ERASING THE ROHINGYA
a case of identity, rights and citizenship
Ashima Sharma
© Picture Courtesy- Surva Kanti Das, 2020
Abstract
The article examines the developments of Rohingya refugee crisis, especially in the aftermath of August 2017 violence in Myanmar which led to the exodus of thousands of people across the border to India. It highlights how the erasure of citizenship shapes the subsequent erasure of human rights and vice-versa, resulting in the largest cross-border humanitarian crisis in Asia today.
The first section of the article situates the Rohingya crisis within the politico-military context and argues that ethnic identity and citizenship are at the core of the Rohingya conundrum. It illustrates the ways in which the Rohingyas have been specifically targeted and how the successive laws and policies have transformed the Rohingya into the largest stateless population in the world. The second section traces the forced migration of Rohingyas to India, a country that does not have a policy on treatment of refugees. This section analyses the nature of human rights violations they face in the host country, within and outside their community.
I argue that the human rights community has been largely ineffective in creating a dialogue between the Rohingya and the Myanmar Government. Their engagement has been fragmented and has a thin scope for outside actors to create policies that can prevent these atrocities. The aim of this article, therefore, is to address the gap in international engagement with Myanmar, in terms of violation of human rights and its domestic politics of citizenship.
A visual exploration of the crisis
Literature Survey
Are human rights moral, social or political? It is important to establish what human rights comprise because each definition of human rights prioritises a different agenda. For instance, Raffael N Fasel, a scholar on theory of human and animal rights argues that ‘being human’ is a practical condition for holding basic human rights’.[1] While his argument takes a moral approach, it also necessitates the understanding of the word ‘basic’.
William Doise, on the other hand defines human rights as ‘normative social representations’ that have a ‘degree of common understanding across cultures together with organized differences within and between cultures.’[2] Doise’s approach of understanding human rights as a social interaction also addresses the fact that use of human rights can be ethnocentric. “Generally, concerns about these rights expressed by citizens of Western countries become much stronger when non-Western countries are involved, whereas violations of these rights in their own country are often not severely condemned,” he writes.
As opposed to Westphalia system of absolute sovereignty, international and transnational actors now hold states accountable for providing basic human rights. If the state is unfit to provide this protection, it is the responsibility of the international community to take this responsibility. This principle is referred to as the Responsibility to Protect, R2P, designating the responsibilities of the international community to intervene if the state is unwilling or unable to provide protection. However, this authority is traditionally placed solely in the power of the United Nation Security Council. It gives rise to two important questions: (1) What constitutes “basic” human rights? (2); To what extent can the international community intervene to implement the Responsibility to Protect (R2P)?
The 1948 Universal Declaration declares that: “All human beings are born free and equal in dignity and rights.” In essence, human rights are the rights that protect the universal notion of natural rights: the right to human dignity and personhood. Political scientist James Nickel argues that human dignity can reference any particular feature of a person that has a distinctive value (such as self-understandings, their values, their rationality, their social awareness). His account defines human rights as a requirement for human dignity, rooted in basic values and moral interests of human persons.[3]
All these arguments by Nickel, Doise and Fasel establish that there is no one meaning to have human rights. Regardless of its definition and understanding, we can deduce that principles of justice that govern societies vary greatly in institutional forms. The situation in Myanmar, thus needs to be seen with an underlying assumption that basic human rights are interpreted differently by various actors. The variations in the definitions are also used to justify action or inaction by these actors.
Since the 1990s, countless human rights reports have brought international attention to the Rohingya issue. However, these reports generally focus on the appalling living conditions experienced by refugees and internally displaced people, largely avoiding any discussion of the Rohingyas’ identity and historical background. The focus on problems like human trafficking, procuring arms, drug or organ trafficking are unaddressed by the media. The UN has also called the Rohingyas as the “world’s most persecuted minority.” Narratives like these are framed sharply in terms of Muslim victimhood and have created huge domestic backlash within Burma. As Jacques Leider, a historian and Burma expert, criticized: “These stripped-down chronologies of many such reports have henceforth become placeholders for a shrunken or absent historical account.”[4]
In Exile
The short film captures the struggles of a Rohingya family to live and sustain a livelihood in India. How basic facilities such as healthcare and education require them to either have an Adhaar card or face denial to avail these.
