Human Rights Watch/Asia
September 1996 Vol. 8, No. 8 (C)
BURMA
THE ROHINGYA MUSLIMS: ENDING A CYCLE OF EXODUS?
THE ROHINGYA MUSLIMS: ENDING A CYCLE OF EXODUS?
I. SUMMARY AND RECOMMENDATIONS....................................................2
II. THE 1996 INFLUX ................................................................................. 5
III. HISTORICAL BACKGROUND ................................................................8
IV. THE REPATRIATION ...........................................................................12
The first stage, September
1992-January 1994........................14
Mass repatriation, July 1994 -
December 1995........................15
V. THE REINTEGRATION PROGRAM .......................................................18
VI. CONTINUING DISCRIMINATION 20
Citizenship Legislation and
Identity Cards ..............................21
International Law and the 1982
Citizenship Act .....................24
Current Status of Returnees .....................................................25
Forced Labor ..............................................................................26
Land Ownership and Arbitrary
Taxation..................................27
Forced Relocations.....................................................................28
Model Villages ............................................................................29
Freedom of Movement ..............................................................29
VII. CONCLUSIONS...................................................................................30
___________________________________________________________________________________________________________________________________________________________
I. SUMMARY
AND RECOMMENDATIONS
The title of this report is taken
from a United Nations High Commissioner for Refugees (UNHCR) report of June
1995 on the repatriation of over 200,000 Burmese refugees, most of them members
of the Rohingya Muslim minority, from Bangladesh to their home state of Arakan in northern Burma. The
repatriation is being held up as a success story by the UNHCR in speeches of senior officials as well
as in publications, including its annual report, State of the World's
Refugees 1995. For the UNHCR, the return of so many refugees by early 1996,
most of whom had left Burma in 1991 and 1992, was a vindication of its shift from
providing refugee relief to promoting voluntary repatriation as the most
durable solution to refugee problems.
But the story of the Rohingyas was
not over: the cycle of exodus has not ended. On April 20, 1996, fifteen Burmese Muslims, part of a group of 150 who
were seeking asylum in Bangladesh, drowned in the Naf river as they were being towed
back to Burma by the Bangladesh Border Rifles, a branch of the Bangladesh army. All
fifteen were women and young children. This incident brought much-needed
attention to the plight of some 5,000 new asylum seekers who had entered Bangladesh since the end of February 1996. By the end of May their number had risen to
an estimated 10,000. The Bangladesh government had refused UNHCR access to the new
arrivals and was intent on sending them all back. Its security forces arrested
254 refugees without permitting them to apply for asylum and forcibly returned
an estimated 200 others in violation of international standards.[1]
These new arrivals came to Bangladesh at a time when the UNHCR was attempting to wind up
the repatriation of the Rohingya who had fled violent abuse by the Burmese
military in 1991 and 1992. As one
journalist put it, "The influx is something of an embarrassment for the
UNHCR...[who] fear that any move to help the newcomers would spur others to
follow."[2] Having conducted only a handful of individual
interviews, the UNHCR in Dhaka publicly stated that all the new arrivals were
“economic migrants” who were escaping poverty not persecution, and stepped up
efforts inside Arakan State to ensure that those planning to leave would not do
so.
The 1996 exodus from Burma raises several important questions about the UNHCR’s
repatriation operation from Bangladesh and about the promotion of 'voluntary' return to
countries with particularly abusive governments. Rohingyas are not the only
refugees to have left Burma since its military government, the State Law and
Order Restoration Council (SLORC), came to power after a series of popular
uprisings in 1988. In June 1996 the
95,000 Burmese refugees in Thailand were joined by 2,300 new arrivals from
Karenni state and at least 8,000 people from Shan state, all of whom came from
areas where SLORC was forcibly relocating villages to bring them more directly
under government control. The Shan, unlike other Burmese minorities, have been
prevented from entering Thailand and seeking asylum, as is their right under
international law. In the absence of
refugee determination procedures and camps for new arrivals, those forced to
flee who have managed to evade border patrols have sought low-paid jobs in the
construction industry and agriculture, swelling the ranks of the estimated
600,000 Burmese illegal migrants in Thailand.
At the same time, inside Burma, the government's attitude towards political dissent
was hardening, as revealed by the arrest at the end of May 1996 of 262 members
of the political opposition, most of whom were elected members of parliament.
While most have since been released, many of them have been harassed and
threatened with the loss of their jobs or worse if they did not resign their
seats and leave the National League for Democracy (NLD). By July 1,
seventeen had resigned. Human
rights abuses, in the form of summary executions of suspected rebels, forced
labor, arbitrary arrest, cruel and inhumane treatment, violations of the laws
of war, and a total denial of freedom of speech and association continue,
despite Burma’s obligations under international law. In 1955 Burma signed the 1930 International Labor Organization
(ILO) Convention on Forced Labor; in 1991, it ratified the Convention on the
Rights of the Child and in 1992 the Geneva Conventions, yet it continues to
flout their provisions. The SLORC has
given limited cooperation to the United Nations Special Rapporteur on Myanmar, appointed by the U.N. Commission on Human Rights,
who has visited the country every year since 1992, but it has failed to
implement any of the rapporteur’s recommendations or
any of the successive resolutions of either the commission or the U.N. General
Assembly.
Given such an abusive and
intransigent government, what guarantees can be put in place to ensure the
long-term safety of returning refugees? What more can the international
community do to see that the government accepts its responsibility for the
protection of human rights, especially the rights of ethnic and religious
minorities who make up 40 percent of the population and 99 percent of refugees?
In this context, is UNHCR's promotion of voluntary repatriation and its shift
of emphasis away from the "right to seek asylum" towards the
"right to remain" in the country of residence either appropriate or
sustainable? In its 1994 Oslo Declaration, UNHCR itself acknowledged concerns:
There was a
general agreement that voluntary repatriation is the preferred and best
solution to the refugee problem. However, it was noted that in some instances UNHCR
has placed too much emphasis on early return to countries of origin which has
resulted in return movements to less than favourable conditions.[3]
The situation in Arakan was
certainly less than favorable, despite the presence since January 1994 of a UNHCR
office there to monitor the situation of returnees.
This report, based on four visits to
the region and extensive interviews over the past four years with individuals
from international nongovernmental organizations and the UNHCR involved in the
repatriation and reintegration program, examines the issue of protecting
refugees who return to an abusive environment, using the Muslims from Arakan
state as an example. In setting the
context for their flight and return, the report examines the claims of the
Rohingyas to be a distinct ethnic minority within Burma and the efforts of the government since 1962 to deny
them citizenship and all accompanying rights, and occasionally force them out
as illegal immigrants.
The report then analyzes the
attempts at repatriating Rohingya Muslim refugees in Bangladesh who fled in 1991. In the first forced repatriation,
between September 1992 and the end of 1993, UNHCR was not present Burma and had no agreement with the Burmese government to
provide assistance to returnees. Even
more seriously, while the agency was present in the camps in Bangladesh, it could not prevent serious abuses, including
beatings and the denial of food rations, by camp authorities directed at
forcing the refugees back to Burma. The vast majority of the 50,000 refugees who
returned to Burma did so involuntarily, and three years later the UNHCR
has not been able to trace them. There
undoubtedly was concern that without full UNHCR participation, the repatriation
could have turned into a replay of the 1978 repatriation of Burmese Muslims
from Bangladesh, worked out bilaterally between the two countries concerned, in
which over 12,000 refugees starved to death as the Bangladesh government
reduced food rations in the camps in order to force them back.[4] Given that
worst case scenario, at least one journalist suggested that the principle of
voluntary return became "a euphemism for 'no real alternative.'"[5]
The second repatriation effort took
place after the UNHCR had established a limited field presence in Arakan state in 1994. It began promoting
mass repatriation on the grounds that the situation in Arakan was now conducive
to return and gave up the hard-won right to interview each refugee individually
to ensure that she or he was returning voluntarily. The report examines the extent to which the
refugees have been able to make fully informed decisions about their return,
based on knowledge of their right to request continued asylum and objective
information about conditions in Arakan.
It also looks at various elements of the reintegration program and the
consequences of the UNHCR having as its implementing agency or government
partner an ostensibly civilian agency that in some parts of Arakan is under the
direct command of the military.
Finally, the report documents a
pattern of continuing discrimination and other abuses against the Muslims in
Arakan state, from denial of citizenship to forced relocations and forced
labor, leading to a new influx of refugees as described above.
Human Rights Watch/Asia concludes
that while it applauds UNHCR's efforts at an international level to work toward
preventing refugee outflows by promoting human rights, UNHCR has in many cases
avoided addressing human rights concerns in Arakan and its policy of promoting
mass repatriation there must be thoroughly evaluated. In particular, the UNHCR
must ensure that it does not neglect its responsibilities to refugees in a situation where there is a
conflict of interest: where the need to publicize and advocate against
continued abuses takes second place to the need to maintain good relations with
both the country of origin and the host country. In the case of the Rohingyas, the UNHCR
policy since June 1996 of discouraging and sometimes assisting the government
to prevent possible asylum seekers from leaving Burma is a cause for great concern. In the final analysis, the refugee problem
will not be solved until and unless the Rohingyas are recognized as citizens by
the Burmese government and granted the rights they are currently denied. Rather,
they will remain a vulnerable group, always ready to flee if the
alternative is to suffer further abuse.
Recommendations
To the State Law and Order Restoration Council
C As a
matter of urgency, the SLORC should immediately amend or repeal the 1982
Citizenship Act "to abolish its over-burdensome requirements for citizens
in a manner which has discriminatory effects on racial or ethnic
minorities" as described by the U.N. Special Rapporteur to Burma, and grant the Muslims of Arakan State full
citizenship and accompanying rights, in particular the right to freedom of
movement.
C The
SLORC should immediately cease the practice of forced labor in Arakan State and across Burma in compliance with the 1930 ILO Convention on Forced
Labor which the government signed in 1955.
C The
rights of children should be especially protected, in accordance with the
government's commitment to children's rights as indicated by its ratification
of the Convention on the Rights of the Child in 1992. In particular, all children should be granted
their right to nationality, including the 20,000 children born in refugee camps
in Bangladesh. Children must
not be forced to work, under any circumstances, and the government should not
discriminate against Muslim children in its provision of health and education
benefits.
C The
government should permit the new Special Rapporteur to Burma to visit the area on his mission later this year, and
he should be guaranteed free and confidential access to residents.
C Human
rights abuses in Arakan State are a reflection of the situation all over the
country, and the government of Burma should implement the main human rights
components of 1995 U.N. General Assembly Resolution and the 1996 U.N.
Commission on Human Rights resolution on Burma, with particular attention to
the paragraphs concerning the rights to freedom of movement, association and
expression.
To the
Government of Bangladesh
C The
newly-elected government of Sheikh Hassina should
state unequivocally that it will permit individuals to seek asylum. In doing
so, it should provide objective information to refugees on which they can make
an informed decision to return and should ensure that refugees are fully aware
of their right to protection from refoulement if they
can establish a well-founded fear of persecution if they are returned. Bangladesh is obliged to give all asylum seekers, including all
new arrivals, the opportunity to claim refugee status.
C The
Bangladesh government should also demonstrate its commitment to international
human rights standards by becoming a party to the 1951 Convention Relating to
the Status of Refugees and the 1967 Protocol.
However, even without having become a party to the Convention, Bangladesh should fulfill
its obligations with regard to the principle of non-refoulement
which is customary international law.
To the United
Nations High Commissioner for Refugees
C The
UNHCR should conduct a thorough evaluation of its policy of promoting mass
repatriation to Arakan State at a time when the situation there has not
substantially improved. Under current circumstances, if the conditions in Arakan State deteriorate, UNHCR should not tolerate violations
by the Bangladesh government of the right to seek asylum or the
principle of non-refoulement. In addition,
if or when the UNHCR finds that it cannot effectively protect the rights
of returnees in northern Arakan State, the office should not assist in preventing potential
authentic refugees from seeking asylum in Bangladesh. In doing so,
the UNHCR would become complicit in the human rights violations and in addition
would fail to protect authentic refugees by denying them refugee status and
encouraging their refoulement.
C The
UNHCR should reassess its classification of Burmese Muslims newly arrived in
Bangladesh from Burma as “economic migrants” and seek assurances from
Bangladesh that they will not be returned against their will without having had
the opportunity to apply for refugee status.
C The
UNHCR should put into practice the recommendations from the Working Group on
International Protection of August 1992 concerning “direct prevention” and work
closely with the Secretary-General in carrying out his mandate to ensure the
implementation of the 1995 General Assembly resolution on Burma and the work of
the U.N. Special Rapporteur to Burma, with particular attention to the call for
Burma to end forced labor and to amend its citizenship law.
C The
UNHCR should be more open with information to nongovernmental partners to
ensure that mutual trust is maintained. There should be a regular exchange of
staff between offices in Cox’s Bazaar and Arakan, so that all staff are fully
aware of conditions on both sides.
To the
Association of South East Asian Nations (ASEAN)
C ASEAN
should make Burma’s full membership in ASEAN conditional on the above
steps being taken by the SLORC and the implementation of other key human rights
provisions in the U.N. General Assembly resolution of December 1995.
C ASEAN
governments should conduct a fact-finding mission to both Arakan and the
refugee camps in Bangladesh to assess the condition of Rohingya refugees and make
recommendations to the Burmese government to ensure that the rights of the
Muslim minority are respected.
