Guest post by Ishita Kumar. Ishita is a lecturer at O.P Jindal Global University, Sonipat and previously worked as a refugee lawyer in New Delhi. Along with forced migration and statelessness, her research interests lie in transitional justice, women peace and security and gender-mainstreaming in peacebuilding.

myanmar
A poster during a protest rally in Yangon in February, 2021. There is a growing acknowledgment, expressions of regret within the ongoing anti-coup protests in Myanmar about the failure to address the atrocities committed against Rohingyas. Photo: @Natrani (Twitter) Source: The Vice

As leaders across the world express concern over the Burmese military’s seizure of power, the not-so unexpected February 1 coup only laid bare the domination of Burmese society by men in military uniform that has marred the country’s ‘democratic transition’ from the very outset since 2011. The lethal violence being met out to the unarmed protestors, children, medics and journalists across towns and cities in Myanmar today, has long been wielded against the Rohingya community. With their roots to the country rejected, citizenship effectively denied, the Rohingyas in Myanmar have suffered severe deprivation of their basic rights and complete disenfranchisement for nearly three decades. Most recently, in 2017, even while the country was under a so-called civilian rule, a brutal military-led clearance operation involving mass-murder, rape, and sexualized torture displaced over 700,000 Rohingyas. 

Despite such long-standing persecution and a violent coup by their perpetrators, strict border control practices are blindly enforced in the region in relation to the displaced Rohingyas. In this blogpost, I give an overview of the severity of the South and South East Asia’s current border control regime against Rohingya refugees and how it potentially undermines the efforts to delegitimize the coup and restore rule of law in Myanmar.

Activists, together with experts, acknowledge that the current crisis in Myanmar is a manifestation of the international failure to respond to the genocidal crimes against Rohingyas. The Security Council’s failure to authorise military intervention or economic sanctions given China’s veto in the matter, along with a muted response from countries in the region given their geopolitical interests in Myanmar   cemented the Burmese military, the Tatmadaw’s impunity and emboldened it to stage the coup.

The coup has retraumatised and instilled fear in the minds of the Rohingya refugees who have so far considered the proposed repatriation plans unimaginable as it is. The ongoing case against Myanmar at ICJ concerning the Rohingya genocide and the ICC prosecutor’s investigation into the crime against humanity of ‘forced deportation’ committed by Tatmadaw, indeed presented a glimmer of hope for justice to the survivors. However, the coup is a grave setback to the fledgling rule of law in Myanmar and any change in the discriminatory citizenship and land laws that would allow Rohingyas a dignified return to Rakhine State is now more distant.

Against this backdrop, it is important that the international community takes serious note of border control practices against Rohingyas that have emerged in the recent past in violation of international law, compounding the already restrictive asylum policies in the region. Contesting such border control is significant especially in the present climate in order to invoke a regional acknowledgement of the internationally unlawful acts committed by the Tatmadaw and delegitimise its forcible control over the country.

Most countries in South and South-East Asia are not parties to the 1951 Refugee Convention and do not have dedicated asylum laws (except Cambodia, Philippines, Japan and South Korea, the latter two with abysmally low refugee-recognition rates). The refugee-status-determination (RSD)  is accordingly undertaken by the UNHCR in these jurisdictions - whereby based upon a rigorous assessment of credibility and well-founded fear of persecution, individuals are granted refugee status. The so-issued UNHCR ID cards provide refugees at least the minimum protection against deportation in most cases, amidst their otherwise precarious living conditions in these host countries due to a tenuous legal status.

However, the post-pandemic securitized attitudes towards migration on one hand and the rising populism elsewhere in the region has undermined the protection afforded to the Rohingyas by UNHCR’s documentation.

Most notably, India, traditionally a generous host for refugees, in 2017, announced an unprecedented en masse deportation order against all Rohingyas living in the country declaring them as ‘illegal migrants’. Home Ministry officials clarified that the UNHCR documentation held by Rohingyas holds no value as India is not a party to the 1951 Refugee Convention. While efforts have been pursued to legally challenge the deportation order on the basis of the customary international law principle of non-refoulement, along with India’s obligations as a party to international human rights law instruments such as the 1966 International Covenant for Civil and Political Rights (ICCPR) and the 1989 Convention on Rights of Children (CRC), they have not been successful in overturning the deportation order. Over 20 Rohingyas including women and children were deported in the late 2018-19; with the Supreme Court questionably refusing to prevent the deportation citing the government’s affidavit regarding the deportees’ consent.

