Monday, October 23, 2017

The Rohingya Exodus and India's Policy

A Panel Discussion 

Peace and Justice Forum, a student-run Discussion Forum at the Jawaharlal Nehru University in New Delhi, recently organized a Panel Discussion on the ongoing refugee crisis in India's neighbourhood. With hundreds of thousands of people belonging to a minority Muslim faith in the Buddhist-majority Myanmar being suddenly forced to abandon their homes, flee from the land and seek refuge abroad, especially in Bangladesh; the Discussion took place against the backdrop of the evolving national debate in India on the crisis in the region. 

Mr. Siraj, a refugee from the Rohingya community, was one of the Panelists, sharing a searing testimonial of what it means to be a refugee, being forced to abandon one's people and livelihood behind to escape injustice and oppression in the land. He spoke of a time when his grandfather and others of that generation and before could work and live as common citizens in Myanmar with all legal rights and civil protection available to all other citizens in the country, pointing to the enormous change in the fortunes of Rohingyas from being 'citizens' to 'stateless persons' in Myanmar. Two journalists on the Panel- Mr. Prashant Tandon and Mr. Akhlaque Usmani- shared their perspectives on the problem, reflecting on the Rohingya community's travails in recent decades as well as on the debate currently on the issue in the Indian media and government circles. 

As a student of international law and justice, this writer had the pleasure and privilege of chairing the programme that included a lively opinion-sharing,  question-answer session with the audience. In that public conversation, one could argue that international law considerations are potentially important on three distinct sets of issues and concerns in the context of the present problem from the standpoint of (i) ensuring accountability of the perpetrators of the crimes against humanity in Myanmar; (ii) providing immediate humanitarian relief and  assistance to the victims of the forced displacement; and (iii) the duty/responsibility/obligation of States like India to receive refugees even in the absence of a national refugee law.  

The Catastrophe
By all accounts of the UN estimates and the reports in International media, there is little doubt that a humanitarian catastrophe is unfolding in Myanmar (Burma). In the last two months or so, over half a million people belonging to the Rohingya community- an ethnic minority community that speaks a variant of Bengali, and are mainly Muslims by religion- had been forced to flee from their homes and villages in Myanmar and to seek refuge abroad, mostly in the neighbouring Bangladesh; but also in India and elsewhere. Even by the long history of persecution and social exclusion that the Rohingya community had faced in Myanmar over most of the last several decades in that Buddhist majority nation, the level and scale of the atrocities being perpetrated on the hapless people- brutal sexual assault on women and wanton killings of children- represents an serious threat on its very existence as a people in the land. In the intensity, scale and swiftness of the crisis engulfing a mass of humanity; the current wave of the forced displacement from Myanmar is unprecedented in modern times, eerily reminding the international community about the horrific days of the Rwandan genocide. 

The exodus of the Rohingya Muslims is taking place against the backdrop of a brutal military campaign in the country.  It is instructive to note that, for long, the Burmese military has a dreadful record of authoritarianism and human rights abuses for much of its post-independence suzerainty over the land. Democratic aspirations of the Burmese people had long been suppressed by the Army and even pro-democratic student protests in the past had been sought to be extinguished by repressive tactics and mass killings so much so that the military junta ruling over the country had been an international pariah for long, including for the famous house arrest of Aung San Suukyi for years. 

Even after the current transition stage where Suukyi is the leader of the country, the military retains tight control over the state institutions, including the Parliament and to the abiding shock and disappointment of the international community, the Nobel Peace-Prize winning Suukyi had abdicated her moral responsibility to speak up for the human rights of the Rohingya community at its most vulnerable moment. Instead of standing up with the victims of violence; she has chosen to defend the predators and legitimate the military atrocities by seeking to play the politics of denial and moral equivalence. 

In the post-colonial state of Burma that became independent from the Britain in 1948, national identity is constructed around Buddhist racism: a blinkered vision that perpetuates the politics of exclusion and discrimination against the minority communities. The State constantly seeks to remind the Rohingyas about their  'different identity': the children of Muslims/"Bengalis"/Indians who immigrated during the colonial times. In the political/military order in Myanmar today where the strident assertion of Buddhist chauvinism reigns, there is little empathy left for the Rohingya. Deprived of their fundamental human rights, including the right to nationality and citizenship- the very right to have rights-, the Rohingyas are treated as stateless persons, against all evidence of their presence in the land through the centuries. In the majoritarian political mind-space, the Rohingya Muslims are illegal aliens/economic migrants who speak a different language and profess another religion and as such they represent a 'threat' to the country's majoritarian 'Buddhist culture and way of life'. 

Accountability for Mass Atrocities

It is instructive to remember that no war, no holocaust, no genocide has ever been perpetrated without the victims first having been 'described'. Description always precedes annihilation. First, they are reduced to what the powerful say they are, nothing more. The Burmese State has also played its legal and political cards to prepare the ground for the 'ethnic cleansing' of its minority Muslim community. They were politically described as "illegal migrants"; legally described as "stateless persons" with no local identity and personality under the legal system to claim rights; and they were culturally reduced to be the remnants of a shameful colonial era in national polity and as such representing a permanent threat to the invented, monolithic, national culture and civic life. Look at the 'spin' to the current crisis by the Burmese government: it wants the global community to look at the wanton use of force against the civilian population as a legitimate security operation. While ostensibly acting in a context of “counter-terror operations” against the militants threatening the ‘national security’; the Burmese military’s scorched-earth policy has rendered more than half of the Rohingya population  of the country into refugees in Bangladesh and elsewhere. 

