Rohingyas: The Stateless-

Rohingya are a Muslim ethnic minority situated primarily in Myanmar’s western Rakhine
State constituting 1/3 of Rakhine state’s population. They have been called the "world's most
persecuted minority". The majority are not considered to be citizens by the Myanmar
Government, and live in a condition of statelessness. They have been fleeing Myanmar in
large numbers, often to nearby developing countries avoid conflict and persecution.
Rohingyas’ history can be described in three categories: precolonial, colonial and
postcolonial. In precolonial times, the independent kingdom of Arakan (currently known as
the Rakhine state), was populated by Muslim Arabic sailors from 788 to 810 AD, and
afterwards by Bengalis from the fifteenth to the seventeenth centuries. During precolonial
times, the Rohingyas and Arakanese lived in harmony. This changed after colonization by
the British following the first Anglo-Burmese war in 1825. The rift deepened during the
Second World War, when the Rohingyas declared their loyalty to the British, while the
Arakanese sided with the Japanese [10]. During the Japanese occupation of Burma
(including Arakan), the Rohingya population was targeted jointly by both the communalist
(Buddhist) Rakhine and the Burma Independence Army, killing100,000 Rohingyaand
exiling a further 50,000 towards the border to East Bengal. After Burma received
independence in 1948, the anti-Rohingya campaign persisted, marked by discrimination and
denial of their citizenship rights. Around this period between 1940 and 1947, Buddhist
fundamentalist extremism was on the rise. Two major acts were legislated that infringed
upon the rights of the Rohingya: The 1974 Emergency Immigration Act required all citizens
to carry an identity card, called a National Registration Certificate. The Rohingya were
ineligible for these cards. They were only eligible for Foreign Registration Card which
provided only limited rights and was meant for foreigners. Even then few Rohingya were
able to secure a Foreign Registration Card. Eventually, in 1978, the amassed anti-Rohingya
sentiment culminated in the military junta operation to purge Burma of illegal inhabitants,
which comprised harassment, violence and arrest.
Thisledtotheflightof250,000RohingyastoBangladesh[11].
Facedbypressurefromtheinternational community, a repatriation agreement was struck with
Bangladesh the following year, resulting in the majority of Rohingyas being returned to
Burma. However, just three years later, Burma passed the 1982 Citizenship Law that denied
citizenship to Rohingyas, decreeing an estimated 800,000 Rohingyas in North Rakhine
stateless. The government justified this action by claiming that, as illegal immigrants from
Bangladesh, the Rohingya could not be included in the list of 135 official ethnic groups .
During military junta rule in 1988, the State Law and Order Restoration Council (SLORC)
established a number of new military cantonments in the Rakhine state, focusing on the
north where Muslims were situated. Land was forcefully taken from the Muslim inhabitants
without compensation, so Rohingyas became ‘homeless’ in addition to ‘stateless’. Branded
as illegal residents, they experienced basic human rights violations including denial of
access to education, healthcare, employment, freedom of movement, religion and even
limited rights to get married or have children.

EXODUS IN THE RECENT YEARS-

The ongoing anti-Rohingya campaign and extreme circumstances resulted in a persistent

exodus of Rohingya to safer neighboring countries, where they reside as stateless refugees.

The military justifies this hostility claiming it is merely protecting Myanmar against attacks by
the Arakan Rohingya Salvation Army (ARSA), which it has labelled a terrorist group and
accuses them of killings and destruction in Rakhine state. Human rights monitors and
fleeing Rohingya say the army and ethnic Rakhine Buddhist vigilantes have mounted a
campaign of arson aimed at driving out the Rohingya.