II. THE
1996 INFLUX
In
February and March 1996, Human Rights Watch/Asia interviewed twenty Rohingyas who
had just arrived in Bangladesh, at the beginning of the new influx. We found that forced labor, lack of freedom
of movement, and the “forcible disappearance” of family members were the main
reasons for leaving Burma. In most cases, the perpetrators were said to be
members of a military unit, the Border Administration Force, known by its
Burmese acronym, NaSaKa (Nay-Sat Kut-kwey
Ye or Nay-sat Lu-win-mu Sit-say-ye hnin Kut-kwey-hmu Hta-na-gyoke).
There
was also one account of rape. One twenty-four-year-old woman from Rathedaung
told us that she had been taken from her home by five drunken soldiers to the
nearby NaSaKa camp (which was built in 1992 and had
about fifty soldiers) where she was gang raped all night, before being returned
to her house at dawn. She said that this happened for five nights in a row
before she and her husband fled, leaving their five-year-old son behind.
Another woman from Maungdaw township, who had come with her six children, told
Human Rights Watch that her husband had been taken away to work as a porter
over a year ago, but had not returned:
I was then seven months pregnant,
with this child, and some villagers who had been taken as porters in the same
group as my husband came and told me that he was killed. I waited for a long
time, because I didn't believe that he could be dead, but now I have sold
everything I had left, and must accept that he is dead. We had three acres of
land before, but it was confiscated to build a Rakhine [Buddhist ethnic
minority] village. We had to build the
village and also build the new NaSaKa camp just one
month ago. Since my husband was gone my eldest son, who is twelve years old,
had to do the work. He also had to guard the NaSaKa
camp at night, while the soldiers slept inside.
Many
of the new arrivals complained of excessive forced labor. A man from northern
Rathedaung who had arrived just the day before the interview took place told
Human Rights Watch that he had been repatriated to Burma after severe beatings by the Bangladeshi officer in
charge of the Dum Dumia
refugee camp in December 1993. He had
got back the four acres of land he “owned” (see below for discussion of land
issues), but found it increasingly difficult to survive, due to forced labor
and excessive taxation. His village is predominantly Rakhine, with a small
Muslim quarter, which meant that the Muslims had to perform forced labor in the
Rakhine area, as well as for the military farther away. Two weeks before he
left he had been taken along with about sixty other men in a boat to Ponnagyun where he had to work for ten days building a
prawn pond for the army. He said, "It is much more difficult now, even
than in 1992, because now we cannot travel even from one village to
another." A forty-one-year-old man
from Buthidaung said that he had been taken with about forty other men after
evening prayers at the village mosque in January 1995. They were taken by boat
and forced to work on the Kyauktaw - Mrauk-Oo (also known as Myauk-Oo
or Myo-Haung) road for fifteen days, then were
immediately sent to an army camp in Buthidaung township where he had to work on
a road which is being built to service a new hydroelectric plant at Sayde-taung (close to a large military camp). He was taken
back home after ten days there, but was allowed only ten days rest before being
taken for two days to work as a porter carrying cans of gasoline for the
army. He left for Bangladesh as soon as
he got back home.
A
fifteen-year-old boy said he had left on his own because he could not bear to
do forced labor any more. His parents were separated, and as the only boy in
the family, he had to fulfill the family’s quota of work, cutting bamboo,
cleaning the latrines and cooking in the NaSaKa camp,
as well as working as a porter carrying the army’s supplies when it went on
patrol. He had been to Bangladesh before, in 1992, and returned, only to find
that the forced labor requirements were harsher than before.
Two
other men left after being arrested and accused of working for the guerrilla
group, the Rohingya Solidarity Organization (RSO). Both of them were subjected
to cruel and inhuman treatment while in detention. One of them, a twenty-one-year-old man from
Buthidaung, who had never been in Bangladesh before, gave the following
account:
We were fishing in the river when
two drunken soldiers called out to us to take them across the river. They were
swearing and shouting, so we went over and picked them up. Our boat is very
small and narrow, and when the soldiers got in they were so drunk they were
singing and swaying around. I tried to ask them to keep still, but they didn't
understand what I was saying and just got angry. Finally, the boat capsized,
and despite our efforts to find them, the two soldiers had their bog boots on
and guns and things, and they drowned. A
local villager raised the alarm, and my friend and I were arrested. The soldiers accused us of being RSO and said
we had deliberately killed the soldiers to get their guns. They made us dive
continuously for nine days looking for the weapons. After nine days I realized
that we would be killed, as we couldn't find anything, as so we both slipped
away with some villagers when the soldiers were resting.
The other man, also twenty-one years old, from
Maungdaw, had come back to Bangladesh after being in hiding for two months in
Arakan state. He told Human Rights Watch that he voluntarily returned in 1995,
but three months later the local NaSaKa officers
accused him of being in contact with the RSO.
He was briefly arrested, but after an interrogation during which he
claimed to have been badly beaten, he was released when his family gave the NaSaKa most of his repatriation grant (2,000 kyats or
US$20). "Even though I had paid, a month later I heard that they were
looking for me again, as they still had my name down as a terrorist. I went into hiding for two months, before
finally leaving for good. I will never go back."
Despite
these accounts and others like them, the UNHCR has insisted that the new
arrivals are economic migrants. The UNHCR's position was based on interviews in
Bangladesh with some 200 individuals who arrived by May 1996, and on
cross-checking of their stories by the UNHCR team in Maungdaw, Arakan. In
March, UNHCR staff in Maungdaw had checked the stories of seven new arrivals,
including the woman we quoted above who claimed to have been raped. The team
spoke to people and relatives from the village the new arrivals claimed to have
come from and could not confirm any of the seven cases, including the rape
case. They said that in some cases the
refugees had given false names or the wrong village name, and in others,
relatives had contradicted the stories that the UNHCR staff in Cox's Bazaar had
been told. A UNHCR senior legal advisor for Asia, Hiromitsu
Mori, visited Burma for a month in February and Bangladesh for two weeks in
May-June and told Human Rights Watch that he found categorically that forced
labor does not take more than four days a month for each family. He also looked into the cases of twelve new
arrivals in Bangladesh in detail and found that the refugees stories "were
not credible," citing inconsistencies in their stories and saying that
they did not correspond with the current situation in Maungdaw.[6] Without access to the Arakan state themselves, NGOs
including Human Rights Watch, found themselves having to decide whom they
should believe: the UNHCR or the refugees?
The
UNHCR position was expected: having secured, after long and hard negotiations,
a presence in Arakan state that became operational in March 1994 and after saying
continually that conditions there had greatly improved, the organization did
not readily acknowledge the difficulties in reintegration. At the same time,
Bangladesh was not willing to accept any of the new arrivals as refugees. Those who attempted to stay in the refugee
camps were liable to arrest and deportation as the Bangladesh Border Rifles
conducted daily searches and head counts. In at least three cases in mid-March,
individuals found to be harboring new arrivals were reportedly beaten in front of
other refugees by camp officials. They therefore were forced to hide in the
jungle area to the west of the main Teknaf - Cox's Bazaar road, or in
villages. UNHCR did call on the
Bangladesh government to grant them access to new arrivals, especially to those
held in detention, though this was not granted. Indeed, access to the new
arrivals by both the UNHCR and NGOs was severely restricted, and despite the
fact that many of them were reported to have been in poor physical condition,
food and medical aid could only be given in secret, without the knowledge of
Bangladesh authorities. Moreover, UNHCR
was concerned that food given to the new arrivals would create a "pull
factor" and the UNHCR resident representative in Dhaka was reported as
saying, "If we give food to this group, we'll attract 50,000 more the next
day."[7] He has reason
to worry, as the patterns of arrivals in 1976 and 1991 were that around 10,000
people arrived in Bangladesh before the rainy season in June and were followed
by over 200,000 when the rain stopped in November.
Since
late May there have been no new arrivals reported in Bangladesh. This can be
explained in part by the rainy season, but mostly it is due to new measures
taken by the NaSaKa to prevent people from
leaving. Around 2,000 people, who were
reported to have moved towards the Naf river where they could get a boat across
to Bangladesh, were rounded up in army trucks and taken back to their
villages. Mr. Mori confirmed the report
and said that the NaSaKa had treated the people well,
giving them food on the journey. In addition, UNHCR's team in Arakan state had
identified thousands of villagers, mainly from Maungdaw south, who were
planning to leave. Visitors to the area
claim that the NaSaKa used the UNHCR's information to
target these villages and sent teams there to distribute information and
threats warning them not to leave. It is unclear whether this action to
dissuade potential asylum seekers from leaving Burma involved force.[8] However,
reports in late June suggested that the UNHCR was assisting the
government by providing trucks to transport people waiting to leave Burma back
to their villages, and that in at least one case fleeing villagers were beaten
to force them onto the truck.[9] The UNHCR was
also distributing its own information, telling people that if they left they
would face arrest in Bangladesh. It was
after this that Lt. Gen. Khin Nyunt told UNHCR that he would stop all forced
labor, an indication that he accepted that forced labor was a main cause of the
outflow. Throughout this period the repatriations continued, and in May, 2,300
people were returned.
By
immediately classifying the new arrivals as economic migrants, the UNHCR gave
carte blanche to Bangladesh to push them back, in clear violation of Article 33
of the 1951 Convention Relating to the Status of Refugees. NGOs working in the
area told Human Rights Watch of severe physical abuse of new arrivals,
including the alleged rape of a twelve-year-old girl by two soldiers of the
Bangladesh Border Rifles. In other instances, two women were among a group
arrested by the Bangladesh Border Rifles on March 17. They were held for two days near Teknaf
before being put on a boat to return to Burma. The two women persuaded the
boatmen to take them back to Bangladesh, and when they reached a refugee camp
they showed an NGO worker there cuts and bruises they said they received from
beatings by the soldiers.
III.
HISTORICAL BACKGROUND
To understand
the dynamics of the Rohingya issue, it is important to understand the claims
made by both the Burmese government and by the ethnic group now known as
"Rohingya," since the term itself has become politically charged.
Rohingya
political leaders claim that Rohingyas are an ethnically distinct group,
descendants of the first Muslims who
occupied northern Arakan in the ninth century, though they also say that they
are a mix of Bengalis, Persians, Moghuls, Turks and Pathans who came to the area later.[10] The ethnic group "Rohang"
or "Rohan" is said to be the name used for
the northern Arakan region in the ninth and tenth centuries. Arakan was then
inhabited by the Rakhine people, whom scholars believe to be a mixture of an
indigenous Hindu people with the Mongols who invaded in the ninth century. The
Rakhine people today are Buddhist and speak a dialect of Burmese; they
constitute the ethnic majority in Arakan.
Rohingyas
give as further evidence of their long settlement in Arakan the fact that the kings
of Arakan from 1400 to 1600 took Muslim (as well as Buddhist) names.[11] Their claim to
be an indigenous ethnic group was recognized by the democratic government of
Premier U Nu in the 1950s, for what most observers consider to be political
motives, but it has been denied by subsequent governments since the military
took control of the country in 1962.[12] The current
military government has denied that Rohingyas are an ethnic group and claims
that all the Muslims in northern Arakan are Bengalis whose arrival is far more
recent.[13] Many foreign
historians believe that most of Arakan's Muslim
residents came to Burma from Chittagong from 1891 to 1931, when British
colonial authorities were encouraging labor migration in order to develop Arakan's agricultural potential, or after the civil war in
East Pakistan which led to the creation of Bangladesh in 1971.
During
the Japanese occupation of Burma in World War II, the Rohingyas remained loyal
to the British and thus were on the opposite side of the pro-independence Rakhine. As a reward for their loyalty, the Rohingyas
were promised a separate Muslim state in northern Arakan, but like similar
promises and assurances made to ethnic groups in northern and eastern Burma, this
promise was not fulfilled.[14]
During
the war communal violence broke out in Arakan in 1942 as thousands of Indians
fled Burma through Arakan to India, and again in 1948, leaving thousands of
Rakhines and Rohingyas dead, and thousands more fled to seek refuge in India. By 1947 the Rohingyas had formed an army and
had approached President Jinnah of the newly-created Pakistan to ask him to
incorporate northern Arakan into East Pakistan (Bangladesh). It was undoubtedly
this move more than any other which determined the present-day governmental attitude
towards the Rohingyas: they had threatened Burma's territorial integrity in the
eve of independence and could never be trusted again.[15]
Rohingyas
claim that following the 1962 coup the military government undertook a series
of measures designed to encourage them to leave the country by withdrawing
recognition of them as citizens of Burma and restricting their freedom. It became increasingly difficult for
Rohingyas to join the civil service, and many Rohingyas already in the civil
service were harassed by frequent transfers away from their families and other
measures until they resigned.[16] Since the late
1970s Rohingyas have not been accepted in the army. In 1974 the government promulgated the
Emergency Immigration Act, designed to curtail immigration from India, China
and Bangladesh. All citizens were
required to carry identity cards (National Registration Certificates), but the
Rohingyas were only offered Foreign Registration Cards (FRCs),
which many refused to accept. Even
without FRCs however, the local authorities did not
grossly disrupt the daily lives of the Rohingyas, and those who needed them
often found it possible to obtain them through bribery or forgery.
In
1977, however, the government initiated a program called Nagamin (Dragon
King) to "scrutinize each individual living in the State, designating
citizens and foreigners in accordance with the law and taking actions against
foreigners who have filtered into the country illegally."[17] While the program was nationwide, in Arakan it degenerated
into abusive attacks on Rohingyas by both the army and local Rakhines. The situation was complicated, as in 1991, by
the operations of a Rohingya guerrilla group that became militarily active as
the Nagamin operation got under way in Buthidaung. By May 1978, over 200,000 Rohingyas had fled
to Bangladesh (see below).