The aim here is to give a sense of statelessness as well as helplessness, where the Indian government would not grant basic rights, neither can they return to Myanmar where they face persecution.
Kalindikunj, New Delhi
Interview with author, 9 November 2019, 13:29 pm
Taslima and Mizan are now working on a project, Udaan, aimed at spreading awareness in their community on educating girl child.
Framing the problem
The Rohingya Muslims claim that they are descendants of these original settlers in Myanmar and have lived in the Arakan valley since the 8th century. According to this claim, the state should grant them citizenship status as well as other social and political rights. However, Rakhine Buddhists, who constitute a majority, argue that Rohingya Muslims are illegal immigrants from Bangladesh and refer to them by using the terms, ‘Bangladeshi' or ‘Bengali.’
The identity and origin of the Rohingya’s settlement in Myanmar is a major contestation point between the Buddhist and Muslim population in Myanmar, often leading to hostility towards each other. These contested histories have been a cause of long-standing animosities between the two groups reinforced by the State in successive years of domestic unrest. Therefore, establishing a historical sequencing of Myanmar’s laws and policies lays the foundation to a crisis that has produced the most persecuted population.
Since the late 1970s, nearly one million Rohingyas have undertaken perilous journeys to escape communal violence and alleged abuse from the security forces. Though scholars have been able to trace origin of the Rohingya ethnic conflict back to the 1842 when the British captured Burma, the more immediate cause ascribed to the conflict was the seizure of power by the Burma Socialist Party.
Since General Ne Win of the Burma Socialist party seized power in 1962, the successive governments of Myanmar have continued to deny that Rohingyas are Myanmarese citizens.
Under Ne Win’s regime, many political officers became unified under his command and looked up to him as the rightful successor of the armed forces.
This structure of entrusting supreme power in the military of Myanmar was an influence of the British colonial era where the military developed the role of being Myanmar’s guardian. Thus, successive regimes have viewed the presence of ethnic groups and western influences as the source of instability in the country.
In 1977, Myanmar’s military Junta undertook Operation Nagamin (also called Operation Dragon King) to identify the ‘foreigners’ before the national census was conducted. More than 2 lakh Rohingyas fled to Bangladesh amidst allegations of extortion, rape and murder by the army. This policy of Myanmarisation was implemented as an ultra-nationalist ideology. It was based on identifying racial purity of the Myanmar ethnicity and its Buddhist faith. The Rohingya, who were both a Muslim and allegedly non-Myanmarese were stripped of legitimate citizenship and declared outsiders in their native land.
When the United Nations in 1978 brokered a deal with Myanmar for repatriation of refugees, a “Repatriation Agreement” was signed with Bangladesh and was marked ‘Secret’. This was later published by the Princeton University in 2014 constituting evidence that Myanmar acknowledged Rohingyas having a legal residence in the country. The delegations from Government of the Socialist Republic of the Union of Burma and the Government of the People’s Republic of Bangladesh, following their talks held in Dhaka on 7th - 9th July 1978 agreed as follows-- “The Government of the Socialist Republic of the Union of Burma agrees to the repatriation at the earliest of the lawful residents of who are now sheltered in the camps in Bangladesh on the presentation of Burmese National Registration Cards along with the members of their families …”
Under Myanmar’s Citizenship Law of 1982, the Rohingyas effectively ceased to exist legally. They were prohibited from the right to own land or property, receiving education in any language, repairing their places of worship, prohibited from travelling outside their village, or even marrying and having children. This included modern-day slavery by the Rohingya men, rapes of Rohingya women and girls and military cleansing by burning down villages.
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Taslima Khatun
A Rohingya refugee in New Delhi
"Sometimes I think, I profess the wrong religion. Else why would the they attack us in our own country. Is it wrong to be a Muslim? Or is it a crime to be a woman? Someone ask the Myanmar military what is our crime?"
