REPATRIATION OF ROHINGYA REFUGEES
C.R. Abrar [1]
INTRODUCTION
The Context
In 1978 and 1991
The situation is somewhat different this time when about a
quarter of a million of refugees took shelter in the Teknaf-Cox's Bazar region.
Following the successful completion of the Cambodian operation the Rohingya
repatriation constitutes the single largest UNHCR operation in
Currently the repatriation process has virtually stagnated.
The presence of such a large number of refugees, which at one stage appeared to
be for an indefinite period, has created tensions in the host communities and
impacted adversely the economy and environment of the region. It is in this
setting that a study on the Rohingya refugees is being undertaken.
Structure of the
Study
The study has three major parts. The first part will attempt
to identify the root causes of the refugee problem. The backwardness and the
remoteness of the Rakhine region in
The second part will deal with the question of treatment of
refugees by the Bangladesh Government. Although
The third part will deal with the question of repatriation.
An important consideration would be the issue of voluntariness. UNHCR has been
actively engaged in organizing the repatriation of refugees. The chapter will
identify issues and constraints of the Bangladesh Government-UNHCR-NGO
collaboration with respect to the repatriation of these refugees. This will be
followed by an examination of change in circumstances with respect to refugees
under international law.
Methodology
The historical account of the region will be based on
secondary sources. For the second and third parts, text of the
Bangladesh-Myanmar Agreement on refugee repatriation, texts of the Memoranda of
Understanding between UNHCR and
1 BACKGROUND
1.1 Arakan in
Historical Perspective
Arakan province is a long stretch of land along
While the Arakanese scholars argue that it was the Aryans
from the west who first settled in Arakan, the majority opinion of scholars is
that the first settlers of Arakan were those of Kanyan
tribe of Tibeto-Burman group (Maung, 1989:2). Of all the kingdoms and dynasties
that ruled over parts of
The Arakanese were basically animists. Over the centuries
Brahmanism, Buddhism and Islam shaped and influenced their religious beliefs,
as they did over the Burmans (Hall, 1950:13). As early as the first century AD
the installation of the famous Image of Mahamuni in Dinnyawati,
the then capital of Arakan, testifies to the influence of Buddhism. Between 788
to 957 AD the adding of suffix of Chandra to the names of the Arakanese kings,
and the image of trident of Shiva on the coins issued by them, suggest
dominance of Hinduism and Jainism at that time.
1.2. Muslims in
Arakan
It was Arab merchants through whom first contacts with the
Arakanese was established. These merchants on their way to
Famous historian of Chittagong Mahbubul Alam
argues that around 951
In the I6th century, the Arakanese adopted sailing and war
techniques from the Portuguese pirate settlers in the coast and began numerous
raids in the neighbouring
Two incidents involving two royal asylum seekers have
significantly moulded the history of Arakan. In the 15th century the events
relating to royal asylum seeker from Arakan, Narmikhila, significantly boosted
Muslim penetration and presence in Arakan. However, in the mid-17th century the
events surrounding the Mughal prince Shah Shuja, who sought asylum in Arakan,
led to the erosion of the Muslim hold and influence there.
1.3. The Narmikhila
Incident
Muslim influence in Arakan grew in the 15th century. In
1404, Narmikhila, the king of Arakan, deposed by the Burmans, sought refuge of
the Iliasshahi ruler of Gaur. Narmikhila was given
royal asylum by the then Sultan and lived in Gaur for twenty-four years. It has
been claimed that the Buddhist king during this period in exile became well versed
with Islamic history and politics. In 1430 Jalaluddin
Shah provided Narmikhila 20,000 soldiers under general Wali Khan and got rid of
Burmans from Arakan. But when Wali Khan, instead of handing over power to the
Arakanese king, declared himself the ruler, another 30,000 troops were sent
under general Shiddhi Khan to punish him (Phayre.
1984:47). Finally, Narmikhila regained power in Arakan with Gaur ruler's total
support and assumed the Muslim name Solaiman Shah.
Following him successive rulers of Arakan added a Muslim name to their Buddhist
names. Coins issued by them had Arabic inscription on them (Collis, 1925:35).