Throughout
the period of military rule there was no effort to assimilate the Rohingyas,
and access to the Burmese education system was very limited, especially after
1974. While the whole of Arakan state ,
and indeed all ethnic minority areas, suffered from this neglect by central
government, the Rohingyas suffered most. The situation was exacerbated by the
lack of development projects and planning to integrate the refugees who returned in 1978 and 1979, many of whom remained
landless and without documentation.[18]
When
the current military government took power in 1988, very little changed in the
government attitude towards the Rohingyas, but surprisingly, the Rohingyas were
not only allowed to vote in the May 1990 elections but were represented by two
parties who captured 80 percent of the votes cast in their constituencies (see
appendix). In July 1990, shortly after the election, however, the SLORC
announced that the elected representatives would be forming not a parliament
but a constituent assembly which would write a new constitution under which new
elections would be held.[19] The
government's failure to hand over power provoked demonstrations by monks and
students towards the end of 1990, and even political prisoners in Rangoon's
central Insein jail went on hunger strike in protest.[20] The government
needed a scapegoat, a distraction and common enemy to unite a disillusioned and
angry populace. They chose the
Rohingyas.[21] At the start
of 1991, the first reports of a dramatic increase in the numbers of army posted
to northern Arakan state came from Rohingyas who had fled to Bangladesh. Before the rains started in May 1991, some
10,000 refugees had already arrived in Bangladesh. While some had been
arrested, others avoided arrest by finding work in towns or living in villages
where they had relatives. At the end of
the rainy season, in November 1991, the trickle became a flood, and by March 1992
there were over 270,000 refugees scattered in camps along the Cox's Bazaar -
Teknaf road in Bangladesh. The refugees told of summary execution, rape and
other forms of torture which they had witnessed or personally endured at the
hands of the military.[22] In most cases,
the abuses took place in the context of forced labor: the Rohingyas were being
forced to work as porters, build new army barracks, new roads and bridges, dig
fish and prawn ponds, and cut bamboo for the military.[23]
Predictably,
the SLORC first denied there were any problems in Arakan state at all, then
claimed that all those who were leaving were illegal Bangladeshis who had come
to find seasonal work in Burma, and now that the work was finished, they were
returning home. They later added that in fact the exodus was due to immigration
checks that the government was undertaking.
They also consistently denied the scale of the problem, saying in
February 1992 that only 4,000 people had left Burma, at a time when the
Bangladesh authorities and aid workers in the area were counting over 250,000
arrivals.
However,
none of these reasons justified the military build-up in Maungdaw and
Buthidaung, and for this the SLORC gave another reason: Rohingya insurgents.
The insurgents, they claimed, were Islamic "extremists" who had been
stirring up the local population and making them leave and then telling lies to
the international press in order to encourage Islamic countries to support the
rebels.
This
argument demands further investigation, since there is conflicting evidence as
to the power of the Rohingya rebel groups and they continue to be cited as a
justification for the SLORC's actions.
Unlike other Burmese rebel groups, very little is known about the
operations and capacity of the Rohingya
Solidarity Organization (RSO) and the Arakan Rohingya Islamic Front (ARIF), in
part because of the difficulty of access to the areas on the Bangladesh/Burma
border where they have their camps. The RSO, formed in 1982, is currently led
by Mohammed Yunus, a medical doctor who graduated
from Rangoon University in 1975. Some
members of the RSO, led by Nurul Islam, broke away
from the main group to form ARIF in 1987.
In January 1996, the RSO and ARIF formed an alliance called the Rohingya
National Alliance (RNA).
While
the Rohingya insurgencies have a long history, they do not appear to have much
support from the local Rohingya people they claim to represent. Bertil Lintner, one of the most knowledgeable
researchers of Burma's ethnic minority groups, estimated in 1994 that the two
groups had only 150 armed men between them.[24] However, in
1991 he had also quoted "impartial observers" as saying that they had a combined strength
of 800 men,[25] tiny compared, for example, to the 20,000 or so armed
men in the United Wa State Army in
eastern Shan state. What they lack in numbers however, they make up in
support from international Islamic organizations, including the Saudi
Arabia-based Rabitat al Alam al Islami
and the Afghan Hizbe-Islami of Gulbuddin
Hekmatyar, and from the estimated one million Rohingyas
who have sought exile abroad since the military coup of 1962.
The
arrival of the refugees was clearly an opportunity for these groups to gain
access to potential recruits. In 1992, Amnesty International and Human Rights
Watch/Asia witnessed the RSO and ARIF setting up makeshift offices within the
refugee camps. Members of the ARIF were also regularly seen on the Cox's Bazaar
road, often meeting with refugee leaders and with the International Islamic
Relief Committee, and in 1992, the deaths near Balukhali
camp of three refugees thought to be promoting repatriation were attributed by
Bangladeshi officials to the RSO.[26]
By
the end of 1992 the RSO and ARIF no
longer had open access to the refugee camps, but it is likely that recruitment
continued. However, knowing that
Bangladesh was permitting the Rohingya groups to operate in the hills near Bandraban, the Burmese demanded that their bases be closed
down and their political activities in the camps be curtailed. In bilateral
talks during November and December 1992, this was a key topic of
discussion. By the end of the year
Bangladesh had moved the rebel bases farther away from the border, but they
were not disarmed. As on Burma's other
border with Thailand, the ethnic rebels played an important buffer role between
the armies of the two countries, and during 1992 and 1993 with the Bangladesh
Border Rifles on full alert and many rumors of impending attacks by Burma on
Bangladesh, the rebels clearly still had a role to play. Only three years later, as relations between
Bangladesh and Burma had improved during 1994 and 1995, with the return of
nearly 190,000 refugees and the signing of cross-border trade deals, did
Bangladesh finally disarm the remaining insurgents in December 1995.
As
the new arrivals started entering Bangladesh in late February 1996, there were
new rumors of Rohingya National Alliance (RNA) activity in Maungdaw
township. A new build-up of the Burmese
government’s troops in northern Maungdaw, and an increase in forced portering
for the army, were again reported, in a situation which seemed all too
familiar. However, unlike 1991,
information about the current situation is coming only from inside Arakan state
and has not been made public by the government or the UNHCR. Although the UNHCR,
has admitted in private that there was fighting in the area between March and
May 1996, it has not included this fact in its public statements about the new
arrivals.[27]
IV. THE
REPATRIATION
The repatriation program must be
analyzed in light of the pattern of discrimination against the Rohingya
described above. The details of that program, as carried out between 1992 and
1994, have been discussed elsewhere and will not therefore be repeated in full
here.[28] A review of the pertinent issues, however, is
necessary to an understanding of the current situation facing those refugees
remaining in Bangladesh and those who have been returned. It is also necessary
to consider the chronology of events in the repatriation in order to understand
UNHCR's current position in Bangladesh and Burma. All analysts, the UNHCR and NGOs working in
the refugee camps, agree that at times the repatriation has been involuntary,
and that at times, particularly but not only in the period 1992-93, the government
of Bangladesh has used force, withheld rations, imprisoned and beaten refugees
into agreeing to return. In addition,
NGOs have expressed the concern that throughout the repatriation, although the
use of physical force was curtailed after the extremes of 1992-93, the
principle of voluntariness, which the UNHCR asserts is a basic right of
refugees, has been frequently compromised.[29] NGOs have seen
the repatriation as representing a possible shift in policy by the UNHCR from a
notion of strictly voluntary return, whereby individual refugees are
interviewed in confidence and informed of their right to remain and given the
opportunity to express their free desire to return, to a policy of "involuntary return," whereby
refugees will be returned to their country of origin if the UNHCR considers
that their chances of safety and freedom from abuse are better there than in
the country of asylum. This is now known as repatriation in "less than
optimum conditions."[30]
Human Rights Watch supports the
repatriation of refugees in general, and of the Rohingya refugees to northern
Arakan state in particular. However,
there must be irrefutable evidence that any repatriation is voluntary — and
individual refugees must have accurate and independent information about the
conditions inside the country to be able to make an informed decision. Where possible, groups of refugee
representatives should be able to return, without obligation to remain, in
order to assess the situation for themselves.
The use of pressure of any kind from the host government — physical
assault, verbal abuse, denial of food rations, denial of basic human rights
including the right to health and education facilities — makes the expression
of voluntariness less than meaningful and in most circumstances would mean that
the repatriation could not be supported by Human Rights Watch. In addition,
repatriation in less than optimum conditions may be acceptable in circumstances
where refugees, having full and accurate information about those conditions, voluntarily
decide to return. However, if return in these conditions is
sought because the refugees would be better off in their country of origin
rather than the country of first asylum, and it would lead to an erosion of the
principles of voluntariness and of non-refoulement,
then return should not be tolerated. The UNHCR should endeavor at all times to
hold receiving countries to their primary obligation not to send refugees back
to situations in which they have a well-founded fear of persecution.
Many NGOs also felt the UNHCR in
Dhaka and Rangoon has been less than open as to the real situation facing
returnees, a feeling reinforced by the return of some 10,000 refugees in early
1996. One of the key criteria for
voluntary repatriations, as defined by the UNHCR, is that refugees have access
to objective information about the situation in the country of origin, so that
they are able to make an informed choice.[31] In Arakan state, only the UNHCR has had free access
to the refugees' home villages, and then only since February 1994, although it
is likely that in fact free access to all areas was not achieved until the end
of 1994.[32] Despite this
lack of access, UNHCR's position when it began the promotion of repatriation in
June 1994 was that while the fundamental situation in Burma had not changed,
the abuses to which Rohingyas are subject are no different from abuses
experienced by all people in Burma. In
the view of UNHCR officials, there was no longer any persecution of the
Rohingyas on the grounds applicable in the 1951 Convention Relating to the
Status of Refugees — that is, of race, religion, nationality, membership of a
social group or political belief.[33] Therefore, the
conditions in the country of origin were conducive to return and UNHCR's
presence in Burma would give reassurance to refugees and encourage them to
return.
Having exclusive access to Arakan
state put UNHCR in a very powerful position with regard to information about
the situation there. While refugees and
NGOs and at times new arrivals during 1993 and 1994 continued to give reports
of severe abuses against returnees and local Rohingyas alike, the UNHCR was
able to discount these as mere rumors. Two of the most prevalent
"rumors," which were reported widely by the RSO in 1994, were the
issue of alleged forced sterilization of women returning to Burma and the
forced attendance of Muslim girls at vocational boarding schools run by the
army. In UNHCR's June 1995 Bulletin
reference is made to these two allegations:
Allegations
have been reported concerning forced contraception of Muslim women by local
authorities implementing the government's birth-spacing program in Rakhine
state. UNHCR has raised the issue with the authorities, who have given
assurances that the program was never intended to result in forced
contraception, and in no way targeted Muslim women.
A UNHCR official
told Human Rights Watch/Asia that the Burmese Ministry of Health had in fact
been injecting returning women with Depro-Nova, a
contraceptive drug which lasts for three years. This was part of a
UNICEF-sponsored family planning program. But in most cases, the injections had
not been explained to the Rohingya women and their husbands, and one UNHCR
official told Human Rights Watch that the Burmese doctors had been “rather
overzealous” in their approach. The same
person also expressed concern that the injected women may not receive the
necessary follow-up checks and information.
On occasion UNHCR did verify
"rumors" — such as it confirmed that a Rohingya man was summarily
killed for refusing to work for no pay in November 1995, or when Muslim school
children were forced to pay their respects to the Burmese flag despite their
conviction that this was against their faith — but only after being pressed by
refugees themselves. The fact that such
incidents only came to light in this way and were never offered as information
by the UNHCR heightened the suspicion felt by many NGOs that the UNHCR were
holding back information about the true
situation. By December 1995, even staff
at the local UNHCR office in Cox's Bazaar expressed their unease about the
quality of information their colleagues in Burma were giving to refugees and
took the unprecedented step of stopping promotional activities in the camp
until they could revise the information being given. For their part, UNHCR officials told Human
Rights Watch in May 1996 that they had to be careful with such information for
fear that NGOs would blow the story out of all proportion or that such leaks
would threaten their position within Arakan state.
The concerns of NGOs, including
Human Rights Watch, have been increased by the UNHCR's public statements about
the repatriation and resettlement programs which, with the exception of the
June 1995 Information Bulletin quoted above, have generally admitted no
problems at all. The fear among NGOs
that UNHCR may be contemplating what its role should be in cases of
"imposed return" by host governments was confirmed to some extent in
the 1995 State of the World's Refugees report. Here the UNHCR elaborated on a new kind of voluntary
repatriation to a country "where only limited changes have taken place
because they cannot remain indefinitely in their country of asylum and because
they have received assurances regarding their safety once they return to their
homeland."[34] The return of the Rohingyas was cited as an example
of this. "While the situation in Rakhine State may not be an easy one, the
refugees appear to have recognized that it is better to go home now and
to benefit from UNHCR's presence and program, rather to remain in refugee camps
which offer them no future" (emphasis added).[35] Thus, rather
than protest violations by a host government determined to force refugees back
to their country of origin, as UNHCR had done in Bangladesh in December 1992 —
when the office withdrew from all camps entirely and made vociferous public
complaints against the Bangladesh authorities until it was able to win
agreements which enabled UNHCR protection officers to interview individual
refugees in confidence — the UNHCR would now be considering how best to assist
in the return of refugees in the face of such violations. In doing so, the fundamental principle of
protection from refoulement would be put at risk, and
the principle of voluntary return, which UNHCR always seeks to uphold, would be
stretched to the point that it becomes meaningless. In the case of the Rohingyas, the UNHCR
position that the refugees “appear to have recognized that it is better to go
home now,” and were thus making a voluntary decision to return, remains subject
to debate.