International law today insists upon the individual criminal responsibility of perpetrators of mass atrocities. Whether they are ordinary soldiers or military commanders, or political executives at various levels of hierarchies; none can escape the long arm of international law. International criminal trials in the last two decades have unleashed a range of concepts and principles that seek to ensure justice for the victims of crimes against humanity, war crimes and genocide. 

International community has to ensure that military officials and vigilante groups inside Myanmar directly responsible for the despicable crimes against the Rohingya people are held accountable under law. Robust engagement is required with the Aung San Suukyi administration to ensure that it cannot avoid or evade its basic duty to do justice with all segments of the society. The Myanmar  government should be compelled to take verifiable measures to conduct credible investigations so as to prosecute the criminals responsible for the mass atrocities and to create a political framework for the safe return and reintegration of the Rohingya people with dignity and rights under law.

Humanitarian Assistance  in Bangladesh 

International community has a duty to protect the people fleeing persecution, to provide  them humanitarian assistance and ensure the conditions prospective for a dignified existence. Bangladesh has done a commendable role in welcoming the refugees amidst the crisis and sharing their already exhausted resources with the people. The international community has to take its share of the economic burden entailed by the need for additional services and facilities required to assist close to a million people who are being sought to be accommodated in temporary shelters in refugee camps. 

India's refugee policy

India has a reasonably creditable record of dealing fairly with refugees in the past, be it the Tibetan refugees, or the Sri Lankan Tamils and many other smaller groups fleeing persecution and violence form many other countries. This fair treatment of vulnerable foreign nationals on Indian shores is certainly seen as a humanitarian imperative by the people at large; this is despite not having a national refugee law. As a signatory to international human rights instruments, and also as a matter of customary law obligations, India has been urging other nations in world refugee summits and other humanitarian conferences that there is an obligation on the part of every State not to indulge in mass deportations of people who are vulnerable to persecution, torture or murder in their own home states. 

It is important to remember that India's  moral voice has powerfully resonated throughout the world when it stood up to advance the cause of the freedom of the third world from colonial and imperial domination in the past, even when it was not an economic powerhouse like it is today, in comparison with many other states in the world. Today, India needs to assert its commitment to human rights and fundamental freedoms of all people and use its good offices, and considerable influence, to persuade the government of Myanmar to behave responsibly and justly on the Rohingya exodus, something the present government is yet to do so far, regrettably. Should India's moral voice be muted even as it rises as a major economy in the world? 

In marked contrast to the spirit of accommodation and solidarity with vulnerable people that is the core of India's refugee policy, of late, the Ministers in the Indian government with its anti- Muslim leanings, had been calling for the deportation of the Rohingyas from India, calling them "illegal migrants" and a "threat to national security", refusing to recognize the very concept of refugee-hood as not-binding on India in the absence of any national law. The strident political posturing of the 'nationalist' right-wing in India against the Rohingya 'Muslim' refugees and the executive pronouncements in this regard of deporting them back as 'illegal migrants' from India are disturbing tendencies in the country. These arguments smack of not just anti-Muslim bias, but also amount to 'racism', or class prejudice of the worst kind where an entire people is condemned for 'guilt by association'- theories that are long discredited as 'category mistakes in human rights law.

It is interesting to note that the present dispensation in India- the Narendra Modi government- has recently ushered in a liberal regime for  illegal migrants from the non-Muslim minority communities- "Hindus, Sikhs, Buddhists, Jains, Parsis  and Christians"- to claim refugee status and a path to citizenship in India if they are here on grounds of "fear of religious persecution" from Pakistan, Afghanistan and Bangladesh, the neighbouring Muslim nations of India. Hence, it is ironic that a minority group that is actually fleeing religion-based persecution in the neighbourhood of India is sought to be subjected to mass deportation procedures by the political executive on the flimsy ground that they have entered India without valid papers. Clearly, the issue is not 'illegal' migrants; it is their 'Muslim' identity that is problematic for the present dispensation. This kind of segregation between two classes of refugees on the ground of their religion amounts to wrongful discrimination and is violative of the Constitutional requirement of Equality (Article 14) and the judicial requirement of administrative fairness: equal treatment of the same class of persons is a Constitutional imperative and cannot be wished away by executive fiat. The government should do well to amend the relevant law- Citizenship Act, 1955- and include the Rohingya refugees within the category of "discriminated minorities from India's neighborhood" entitled to legal protection in India. 

The 'little' Rohingya refugee, by knocking on the doors of the Indian Supreme Court for justice and humane treatment, is asking the Indian people to define who we actually are. Clearly, India as a nation has to make a moral, political and legal choice: whether to engage with the suffering in the neighbourhood and relieve the pain of people or display the hubris of looking away from misery. To sub-serve its narrow political constituency of 'Hindutva' chauvinists, the present government should not betray the fair name of India in the treatment of refugees. More worryingly, the 'communalisation' of a humanitarian challenge by the government's responsible political leaders-seeking to deny refugee protection on grounds of religious identity- threatens our nation's fundamental values and commitment to a democratic, secular order and rule of law. Indeed, the very idea of the nation, as envisioned in India's Constitution, stand to be tested and defined by how we approach the Rohingya question.