In the 17th century one witnesses increased influence of
Bengali language and literature in the Arakan court and assumption of offices
of Muslims in the Arakanese administration. It was the contributions of Arakan
based Daukt Kazi, Alaol and
Magan Thakur that enriched the Bengali culture of the
period. Dr. Ahmed Sharif terms this the golden phase
of Bengali culture and literature in Arakan whose tides continued to reach the
shores of southern
Muslims were placed in key positions of the Arakanese
administration. One Ashraf Khan was appointed the
Defence Minister, while Syed Musa was the other
Muslim member of the king's cabinet. In the defence services Muslims dominated
the cavalry and archers divisions.
1.4. The Shah Shuja Incident
In the declining phase of the Mughal empire when emperor
Aungrazeb assumed power, his brother Shah Shuja, then governor of
This act of the Arakanese king invited reprisal from the
Mughal governor of
1.5. First Influx of Refugees
Following the death of King Sri Chandrasudharma
in 1684, the political situation in Arakan was unstable. Except for a brief
period of rule by King Shandhauza (1710-1731) court
intrigue and conspiracies became order of the day. Hall claims that between
1684 and 1784 Arakanese Muslims had a major role in the making and overthrowing
of the kings in Arakan (1950:62). In 1785 the Burman king conquered Arakan and
a long guerilla war ensued. The Burman army committed atrocities on the
Arakanese. A good number of men were murdered and women prisoners were sent to
1.6. British Rule in
Arakan and Adjoining Areas
The incorporation of Arakan with
With the incorporation of Arakan, and later the rest of
Area Year
1831 1911
Akyab District 95,100 530,000
Pegu District 95,700 293,000
Source: Nicolaus, 1995
The increase in the number of settlers did not cause any
major social dislocation in Arakan. The Second World War had major bearing on
the inter-communal relationship between the Rohingya Muslims and the Rakhine
Buddhists. The advance of the Japanese army led to the exodus of tens of
thousands of Indians from
1.7.
Disillusionment
of the Arakanese Muslims
The end of the war created condition for the displaced
people to return back to their homes. Although the British promised the
Arakanese Muslims autonomy in a Muslim National Area, which would comprise
Maungdaw, Buthidaung, and the part of Rathedaung
bordering
After the Buddhist dominated Burmese administration took
control over Arakan, the Muslim's sense of alienation and betrayal grew. The
Arakanese Muslims, especially those hailing from the
1.8.
Impact of
Muslim Militancy
The end result of the Muslim militancy was that the Muslims
were eyed with suspicion in
Restrictions were imposed on the movements of Muslims from
Maungdaw, Buthidaung and Rathedaung to Akyab. Muslims
returnees were not settled in their original place of habitat and some of them
were termed as illegal Pakistani immigrants. Property and land of returnees was
confiscated. The Mujahid's frustration on all these accounts made than fiercely
committed to their cause and, by June 1949, they effectively controlled the
whole of northern Arakan. There were reprisals and counter-reprisals of the
government army units and the Mujahids.
Accusations of persecution of Muslims were also raised in
1952 by the Pakistani press and it was met with the counter-accusation that the
Arakanese Muslims were aided by the Pakistani government. In November 1954,
under pressure of the Buddhist monks in
1.9. Rohingya
/ Rakhine Conflict and the Question of Statehood
Another important element that contributed to the deterioration of relations
between the Rakhine and the Muslim communities in Arakan has been the issue of
statehood. The Arakan Muslims vehemently objected to the demands of the Arakan
Party for the status of a state for Arakan within the framework of the Union of
Burma. They were apprehensive that any such arrangement would ensure the
domination of the Rakhine Buddhists over Arakan. Instead the majority of the
Muslim organizations demanded 'autonomy for the region, to be directly governed
by the central government in
The Rohingya militancy was revived following the dissolution
of the Mayu Frontier Administration in 1964 by the Military Council and its
incorporation into the Arakanese administration. This led to the creation of a
new organization, the Rohingya Patriotic Front, and demand for autonomy was
back on the political agenda.
1.10. The 1978 Operation Nagmin and the first Exodus
of the Arakanese Muslims
The Military Council's selective policies towards minority
communities was reflected in the policy on naturalisation and citizenship. All
ethnic minority communities were granted citizenship except the Indians (among
them the Muslims of Arakan) and the Chinese, on the pretext that they were late
settlers. This institutionalized state discrimination against these groups and
eroded their trust and loyalty to the Burmese Union.