The first stage,
September 1992 to January 1994
It is not subject to debate, however,
to say that the first stage of the repatriation was forced. The governments of Burma and Bangladesh signed a
bilateral Memorandum of Understanding (MOU) on April 28, 1992, under which the
repatriation was to start in May. In the
memorandum, the SLORC agreed that it would accept back all persons who could
establish "bona fide residence" in Burma, that the
repatriation would be "safe and voluntary" and that "[b]oth sides recognize the role of the UNHCR in various stages
of the repatriation process, facilitating the reduction of international
concern in the context of voluntary and safe return of Myanmar residents."
However, although the then chief of the U.N. Department of Humanitarian Affairs
(DHA), Jan Eliasson, had met with and assisted the two governments in drawing
up the MOU, there was no guarantee from SLORC officials that they would allow
UNHCR to operate in Arakan state. The
only reference to this was that the government could draw upon the
services of the UNHCR at an appropriate time.
In this regard, it must be
remembered that at the time U.N. agencies and NGOs had very little involvement
in Burma, and none at all in Arakan state.
This was due in part to the government's reluctance to allow foreign
nationals access to the areas of greatest need (that is, ethnic minority areas)
and in part to the habitual reluctance of NGOs and U.N. agencies to support
programs over which they do not have sufficient control and which may end up
simply supporting an abusive government.[36] Thus, it was
never going to be easy for the UNHCR to become operational in Burma. In addition, Burmese officials, like many
other governments, considered acceptance of a UNHCR presence to be an admission
of guilt. The only U.N. access which had been granted was a mission in December
1992 by the U.N. Special Rapporteur on Burma, a low-risk venture since access
to the Muslim population was very limited, and he had to rely on government
translators when speaking to individuals.
In the end, it was international pressure, notably from China and
Malaysia, that persuaded the SLORC to accept a limited UNHCR presence, but it
took over a year to achieve.[37]
At the same time, while UNHCR had
been providing assistance in the refugee camps since March 1992, there was no
agreement with the Bangladesh government to allow UNHCR to take part in the
repatriation. This agreement was
essential to enable the UNHCR to fulfill its protection mandate and ensure that
the refugees were returned voluntarily in conditions of safety and
dignity. Repatriations under a bilateral
agreement between the two governments did not start until September 1992, but
when they did, refugees were forced to "volunteer" for return by
suffering threats of or actual beatings, confiscation of ration cards, and
other abuse. In response, in many camps
there were protests and riots which were put down by excessive force, leaving a
total of fifteen refugees dead, forty injured and 119 imprisoned. UNHCR was
involved in the registration process from October until the beginning of
December, when it withdrew from all camps in protest at the abuses. By this time, some 5,000 refugees had been
forcibly returned. By withdrawing from
the camps and insisting on the protection of the refugees, the UNHCR sought and
won international condemnation of the abuses. This pressure forced the
government of Bangladesh to suspend the repatriation while a new agreement was
discussed with the UNHCR, although when repatriations recommenced at the end of
the month there had been very little improvement.[38] An agreement between UNHCR and Bangladesh was finally
signed in May 1993, but again, while UNHCR interviews somewhat slowed the rate
of repatriation, the agreement did not stop some Bangladesh camp officials from
using force and other means of coercion to make the refugees
"volunteer." Throughout this
period, while UNHCR was involved in the registration of volunteers for
repatriation, neither they nor any other
international body had access to returnees in Arakan state.
Mass
repatriation, July 1994 - December 1995
An agreement between Burma and the
UNHCR was finally signed on November 5, 1993.
By then, over 50,000 refugees had been repatriated under the bilateral
agreement. While some had been through UNHCR procedures of individual
interviews with the right to not be returned if they had valid reason to fear
persecution in Burma, the vast majority were forcibly returned with no UNHCR
supervision. After the agreement was
signed, there was a delay of four months before UNHCR found the staff to become
operational in Burma, with four staff in Rangoon and six in Arakan. Their presence in Burma, coupled with the
continued pressure on the refugees by the Bangladesh government, led the UNHCR
to initiate a new program of mass repatriation in December 1993. The UNHCR presented the new plan to NGOs in
Bangladesh at their regular meeting and told the NGOs that once the UNHCR was
operational in Arakan State, the UNHCR would implement a repatriation which
would be completed in one year. In
January and February 1994 senior UNHCR staff, including Werner Blatter the Asia and Pacific Director, made investigative
missions to Burma and returned to tell NGOs in Bangladesh that the situation
had considerably improved. Following Blatter's visit, the UNHCR and the Bangladesh authorities
began information sessions in the camps, informing refugees of the new
situation. Despite these assurances, a
UNHCR survey revealed that only 27 percent of the refugees wanted to
return. The slow rate of repatriation
angered the Bangladesh government, which was increasingly eager to see the
refugees go back as their presence had caused considerable unrest locally, and
national elections were due. Bangladesh accused the UNHCR of holding up the
repatriation and threatened not to renew their MOU. The plan was put back by a massive cyclone
which hit the region on May 2 and 3, killing some 200 people in Bangladesh and
leaving 10,000 refugees without shelter.
Four days before this, however, nine
bombs exploded in Burmese government buildings in the center of Maungdaw town.
There were no casualties. The NaSaKa claimed the
attack was the work of the RSO, though a source close to the RSO interviewed by
Human Rights Watch in March 1996 claimed that while they had indeed intended to
plant a bomb in Maungdaw, the position of all the RSO men involved were given
away to the NaSaKa by the Bangladesh Border Rifles,
and all thirty of them were killed on arrival in Burma. Others who were present in Maungdaw at the
time stated that there was considerable doubt among even government officials
that the RSO could have mounted such an attack. For the NaSaKa,
the bomb attack meant that they could justify denying all access by the UNHCR
to areas outside the town limits, and continue to insist on military escorts
for UNHCR personnel. Despite these measures, which effectively confined the
UNHCR staff to their compounds in Maungdaw and Sittwe
thereby denying them access to any possible returnees — a key requisite for the
UNHCR's involvement in the repatriation — the first return of refugees
involving the UNHCR on both sides of the border took place on April 30.
The aftermath of the bombs was felt
for months, as suspected RSO sympathizers were taken late at night from their
homes for questioning. Many Rohingyas,
including returnees, were alleged to have been disappeared by the
authorities. Extra military battalions
were brought into Maungdaw, new road blocks were set up and Muslims living in
Maungdaw reported being taken for interrogation "every night" for a
week between May 1 and May 7. One woman interviewed in Bangladesh in March 1996
told Human Rights Watch/Asia that her son, Abu, aged thirty, who was
repatriated in 1993, was arrested on suspicion of being a member of the RSO and
was killed by the NaSaKa after a prolonged
interrogation. Her daughter-in-law had
visited the refugee camp to tell the woman the news soon after he died. The daughter-in-law had told her that Abu was
shot while his family were taking him by cart to hospital after his legs and
one arm were broken during the interrogation.
The woman said she had informed UNHCR of the incident but had not heard
from them since[39]. Other
refugees gave Human Rights Watch/Asia lists of a total of fifteen relatives or
fellow-villagers whom they believed had been killed during this period, but
were unable to provide details of when or how they died. The UNHCR made no mention of the bomb attack
or of the subsequent arrests and killings in any of its public information,
something it would normally do when events impede or otherwise effect its
operations.
As far as the repatriation was
concerned the effects of the bombs were immediately forgotten when the cyclone
struck. In Bangladesh, all of the refugee camps were devastated, leaving half
the refugees without any shelter.
Although it was little reported at the time however, the worst affects
were felt inside Arakan, in Maungdaw and Buthidaung, where 7,000 people were
left homeless. The repatriation was
completely stopped for a month, while repairs were made to the reception
centers in Arakan state. In the
meantime, in a concerted attempt to force the refugees to leave, the Bangladesh
authorities made it difficult for the UNHCR and NGOs to repair the camps and
reinstate water supplies and sanitation: promised supplies took days or even
weeks to arrive and both the UNHCR and NGOs told Human Rights Watch/Asia that
this was directly due to government interference. The repatriation resumed in
June, and the UNHCR conducted a survey of refugees in one camp, Kutu Palong, where interviews
revealed that one-fourth of the population wanted to return. A second round of interviews was conducted in the same camp days later and
found miraculously that 97 percent were willing to return. UNHCR did not mention that in between the two
surveys, three refugees were beaten to the point of hospitalization for what
the camp magistrate (the second highest Bangladesh official in charge of the
camp) described as "anti-repatriation activities."[40]
Nevertheless, in July, to the
astonishment of the NGOs, the UNHCR used this survey as part of a justification
for a change of policy from "information" to
"promotion." The other main
justification was that the situation in Arakan was now "conducive" to
return. The UNHCR claimed that it had
unrestricted access to all returnees, despite the fact that some of the
emergency military measures which the NaSaKa put in
place after the Maungdaw bomb were still in effect and that physical constraints
of transportation in Arakan made such free access virtually impossible for the
six UNHCR ex-patriate staff there. Under its new policy of "promoting"
repatriation the UNHCR gave up its hard-won right to confidential interviews
with individual refugees in favor of "a mass voluntary
repatriation-registration campaign."[41] Loudspeakers were used to disseminate information
about the situation in Arakan, advising the refugees that circumstances had
changed and they should return. Refugees
were permitted to approach UNHCR if they did not wish to return but would no
longer be sought out for interviews. As
a further incentive to return, the information included warnings to the
refugees that if they came back after the repatriation, they would be arrested
for illegal departure and given three years imprisonment in Burma, despite the
fact that this charge is a violation of international law concerning freedom of
movement.
New UNHCR guidelines for the
promotion of voluntary repatriation had been written by the agency's working
group on international protection, a committee of the agency's highest body,
the Executive Committee, in August 1992.
These emphasized the need for "supplementing traditional protection
notions and approaches with protection activities in new areas...balancing
humanitarian concerns with political realism and States' interests with the
rights and needs of refugees."[42] Voluntary repatriation as a solution to refugee
situations was identified as the solution of choice, but:
Criteria for
promotion and organization of large-scale repatriation must balance the
protection needs of refugees against the political imperative towards resolving
refugee problems. The prevailing
security situation in the country of origin, existing guarantees or assurances
of safety on return, access arrangements and monitoring possibilities for
UNHCR, the adequacy of reception arrangements and the voluntariness of returns,
are all relevant considerations in determining the appropriateness of ...
voluntary repatriation.
It is questionable
whether all or even any of these criteria were sufficiently favorable in June
1994 to promote a voluntary return, but the political imperative towards a
solution was very pressing. The government of Bangladesh had not renewed the
MOU with the UNHCR, which was therefore under more pressure to
"assist" with the wishes of Bangladesh officials to send all the
refugees back. In addition, the refugee
and repatriation program had already cost over US$60 million.[43]
At the beginning of August the UNHCR
started to register all refugees for repatriation. Of the 176,297 persons who
agreed to register, only 8,903 were
"undecided." Although these cases were later classified as special
cases with political or criminal histories, the figure was widely questioned as
a measure of the number of refugees who could expect reprisals or persecution
in Burma. NGOs in Bangladesh were
skeptical of UNHCR's claims and felt that most of the refugees did not
understand the implications of the registration, and most did not know that
they were permitted, by right, to say no to the repatriation and apply for
asylum. This was later confirmed in a survey conducted by Médicin
Sans Frontières-Holland (see below). In an attempt to dispel the misgivings of the
NGOs about the situation in Arakan, a team from Médicin
Sans Frontières (MSF) France and Holland visited
Rangoon for the first time. They were not permitted to go to Arakan state and
the trip did little to raise their confidence regarding the safety of
returnees. At the same time, in
Bangladesh, camp authorities resumed coercion in the form of threats of
beatings and aggressive messages relayed over loudspeakers in the camps. During September nearly 14,000 refugees were
returned.
As more refugees returned, relations
between the NGOs in the camps and the UNHCR deteriorated. NGOs expressed their
concern to donor governments, and the European Union sent a mission to Arakan
state in October 1994.[44] Only one month
later, on November 27, there was communal violence in Sittwe,
the state capital of Arakan, in which Rakhine students attacked the houses and
shops of Muslims in the main market. The
violence is believed to have started after an argument between a Muslim
shopkeeper and a Buddhist monk. The attacks continued for three days, and
several mosques, including the largest and oldest in Sittwe,
were also attacked by students throwing stones. At least two Muslims were
killed, one of them a pregnant woman, and several others were seriously
injured. The authorities responded only belatedly to the attacks, and no
Rakhines were arrested. Instead, most of
the Muslims living in the area were ordered to relocate. The riots, again, were
never publicly mentioned by the UNHCR, though they were an indication of the
strong anti-Muslim feeling which still exists in Arakan State. While in Sittwe in February 1996, Human Rights Watch/Asia was told
by several Muslims that Rakhine civilians and NaSaKa
soldiers alike would frequently take things from their stalls without paying
and said that there was simply nothing they could do about it, as the police
would never listen. There are no
Rohingya policemen in Arakan.
In late September, MSF France
produced a report[45] condemning the repatriation as involuntary, an initiative
which did not have the full support of other NGOs, including MSF Holland,
though all NGOs remained frustrated with the lack of response to their concerns
from UNHCR at the local level and in Geneva.
In February 1995, MSF Holland conducted a survey in all camps in order
to ascertain the level of voluntariness: the survey found that while 60 percent
said that they did want to return, 84 percent said they were not informed by
the UNHCR of the possibility to say no. The study was published as a draft in
March 1995,[46] but the repatriations continued until July when the
Burmese government dramatically slowed down the numbers of people they cleared,
and the monsoon became a convenient excuse for an almost complete halt of the
repatriation. In October 1995, MSF France and Holland took the unprecedented
step of submitting a written complaint to the UNHCR's Executive Committee. The
complaint was summarily dismissed by UNHCR representatives as being
"ill-conceived" and "unprofessional," despite the fact that
it had universal support among the NGOs which implement the UNHCR program in
Bangladesh. By then nearly 200,000
Rohingyas had returned to Burma but it was evident that the UNHCR program had
failed to inform them of the dangers in Arakan state or protect them from it.