Video courtesy- Ashima Sharma, 2019
The Idea of Citizenship and Rights
The notion of citizenship has given birth to a wide variety of literature in disciplines including political theory, sociology, law and philosophy. The common ground established by all the definitions is that ‘citizenship refers to membership of a polity, of a political community, and thus revolves around questions of inclusion and—as the other side of the coin—exclusion.’ The central idea of citizenship revolves around the presence of a state, thus establishing a bond between a citizen and their land.
The participation of people as having full and equal membership of the state is further divided into two parts—legal citizenship and substantive citizenship. While the legal status deals with an individual’s acquisition of citizenship, substantive deals with socio-political membership. Substantive citizenship not only encompasses the rights and duties contingent on (legal) citizenship, but also refers to questions of participation, identity and belonging.
Myanmar continues with some of the strictest citizenship laws. In theory, the law requires its people to present proof of ancestry in Myanmar before British took over in 1824. Widely dissected by anthropologists, the citizenship laws have been seen as a strategy to discriminate against non-Buddhist minorities, like the Rohingyas.
Hence, viewing the Rohingya problem in this context means looking at a violation of substantive citizenship, therefore, stripping them from their basic human rights. While the much-debated Repatriation Agreement grants legal residence to the Rohingyas in Myanmar, there is no recognition of their individual rights, reinforced by the systematic expulsion of Rohingyas by the military junta. Clifford Geertzhas defined the postcolonial situation in Burma as a struggle between ‘the Irrawaddy Valley Burmese versus the various hill tribes.’
Farah
A Rohingya Refugee in Hyderabad
"We watch so many Bollywood movies. Back in Burma, people love Shah Rukh Khan for Dilwale Dulhaniya Le Jayenge. You know I live in a hostel, I enjoy studying. In Burma, Rohingyas are not allowed to study or even if we are allowed, we are not issued a degree.
I want to become a Bollywood actress, or an IPS officer. But I am a Rohingya and I am a Muslim."
Royal Colony, Balapur, Hyderabad
16 July 2019, 12:42 pm
*Name has been changed to protect identity
© Picture Courtesy- Ashima Sharma, 2019
The Military Stranglehold
From the very outset of Burma’s civil war, the Tatmadaw was given full autonomy to carry out its counterinsurgency operations. The highest ranks in the military were under the influence of British, thus relying on scorched earth tactics.[1]
Historians have widely debated how the military in Myanmar initially came to power. The questions raised are—whether the military emerged as a guardian of the fragmented postcolonial society, or whether it was the most disciplined group of armed actors under the British who took it upon themselves to take on the role of state-building, even if that involves using force. However, the consensus remains that it was under Ne Win when the intensified coercive policies were co-opted in the military regime. The durability of Myanmar’s military regime also sustained itself through institutional norms of sharing power among the elite.
In 1991, Operation Clean was a second push of the military regime to eliminate the ethnic minority in Myanmar. Sanctioned by the State Law and Order Restoration Council (SLORC), it was officially opted as a response to the expansion of Rohingya Solidarity Organisation.
This was followed by the formation of a border security force called Nay-Sat-Kut-kwey Ye or NaSaKa to be found in the North Rakhine state. This force was accused of being the main perpetrator of human rights violations against the Rohingyas.
Aliah
A Rohingya Refugee in Jammu, India
I am from Buthidaung. I was 16 when I left Burma. On certain days, I blame myself for leaving home. On other days, I know I am lucky to have escaped. We were 10 brothers and sisters. My father was a labourer and we did not have our own land. My mother died while giving birth to our tenth sister. She had become very weak. My father married immediately after her death. By 2016, the situation in Burma was not good. Women had restricted movement even before 2016, but I was near Maungdaw where the riots broke out after a girl was raped. There were two incidents of rape in our village too. I just knew I had to get out.
I just know one thing. If you do not have a mother, there is no one in this world who is really yours. My father fixed my marriage while I was fourteen. That boy left Burma and went to Malaysia. We are still in touch. I know we will be married one day. My elder brother and I knew that our mother’s sister lived in the Bangladesh refugee camp in Ukhiya. When two other families from our village decided to leave Burma, we left with them. Both of us alone. My father did not try to stop us.
So we crossed over to Bangladesh. Three days after reaching our mashi’s house, my brother sent for an agent and sent me with him. The plan was that I will cross the border from Manipur, from there I would go to Rangoon and from Rangoon to Malaysia to marry that boy. It was just this love that got me so far, all by myself.