Violence broke out in 2012, when Rohingya men were accused of raping
and killing a Buddhist woman. Buddhist nationalists responded by
burning Rohingya homes, killing more than 280 people and forcing more than
140,000 from their homes into squalid camps. More incidents followed, with anti-
Muslim violence spreading beyond Rakhine state and into other parts of
Myanmar. Human Rights Watch characterized the anti-Rohingya violence
as “crimes against humanity.”
In 2014, the government conducted its first census in 30 years. On the census, there
was no option to register as Rohingya, It meant that 1.3 million Rohingya in Arakan,
also called Rakhine state, were not included in the census. So the Rohingya had to
register as “Bengali,” effectively forcing them to admit what the government claims they
are-- immigrants from another country. The Rohingya had been allowed to register as
temporary citizens and receive a white card, which provided them with limited rights,
however the government revoked their white cards in 2015 which was the last form of
official government identification for Rohingya, stripping them of voting rights linked to
the cards.

In 2016, Myanmar’s first democratically elected government in a

generation came to power under the leadership of Nobel Peace laureate and
democracy champion Aung San Suu Kyi. Although the Rohingyas had expected a
drastic turn of events in their favour, it has been reluctant to advocate for
Rohingya and other Muslims for fear of alienating Buddhist nationalists
and threatening the still fragile leadership.

The Rohingya had hoped the election of in November 2015 would see a turnaround in
hostility towards them from the new government in Naypyidaw and Buddhist groups. But
violence against them has dramatically worsened since then.

On 25th August 2017, a deadly assault by Arakan Rohingya Salvation Army on

multiple police posts in Northern Rakhine triggered a new cycle of violence, Fighting
between the military and insurgents sent thousands of Rohingya to the
country’s border with Bangladesh as government troops opened fire on
civilians. Myanmar’s security forces have also allegedly planted land
mines near border crossings used by Rohingya to flee to Bngladesh.

IMPLICATIONS ON INTERNATIONAL HR

The UN High Commissioner for Refugees (UNHCR) previously described the

Rohingya community as one of the most “excluded, persecuted, and vulnerable
communities in the world.
The treatment of the Rohingya people by the Burmese government intersects with
international humanitarian law at a variety of places.

According to the Article 1. A. (2) of the 1951 Refugee Convention, a refugee is a person
who, [O]wing to well-founded fear10 of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable, or owing to such fear, is unwilling to avail himself
of the protection of that country; or who, not having a nationality and being outside the
country of his former habitual residence as a result of such events, is unable or, owin g to
such fear, is unwilling to return to it.

Myanmar’s human rights obligations are grounded in both treaty and customary law.
Myanmar is a party to the Convention on the Rights of the Child (CRC), the Convention on
the Elimination of all forms of Discrimination Against Women (CEDAW), the Convention
on the Rights of Persons with Disabilities (CRPD) and other key international treaties
including the Optional Protocol to the Convention on the Rights of the Child on the sale of
children.

It is a signatory to the International Covenant on Economic, Social and Cultural Rights,

therefore requiring the authorities to refrain from actions contrary to the object or purpose
of the Covenant. Obligations under these treaties are complemented by customary
international law, which includes a number of rights in the Universal Declaration of Human
Rights (UDHR).

Non-discrimination is central to promoting and protecting the rights of minorities.

According to Article 2 of UDHR, Myanmar must protect and respect the human righ ts of all,
without distinction such as “race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status”

Art 15(1) UDHR states that everyone has the right to nationality. The Citizenship Law does
not include the Rohingya which is a clear violation of this.

Article 30 CRC outlines the right of children belonging to minorities to enjoy their own
culture, profess and practise their own religion, and use their own language.
The United Nations Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities requires States to take positive measures to protect the
rights and identity of minorities.

Considering the context of past and ongoing armed conflict in Myanmar, it is also important
to note the relevant provisions of international humanitarian law, which regulate the conduct
of parties to an armed conflict.13 International criminal law applies to situations in which
individuals can be held individually criminally responsible under international law, such as
for crimes against humanity and war crimes. States have the primary obligation to ensure
accountability for such crimes.15 They must investigate and prosecute gross violations of
international human rights law and serious violations of international humanitarian law.