Their concerns were echoed in December 1995 when the local office of the UNHCR
in Cox's Bazaar took the unusual step of not cooperating with the promotion of
repatriation after news reached the staff of continued abuses in Arakan. By
contrast however, the UNHCR in Rangoon and in Geneva remained determined to
complete the repatriation by June 1996 — a clearly unrealistic deadline.
The action taken by UNHCR staff in
Cox's Bazaar, coupled with the unrest and general strikes in Bangladesh during
the period of the general election in February and March,[47] resulted in less than 2,000 refugees being
repatriated in the first quarter of 1996, and until June, the repatriation
continued at a very slow pace. In addition, on the Burmese side the SLORC, while
never enthusiastic about the return, appears to have decided that it would not
accept more than 200,000 people.[48] The
repatriation process required that lists of names of people willing to
repatriate, the names of the villages they left from and any other identifying
information be sent to Burma's Immigration and Manpower Department (IMPD) for
verification. After checking with the
local village Law and Order Restoration Council (LORC, the local administration
unit of the SLORC), where lists of all householders are maintained, the person
or family is then accepted or rejected as a resident of Burma. In some cases, this verification process can
be very lengthy, especially of the person married while in Bangladesh, or if
families had become separated while in the camps. The SLORC will only accept
marriages between Rohingyas. If a
Rohingya has married a Bangladeshi woman, the woman (and any children they may
have) are not permitted to enter Burma.
These administrative difficulties, which could legitimately delay the
clearance of remaining cases, have been exacerbated by an increasing lack of
cooperation by the Burmese authorities: it was clear that as the numbers
returning to Burma increased, so did the delays in clearing people. For example, in July 1995 and again in
February and March 1996, the Burmese government delayed the transfer of lists
of people who had been cleared to return for nearly three weeks.
The repatriation from Bangladesh
does appear to herald a new, pragmatic approach by the UNHCR, in which a speedy
return is valued over and above protection concerns, often due to pressure from
the host government. This suspicion,
voiced by many NGOs is supported by internal UNHCR documents. In 1994 the UNHCR
undertook a review to assess the terms under which the repatriation was taking
place. This confidential document, a copy of which was given to Human Rights
Watch, notes that "monitoring would be delicate as complaisance could
compromise our credibility while zealous orthodoxy could spoil UNHCR's chances
of remaining involved in Arakan."[49] The document went on to state, "Evidently we
cannot concern ourselves with issues of human rights with our focus remaining
on elements of execution."
V.
THE REINTEGRATION PROGRAM
The
MOU between UNHCR and the SLORC in November 1994 was not made public. However, Human Rights Watch/Asia has obtained
a copy, and it is reproduced as Appendix II.
It allowed for the establishment of a field office in Maungdaw, with ten
expatriate staff, four of whom would be based in Rangoon. In addition, two World Food Program (WFP)
staff were to work in the area to provide food rations to the returnees and
establish food for work programs. The
MOU does not mention the involvement of NGOs; in fact, this "was
unofficially excluded by the [SLORC]."[50] The UNHCR
continued to press for access by NGOs to assist in the implementation of
projects, but only in January 1995 (by which time 152,827 refugees had
returned) were three international NGOs permitted projects in the area, two of
them through UNHCR. Bridge Asia, a
Japanese NGO, has two expatriate staff who initially maintained UNHCR boats and
trucks and now provide engineering training to returnees in Maungdaw town;
Action Contre la Faim
is working through UNHCR in Maungdaw and Buthidaung and, through a
separate MOU with the Health Ministry in Kyauktaw, on
water and sanitation projects with a total of eight expatriate staff; and MSF
Holland is working through an MOU with the Ministry of Health on a malaria
research and control project in Kyauktaw, Maungdaw
and Buthidaung with two expatriate staff.
Thus, by June 1996, there was a total of twenty-eight expatriate staff
operating in northern Arakan.
The
UNHCR's implementing agency, or government partner, is the Immigration and
Manpower Department (IMPD), whose projects are funded and overseen by the
UNHCR. While the IMPD is ostensibly part of the civilian administration, in
Maungdaw and Buthidaung (although not in Rathedaung) it is part of NaSaKa, the Border Administration Force. According to most sources, NaSaKa was created in 1992, after the Rohingya exodus, and
comprises five different government agencies: the police, military intelligence
(MI), Lone Htein (riot police, notorious for their involvement in the killings
in Rangoon in March and April 1988), customs, and the IMPD. The NaSaKa is under the direct command of the SLORC and the
army's Western Commander based in Sittwe and is thus
a quasi-military body. That the UNHCR
should work so closely with such an organization is perhaps surprising,
although in Burma there are few organizations over which the military does not
have direct control. However, to
returning refugees and the local populace, UNHCR's independence from the
military is seriously undermined by this connection, a view which is reinforced
by the fact that all the UNHCR offices in Sittwe,
Maungdaw, Buthidaung and Rathedaung were built in the compounds of the local
IMPD offices. In March 1996 the UNHCR
established an independent office in Maungdaw, but all other offices remained
in IMPD compounds as of June 1996.
UNHCR
personnel say the agency's access and freedom of movement (ability to travel
without armed escort) have considerably improved over the two years that they
have been in Burma. But, with the
SLORC's extensive military intelligence apparatus, it is unlikely that anyone
who speaks to the UNHCR can be assured of confidentiality. UNHCR also had to rely, at first, on the
government for help in finding interpreters.
Refugees claim that they are too afraid to talk to the UNHCR, and one
man whose wife had worked as an interpreter (from Chittagonian
to Burmese) told Human Rights Watch/Asia that she was regularly visited, each
evening, by military intelligence who asked her whom she had spoken with that
day. UNHCR nonetheless has always insisted that the returnees are not afraid to
talk to them, and that UNHCR personnel are accessible outside of the IMPD
compound for confidential information.
As
Human Rights Watch and other independent monitoring organizations have not had
access to northern Arakan state, it has not been easy to pull together a
detailed account of the reintegration program or assess its success. Reports by
the UNHCR, UNDP and WHO on their programs in northern Arakan lack important
details. It is known that returnees are
given a repatriation package on return, consisting of a cash handout of 2,000
kyats (US$20) per family to pay for the rebuilding of their homes (most of
which, being made of bamboo and similarly impermanent materials, had been
ruined while the refugees were away);
2,000 kyats per adult; 100 kyats to pay their fares back to their
village; a mosquito net (one for three people), and food rations for two
months. Only especially vulnerable individuals
(mainly the sick and women heads of households), who were permitted two months
of rice, received any further assistance.
The returnees were therefore expected to be able to become
self-supporting within one month.
As
well as the repatriation packages, the UNHCR is implementing a number of
small-scale projects to "anchor" the returnees and improve the social
and economic situation more generally. Initially many of these projects
involved the repair or building of hospitals, health centers and schools; small
road-building projects to improve access to villages; and the construction of
wells and water tanks (carried out by Action Contre la Faim).
Some of these projects were undertaken by the World Food Program, which
established food-for-work programs to build 150 village ponds, eighty wells and
some road embankments. The UNHCR also
works through local "nongovermental"
organizations, such as the Myanmar Maternal Child Welfare Association (MMCWA),
the Myanmar Red Cross (MRC), and the Islamic Religious Affairs Council
(IRAC). None of these groups, however,
including the IRAC, which in other parts of Burma has a good reputation as a
moderate but independent body, is genuinely free of government control.[51]
In
response to the new influx of refugees in 1996, the UNHCR desk officer for
Burma, Herman Sturwold, told Human Rights Watch in
June 1996 that UNHCR plans to increase the food-for-work programs and establish
other income-generating projects in villages where many families were planning
to leave. However, with the reintegration program costing US$38.4 million over
the past four years, and the flight or attempted flight of so many people, the
success of the program so far deserves further investigation. Human Rights Watch/Asia is concerned that
many of the projects undertaken so far do not reach the people they are
intended to help and that Rohingyas are discriminated against in access to
health and education facilities on the basis of ethnic origin. There is clearly
a massive need for an improvement in the health facilities in Arakan state, but
in the case of hospitals and health centers and the training of MMCWA members
in midwifery and community health, it is likely that Rohingyas are not serviced
by the new arrangements. An August 1994
UNHCR report on health care in Arakan state concluded that one of the main
problems, apart from the lack of facilities, was getting trained midwives to
treat Rohingya women.[52] The midwives
are all Rakhine or Burmese, and though Rohingya villages may be in their catchment area, the midwives rarely visit them, preferring
instead to stay in Rakhine areas.
Moreover, to Human Rights Watch's knowledge, there are no Rohingya
members of the MMCWA. This situation may improve, when many refugees who had
been trained as community health workers in the camps return. However, with the restriction on the movement
of Rohingyas, it is also unlikely that they could get permission to travel to
regional centers to go to hospital. Projects implemented by the NaSaKa/IMPD are also open to abuse: one man who had left
Burma in March 1996 told Human Rights Watch that his village in Maungdaw
township had to "donate" money and labor for the construction of a
new health center at Nay Mye, even though the IMPD
had been given money to build it themselves. Another man from Buthidaung said
that he had also been forced to build a clinic for his village, but the clinic
was built in a neighboring Rakhine village and "we have not got any
medical help from them."
VI.
CONTINUING DISCRIMINATION
Lt. Gen. Mya Thinn [the minister for home affairs] recalled that the
Muslim population of Rakhine State were not recognized as citizens of Myanmar
under the existing naturalization regulations and they were not even registered
as so-called foreign residents. Consequently, the Minister added, their status
situation did not permit them to travel in the country...They are also not
allowed to serve in the State positions and are barred from attending higher
educational institutions.[53]
Returning
Rohingyas and those who did not leave Burma continue to face discrimination and
persecution by the government because of their ethnicity. In a country where even recognized citizens
face daily abuse of their rights, in particular their rights to freedom of
association, speech and assembly, the Rohingyas are doubly at risk. As
none-citizens, they are discriminated against in their ability to travel freely
within the country and access to government services, health education and
employment are restricted. As a minority
group which is represented by an armed opposition, Rohingya men are vulnerable
to arbitrary arrest and even killing by the NaSaKa or
the military if they are suspected of being supporters of the rebels. In addition, along with many other ethnic
minorities in Burma, Rohingyas are forced to work on government-sponsored
projects for no pay and in often appalling conditions. The frequency of the
work, determined by the government's ambitious plans for the development of
road and rail links between Bangladesh and Burma and by the desire for free
labor on business ventures by corrupt members of the army, is such that often
Rohingyas are left with no time to earn a living for their families. On top of this, since the refugees were
returned to Burma, there has been a marked increase in arbitrary taxation of
Rohingya families, taxes which the authorities expect them to pay out of their
repatriation kits. These abuses are
discriminatory practices which call for a reevaluation of the repartition
program and greater effort on behalf of the UNHCR, supported by the
international community, to bring about an end of these practices before more
refugees are returned.
At
the time when the agreement was made to accept the Rohingyas back into Burma,
the SLORC was under considerable pressure from its Asian Muslim neighbors and
from China: accepting them back was a pragmatic move by the SLORC to try to
secure membership in the Association of South East Asian Nations (ASEAN), not
one made willingly. They were certainly not welcomed back with open arms, and
as the quote from Mya Thinn makes clear, the attitude
of the highest authorities in the government towards the Rohingyas has not
changed. Those who have returned find that while the worst physical abuses of
the kind that occurred in 1991 and 1992 have been curtailed, the discrimination
against the Rohingyas has been even further institutionalized and is now
enforced by the presence of military barracks in every village tract. Muslims from other areas of Arakan State have
been forcibly relocated into the northern Arakan area, while in the most
prosperous areas the government has established what it calls “model villages”
populated by Rakhine and other Buddhist minority groups.
Citizenship Legislation and Identity Cards
Burma's
first written constitution as an independent nation, following British
colonization, in 1947 defined a citizen to be
(i) Every person,
both of whose parents belong or belonged to any of the indigenous races of
Burma;
(ii) every person
born in the territories included within the Union, at least one of whose
grandparents belong or belonged to any of the indigenous races of Burma;
(ii) every person
born in any of the territories included within the Union, of parents both of
whom are, or if they had been alive at the time of the commencement of this
Constitution, would have been, citizens of the Union;
(iv) every person
who was born in any of the territories which at the time of his birth was
included within His Britannic Majesty's dominions and who has resided in any of
the territories included within the Union for a period of not less than eight
years in the ten years immediately preceding the 1st January 1942 and who
intends to reside permanently therein and who signifies his election of
citizenship of the Union in the manner within the time prescribed by law.
Under
the constitution, while Rohingyas were not recognized as an indigenous race,
they would have been able to seek citizenship under Section (iv). In 1948, however, a new Citizenship Act was
promulgated which restricted Section (iv) to any person "from ancestors
who for two generations at least have all made any of the territories included
within the Union their permanent home and whose parents and himself were born
in any such territories." As a measure to prevent the continued
immigration of Indians into Burma, all residents in Burma were required to
apply for registration within one year of the law and were given identity
cards. Many Rohingyas registered and
were given cards which enabled them to vote during the democratic period
between 1950 and 1962. After the
military coup in 1962, Rohingyas claim that it became increasingly difficult
for the children of recognized citizens to receive citizenship. The law required parents to register their
children when they reached the age of ten, so that in many families those born
before 1952 will have cards, whereas when their younger siblings applied, they
simply never received a response.