In 1977 a campaign was launched by the central government to
scrutinize individually the population in the State, to designate citizens and
foreigners in accordance with the law. This was also meant to take actions
against foreigners who have infiltrated the country illegally (Government of
Burma statement, 16.11.77). The operation Nagmin (Dragon King) commenced in the
beginning of 1978 in the Kachin and Arakan states, In the State of Kachin it
proceeded smoothly, only 45 persons out of 15.524 were screened. While in the
district of Akyab the number of arrests was much higher. Approximately 1,025
out of a total 36,825 were arrested. In an official report on
In another statement the Burmese authorities stated that in
Buthidaung township alone 108,431 persons were interrogated, 643 prosecuted,
33,596 persons absconded and 6,429 houses abandoned (19. 5. 78). The government
further stated that as many as 101,041 have escaped Buthidaung and Maungdaw to
"escape an immigration check". The sharp increase in the number of
arrests and harassment of the Arakanese Muslims, often accompanied by use of
brute force, resulted in the mass exodus of the Rohingyas into
Faced with a growing number of refugees the Bangladesh
government on the one hand began bilateral negotiations with Burma and on the
other, appealed to the international community for international assistance for
the 150,000 refugees and which was soon expected to reach 200,000. A major
international fund raising operation was mounted for the assistance to the
growing number of refugees who were kept in 11 camps.
The figures on the number of refugees presented by
In 1991,
2. TREATMENT OF REFUGEES
Ever since the arrival of the Rohingya refugees the
2.1 The
Influx of 1991
The Rohingya refugees began moving into Bangladesh following
Myanmar Army's increased activities in the Maungdaw, Buthidaung and Rathedaung townships of Myanmar, region that border
Bangladesh. Systematic and massive human rights abuses like forced labour, rape
and confiscation of houses, land and farm animals by the troops of 23rd and
24th regiments of the
2.2.
The
In spite of the initial hospitality and cordiality extended
to the refugees the mood of the
Following UNHCR/NGOs' protests about alleged forcible
repatriation and their demand for a halt to such process the Bangladesh
government blocked their access to the camps, irrespective of the Agreement
signed between the government and the UNHCR on 8 October 1992, which allow the
latter a role in verifying the voluntary nature of the return movement. As a
result UNHCR withdrew from the repatriation programme on
2.3 The People's Response
Like the
Perhaps the most immediate impact of refugee presence was
felt in the increased prices of essential commodities in and around refugee
areas which is one of the most undeveloped regions of
The local people's opposition to the refugees resulted in the forming of two committees, the Refugee Repatriation Action Committee and the Refugee Repatriation Coordination Council, which voiced concern over the continued presence of the refugees and accused international NGOs and UNHCR of a 'hidden agenda' for prolonging the repatriation process.
In order to assuage growing dissatisfaction of local people
UNHCR organised the Affected Villages Rehabilitation Programme where
infrastructure projects were taken up to soothe the people's sentiments. The
involvement of the local people in designing and prioritising, and most
important, in implementing these projects, yielded effective results for UNHCR.
The criticisms gradually waned.
3. REPATRIATION
This section looks into the issue of repatriation in details. It commences with
the
3.1.
When the refugees first began to arrive from
However, an important consideration of the policy-makers in
3.2.
According to the Joint Statement Myanmar agreed to take measures that would
halt the outflow of Myanmar residents to Bangladesh and to accept after
scrutiny all 'those carrying Myanmar identity cards', 'those able to present
other documents issued by relevant Myanmar authorities' and 'all those able to
furnish evidence of their residence in Myanmar'. An important lacuna in the
Memorandum is the role of the UNHCR - While it was agreed that the GOB would
fully associate the representatives of the UNHCR to assist the process of
safety and voluntary repatriation, the Government of Myanmar (GOM) agreed that
'the services of the UNHCR could be drawn upon as needed at an appropriate time'(Author's emphasis). Thus, the MOU
failed to assign any role to UNHCR in
An important coincidence was that
Another important omission for
3.3 The first phase of Repatriation
The
3.4. UNHCR and GOB
Relations
On
Following these criticisms the GOB suspended its unilateral
repatriation in late January 1993 and announced its plans to discuss the issue
with the UNHCR. Negotiations for a MOU between the two began soon after.