The 2008 Constitution of Myanmar offers some protection to recognized “national races”,
requiring the Union Government to assist in developing their language, literature, and
culture; promote solidarity and respect among them; and promote their socio-economic
development.17 Chapter VIII of the 2008 Constitution of Myanmar protects the rights to
equality and non-discrimination, education and health care, and prohibits forced labour and
arbitrary detention. Yet, many rights are reserved for “citizens”, whereas international
human rights law generally requires the State to respect, protect and fulfil the human rights
of all individuals within its jurisdiction or control.

Myanmar’s Constitution prohibits the abuse of religion for political purposes and acts
intended or likely to promote hatred, enmity or discord between racial or religious
communities.26 Furthermore, according to international law, Myanmar must uphold the
right of all in its territory to freedom of religion and the principle of non-discrimination Art
2,7,18 of UDHR. Yet, since the 1990s, extremist or ultra-nationalist Buddhist organizations
have actively promoted messages of hatred and intolerance against Muslims and other
religious minorities.

CEDAW, Art. 2. Domestic violence has been reported within the Rohingya community.
Protracted displacement, overcrowding in camps, the lack of livelihoods and constraints on
all aspects of life exacerbate tensions and risks of domestic violence. The lack of available
and accessible health and other support services remains a concern. The Government has an
obligation to protect all individuals from all forms of violence and address sexual and
gender based violence within the private and public sphere.

Restrictions placed on Muslim communities to access public health facilities constitute a

violation of the right to health- CRC Art. 24; CEDAW Art. 12; CRPD Art. 25
Protracted displacement and denial of an adequate standard of living Besides violating the
right to freedom of movement, this affects the enjoyment of several economic and social
rights, including the rights to education, the highest attainable standard of health, and an
adequate standard of living- ICESCR, Art. 11-13.

Southeast Asian countries of Thailand, Bangladesh, India, Malaysia, and Indonesia, have
been impacted by the influx of Rohingyas fleeing Myanmar. Each of these countries has,
willingly or unwillingly, received Rohingya refugees. For the most part, they have been
hesitant to allow the Rohingya into their country, working to discourage them from entering
or actively preventing their entry.

The concept of “non-refoulement,” in the UN Protocol Relating to the Status of Refugees,

states that no one can return a refugee to their home country where they feel threatened
against his or her will. This has occurred in countries in the region, especially Bangladesh,
who use various means for forcing the Rohingya back over the border into Myanmar.

In view of all these violations and the ongoing hostilities against the Rohingyas , has been
described by the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein on Sept
11, 2017, as “a textbook example of ethnic cleansing”.

ASEAN, a regional grouping of ten countries in Southeast Asia, has spoken out about the
Rohingya situation, but done very little to actually pressure Myanmar to make changes.
Critics have pointed to this lack of action as evidence of ASEAN’s overall ineffectiveness .

The UN Security Council met on 28thSept to discuss the matter. The US calls
on Myanmar to punish soldiers responsible for violence, but stopped short of
Here UN Secretary-General Antonio Guterres
re-imposing sanctions.
referring to the matter as a “human rights nightmare” urged
authorities in Myanmar to end the violence in Rakhine for fear
that the situation could destabilize the region.
The United Nations have also appealed to the entire international community to
keep the political differences aside and support the ongoing humanitarian efforts to
help Rohingya Muslim refugees.
ROHINGYAS IN INDIA: VICTIMS OR TERRORISTS?

According to the UNHCR, New Delhi, roughly 40,000 Rohingyas are logded in India. An accurate estimate
is hard to come by. Rohingyas are a mobile group of refugees spread out in settlements across
Hyderabad, Delhi, Mewat, Jaipur and Jammu as well as some rural areas in North India. And, of course,
in jails in West Bengal.

