India

India’s refoulement policy violates the UNCAT – ACHR, October 2018

On 4 October 2018, the Indian authorities deported seven Rohingya Muslims identified as Md Jamal, Mohbul Khan, Jamal Hussain, Md Yonus, Sabir Ahmed, Rahim Uddin and Md Salam[1] to Myanmar at the Indo-Myanmar border at Moreh in Manipur. The seven men were arrested for illegal entry in 2012 after they were caught by the police in the Shilchori-Nagatila region of Assam. They served a sentence of three months for the crime of entering India without valid documents. After completing the jail term, they were incarcerated for six years at the foreigners detention centre in Silchar Central Jail before being deported to Myanmar.[2]

The deportation took place despite appeal by United Nations Secretary General Antonio Guterres not to send them back to their country of origin.[3] The UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Ms E. Tendayi Achiume reminded the Indian Government of its “international legal obligation to fully acknowledge the institutionalised discrimination, persecution, hate and gross human rights violations these people have faced in their country of origin and provide them the necessary protection”.[4] The United Nations High Commissioner for Refugees (UNHCR) stated that conditions in Rakhine state were “not yet conducive for return” of the Rohingyas.[5]

The deportation of the Rohingya refugees is a serious setback on the issue of refugee rights.

India is a signatory to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and Article 3.1 of the UNCAT states that No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”.

Article 3(2) of the UNCAT further states, “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

The ‘consistent pattern of gross, flagrant or mass violations of human rights’ of the Rohingyas is exemplified by exodus of more than 700,000 Rohingya refugees from Myanmar’s Rakhine State to neighbouring Bangladesh from August 2017 after Rohingya insurgent attacks on the Myanmar security forces triggered a sweeping military response. The UN Independent International Fact-Finding Mission on Myanmar in its report on 27 August 2018 stated that Myanmar’s top military generals, including Commander-in-Chief Senior-General Min Aung Hlaing, must be investigated and prosecuted for genocide in the north of Rakhine State, as well as for crimes against humanity and war crimes in Rakhine State. The Mission, established by the UN Human Rights Council in March 2017, found patterns of gross human rights violations and abuses committed in Kachin, Rakhine and Shan States that “undoubtedly amount to the gravest crimes under international law”, principally by Myanmar’s military, the Tatmadaw, but also by other security forces.[6]

The mere issuance of “certificate of identity – a temporary travel document” [7] by the Myanmar Government was considered adequate for the Government of India and the Supreme Court of India to deport the Rohingyas without considering the consequences on refoulement. The Indian Express reported on 16 October 2018 that all seven of them were escorted through a four-day journey from Moreh to Kyauktaw in northern Rakhine by Myanmar immigration officials, and were handcuffed for part of the way. One of the seven returnees, Mohammed Yunus, said they were handcuffed as soon as they reached Mandalay, where they were taken to an immigration office, “kept in a closed room, and made to sign some papers.”[8]

The refoulement of the Rohingya refugees exposes India’s flawed refugee policy based on political expediency. India’s approach towards the Sri Lankan Tamil refugees and Tibetan refugees has been markedly different.

While the seven Rohingyas were being taken to the Indo-Myanmar border on 4 October 2018, the Supreme Court of India dismissed a petition to restrain the government of India from taking steps to deport the Rohingya refugees to Myanmar.[9] The SC has effectively refused to hear their claim for refugee status.


Endnotes:

[1]. 7 Rohingya refugees deported to Myanmar after Supreme Court refuses to intervene, The Hindustan Times, 4 October 2018; available at: https://www.hindustantimes.com/india-news/7-rohingyas-deported-from-assam-after-supreme-court-refuses-to-intervene/story-rf4FwSDi5TAxaCpN6GsCqN.html

[2]. Harsh Mander: India’s deportation of seven Rohingya men to Myanmar is a profound failure of public compassion, Scroll.in, 9 October 2018; available at: https://scroll.in/article/897478/indias-deportation-of-seven-rohingya-men-to-myanmar-is-a-profound-failure-of-public-compassion

[3]. UN chief Antonio Guterres asks India not to send Rohingyas back, India Today, 3 October 2018; available at: https://www.indiatoday.in/india/story/un-chief-antonio-guterres-asks-india-not-to-send-rohingyas-back-1354932-2018-10-03

[4]. UN human rights expert alarmed by India move to deport Rohingya men, Office of the High Commissioner for Human Rights, 2 October 2018; available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23674&LangID=E

[5]. Bangladesh and Myanmar agree to Rohingya repatriation by mid-November, The Independent, 31 October 2018; available at:https://www.independent.co.uk/news/world/asia/rohingya-muslims-myanmar-bangladesh-repatriation-military-united-nations-a8609736.html

[6]. Myanmar: Tatmadaw leaders must be investigated for genocide, crimes against humanity, war crimes – UN report, UN Human Rights Council, 27 August 2018 available at https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=23475&LangID=E

[7]. 7 Rohingya refugees deported to Myanmar after Supreme Court refuses to intervene, The Hindustan Times, 4 October 2018; available at: https://www.hindustantimes.com/india-news/7-rohingyas-deported-from-assam-after-supreme-court-refuses-to-intervene/story-rf4FwSDi5TAxaCpN6GsCqN.html

[8]. Repatriated by India, seven Rohingya are back home, handed disputed identity cards, Indian Express, 16 October 2018; available at: https://indianexpress.com/article/india/rohingya-myanmar-rakhine-india-5403665/

[9]. SC throws out plea to restrain govt from deporting 7 Rohingya to Myanmar, The Hindu, 4 October 2018; available at: https://www.thehindu.com/news/national/sc-allows-deportation-of-seven-rohingya-from-assam-to-myanmar/article25119615.ece

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