In March 1959, the spiritual head of the Tibetans, the then 24-year-old Dalai Lama, with a rifle slung over his shoulder, made a dramatic escape on horseback from the Potala Palace in Lhasa. Assisted by Tibetans resisting China, he crossed into Tawang in India’s then North East Frontier Agency (NEFA, now in Arunachal Pradesh). At the border, waiting to receive a physically and mentally worn out Dalai Lama, was an Indian official. “As soon as I saw his face it was a feeling of reunion and then I knew I was safe and there was no danger,” the Dalai Lama told a group of journalists in 2009.
Be it the Tibetans, or Sri Lankan Tamils, or Afghans, or Bangladeshis escaping what was East Pakistan in 1971, India has had a long history of giving asylum to refugees. Giving them a space they can call their own. This despite India’s refusal to become a state party to the United Nations Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967.
However, the Indian government’s recent efforts to smear all Rohingya in India as “illegal migrants”, expel them en masse, and prevent Rohingya from entering the country, is an alarming development, which risks dismantling the safe space India has historically provided to refugees.
India’s Home Ministry has suggested that the 40,000 Rohingya it estimates are in India, and those who may potentially enter the country, pose a “national security” threat. This position stigmatises members of the community who have fled their homes following decades of violence and persecution in Myanmar. It is a position bereft of a moral or legal compass, which feeds into the rising tide of Islamophobia in India.
India’s volte-face on refugee rights appears to be a mix of paranoia and xenophobia. It is an approach that welcomes Hindu refugees from India’s neighbouring countries, but shuts the door on Rohingya, who are predominantly Muslim, in the name of national security. But this move goes against India’s international legal obligations, and also its constitutional guarantees of human rights.
In August this year, following attacks by a Rohingya armed group on dozens of security forces posts, the Myanmar’s security forces have engaged in an unlawful and disproportionate campaign of violence against the Rohingya, which has led 436,000 of them to flee to Bangladesh. The UN High Commissioner of Human Rights Zeid Ra’ad al-Hussein has correctly said, “I deplore current measures in India to deport Rohingyas at a time of such violence against them in their country”.
India’s legal obligations
Amnesty International has documented evidence of a brutal campaign of what can be described as ethnic cleansing, with the Rohingya targeted for their ethnicity and religion. In legal terms, these are crimes against humanity that include murder and deportation or forcible transfer of the population. And if India expels Rohingya refugees, they would face the risk of such crimes.
India should push Myanmar to stop the violence, allow access to the UN Fact Finding Missions and ensure full and unfettered humanitarian aid for all affected communities.
In a battle being fought at the Supreme Court against the proposed expulsion of Rohingya from India, the Indian government maintains that the principle of non-refoulement – a fundamental principle of international law that prohibits countries from sending back refugees to a country where their life or wellbeing would be at risk – is not binding on it since it is not a signatory to the UN Refugee Convention. That interpretation is incorrect. As pointed out by the UN High Commissioner of Human Rights, the principle of non-refoulement is a part of customary international law, which is binding on all countries, regardless of whether they have signed the UN Convention.
India, unfortunately, does not have a domestic legal refugee protection law of its own. Its treatment of refugees falls largely under the Foreigners Act of 1946, which makes no distinction between asylum seekers, refugees and other foreigners. This Act also criminalises undocumented physical presence in the country.
About 14,000 Rohingya in India have been recognised as refugees by the office of the United Nations High Commissioner for Refugees (UNHCR). This recognition, in some cases, has allowed refugees to procure a long-term visa, and helped them access education, healthcare, and housing. However the recent smearing of all Rohingya as “illegal immigrants” puts these at risk. Two of India’s north-eastern states, Assam and Manipur, have issued circulars saying that the police should “push back” Rohingya who try to enter India, and there are reports that this is already taking place. It doesn’t take much to aid xenophobia.
Nowhere to go?
Myanmar’s Rakhine state is home to just over a million Rohingya, a predominantly Muslim ethnic minority who have faced decades of state-sponsored discrimination and violence. They have for years been denied the right to a nationality under the discriminatory 1982 citizenship law and its application, and suffer severe restrictions on their other rights, for example, freedom of movement and access to healthcare, education and livelihood opportunities.
Most of those who have fled in the last month have been forced to traverse the Naf river which separates Myanmar and Bangladesh to seek refuge there. As the Myanmar security forces and vigilante mobs continue to burn villages and shoot at civilians, international investigators, and in particular a UN-mandated Fact Finding Mission are being prevented from accessing Rakhine state. One can only get a sense of the terror from the smoke billowing from the burnt villages or the satellite images or from the stories of those who have managed to escape.
Against this toxicity, India has a legal, ethical, and moral responsibility to help people escaping persecution. It must not expel Rohingya to Myanmar, or prevent them from coming to India, and must instead suspend the transfer to Myanmar of all military and security equipment and assistance. India should push Myanmar to stop the violence, allow access to the UN Fact Finding Missions and ensure full and unfettered humanitarian aid for all affected communities.
Arijit Sen works for Amnesty International, India. Follow him on Twitter: @senarijit
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.