After several rounds of negotiations and exchange of letters
the two sides finally signed a Memorandum of Understanding on
Two most important concerns of the UNHCR were taken care of
by the Memorandum, (a) protection of refugees in the camps and (b) voluntary
repatriation, guaranteed by private interviewing of refugees by UNHCR. For
Discussion with aid agency officials as well as with the refugees suggest that even after the MOU was signed there was significant degree of coercion in the camps to make refugees 'volunteer' for repatriation. USCR Report cites a high ranking official who reckoned that as many as fifty percent of the repatriations that occurred prior to August 1994 "were effected either through overt force or other coercive methods" (1995:7). Threat, intimidation and liberal use of broad powers of arrest by the camp officials had been resorted to promote repatriation. In spite of all these problems repatriation process continued and another 50,000 people were repatriated.
3.5. UNHCR's MOU with
Another important development during this period was the
signing of an MOU between
3.6. Preparation for Mass Repatriation
The signing of the MOU with
The Operation Plan (henceforth the Plan) had taken into
account UNHCR's presence in Arakan to assist return and reintegration and the
sufficient improvement of situation in
Although preparations were being made principally on the
GOM-UNHCR MOU, there was no convincing evidence about the situation of the
50,000 refugees who had by then returned to
In early January 1994, the UNHCR Head of Desk, Regional Bureau for Asia and Oceanie, made a visit to Dhaka following his trip to Yangon, Sittwe, Maungdaw and the 5 reception centres on the Myanmarese side. In his briefing in Dhaka he expressed his confidence of the goodwill of the Myanmarese authorities and expressed his feeling that they 'had the commitment'. In reply to a question if forced labour was still practiced he said 'no'. It is interesting to note that the senior official of UNHCR was making optimistic statements though he did not speak to any returnee and was not allowed to enter Bangladesh over the Gundum bridge (as was originally planned) by the Myanmarese authorities. By then the UN agency was to make any physical presence in Arakan which made the refugees hesitant to go. In spite of this fact in implementing the MOU, UNHCR began the information sessions in the camps and together with the Relief Commissioner.
Thus far in an hostile environment of uncertainly and fear, the camp-inmates gradually began to trust the UNHCR as promoter of their interests and protectors. This the UNHCR earned through its strong stand against the involuntary repatriation that Bangladesh was pursuing at the initial stages. However, the distinction between the GOB and the UNHCR began to fade when UNHCR began the information campaign using the public address system of the camp in charge which so far had aired very little things that the refugees could really trust upon. NGOs claimed that this perhaps was the beginning of an erosion of trust of the refugees in the UNHCR.
By March 1994 the situation showed an upward trend in repatriation. However, there were fresh instances of new refugees and some double-backers and UNHCR was not ready to receive refugees on the Myanmarese side. The dissemination of information could not satisfy the refugees. They were particularly concerned with the citizenship rights and freedom of movement.
In April 1994,
The impasse was further compounded by the Bangladesh Foreign
Secretary's accusation that UNHCR was obstructing the repatriation process. The
Foreign Secretary also threatened not to renew the MOU that was to expire in
May. He demanded that interviewing should be stopped and that all refugees
should leave
The repatriation process was dealt a severe blow by a
cyclone on
The new message was that it was time for the refugees to
return to their home country as UNHCR was present there and the situation there
was 'conducive'. According to UNHCR, the final result revealed that 90 percent
of those interviewed said "yes" to repatriation. On July 18 the first
group of returnees went over to
3.7. Assessment of
UNHCR Repatriation Procedures
A careful assessment of the repatriation operation of UNHCR would indicate two different stages. In the first stage the UNHCR followed the standard repatriation procedures in line with its Guidelines on Voluntary Repatriation. During this stage individual refugee was interviewed and was provided with information about developments in the country of origin. The return of refugees must be on the basis of an individually and freely expressed wish. This stage lasted until July 1994. Since then UNHCR adopted new procedures in the repatriation operation, whereby refugees were encouraged to repatriate, and individual interviews were replaced by mass registration sessions. However, refugees who have genuine reasons for not returning will have the possibility to express their opinion, and UNHCR will not register them for repatriation. Their cases will be discussed at the end of the operation. These procedures were also followed in recent operations in Sri Lanka (1987), Iraq (1991), Guatemala (1993) and Rwanda (1994). The new procedures raise a number of important issues which tantamount to change of policy on repatriation, finally been acknowledged by the High Commissioner in her statement to the ExCom meeting during the 46th session. Referring to some recent experiences she stated that "in none of these instances is return likely to be under ideal conditions. In many, it will be dogged by political insecurity and economic uncertainty". Pointing to returnees from exile requiring continued protection and monitoring, the High Commissioner said, that this creates a "new dimension to our protection responsibilities and has led us to interpret our mandate for solutions in a protection-oriented and proactive manner... we can no longer passively wait for conditions to change so that refugees can volunteer. Instead, we must work actively to create the conditions conducive to their safe return (emphasis added). The new procedure contrasts with UNHCR Guidelines on Voluntary Repatriation and ExCom Conclusion Nos. 18 and 40. Under the new procedure onus of repatriation shifted from individual refugees to UNHCR. (Re. MSF's submission to 1995 ExCom meeting).
