide”, has said that conditions in Myanmar are not safe for Rohingyas to return.

It is precisely in such situations that large, mature democracies — whether India, the United States of America or nations in Europe — have opened their arms to vulnerable communities escaping death and devastation. From Tibetans following the Dalai Lama in the 1960s and millions of Bangladeshis in the 1970s to Sri Lankan and Afghan refugees in the 1980s, an India much poorer than it is today embraced people from its neighbourhood who were in trouble. Today, India and the Western democracies have adopted a much harsher, anti-immigrant stance for the most part, often infected by bigotry and bias. India has declared its intent to expedite citizenship for asylum seekers from neighbouring countries as long as they are not Muslim. In the US and Europe, Ukrainian refugees are being welcomed even as hurdles mount for Syrian, Afghan and Central American asylum seekers — also fleeing war and violence — to enter those nations. This is illegal under international law, which bars countries from turning away or deporting those at risk back home. It also sets a poor example to younger democracies that look up to India, the US and Europe. The Rohingyas’ search for a home poses a key test for the future of the world, which democracies are failing at the moment.

Source: The Telegraph, 22/08/22

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

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