Ever since the coup, India’s state apparatus has particularly intensified its pushback of the Rohingya community, with nearly 300 Rohingyas currently being held in detention in Jammu & Kashmir  and Delhi for deportation. Moreover, lack of relief by the Indian Supreme Court against such detention based on an observation that the possibility of slaughter in Myanmar is not under their control, is a disturbing sign of the deteriorating protection environment for Rohingya refugees even amidst military-led violence ravaging their home country. The recurring electorally profitable promises of ‘throwing’ Rohingyas out of the country and the ongoing arrests of the Rohingya families without any basis, have created a climate of constant fear for Rohingyas.

Thus, India’s border control involves driving an entire refugee community in India in a state of deportability by creating a constant threat of being returned to where they risk facing torture through a combination of hate-speech, executive orders and judicial restraint. These practices beg the question of whether India, as a party to the 1948 Genocide Convention, stands in violation of its obligation to not force a persecuted community like Rohingyas into the danger of genocide.

The Rohingyas who fled to Malaysia too are familiar with the acute pain of living in a weak protection environment and a state of illegality. The lives of Rohingyas in Malaysia have long been strife with severe socio-economic marginalisation involving the denial of access to work, higher education and constant eviction by landlords. Compounding matters, the migration discourse has become heavily securitized post-Covid-19 in Malaysia, and Rohingyas have become easy targets of the corona panic that has gripped societies across the world. The country’s border control stance that used to be supportive of Rohingyas’ plight has now shifted dramatically. Since 2020, Malaysia has been reported to push-back at least 27 Rohingyas’ boats.

Last year, boats with Rohingya families arriving on the Thai shores have been as a matter of rule seized and the individuals summarily detained. Human rights organizations have condemned Thailand’s immigration detention of Rohingyas without providing access to UNHCR for processing their asylum claims. Currently, Thailand is set to have a ‘National Screening Mechanism’ in place that will take over the refugee-status determination operations from UNHCR. While a country’s takeover of processing asylum applications is deemed to be a positive step as it helps in formalizing a refugee’s status in line with national systems, concerns have been raised as to whether the mechanism falls short of integrating the core international protection norms, especially the protection from return (non-refoulement). Also, the avoidance to engage with the term ‘refugee’ as under international law, along with no procedural contents regarding the conduct of interviews have the legal aid providers worried about the ambit of protection entailed under the new system.

The pushbacks at sea by Thailand and Malaysia and even in Europe are often justified in the name of criminalizing human smuggling. However, the international instruments concerned with preventing human smuggling and trafficking that states often cite, have a saving clause to safeguard the rights of asylum-seekers and refugees. Regionally speaking, such manufactured criminalization of asylum-seekers stands in complete disregard of the Bali Process that was adopted by the ASEAN countries in 2002 for protecting migrants who are victims of trafficking. Moreover these pushbacks violate states’ unequivocal obligation to rescue those in ‘distress’ at sea and disembark them at a place of safety under the universally-ratified UN Convention on Law of the Sea.

Criminalising migration channels, as opposed to adopting a rights-based approach, facilitates trafficking instead of preventing the phenomenon. In the past, independent investigations and court trials have indicated the involvement of Thai officials in trafficking syndicates which led to transfer of Rohingyas to human-trafficking camps, where they faced rape and torture. Even in India, the recent phenomenon of young Rohingya girls being trafficked into the country for sale as brides has been made possible with the alleged collusion between traffickers and border guards in Bangladesh and India.

The foregoing border control practices in the region have not only stripped the world’s most persecuted community of their right to asylum and protection; these have over time also impacted the capacity and policies of the only country that has been consistently their safe harbour - Bangladesh. Bangladesh is now shifting the Rohingyas to an unhabitable island and more recently it has also been reported to push back boats.

The border control policies discussed above have systemically subjected Rohingya refugees to the risk of loss of life through actual and/or threat of return to Myanmar. Pursuing these policies when the regime accused of perpetrating genocidal acts against Rohingyas is in unfettered control of the country only evinces that the region’s condemnation of the military coup in Myanmar is mere lip service.

Therefore, along with the targeted sanctions and arms embargo, the ongoing broader advocacy against the coup should not lose sight of the urgent need to strengthen the regional response for Rohingyas’ protection and to hold Tatmadaw accountable for its crimes against Rohingyas. In this regard, it may be useful to pursue advocacy with the aim to: (i) mobilize counties in the region to support the ongoing work of the UN Independent Investigative Mechanism for Myanmar (IIMM); (ii) revitalize the near-defunct ASEAN Intergovernmental Commission on Human Rights (AICHR), which can provide a potential human rights mechanism to attend to the violation of Rohingyas’ rights through border control. By integrating these elements, the current diplomatic, legal efforts for restoration of the rule of law in Myanmar can be mobilized more meaningfully.

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How to cite this blog post (Harvard style) 

Kumar, I. (2021). Turning Their Back on the Rohingyas: A Border Control Regime Blind to the Collapse of Burmese ‘Democracy’. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/04/turning-their [date]