UNHCR's policy of promoting voluntary repatriation has become one of the contentious issues. In its recent operations mentioned above, UNHCR has actively promoted voluntary repatriation before a substantive change of circumstances in the country of origin had taken place. Here the question arises when can UNHCR get itself engaged in active promotion of repatriation? The 1951 Convention, the 1967 Protocol and the ExCom Conclusions did not specify under what circumstances can UNHCR promote repatriation.
The basic foundations of refugee protection is that individuals fleeing the country of origin as a result of risk to life and freedom (persecution and/or fear of persecution) due to political, religious belief, and/or membership of social groups (Art 1), should be given asylum. Thus, under no circumstance such individuals should be returned to their country of origin against their wishes (Art 33). However, Article 1.C.5 clearly indicates that UNHCR can apply cessation clause to withdraw refugee status if there is fundamental change of circumstances whereby there no longer exists risk to life and/or freedom of those who fled. In other words, Art 1.C.5 says that the continuation and/or absence of risk to life is the main criteria for granting asylum and/or withdrawing it. By applying analogy one could safely argue that UNHCR can promote voluntary repatriation if risk to life and freedom no longer exist in the country of origin for those who have fled it. To say the contrary would mean that UNHCR can promote return when risk to life and freedom exist, something which is totally against the basic foundation of asylum law. Therefore, one can only conclude that UNHCR, in principle, can promote voluntary repatriation if and when it believes that risk to life and/or freedom no longer exist. Thus one can say that if there is a partial change and/or improvement of circumstances in the country of origin, refugees should not be encouraged on group basis. This is important considering the subjective and objective elements of persecution as defined in UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Re. Paras 38-45).
As against this background and considering the high degree of illiteracy of the Rohingya refugees, on one hand, and on the other, lack of credible information about situation prevailing in the country of origin, absence of cross-border visits and reports of human rights violations in Myanmar one may wonder whether High Commissioner Ogata's statement that "we can no longer passively wait for conditions to change so that refugees can volunteer. Instead, we must work actively create the conditions conducive to their safe return" is in consonance with the principle of voluntary repatriation (Re. High Commissioner's Opening Address of 46th ExCom Meeting, 1995). With respect to UNHCR's promotional activities in Rohingya repatriation three points may be raised; (a) the refugees were not well-informed about their right to refuse repatriation, (b) they did not have access to full and proper information on the situation in their place of origin, i.e., Rakhine state and (c) various reports indicate that there has not been any fundamental change of circumstance in Myanmar (Re. Reports of UN Special Rapporteur's Report, Amnesty International, US State Department Report), and (d) UNHCR's monitoring ability in Myanmar remains of great concern.
Questions are being asked by concerned academics,
NGO/human-rights/refugee activists in
The shift in policy of UNHCR was announced in July 1994, from information sessions to promotion sessions and from private interviewing in transit camps to massive registrations in all camps. This has been officially attributed to the situation in Myanmar being "conducive" and "refugees had shown to be interested to return to Myanmar as evidenced by the large scale interviews conducted in Kutupalong recently". As a part of the new strategy, "UNHCR will conduct promotion sessions in the camps in which UNHCR will provide the refugees with:
- information about UNHCR's role in
- an assessment that the situation in
This change in policy may have major ramification over the
very concept of voluntariness of repatriation. As one of the leading aid
workers stated, "private interviewing was fought for in the past in order
to prevent (further) forced repatriation, what guarantee would massive
registration provide as far as voluntariness is concerned?''.