There were more people with me then, while crossing the border to India. Four or five more people and one dalal. After crossing the border it was all forests. Till then no one saw us. Then, I was caught at the Manipur border. The agent abandoned me there else he would have been busted. In Jiribam, there’s a check point. I was in a bus with two other people. We were asked to produce our identity cards. That is when they knew we were Rohingyas. I was taken to the jail for a night. Then there was a court hearing after which for eleven months I was sent to Imphal Central Jail. (cries)
I missed my rice. In Manipur jail, I ate dal sabzi. On Saturdays, they would give us fish. Three of us longed for Saturdays. I called my boyfriend in Malaysia. He informed my father in Burma that I was caught. My father found a distant relative of ours in Jammu. Uncle came to Manipur to take me with him to Jammu. He asks me if I want to get married in India. I say no. I know it has been difficult but I will be in Malaysia soon. I cry a lot when I miss my boyfriend. I know one day we will be together.
28 July 2019, 10:22 am
Aliah lives in Jammu with her uncle, aunt and their two sons.
*Name has been changed to protect identity.
© Picture Courtesy- Ashima Sharma, 2019
The Riots and
Subsequent Migration
The riots in Rakhine started on 8 June 2012 after a week of sectarian disputes and allegations of gang rape and murder of a Rakhine woman by Rohingya Muslims. The Rohingyas started to protest in Maungdaw and more than 12 people were killed in firing by security forces. As of 22nd August 2012, according to the government press release, there were 88 casualties; 57 Muslims and 31 Buddhists.
More than 90,000 people were displaced by this violence. This year also marked the highest outflow of Rohingya refugees into other countries of Southeast Asia, including India and Bangladesh.
In August 2013, activists and residents complained of indiscriminate firing at unarmed men, women and children. The government said it was in response to a raid launched on police outposts in the region by Arakan Rohingya Salvation Army (ARSA). More than 2000 Rohingyas took refuge in the remote village of Myoma Kayin Dan as their houses were burnt down by the security forces.
Myanmar reiterated its claims on Rohingyas’ ethnicity when Senior General Min Aung Hlaing made a post on Facebook against the Rohingyas. On September 16, 2017, he said, “The current military action against the Rohingya is “unfinished business” stemming back to the Second World War. He also stated, “They have demanded recognition as Rohingya, which has never been an ethnic group in Myanmar. [The] Bengali issue is a national cause and we need to be united in establishing the truth.”
In February 2018, the Associated Press released a video of the mass graves of Rohingya in Myanmar. They said, “It is the site of a massacre and at least five undisclosed mass graves.” According to Human Rights Watch, Myanmar’s government burnt down at least 55 villages populated by the Rohingyas. The UN’s special rapporteur to Myanmar said the ‘violence against Rohingyas bears the hallmarks of genocide.’
According to the International Organisation for Migration, more than 87,000 Rohingya fled to Bangladesh from October 2016 to July 2017. More than 1,68,000 Rohingyas have fled since 2012. Many people have also attempted to reach Malaysia by boat across the Bay of Bengal.
Yasmin
Click on the play button below to listen to Yasmine sharing her story of forced migration
16 July 2019, 13:17 pm
Yasmin was a translator for UNHCR, Myanmar. Now in India, she volunteers to translate for media and NGO reports based on the Rohingya.
*Name has been changed to protect identity
© Picture Courtesy- Ashima Sharma, 2019
Finding their way into India
India is neither a signatory to the UN Refugee Convention of 1951, nor to the 1967 Protocol that protects refugee rights. The only laws governing refugees are the same as applied to foreigners. These conventions lay down the rights of individuals who are granted asylum and the responsibilities of nations towards those people. Even though India does not have a policy on intake of refugees, it has had a tolerant approach for refugee rehabilitation in the past.
In the absence of a national law on refugees, the right to work and earn a livelihood does not apply to the Rohingyas. This causes many semi-skilled and unskilled Rohingyas to be employed in the informal sector at exploitative wages. This in turn keeps them from accessing even the most basic facilities like vaccines for children or medicines for pregnant women.