In
1974, a new constitution was introduced to enshrine the one-party state that
had effectively existed since 1962. Those Rohingyas who were not considered
citizens under the 1948 law and who could not provide evidence of their
families' residence in Burma for two generations prior to 1948 were only able
to apply for Foreigners Registration Certificates (FRC). Once again new identity cards were issued,
and again, Rohingya interviewees claimed that when their cards were given in
for replacement, they never saw them again.
When the 200,000 Rohingyas fled to Bangladesh in 1976, the government of
Burma claimed that they were all illegal immigrants who fled when they were
unable to produce their identification papers during a routine immigration
check. Shortly after the last refugees
were forced back to Burma in 1980, the government drafted a new Citizenship
Law, which was promulgated in 1982. Both
the timing and content of the 1982 law indicate that it was deliberately
targeted at the Rohingyas, while also discriminating against other Asian
immigrants who had entered the country during the British colonial period.[54] It defined
three categories of citizens: "citizens," "associate
citizens" and "naturalized citizens." Full citizenship was limited to
"nationals such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or
Shan and ethnic groups as have settled in any of the territories included
within the State as their permanent home from a period prior to 1185
B.E.[Buddhist Era], 1823 A.D." (The date of the beginning of the British
occupation of Arakan state. The rest of Burma was not fully colonized until
1856) A list of recognized ethnic groups
was later published including the Kaman and Zerbadee
but not Rohingyas. If a person cannot
give proof of residence of all ancestors prior to this date, he or she can be
classified as an associate citizen if one grandparent, or pre-1823 ancestor,
was a citizen of another county. Those
persons who had qualified for citizenship under the 1948 law, but who would no
longer qualify under this new law (i.e. those people whose ancestors came to
Burma two generations prior to 1948), were also considered associate citizens
if they had applied for citizenship in 1948. However, under the new law, applications for
associate citizenship had to be made within one year of the promulgation of the
law. Since then, all former foreigners or stateless persons can only apply for
naturalization.
A
naturalized citizen, according to the law,
is one who has a parent who was a full citizen and one who was an
associate citizen (or qualified for citizenship under the 1948 law). But a naturalized citizen must also
"speak well one of the national languages", "be of good
character" and "be of sound mind." According to the terms of the
law, only full and naturalized citizens are "entitled to enjoy the rights
of a citizen under the law, with the exception from time to time of the rights
stipulated by the State."
All
forms of citizenship, "except a citizen by birth" (i.e. full
citizen), may be revoked by the state.
In the case of associate citizens, being imprisoned for one year or more
is grounds for the revocation of citizenship.
Under the law, the Central Body, which comprises the Ministers for Home
Affairs, Foreign Affairs and Defense, makes decision as to citizenship. Appeals
may be made to the Council of Ministers, whose decision is final.
Under
the new law, few Rohingyas could qualify for full citizenship, and many would
not be entitled to either associate or naturalized citizenship, due not only to
their individual histories but also to the difficulty of providing legal
evidence. Thus, most Rohingyas are only recognized as foreign residents. Those Rohingyas who had the old National
Registration Cards (NRC) which they had been given after 1948 were ordered to
turn in their cards when they made an application for citizenship under the new
law: many of them complained that they had received neither new documents nor
the old ones back. When interviewing
over one hundred refugees in 1992, Amnesty International only came across ten
Rohingyas who produced pre-1962 documents.[55] A sixty-year-old man from Buthidaung township showed
Amnesty International an old Foreigners Registration Card from 1952,[56] and a form which he had been issued in March 1979
when he returned from Bangladesh in the 1978-80 repatriation. He said that
although his father and grandfather had both been born in Burma, he could not
get any new identification card.[57] A UNHCR report
of interviews with 167 refugees in March 1992 stated that 50 percent of them
claimed to have had documents taken from them in the previous year. However, the remaining 50 percent had managed to retain some kinds of documents
to prove their residency in Burma, ranging from house registration, land
titles, shop license and personal IDs.[58] In 1996, a
twenty-four-year-old man told Human Rights Watch/Asia:
I had a National Registration
Certificate, but none of my family has one. At the end of 1991 new cards were
being issued, and I applied for one. On
my form I wrote "Rohingya" for
ethnicity, but they said that Rohingyas don't exist. It is impossible to complain about these
things. So now, I have no ID card at all.
Following
the promulgation of the 1982 law, all residents in Burma had to reapply for
citizenship, exchanging their old identity documents for new ones. In 1989, a further change was made and all
residents had to apply for new Citizenship Scrutiny Cards (naing-ngan-tha
si-sit-ye ka'-bya),
rather than the old Identity Cards (hmat-hpone-tin).
The new cards are color-coded for easy identification of the citizenship status
of the bearer. Pink cards are given to
full citizens; blue is for associate citizens and green for naturalized citizens. Foreigners Registration Cards (FRCs) are white.
Most Rohingyas do not have FRCs but can use
their "family list," that is, the lists of household members which
are kept by the local village or township-level authorities, as proof of
residence. Like the old cards, the
post-1989 cards carry a photograph, signature and thumb-print of the holder as
well as name, father's name, date of birth, address and occupation. However,
unlike the old cards, they also include the holder’s ethnicity (lu-myo) and religion (ba-tha). Needless to say, "Rohingya" is not
accepted as an ethnic group and Muslims from northern Arakan cannot use this
identification when applying for any form of registration.
The cards
are used to control the movement of people internally and to ensure that
associate and naturalized citizens and foreigners do not receive benefits to
which they are not legally entitled. ID
cards have to be shown in Burma for the smallest of transactions, and at each
of these the card number is noted down, often in triplicate to be sent to the
relevant ministries and government departments.
This includes buying a bus, boat, train or plane ticket, applying for a
place in school; visiting a friend outside one's ward (the smallest division of
local administration. A ward in a town can be as small as ten streets); or
applying for any government job.
When
the government began to issue the post-1989 cards, the IMPD was given technical
assistance by the U.N. Fund for Population Activities (UNFPA) to develop a
computer database which would form the basis of future population censuses.[59] Under this new
system, figures from IMPD from November 1992 show that nearly 30 percent of all
those who applied for cards from the Arakan state were either rejected or were
still waiting a decision. This compares
to a national average of 3 percent.
However, while this is already low, it is based on population figures
which omit large numbers of Muslims, most of whom probably never applied for
cards. Thus, while the figures do not give a breakdown by ethnic group or
religion, it is clear that Arakan state has the worst record for rejection of
citizenship applications in Burma. Indeed, it is likely that only those Rohingyas
who were successful businessmen or professionals and who needed cards in order
to travel were able to get the new green cards, and even then, of the ten
Rohingyas whom Human Rights Watch/Asia has met who had obtained these cards,
six admitted having paid large bribes to
local officials for them.
Associate
or naturalized citizens are entitled to enjoy "the rights of a citizen
under the laws of the State, with the exception of the rights stipulated
from time to time by the Council of State" [emphasis added].[60] It is not
clear what the legal framework is for the exceptions, a lack of legal clarity
which was noted as a major obstacle to the rule of law by the former Special
Rapporteur to Burma, Professor Yokota, in his report of February 1993.[61] Many interviewees
however, stated that the rights denied associate and naturalized citizens
include the right to own immovable property; the right to be employed as civil
servants; the right to stand for election. In addition, university admission
guidelines prevent all but full citizens from studying medicine, dentistry and
engineering at institutes of higher education.[62] Those
Rohingyas who are neither associate nor naturalized citizens (that is, the
majority) but stateless persons or holders of FRCs
are also denied these rights, and in addition they are denied freedom of
movement. Under the 1864 (amended in
1940) Foreigners Act they are required to apply for a license to leave their
place of residents or travel within Burma.
Section 12 of the act states, "Every such license shall state the
name of the person to whom the license is granted, the nation to which he
belongs, the district or districts through which he is authorized to travel,
and the period, if any, during which the license is intended to have effect." Under the 1974 Constitution, foreigners are
also denied basic civil and political rights such as the freedom to practice
any religion (Article 156a), the right of association (Article 158), and access
to courts (Article 101f). There no similar restrictions on the social and
economic rights of foreigners, for example on the right to work, to basic
education, and to the ownership of movable property.
International
Law and the 1982 Citizenship Act
The 1982
Citizenship Law should be revised or amended to abolish its over-burdensome
requirements for citizens in a manner which has discriminatory effects on
racial or ethnic minorities particularly the Rakhine Muslims. It should be
brought in line with the principles embodied in the Convention on the Reduction
of Statelessness of 30 August 1961.
Prof. Yokota.[63]
Burma's
citizenship law violates several fundamental principles of international common
law and leaves Rohingyas exposed with no legal protection of their rights. Nationality is the principal link between the
individual and the law. People invoke the protection of the state by virtue of
their nationality. As well as being
denied specific rights in Burma, such as the right to freedom of movement, the
right to education, the right to own property, and so on, by being denied
citizenship Rohingyas are also denied recourse to the law in any situation,
including international law.[64] Since citizenship is thus essential for the
protection of all rights, international norms have been developed that impose
an obligation on states to grant citizenship to stateless people who are not
recognized as citizens of any other state.
The International Covenant of Civil and Political Rights (ICCPR)
addresses this issue in Article 24 (a), which states: "Every child has the
right to acquire a nationality."
The 1961 Convention on the Reduction of Statelessness goes further by
obliging the state in which a person is born to grant nationality under certain
circumstances. Article 1 states: "A
Contracting State shall grant its nationality to a person born in its territory
who would otherwise be stateless."
Burma
is not a party to either the ICCPR or the convention on statelessness, but the
cited provisions do reflect a clear trend in international law that Burma
should follow. In the case of the Convention on the Rights of the Child (CRC),
Burma did accede in 1991 and is therefore legally obliged to respect its
provisions. Article 7 of the CRC states:
"The child shall be registered immediately after birth and shall have the
right to a name, the right to acquire a nationality...States Parties shall
ensure implementation of these rights in accordance with their national law and
their obligations under the relevant international instruments in this field,
in particular where the child would otherwise be stateless." This means
that, in the case of children who would otherwise be stateless, Burma is
obliged to grant them citizenship.
The country with the primary responsibility to
provide a nationality is the one where the person has lived for more years or
generations than anywhere else, where he or she at one time enjoyed legal
status, settled and was given reasonable expectations of being a citizen.[65] Under this standard, the 1982 Citizenship Act clearly
violates international norms by placing an excessive burden of proof on the
applicant. Section 8 (b) of the act
permits the State to arbitrarily revoke the citizenship of anyone "except
a citizen by birth," in contravention of Article 15 of the Universal
Declaration of Human Rights, which states: "No one shall be arbitrarily
deprived of his nationality." The
1982 act is even more objectionable insofar as it was promulgated to
deliberately deny citizenship to persons who had previously been recognized as
citizens.
While
in practice the law is often not actively applied, as can be seen by the fact
that Rohingyas were permitted to vote in the 1990 election — a right given only
to citizens — the fact remains that the law discriminates against Rohingyas and
other "foreigners," even though they may have resided in Burma for at
least three generations.
Current Status of Returnees
As
seen above, one of the key points of the MOUs between
Bangladesh and Burma and between Burma and the UNHCR was that returnees would
be granted "appropriate identification papers." In practice however,
this initially meant that returnees received "returnee identification
cards," yellow cards which only identified them as persons having returned
from Bangladesh but giving them no legal status in Burma. The returnees were photographed in the
reception centers, their village of origin, number of family members and other particulars
were noted down and for a fee of fifty kyats (US$0.50), the returnees received
these yellow cards within a month of return. In addition, the 'family lists'
which are local council documents certifying village residency, were updated to
include any births, deaths and marriages which may have taken place while in
Bangladesh.
In
July 1995 the government, through the IMPD, moved to regularize the population
of northern Arakan by issuing new cards to all resident Rohingyas. Although not a long term solution, this must
be seen as a considerable breakthrough and owes much to the efforts of the
UNHCR, who had pushed for permanent legal documentation of the Rohingyas since
1992. The new cards were issued under
the 1949 Residents of Burma Registration Act and the 1951 Residents of Burma
Registration Rules, both of which acts were superseded by the 1982 Citizenship
Law but were reintroduced in order to be
used solely for the registration of Rohingyas.
Human Rights Watch/Asia has been unable to obtain either of these laws
but understands that they allow for the issuing of Temporary Registration
Certificates for foreign residents or stateless persons. It is not known how long the certificates
will be valid for nor what may replace them, but the laws do allow for
citizenship applications to be made by the holder — and again, it is not known
if there is a time limit within which the application has to be made.
While
not guaranteeing the Rohingyas any additional rights, the new cards are a
positive step in that they do not discriminate between returnees and those who
did not leave Arakan State, and, as they do not prohibit the holder from
applying for citizenship, they also
leave room for a permanent solution to the issue of statelessness for the
Rohingyas. Thus, while they are not in themselves a solution, the UNHCR hopes
the new temporary registration cards will be the first step towards full
citizenship rights for the Rohingyas, if the government chooses to act
on their applications for citizenship.
However, the government's present attitude towards the Rohingyas gives
little ground for such optimism. On the
contrary, since they are only temporary documents, the government also has the
power to rescind them at will, and continue to ignore Rohingyas claims to their
rights as full citizens. Even with the
temporary cards, there is still a major problem of the speedy implementation
and registration of the cards, despite
the presence and pressure of the UNHCR.