In the discussions with aid workers, UNHCR staff members
suggested the fact that coercion incidents have significantly dropped in the
preceding three months showed the goodwill of the
As stated earlier it is difficult to attribute the real
motive behind this sudden change in policy, particularly at a time when the
previous system was beginning to work and reaping results. There might have
been a convergence of many factors. In July 1994, with the change in the Relief
Commissioner, the GOB had a shift in policy to authorise UNHCR to organise
promotion sessions and interviews in all camps instead of only in transit
camps. The second factor could be re-thinking in UNHCR on new means of being
pro active in the preparation of repatriation. This might have been prompted by
the completion of the preparation for repatriation in the Rakhine state where
UNHCR has a presence with WFP and initiated an integration assistance
programme. The third factor could lie on the draft MOU submitted by GOB to
UNHCR. In the draft MOU the
3.8. Refugees' Awareness of their Rights
The NGOs were particularly concerned about the promotional
activities of the UNHCR. They were of the opinion that the repatriation process
was not voluntary. The NGOs alleged that refugees were not well informed on
their right of saying 'no' to repatriation and access to full and proper
information on the human rights situation in their place of origin was limited.
They further argued that the situation in Arakan had not changed fundamentally.
The NGOs, particularly MSF/H and MSF/F claimed that at the promotion sessions
refugees were confused and did not know what the registration meant for them.
They suggested that UNHCR to improve its information dissemination and counselling of the refugees. UNHCR accepted the suggestion
to improve the information session and to organise verification sessions through
private interviews with refugees to ascertain that they still wish to
repatriate or would have any problem for their repatriation. The verification
session is a meeting between a refugee and exclusively with a UNHCR staff
member whereby the latter communicates to the refugee the decision of
3.9.
Situation in
This constitutes one of the most important areas of concern
of the refugees themselves and the human rights and NGO community about the
on-going process of repatriation of the Rohingya refugees. Discussions on this
issue may be divided in two sub-heads; situation prevailing in
Situation Prevailing
in
The SLORC regime's human rights records continue to fall far
short of recognised international human rights standard. The
The US Department of State in its 1994 Report on Status of
Human Rights in
UNHCR, however, insists that there is no relation between
the situation in
Presence of UNHCR in Arakan: An
important consideration behind the policy shift of UNHCR has been its new
presence in
Concerns have been expressed by some quarters about the unclear nature of the UNHCR's legal mandate to intervene on behalf of the returnees in their country of origin and vis-a-vis the national (sovereign) authority of that country (USCR, 1993). In addition, a major limitation for UNHCR operations in Arakan has been the difficult terrain and the poor infrastructural faculties. The region is very undeveloped. Only Maungdaw and Buthidaung is connected by a metalled road. UNHCR field officers may have to spend 1/2 days to follow-up a case which generally involves travel on foot, bikes and boat. Considering the vast nature of the area of operation and the absence of any other human right monitoring groups, it would not be improper to suggest that with a strength of only 9 field officers (other 4 of the total 13 expatriates being technical consultants) the capacity of the HCR to effectively monitor protection issues, along with their other routine tasks, is insufficient. Added to this is unreliability of the local staff, who can either be lined with the intelligence agencies (as has been proved in at least one case involving an interpreter: USCR, 1995:15), or can be quite susceptible to their pressures, protection issues in such a regimented structure has to be a major area of concern. However, on this issues UNHCR maintains its position stated above.
Economic factors:
"The main concern", according to a senior UNHCR official in
UNHCR is neither mandated nor has the expertise to be
involved in development projects and the UNDP is yet to make its mark in
Arakan. In spite of its understanding with the UNHCR the
Thus we find that the situation prevailing on the
3.10. The Unresolved
Debate on Change in Circumstance and Voluntary Repatriation
A very pertinent arena for discussions is the questions of change in circumstance and voluntary nature of repatriation. It has been demonstrated in the previous section that a number of international agencies, both private-independent, and inter-governmental, feel that there has not been any major change in the situation in Myanmar, the country of origin of the Rohingya refugees which warrants promotion of repatriation of refugees. For this they argue that the continuation of the SLORC regime, its human rights practices which include forced labour, relocation of villages, restriction of religious practices, mainly of minorities, such as Muslims, restriction of freedom of movements and the issue of citizenship represent a serious breach of basic human rights of members of minority groups and are the reflections of the poor state of human rights in Myanmar.