The ethics of international law and the imperatives of hospitality directly clash with the post9/11
securitisation regime producing a schizophrenic oscillation between asserting sovereign power and
providing hospitality.

Looking at reports across the country since 2012, two distinct strands of reportage about Rohingyas are
noticeable. In the coverage of the crisis in Myanmar, the Indian media is unflinchingly critical of the
Myanmarese government. The Rohingyas came into the media spotlight again in July 2013 in the
context of the serial blasts in Bodh Gaya. Supposedly perpetrated by the Indian Mujaheedin group, it
was seen as a reaction to Buddhist persecution of Rohingyas in Myanmar.

Another Times of India report on 15 April 2013 entitled ‘Riot-hit Rohingya Muslims take Refuge in
Hyderabad’,41 talked about the Rohingyas and the support they got from local NGOs. Interestingly, it
referred to the Rohingyas as ‘asylum seekers’ directly putting the burden of their protection on the
state, although the state is an absent actor in the narrative.

The Hindu reported on 17 March 2014 that: A steady influx of Rohingya Muslims into West Bengal via
Bangladesh is causing concern to the security establishment.

A Reuters report dated 15 September 2014 states: New Delhi has twice blocked draft laws on refugee
recognition. Because of its porous borders, often hostile neighbours and external militancy, it wants a
free hand to regulate the entry of foreigners without being tied down by any legal obligation.

Prime Minister Narendra Modi was quoted on 7 May 2014 by The Hindu as having said: ‘There are two
types of people who have come in – infiltrators and refugees. Those who are refugees are our family. It
is the responsibility of all of India, whether Gujarat or Rajasthan to rehabilitate them with all respect.’61

India has not signed the 1951 United Nations Refugee Convention or its 1967 Protocol which require
countries to accept refugees nor is it a party to 1954 Convention Relating to the Status Of Stateless
Person nor the 1957 Convention Relating to the Reduction of Statelessness.

On the other hand India is a party to UDHR, ICCPR, ICESCR, CEDAW and CRC. These human rights
instruments create an obligation on India to provide basic humanitarian treatment to these people.

But with the immediate increase in the exodus from 25th Aug 2017, India has been viewing the matter as
a security threat. The Home Minister Rajnath Singh has even went on to say that “The Rohingya are
illegal immigrants, not refugees… we have to think about the human rights of our own people”
with the BJP government’s controversial proposal to amend the country’s citizenship laws. The new bill,
the Citizenship (Amendment) Bill, 2016, proposes that Hindus, Sikhs, Jains, Parsis and Christians entering
India from Afghanistan, Bangladesh and Pakistan not be considered as “illegal immigrants”. While the
proposed amendment is technically ‘pro-minority’, it certainly is antiMuslim.

Although New Delhi’s reluctance to speak out publicly about the violations against the Rohingyas is
understandable, it can ill afford to ignore the crisis in Myanmar. Even if human rights considerations are
the least of New Delhi’s worries, it is clearly in its interest to ensure that stability and peace return to the
Rakhine state. When peace returns to Myanmar, India can ask the latter to rehabilitate the Rohingyas.

This stance has been criticised by many finding that India is committing a grave error of substantial
moral purport.

A pair of Rohingya refugeese Mohd Salimullah and Mohd Shaqir have also filed a petition before the SC
contending that any depiortation would violate their fund rights under Art 14 and 21 and would also
infringe the non-refoulment principe of int law. Although india is not a party to the 1951 Convention
art.33 of which incorporates this principle, in Ktaer Abbas Habib v UOI (1998) AND Dong Lian v UOI
(2015) the Gujarat and Delhi HC have incorporated this prinviple in Art 21 so long as presence of
refugee is not prejudicial to law and order and security in India.

The Rohingya crisis, if it remains unsettled, can become a path toward radicalisation and pose a greater
security threat for India.

Future efforts, in tandem with appropriate political actions, will be key to finding a meaningful and
sustained solution to this ongoing crisis.