It is not yet known what percentage of the population had received them
by June 1996, although none of the six returnees who had come back to
Bangladesh and were interviewed by Human Rights Watch/Asia in March 1996 had
received these certificates.
Whatever
may happen in the future, the fact remains that during the ongoing UNHCR
repatriation program the Rohingyas are considered either stateless persons or
Bangladesh citizens by the Burmese authorities.
Statelessness is cited in the 1995 State of the World's Refugees
as one of the prime reasons for refugee outflows. The report states: "When
it occurs on a collective basis, statelessness is almost always an indicator of
underlying social and political tensions, involving minority groups which are
perceived by the majority community and the authorities as different, disloyal
or dangerous...In most situations, people become stateless not as a result of
some historical quirk, but because a state has not yet learned to live with or
tolerate its minorities."[66] Regrettably,
the UNHCR does not go so far as recommending in its own guidelines that recognition
of nationality should be a pre-condition to any repatriation.
Forced Labor
Forced
labor in Burma has been thoroughly documented by the U.N. Special Rapporteur to
Burma, Human Rights Watch, and Amnesty International.[67] The ILO has repeatedly condemned the government for
the use of unpaid civilian laborers on infrastructural and other development
projects across the country, as has the U.N. General Assembly in successive
resolutions on Burma. As in other parts of the country, forced labor in Arakan
state is often accompanied by physical abuse by the military or NaSaKa guards who oversee the work. Since Arakan state is a
particularly undeveloped region of Burma, and since the military would like to
establish road and rail links from Bangladesh to Rangoon and to encourage
tourism in the region, there is much infrastructural work to be done — in fact,
there are plans for an estimated 1,200 miles of road. In addition to working on roads, Rohingyas
also have to build hundreds of new NaSaKa barracks
and often have to work there, for no pay,
once construction is completed.
The
UNHCR has not denied that forced labor remains a problem for the returnees and
other residents of northern Arakan, but it determines that since forced labor
also takes place everywhere else in the country, it cannot be considered a
persecutory practice and therefore cannot generate "a reasonable fear of
persecution on the grounds of race, nationality, religion, membership of a
social group or political belief." In its June 1995 Bulletin UNHCR
stated:
[C]ompulsory
labor continues to be a nation-wide practice in Myanmar. The UNHCR had
intervened repeatedly on behalf of returnees being called for compulsory labor,
and feels it has succeeded in reducing significantly the burden for the local
population and returnees. The authorities have agreed to limit compulsory labor
in Rakhine State to a maximum of four days of work from every family per month.
Reports
from inside Arakan state, however, suggest that in the dry season (December -
July) especially, the number of days Rohingyas have to work averages about a
week a month and can sometimes be as much as ten days or two weeks. To this
economically disadvantaged group, where most people are day laborers, one day
of work without pay can mean one day without food for the whole family. As a
result, visitors to the area report that often the family will send their
children to work for the army, leaving the father to find paid work.
For
day laborers, work tends to be seasonal.
Unfortunately, the dry season, which is the busiest time for
construction projects, is also the time of least agricultural work, so that any
additional forced labor in the dry season tends to exacerbate an already
difficult situation. In March 1996, sporadic fighting between the Rohingya
National Alliance and NaSaKa in northern Maungdaw led
the SLORC to send in extra men and supplies.
All these troops required porters to carry their supplies, and the job
fell to local Rohingyas, a situation which was all too reminiscent of that just
prior to the 1991-92 exodus.
In
September 1995 the UNHCR was shown documents by the SLORC which purported to be
new instructions to regional administrators to cease the practice of no payment
for forced laborers. This directive was
later published by the U.N. Special Rapporteur in his February 1996 report. It
was addressed to divisional LORCS and relevant ministries and called on them to
ensure that workers be paid "their due share" to prevent "[t]he
sufferings of the people [which] may in turn create misperception,
misunderstanding and misjudgment of the government and the Tatmadaw [armed
forces]." It is clear that, in the
majority of cases where the government does allocate funds for development
projects, corruption by senior military commanders and their juniors is the
main cause of non-payment. Given this,
and the lack of access to legal redress for unpaid labor, it is unlikely, as
the Special Rapporteur noted, that the directive would be implemented. In June
1996, as increasing numbers of people indicated their desire to leave Arakan
state, due in part to forced labor, Lt. Gen. Khin Nyunt, the secretary-1 of the
SLORC, visited the area and was reported by UNHCR as agreeing to end all unpaid
forced labor in Arakan. It is yet to be seen whether this new resolve on the
part of the Secretary-1 will have any effect.
If it does, the Rohingyas will be lucky to receive the twenty-five kyats
(US$0.25 cents) which the government considers the "due share" for a
day's labor, even though the market rate is about four times higher.
Land Ownership and Arbitrary Taxation
In
Burma all land is owned by the government.
Tenants may have land use rights, which can be inherited by children,
but on land designated for rice cultivation (paddy land), which constitutes
over half the agricultural land in Burma, use rights cannot be rented or sold.[68] As associate
or naturalized citizens or as foreign residents, Rohingyas are not permitted
land use rights. In practice, however,
as noted above, at least half of the 176 refugees interviewed by the UNHCR in
1992 produced documents which gave proof of such rights. Nevertheless, while customary law applies in
most villages, there is no legal avenue for Rohingyas to protest at loss of
land or to acquire new usage rights.
Following
repatriation, most Rohingyas have been able to win back land which had
previously "belonged" to them before they left in cases brought
before local magistrates' courts and/or with the payment of a hefty bribe to
the local council chairman. One man interviewed by Human Rights Watch/Asia in
March 1996, who had returned to Bangladesh for a second time, said that he had
got his land back only after giving away most of the repatriation money he was
given in "fees" to the council head, the magistrates court and to the
Muslim family who had taken the land. In
many parts of Maungdaw and Buthidaung, however, the military has confiscated
land to build roads, 'model villages' (see below), military barracks,
hydroelectric stations, prawn farms and other commercial activities. In cases
where land is taken in this way, there is no compensation for the owner. In this however, the Rohingyas are not
discriminated against any more than full citizens: all of Burma's ethnic
groups, including Burmans, have been subject to arbitrary confiscation of
property under the current government.
As a
condition of the land use rights, tenants must pay taxation to the
government. The taxation is paid in
kind, as a percentage or quota of the harvest which the farmers must sell to
the government at a price fixed by the government. In Arakan state however, the rice tax is
calculated as a percentage of the land acreage available to the farmers, rather
than on the basis of the yield of the land. The calculation has a
discriminatory impact on Rohingyas, who for the most part have access to only
the poorest quality land where yields are much less than for good land. In addition, the system is often abused by
the soldiers who collect the rice, resulting in Muslim farmers having to give
much more than the amount required by the government. The rice procured by this means is then used
to feed the military and subsidize the salaries of civil servants and to export
by the government or companies which have joint venture contracts with the
Ministry of Agriculture and Fisheries.
Figures produced by the World Bank show that the percentage of paddy
procured in this way rose by 3.3 percent between 1988 and 1994, while the ratio
of the difference in price between the government and the market has increased
in the same period.[69] These figures,
which are from the government, are unlikely to be accurate, but they do point
to a trend. Interviews with farmers
around Burma suggest that the real procurement program may be much larger than
these figures suggest, as they would be to make sense of the dramatic increase
in the size of the military and civil service and in the amount of rice
exported by the government which the increase in paddy yield cannot account
for.[70] Moreover,
these figures do not take into account the additional paddy taxes levied by
local military commanders for their own profit.
In
Arakan state in February 1996, the land tax was twelve din (about
sixteen kilos) of rice per acre. In
February, the government price for rice was seventy-five kyats per din,
compared to a market price of 350 kyats.
This has to be paid regardless of the quality of the land or the rice
yield in any particular season. For the
average farmer, twelve din is about a quarter of their normal yield, though
obviously the yield can differ widely in different areas. On November 25, 1995 a cyclone hit northern
Arakan, destroying much of the rice crop, just before harvest time. As a result many Rohingya farmers lost their
entire crop. Yet in February, at harvest
time, the NaSaKa came round to each village to demand
the government's rice. Human Rights
Watch/Asia interviewed one Rohingya man who had gone to Cox's Bazaar in order
to try and contact his relatives abroad and ask them for money to help pay this
tax. He had come across the Naf river on a day pass, which cost him 50 kyats
(US$ 8.45) on the Burma side, and ten Taka (US$ 0.24) to get into Bangladesh. He said that he made the journey often,
mainly in order to buy vegetables, which he said were much cheaper in
Bangladesh.[71]
It is much easier
to travel to Cox's Bazaar than to Sittwe. It is very
serious for me now. The NaSaKa came to my house
twenty days ago, but I saw them coming and ran away. They took my
three-year-old daughter instead, and sent my wife to find me, saying they would
keep my daughter until I came. I tried to explain to them that I had no money,
that my crop had failed because of the cyclone, but they just kept insisting
that I had to pay a 12,000 kyats [US$120] fine, so now I have come here to
telephone my relatives in Saudia Arabia and ask them
to send me some money.
In addition to the land tax, Rohingyas have also been
subject to other new forms of taxation since 1992. It seems that all forms of business are now
taxed. Every family in northern Arakan
has to pay a chili tax, regardless of whether they actually grow chilies. As a
result, many Rohingyas are forced to buy chilies at the market of 500 kyats,
and "sell" them to the NaSaKa at the
government rate of 100 kyats. Refugees
who had arrived in Bangladesh in February 1996 told Human Rights Watch that
they had had to pay a fee when going on to the river to fish and when going the
forest to cut bamboo. This fee only applies to the Rohingyas, as Buddhist
Rakhines do not fish. Taxes are also
demanded for a variety of different projects: cleaning the streets and roads
when SLORC leaders visit the area; paying for schools and clinics to be built;
and even for the restoration of Buddhist pagodas. To add to the difficulties faced by all
Rohingyas, the inflation rate in Arakan rose steadily during the repatriation,
and by January 1996 rice prices had increased by 30 percent. The price of other
staple foods had also risen by twice this amount.
Forced Relocations
Whatever
documents a Rohingya may have to claim land use rights, these are worth nothing
if the NaSaKa decides to relocate their village. As
in the case of Sittwe, above, many Rohingyas and
other Muslims from different areas of Arakan state have been forcibly moved to
Maungdaw and Buthidaung, adding fuel to the rumors that the SLORC intends to
contain the Rohingyas in these two townships for the indefinite future. According to the Special Rapporteur to Burma
in his February 1995 report, in July 1994 over 500 Muslim families from Nga Let village tract in Minbya
township, just east of Mrauk-Oo, were taken by boat
to Maungdaw and Buthidaung (in March and May of 1996 all the Rakhine residents
of Mrauk-Oo were also forced to move out from areas
around old pagodas as part of the SLORC's move to clean up the country and
encourage tourism); between November 1994 and February 1995 over 1,500 Muslim
villagers from four villages in the same township were also forced to move to
Buthidaung; in late 1994, 150 households from Min-bya
and 350 households from Mrauk-Oo were moved to
Maungdaw;[72] and in March 1995, 3,000 Muslims from Pike Thee
village tract were given an order to move.
In some cases, forced relocations have taken place in order to secure
prime land sites for the construction of prawn cultivation ponds, owned by the
military.
Model Villages
Since 1988, the government has established a program
it calls "model villages" in Maungdaw and Buthidaung in order to
"encourage" Rakhine families to settle in these townships. By 1995 there were twelve such villages.
Sources inside Arakan state whom Human Rights Watch/Asia interviewed in
February 1996 claimed that these villages were intended to reestablish Rakhine
villages which had existed before the communal violence in the 1940s. Human Rights Watch also met Rakhine villagers
who had moved from areas of Bangladesh to these model villages, where they said
they were given land and had homes built for them. They did not add that the
land was usually confiscated without compensation from Muslim villagers, and
that the houses were built for them, under the instruction of the NaSaKa, by Muslims who received no money for their labor.
By
taking Rohingya land and giving it to Rakhines in this way, the government
exacerbated existing tensions. The UNHCR has negotiated with the central
government on this issue, which had the potential of disrupting the whole
repatriation as rumors circulated in the refugee camps about huge tracts of
land which had been given to Rakhine families.
Despite the intervention of the UNHCR, however, Human Rights Watch has
learned that new model villages for Rakhines from the Mrauk-Oo
area were being constructed in early 1996 using the unpaid labor of Rohingyas
on land which Rohingyas had occupied.
Freedom of Movement
The
classification of all Rohingyas as resident foreigners becomes clear when one
examines the right to freedom of movement, as the statement by the home minster quoted above illustrates. Whatever the provisions of the 1982
Citizenship Law concerning the rights of associate and naturalized citizens,
there is no freedom of movement for Muslims in Arakan state. Freedom of movement seemingly only exists out
of Arakan and into Bangladesh, and even that is restricted: to move within
Arakan state or from Arakan to other parts of Burma is virtually impossible for
Muslims. In this regard the situation
has dramatically worsened since 1992, as the government has established
increasing numbers of military bases and road/river blocks throughout Arakan
State. While the military, which has
more than doubled in size since 1988, has now established bases in other ethnic
minority areas of Burma[73] as a means of controlling the population and cutting
off support for insurgent forces, northern Arakan state is unique in having
units of the NaSaKa.
Thus,
Rohingyas who would like to travel outside their villages must apply to the
local LORC, which then passes on the request to the nearest NaSaKa
base. Here, the IMPD, police, riot
police, military intelligence, and customs all have to agree to the
request. In most cases passes are only
given for a twelve-hour round trip to nearby villages: only in exceptional
cases are Muslims permitted to stay overnight.