An important issue for discussion with the refugees during
field visit has been the question of developments in
The Legalistic
Interpretation: In this part it will be argued that the marginal
improvement in the situation in the country of origin should not necessarily be
construed as a change in circumstance as both
Article 1/C (5) of the 1951 Convention says that the Convention will cease to apply to any person if "(H)e can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality". It is this principle of change of circumstance which has been dealt with by a corpus of literature in international law. James Hathaway identifies three distinct elements in this regards. First, the "change must be of substantial political significance, in the sense that the power structure under which persecution was deemed real possibility no longer exists" (1991:200). This, among others, may be reflected in the collapse of the persecuting government, coupled with holding of genuinely free and fair democratic elections and coming to power of a government committed to human rights.
I.A. Grahl-Madsen warns against premature consideration of cessation simply because a relative calm has been restored in country still government by an oppressive political structure. Thus he argues that 'the present provision should clearly not be construed so as to force a person to accept, more or less at face value, any change of policy of such (an oppressive) regime. In fact, a refugee cannot be expected to submit himself to the very persons who have persecuted or threatened to persecute him" (1966:401).
The second element that Hathaway stresses that "there must be reason to believe that substantial political change is truly effective" (1991:201). As the dissenting opinion in Ruiz Angel [v?]Jesus Gonsalvez notes "there is often a long distance between pledging and the doing"; and "good intentions may have existed, but I refuse to believe that there were no chance mishaps" (Juan Pedro Diaz case, 1987). Here explicitly citing the Peruvian situation of 1980-81, Hathaway categorically states that cessation is not warranted where "de-facto executive authority remains in the hands of the former oppressors" ... "nor can it be said that there has truly been a fundamental change of circumstances where the police and military establishments have yet fully to comply with dictates of democracy and respect for human rights" (1991:202).
Third, the change of circumstances must be shown to be durable. The transitory shift in political landscape must not be the guiding principle of decision concerning cessation of refugee status, but rather should be "reserved for situations in which there is reason to believe that positive conversion of the power structure is likely to last" (Hathaway, 1991:203).
The UNHCR in its promotional campaign highlighted the
improvements of situation in Arakan. The
Thus a minimum degree of familiarity of refugee laws
concerning cessation helps us understand the untenability of the argument that
withdrawing of the status of refugees can be made contingent upon the “attitude”
of the home government towards the refugees and a slight degree of improvement
on the surface of political landscape.
The Extreme Liberal
Interpretation: One may, however, invoke an extremely liberal
interpretation of the question of voluntariness vis-a-vis the legalistic
position discussed above. Such a liberal interpretation can be based on the
premise that the Rohingya operation is somewhat unique of UNHCR operations and
therefore the question of voluntariness merits a flexible application. The
gradual return of Myanmar to the international community by opening up its
economy and the release of long detained opposition leader Aung San Suu Kyi are
small but significant indications of incremental changes that are taking place
in that country. The very recent SLORC decisions to discontinue forced labour,
payment for communal labour and suspension of relocation of villages may be
considered as major steps forward in human rights practice of the regime. All
these would have important bearing for the Rohingya refugees and indicate the
liberalizing trend of the
In addition to these, if one takes into account the
following issues into consideration then one may be inclined to go beyond the
strictly legalistic position presented earlier. The peculiar history of the
Rohingyas within the Myanmar Union, the unresolved question of their
citizenship and associated discrimination as a national minority over the last
hundreds of years, the Myanmar government's perception of them as 'illegal
migrants' and a possible concomitant implicit national agenda of driving them
out to their 'home country' i.e., Bangladesh make it a compelling case that any
opportunity to send them back to Myanmar by ensuring their personal safety is
to be availed. Delay in their repatriation would only weaken these people's
rights to live there and would further complicate their claims to land and
homes. In addition, the stand taken by the country, that the refugees must go
and
4. SUMMARY AND CONCLUSIONS
4. 1. This paper
attempted to examine the reasons behind the periodic influx of refugees from
Arakan state of
It also assessed in depth the complex issue of
Burmans-Rohingya relation which has evolved over the centuries, especially
since the Burman annexation of Arakan in 1785. It examined the inter-communal
relationship between the Rohingyas and the Rakhines, particularly in the
backdrop of demands of statehood for the Arakan state, following independence
of
The paper pointed out that the issue of citizenship rights
to the Rohingyas, finds its root in religious persecution and abuses of human
rights by the
4.2. On the question of treatment of the refugees of the 1991 influx it was obvious that the primary motivation of the government was to ensure immediate repatriation of the refugees due to their negative economic and environmental impact on the areas where they were allowed to stay. This might have led to given GOB officials to feel free to resort to coercion against the refugees to ensure their quick return to their country of origin.