“Our people are afraid to approach any government institution here in India, be it a school or a hospital. We are asked for our passports and Adhaar cards. We ran from our homes and escaped our country because our houses were being burnt down. Where do they expect us to produce documents from?”
--Taslima Khatun, Rohingya refugee, New Delhi, India
In March 2018, the Indian government refuted allegations that Rohingyas living in refugee camps were denied healthcare at government medical establishments. Responding to Prashant Bhushan’s Public Interest Litigation (PIL), the bench headed by Chief Justice Deepak Misra said, “We will not pass any interim order with regard to ensuring health and educational facilities for Rohingya refugees unless the petitioners bring some material contradicting the claims of the Centre.”
Even though three bills have been tabled in the Indian parliament Parliament to bolster the asylum policy, these remain pending. International law urges sovereign nations to follow the principle of ‘non-refoulment.’ It means that the host country should not refuse shelter to refugees fleeing persecution in their country. This principle is fundamental to the protection of human rights and hence a part of the customary international practice.
Sarbani Sen, a constitutional litigator until 2005 and a former researcher for UNHCR, Delhi says, “My understanding is that India has deliberately kept out of any kind of legal or normative standard setting framework. This is primarily because government wants to retain discretion to determine each refugee situation as and when it arises on ad hoc basis, based on its understanding and assessment of various factors like relations with that country or security concerns. It doesn’t want its hands tied by some international standards.”
On 4 July, 2019, the Supreme Court of India heard a PIL seeking identification and deportation of all illegal immigrants and infiltrators including Bangladesh nationals and Rohingyas.
BJP leader and lawyer Ashwini Upadhyay filed this PIL in 2017 and in 2019 listed it for urgent hearing. A bench headed by Chief Justice Ranjan Gogoi and Justice Deepak Gupta took note of submission. Upadhyay, in his plea, favoured the Centre's stand to identify and deport around 40,000 illegal Rohingya Muslims staying in India.
"The large-scale illegal migrants, particularly from Myanmar and Bangladesh, have not only threatened the demographic structure of bordering districts but have seriously impaired the security and national integration, particularly in the present circumstances.”
Ashwini Upadhyay in his plea, 2017
The plea alleged there was an organised influx of illegal immigrants from Myanmar through agents and touts facilitating illegal immigrants Rohingyas via Benapole-Haridaspur and Hilli (West Bengal), Sonamora (Tripura), Kolkata and Guwahati.
The apex court is also seized of a separate plea of two Rohingya immigrants, Mohammad Salimullah and Mohammad Shaqir, and the plea said that Rohingyas had taken refuge in India after escaping from Myanmar due to widespread discrimination, violence and bloodshed against the community there.
In July 2019, India ratified and became a signatory to various conventions that recognise the Principle of “Non- Refoulment’, which prohibits deportation of refugees to a country where they may face threat to their lives. However, the political stance in India has often been to portray the Rohingyas as a threat to the security of the nation. While India has been tolerant to hosting refugees in the past, such narratives highlight a sense of Islamophobia and xenophobia.
“Rohingyas are discriminated against because they do not have a political constituency to fall back upon. There will never be enough representation for their rights to be asserted. They are not recognised as citizens in their own country and form a minority in India. The rights given to them are partly dependant on India’s internal policy towards refugees and on diplomatic relationship with Myanmar.
Ipshita Sengupta, Former Policy Associate, United Nations High Commission for Refugees (UNHCR), India.
Trapped in a Pandemic
The three- week lockdown imposed in India to deal with the threat of coronavirus has driven Rohingya refugees to the verge of starvation. The refugee camps, mostly located in Delhi, Mewat, Jammu and Hyderabad are makeshift structures made of tarpaulin sheets. There is scarcity of water, lack of sanitary facilities and sometimes more than 200 people use the same toilets. To them, social distancing is a privilege they cannot avail.
More than the coronavirus, hunger is a bigger threat to their survival. At a time when millions of daily wagers have become jobless by the closure of all economic activities, the Rohingyas are finding it difficult to procure food for the lack of money.
To understand the situation on the ground, I talked to Ali Johar, the convenor of Rohingya Human Rights Initiative in India.
