Communities

Kiren Rijiju Please Note, Deporting Rohingya Refugees Is Illegal Under International Law

India’s actions prove that what separates an illegal immigrant from a refugee is not a question of actual persecution but of political expediency.

People belonging to Rohingya Muslim community sit outside their makeshift houses on the outskirts of Jammu, May 5, 2017. Credit: Reuters/Mukesh Gupta

People belonging to Rohingya Muslim community sit outside their makeshift houses on the outskirts of Jammu, May 5, 2017. Credit: Reuters/Mukesh Gupta

A few months ago, I wrote about the Citizenship (Amendment) Bill of 2016 and how it sought to provide preferential naturalisation options to persons from religious minorities in our neighbouring Muslim majority countries of Pakistan, Bangladesh and Afghanistan. This mirrored the Trump administration’s executive orders on immigration, which, in addition to imposing a ban on travel from several Muslim majority countries, also prioritised refugee claims on the basis of religious persecution, as long as the person claiming the refugee status was a religious minority in their home country. What both these policies did was to filter refugees and asylum seekers, and let only non-Muslim applicants through. This meant that groups facing extreme forms of violence and persecution in their home countries, such as Syrians and Rohingya Muslims, would not be let in.

On August 9, Rajya Sabha MP Rajeev Gowda posed several questions to Union minister of state for home affairs Kiren Rijiju. The questions pertained to the condition of Rohingya refugees in the country and were framed as follows:

(a) whether the (home) ministry has framed a policy with regard to Rohingya refugees in India;
(b) if so, whether it involves other stakeholders, such as our neighbouring countries;
(c) whether reports stating that government plans to deport the 40,000 Rohingya refugees are true; and
(d) if so, the reasons for such plans?

Rijiju’s response was to outline a plan to deport around 40,000 Rohingya, or “illegally staying foreign nationals”, from India. Carefully avoiding the word “refugee”, the minister said that the central government had directed the state governments to set up district task forces to “identify and deport” the foreign nationals. Rijiju further stated in a subsequent interview that since India is not a signatory to the United Nations Convention on Refugees, refugee status granted by the United Nations High Commissioner for Refugees (UNHCR) to the Rohingya was irrelevant to their deportation.

A subsequent question was posed the next day by All India Anna Dravida Munnetra Kazhagam MP R. Lakshmanan, about the condition of refugee camps in India for Bangladeshis and the Rohingya, and the basis on which the government was granting refugee status to them. Rijiju replied that there are no refugee camps established for either Bangladeshis or Rohingyas in India, and that there were only schemes of assistance for Tibetan and Sri Lankan refugees. The minister re-emphasised that India is not a signatory to the UN Refugee Convention, and referred to a Standard Operating Protocol dated December 29, 2011. According to a press release dated August 6, 2014, the protocol states that cases that are prima facie justified on the grounds of a well founded fear of persecution on account of race, religion, sex, nationality, ethnic identity, membership of a particular social group or political opinion, can be recommended by the state government/Union territory administration to the Ministry of Home Affairs for grant of Long Term Visa (LTV) after due security verification.

The Rohingya, by any standard, are one of the most persecuted groups in South Asia. They are a “stateless” community, as Myanmar neither recognises the Rohingya as an ethnic minority, nor does it recognise them as citizens. The International State Crime Initiative released a report in 2015, describing the Myanmar government’s persecution of the Rohingya as “genocidal”. According to their estimates, 138,000 Rohingya were displaced by 2015, and the Myanmar government was, through a systematic campaign of stigmatisation, segregation, violence and massacres, leading up to mass annihilation of the Rohingya.

Children belonging to Rohingya Muslim community read the Koran at a madrasa, or a religious school, at a makeshift settlement, on the outskirts of Jammu, May 6, 2017. Credit: Mukesh Gupta

Children belonging to Rohingya Muslim community read the Koran at a madrasa, or a religious school, at a makeshift settlement, on the outskirts of Jammu, May 6, 2017. Credit: Mukesh Gupta

The forced deportation of the Rohingya is therefore a flagrant violation of the principle of non-refoulement, which is the cornerstone of the international refugee law and states that no person should be returned to a country where he/she faces persecution. It is true that India is not a signatory to the UN Refugee Convention and, therefore, not bound by it. However, the principle of non-refoulement is an established precept of international law, and the Supreme Court of India as well as various high courts have on multiple occasions applied the principle to stay the deportation of refugees. The spirit of the principle of non-refoulement underscores even the Citizenship (Amendment) Bill, the assumption being that religious minorities in Muslim majority countries face persecution and therefore should not be forced to return to danger.

India, however, has been largely silent on the Rohingya crisis, which some observers attribute to its economic and geo-political ambitions in the region.  There is no evidence to suggest that there is any “radicalisation” among Rohingya refugees in India, which could lead to them being a “security threat” as suggested by the Ministry of Home Affairs. On the other hand, the Rohingya in India have not been able to escape persecution and have been the target of extreme local animosity. In fact, in April this year, the Chamber of Commerce and Industry of Jammu threatened a campaign to “identify and kill” Rohingya refugees in Jammu if they were not immediately deported.

As far as our neighbouring countries are concerned, Bangladesh has plans to relocate the Rohingya to a silt island named Thengar Char. The island surfaced only eight years ago, and floods are regular in the monsoon season. The Bangladesh government’s decision was widely criticised, but the government ordered it nonetheless.

What makes the Rohingya, despite the internationally documented persecution that they are trying to escape, so undeserving of refugee status? How is that the Indian government can claim to find UNHCR recognition for the Rohingya irrelevant, whereas it has been found relevant in multiple other cases? India’s actions are repeatedly proving that what separates an illegal immigrant from a refugee is less a question of actual persecution and more a question of political expediency. The Rohingya have been shuttled from pillar to post looking for refuge. However, even the possibility of imminent annihilation has not endeared them to the Indian government, which prefers to characterise them as potential Islamic fundamentalists. In this context, one has to see the Citizenship (Amendment) Bill and the decision of the home ministry to deport the Rohingya refugees as being on a continuum of exclusionary immigration and refugee policies, driven by the same Islamophobia that drives Trump’s executive orders.

Darshana Mitra is a lawyer and researcher at the Alternative Law Forum, Bangalore.

  • The Wire

    No. The principle of nonrefoulement applies regardless of whether someone has been processed by UNHCR or any other agency.