It was further established that the local people in the
refugee affected areas were particularly hard hit as the refugee presence
impacted adversely on the local economy and environment. The articulation of
the anti-refugee sentiments in the form of institutionalized opposition
reflected the need for a more sympathetic and balanced media coverage of the
refuges issues. This section also highlighted the creative formula that the
UNHCR devised to ameliorate the local discontent.
4.3. On the
important question of repatriation of Rohingya refugees the impact of changing
dynamics in the relationship between the two governments and their relationship
with the UNHCR on the refugee repatriation process was examined. With regard to
repatriation it was noted that the matter was directly handled by the
The section also focussed on the evolution of UNHCR's role from pure material assistance to promotional activities with all its implications. The discussion was rounded up with a brief exploration into the change of circumstance in the country of origin which facilitate the ground for promotion of refugee repatriation in international law. It was found that strict adherence to international refugee law entails that if there is no visible and substantial change in the circumstances which led the refugees to flee their home country and if there is any likelihood that change, if any, could not be truly effective, then a strong case exists for the refugees to continue enjoying the refugee status in the country of asylum unhindered. On the other hand, an extremely liberal interpretation of the principle of voluntary repatriation may be taken recourse to given the vast increase in number of refugees worldwide, the concomitant donor fatigue and the specific political and historical background of the caseload.
The Convention of 1951 and the ExCom Conclusions on
International Protection dealing with Voluntary Repatriation, do not address
the issue under which UNHCR should promote repatriation. However, Article l/C/5
that speak about application of Cessation clause which suggests that if
conditions led refugee to flee and seek asylum to, changes [if conditions which
led refugees to flee and seek asylum change]in a substantive manner, refugees
should in principle, could return to his country without risking his life and
freedom. By applying this analogy it is safe to say that UNHCR can actually
promote repatriation in a positive and active way once it believes that
condition in the country of origin which has led initially the refugees to flee
have improved in such a manner whereby the UNHCR is convinced that if refugees
were to return they will not face risk to life and freedom. The question to be
asked therefore is whether condition in
There are two views on the matter. The first adopted by the
NGOs which argue that no substantive change has occurred which warrant
promotion of repatriation. They base they argument on reports of UN Special
Rapporteur, US State Department Human Rights and Asia Watch. The other, UNHCR,
view is that promotion of repatriation is based on sufficient change of
circumstances which guarantee safe return, liberty and freedom of the
returnees. To support its view UNHCR states that improvement in human rights
situation in Arakan, its presence in the region and its access to returnees to
monitor protection matters has led to its decision to promoting repatriation.
It also argues that a total change in circumstance to occur in the country of
origin may take a long time and may mean that the refugees continue to live in
camps for a long period in sub human conditions as opportunity for integration
in the host country is minimal. It is this context a partial improvement in the
circumstances, which is about the same before refugees were evicted, UNHCR
believes is the right time to promote repatriation in an active way.
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Editor’s note.
The present version is
based on the pdf image file on the Forced Migration
Online website http://fmo.qeh.ox.ac.uk/Repository/Oxford/1975/01/20/303820385-1975-01-20.PDF#OLV0_Entity_0001 which should be regarded as authoritative. Though
some emphases indicated by the author cannot be distinguished, his note
“emphasis added” has been kept. Pagination has changed, variations in spelling
of names have been standardized to the author’s most common usage and obvious
typos have been corrected. Errors of grammar or punctuation have only been
corrected when the meaning is at risk. Square brackets have been used to
present interpretations of problematic phrases.
[1] Professor.
Department of International Relations,