Interviews with author, 7 April, 2020, 11:03 am
Click on the play button below to listen to their story
Responses from the International Community
In 2018, the United Nations Human Rights Council established an independent international fact-finding commission on Myanmar. The aim was to focus on the situation in Rakhine, Kachin and Shan States since 2011 and examine the violations of human rights including fundamental rights. In September 2018, the commission came up with a report that established “consistent patterns of serious human rights violations and abuses in Kachin, Rakhine and Shan States, in addition to serious violations of international humanitarian law.
In its recommendations, it suggested that the international criminal tribunal should investigate the generals named in the report and try them for war crimes, genocide and crimes against humanity.
“… Impunity is deeply entrenched in the State’s political and legal system, effectively placing the Tatmadaw above the law. The Constitution and other laws provide for immunities and place the Tatmadaw beyond civilian oversight.”
Human Rights Council, Thirty-ninth session
10–28 September 2018
Agenda item 4
12 September 2018
When the violence broke out in Myanmar in 2012, it marked the first wave of mass outflow of refugees to Bangladesh, India and other neighbouring countries. The second exodus took place in August 2017. It took more than six years before a small West African Muslim country, Gambia to lodge a case in the International Court of Justice on behalf of other Muslim-majority countries. They urged that emergency measures be taken against the Tatmadaw in Myanmar, until other investigations are underway.
In December 2019, the ‘icon of peace’ Aung San Suu Kyi, who fought for Human Rights in Myanmar for 20 years, backed the Tatmadaw and rejected all allegations of genocide and war crimes. She also made a rare admission, “It cannot be ruled out that disproportionate force was used by the members of the Defence Services in some cases, in disregard of international humanitarian law. However, she went on to back the Tatmadaw saying that the violence in Rakhine state was perpetrated by the militants.
Why is Aung San Suu Kyi defending the army publicly? Now that she is the civilian leader, she may believe that it is her duty to protect the state even though there is no constitutional provision to control the military. It can also be said that she is working to gain popularity ahead of the 2020 general elections by propagating the majoritarian idea.
In 2017, Myanmar constituted an Independent Commission of Enquiry (ICOE) that claimed there was no evidence of genocide. Myanmar’s apathy along with regional passivity has worsened the crisis in South Asia. ASEAN countries have repeatedly claimed that the Rohingya issue is Myanmar’s “internal affair.” Concerns like growth of transnational trafficking and extended militant networks, that make it regional problem, remain unaddressed. The question of ‘extent of intervention’ remains suspended as ASEAN insists on its policy of non-interference in the internal matters of a member states. It was only on 25th January, 2020, that the International Court of Justice gave a unanimous ruling on prevention of alleged acts of genocide, pinning the responsibility on the Myanmar government.
Stories like that of Taslima, Mizan, Aliah, Farah and Yasmin are in thousands. The coverage of these stories, merely in hundreds. In the media, international spotlight of the Rohingya issue has often focussed on narratives that spin the “plight of Rohingyas.” The United Nations has called the massacre as “bearing the marks of a genocide.” The media reports delve further into gaining international sympathy by using rhetoric such as “ethnic cleansing”, “harrowing stories”, “worst massacre” that have done little to create a dialogue between the Buddhists and Rohingya Muslims. The participation of human rights groups hence remains limited to bringing the abuses to light.
Jacques Leider points out how the media have diverged from its efforts that try to untangle intricate historical factors of ethnic tensions. Instead, Western media shifted toward a narrow message about the victimhood of the Rohingyas – solely on the basis of their Muslim identity. In short, by narrowing the scope of the issue to Muslim victimhood, the stakeholders have done more harm than good. Using a purely religious narrative and generalising Muslim extremism creates a wider gap between the Burmese government and the people, paving way for backlash within Myanmar. This shift in framing is solely based on the larger perception of the Muslim-ness, reinstating Islamophobia and victimhood for the community.
References
[1] Raffael N Fasel (2018) ‘Simply in virtue of being human’? A critical appraisal of a human rights commonplace, Jurisprudence, 9:3, 461-485, DOI: 10.1080/20403313.2017.1418272
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