To travel further, for instance to the township capitals at Maungdaw or
Buthidaung, or the state capital at Sittwe, was cited
by both returnees and the UNHCR as virtually impossible. To travel to Rangoon, which would mean
purchasing a plane ticket, was completely impossible. This is equally true for Rohingyas who had
never left Burma and Muslims who are not
from Arakan state.[74] The sheer
complexity of this arrangement was said by some Muslims to dissuade them even
for applying to leave their village.
While everyone in Burma has to register and pay a small fee at the local
LORC office when staying overnight in a town or village other than their own,
only non-citizens, such as the Rohingya, have to apply for permission prior to
leaving their home. Being unable to
travel, even within Arakan state, makes it extremely difficult for landless
Rohingyas to find work during the dry season, when there is very little
agricultural work available.
VII.
CONCLUSIONS
To avert any further occurrences
of this type [exoduses or expulsions from Myanmar to Bangladesh], efforts will evidently be needed to provide Myanmar's Muslim minority with greater security, by protecting
their human rights, by improving their legal and social status and by providing
them with greater income-generating opportunities. While UNHCR is attempting to
address these concerns, ultimate responsibility must be assumed by the country
of origin.[75]
Human Rights Watch concurs with the above
statement. However, in a country like
Burma, which has an appalling human rights record and has shown itself to be
remarkably impervious to international criticism, UNHCR is failing to live up
to its own responsibilities and protective function by expecting the government
to assume "ultimate responsibility" for the safety of a persecuted
minority. The government has shown twice in the past thirty years (1976 and
1991) that it does not want the Rohingyas and that it will only accept them as
non-citizens.
The
UNHCR's new emphasis on "durable" solutions, and on voluntary
repatriation as the preferred solution, is part of the Hugh Commissioner's
current three-pronged approach which includes prevention and preparedness.[76] In the 1992 Executive Committee note on protection,
prevention is defined essentially as protection in the country of origin:
In terms of specific activities which the
office should undertake in the area of prevention...it was agreed that
early-warning, preventive diplomacy, human rights promotion, economic and
social development and protection of internally displaced persons were all
areas appropriate for specific UNHCR initiatives.[77]
This notion of prevention included the aim of working
more closely with other U.N. bodies, notably the U.N. Center for Human Rights
and the Commission on Human Rights, as well as "making public information
a more integral part of protection strategies, incorporating a role for
protection advocacy bodies, parliamentarians, teachers, journalists and other
opinion-makers."[78]
Human
Rights Watch/Asia applauds moves by UNHCR to work towards prevention of refugee
outflows by promoting human rights, and we have long called for a coordinated response
to the human rights crisis in Burma. However,
there is little evidence that the UNHCR has used a coordinated, rights-based
strategy in the Burmese context thus far.
To the contrary, the UNHCR appears to have deliberately avoided human
rights concerns, in an effort to maintain a presence in the country of
origin. In this case, what passes for
prevention or returnee monitoring has not resulted in the communication of
important information about ongoing abuses to potential returnees. In the worst case scenario, UNHCR presence in
the country of origin, combined with pressure by the host government for
repatriation, could prevent new refugees from seeking asylum when persecution
continues or is stepped up.
While
there is no evidence that UNHCR would knowingly act in such a way, there is a
point at which the need for silence about human rights abuses in order to
maintain a presence in a refugee-producing country becomes complicity in those
abuses. In the Burmese case, the Special
Rapporteur to Burma was discouraged from visiting Arakan state once the UNHCR became
operational there; the UNHCR has not supported applications by human rights
organizations to visit Arakan state and has not been forthcoming with
information about continued human rights abuses against returnees nor against
other Rohingyas or the Rakhine population of Arakan state. Without information provided by UNHCR,
governments, human rights groups, the media and other influential bodies have
been prevented from applying the necessary pressure on the governments of Burma
and Bangladesh which at crucial times could have lessened abuses and assisted
the UNHCR in its efforts to fulfill its protection mandate including
negotiations with those governments, as indeed occurred in December 1992.
Finally,
while Human Rights Watch welcomes the effort made by UNHCR to define in great
detail in its new Handbook on
Voluntary Repatriation the conditions under which a repatriation can be
considered voluntary, and when and how UNHCR will become involved in such
repatriations, it appears that such conditions were not in place for the
Rohingyas. A coordinated policy which includes all U.N. agencies working in
Burma, the U.N. Secretary-General and influential governments is clearly needed
to ensure against involuntary return of refugees, prevent further refugee
outflows and improve the human rights situation in Burma more generally.
APPENDIX
A
Rohingyas and the 1990 General Election
Under the 1989 Election Law all citizens,
Associate Citizens and Naturalized citizens are permitted to vote, but are not
allowed to stand for election.[79]
No foreign residents may vote. Thus, allowing the Rohingyas to take part in the
national election must be upheld as a measure of recognition for the Rohingyas.
In fact, Rohingyas were not only permitted to vote, but also to form political
parties during the May 1990 election. Two parties were formed, the Students and
Youth League for Mayu Development and the National Democratic Party for Human
Rights (NDPHR). Despite the lack of literacy and political awareness among the
rural Rohingya population, the NDPHR won all four seats in Maungdaw and
Buthidaung townships, and in each constituency votes for the two parties
counted for eighty per cent of the total votes cast. Moreover, the turn out in
both townships equaled the national average, at seventy per cent of eligible
voters.[80]
The NDPHR also fielded candidates in four other constituencies: Kyauktaw-1,
Minbya-1, Mrauk-U -2 and Sittwe-2 where they gained
an average of seventeen per cent of the votes.[81]
While not permitted to use the name Rohingya hi the party title, the NDPHR was
allowed to produce a booklet in Burmese called " Arakan State and the Rohingya People: a Short
History" on August 31,1990. According to NDPHR sources, the
permission to print this booklet was rescinded two months later.[82]
The NDPHR was formerly dissolved on August
19,1991. The
SLORC claimed that this was voluntary,[83]
though Human Rights
Watch/Asia has been unable to verify this. Of the four NDPHR elected members of
parliament, the two representing Maungdaw were both arrested. U Ebrahim and Fazal Ahmed were
arrested in June 1992. Fazal Ahmed was accused of
having been involved in planting a bomb for the RSO in Maungdaw, along with the
NLD organizer Mohammed Ilyas. Both men were severely
tortured, resulting in the death of Mohammed Ilyas. U
Ebrahim was given a two year sentence and has since
been released.
In January 1993 the government, having
failed to honor the results of the election, formed the National Convention, a
body which would write the principles of a new constitution. By that time there
were only seven political parties remaining from the twenty-seven parties which
had won seats in the election. Currently, there is only one representative from
the whole of Arakan State at the National Convention, U San Tha
Aung, elected for the ethnic party, the Mro (or) Khami National Solidarity Organization. U San Tha Aung
gained 15,801 votes in the election: he therefore represents less than 0.7 per
cent of the population of Arakan State.
APPENDIX B
Immigration and Manpower Department
Total No. of persons over the age of 18
who have received ID cards Nine-6a until December 11, 1992
Division or State
|
Total Population
|
People with card nine-2, % of population
|
New cards granted, % of applications
|
Remaining/ rejected
|
Kachin
|
1,083,836
|
397,462 36%
|
382,116 96%
|
15,346
|
Kayah/Karenni
|
214,700
|
82,651 38%
|
81,985 99%
|
662
|
Kayin/Karen
|
1,260,139
|
278,347 22%
|
276,215 99%
|
2,132
|
Chin
|
421,100
|
191,945 45%
|
188,435 98%
|
3,110
|
Sagaing
|
4,656,139
|
2,152,344 46%
|
1,925,422 89%
|
226,622
|
Tenasserim
|
1,125,369
|
400,856 35%
|
397,207 99%
|
3,649
|
Bago/Pegu
|
4,417,673
|
2,194,480 49%
|
2,074,874 95%
|
115,605
|
Magwe
|
3,882,906
|
1,738,540 45%
|
1,653,277 95%
|
85,063
|
Mandalay
|
5,540,541
|
2,752,869 50%
|
2,748,352 99%
|
44,517
|
Mon
|
2,065,304
|
801,672 39%
|
776,621 97%
|
25,051
|
Rakhine/Arakan
|
2,384,605
|
845,569 35%
|
618,618 73%
|
226,990
|
Yangon/Rangoon
|
4,793,868
|
2,652,968 55%
|
2,538,966 95%
|
1 14,002
|
Shan
|
4,250924
|
1,325,960 31%
|
1,252,429 93%
|
33,032
|
Irrawaddy
|
5,845,890
|
3,024,477 52%
|
2,752,201 91%
|
272,276
|
TOTAL:
|
41,942,994
|
18,875,741 45%
|
17,706,722 93%
|
1,173,019
|
Human Rights Watch/Asia
Human Rights Watch is a nongovernmental organization
established in 1978 to monitor and promote the observance of internationally
recognized human rights in Africa, the Americas, Asia, the Middle
East and among the
signatories of the Helsinki accords. It is
supported by contributions from private individuals and foundations worldwide.
It accepts no government funds, directly or indirectly. The staff includes Kenneth Roth, executive
director; Cynthia Brown, program director; Holly J. Burkhalter,
advocacy director; Barbara Guglielmo, finance and
administration director; Robert Kimzey, publications
director; Jeri Laber, special advisor; Lotte Leicht, Brussels office director; Juan Méndez,
general counsel; Susan Osnos, communications
director; Jemera Rone,
counsel; and Joanna Weschler, United Nations
representative. Robert L. Bernstein is
the chair of the board and Adrian W. DeWind is vice
chair. Its Asia
division was established in 1985 to monitor and promote the observance of internationally
recognized human rights in Asia. Sidney Jones
is the executive director; Mike Jendrzejczyk is the Washington director; Robin
Munro is the Hong Kong director; Patricia Gossman is
a senior researcher; Jeannine Guthrie is NGO Liaison; Dinah PoKempner
is Counsel; Zunetta Liddell is a research associate;
Joyce Wan is a Henry R. Luce Fellow; Diana Tai-Feng
Cheng and Paul Lall are associates; Mickey Spiegel is
a research consultant. Andrew J. Nathan
is chair of the advisory committee and Orville Schell is vice chair.
Gopher Address://gopher.humanrights.org:5000
Listserv address: To subscribe to the list, send an e‑mail
message to majordomo@igc.apc.org with “subscribe hrw‑news”
in the body of the message (leave the subject line blank).
[1] These
actions violate the right not to be refouled
as defined in Article 33 of the 1951 Convention Relating to the Status of
Refugees right to seek asylum, which has passed into customary international
law, as well as Article 14 of the Universal Declaration of Human Rights.
[2] Alistair
Lyon, "New Rohingya Influx and UNHCR Dilemma," Reuters, June 2, 1996.
[4] Alan
Lindquist (head of UNHCR suboffice in Cox's Bazaar in
1978), "Report on the 1978-1979 Bangladesh Refugee Relief Operation,"
June 1979. Lindquist states on pg. 9: "None of the U.N. agency heads
raised any objection to using food as a political weapon."
[5] Robin
Davies, "UNHCR at the Crossroads: Who's in the Driving Seat?" The
Daily Star (Dhaka), January 13, 1996.
[6]
Discussion with Human Rights Watch, Geneva, June
13,1996.
[7] Alistair
Lyon, "New Rohingya Influx...," Reuters.
[8] If it
did, it violated the widely recognized right to leave one's own country, as
found in the Universal Declaration of Human Rights, Article 13.
[9] The
source of this information wishes to remain anonymous.
[10]
Rohingya Solidarity Organization (RSO), "A Memorandum of the Burma
Citizenship Law of 1982", November 1982 unpublished paper; RSO, "The Problems of Rohingya Muslims
of Arakan in Burma,"
1992, unpublished paper. Rohingya Patriotic Front (RPF) Rohingya Outcry and
Demands (Bangladesh:
RPF), 1976.
[11] Ibid.
However, other historical sources (see below) show that the kings of Arakan were
Rakhine Buddhists who took Muslim names to ease their relationships with their
Muslim neighbors. Nevertheless, Persian was the language of the Rakhine court
until the late eighteenth century.
[12] See
Martin Smith, Burma:
Insurgency and the Politics of Ethnicity (London:
Zed Press) 1994. Recognizing them as citizens gave them the ability to vote,
and many voted for his party in gratitude at this recognition.
[13]
"In actual fact, although there are 135 national races in Myanmar
today, the so-called Rohingya people are not one of them. Historically, there
has never been a 'Rohingya' race in Myanmar...Since
the first Anglo-Myanmar war in 1824, people of Muslim faith from the adjacent
country illegally entered Myanmar Naing-Ngan,
particularly Rakhine State. Being illegal immigrants they do not hold
immigration papers like other nationals of the country," Press release
from U Ohn Gyaw, Minister for Foreign Affairs, February 21, 1992.
[14] Moshe
Yegar, "The Muslims of Burma: A Study of a Minority Group," Schriftenreihe des Sudasien-Instituts
der Universitat Heidelberg,
Heidelberg University,
1972.
[15] See Smith,
Burma:
Insurgency and the Politics of Ethnicity, p. 41.
[16] This
information comes from confidential interviews conducted by Human Rights
Watch/Asia in Bangladesh,
Burma and Thailand
between 1991 and 1996.
[17]
Statement by the Ministry for Home and Religious Affairs, November 16, 1977.
[18] A clear
indication of the neglect of northern Arakan is found in health surveys
conducted by UNICEF and UNHCR since
1993. In an August 1994 report published
by UNHCR, called "Report on Health Related Issues in Project Area (Arakan
state)," it was found that Buthidaung and Maungdaw had the lowest ratio of
hospital beds per 10,000 inhabitants in Burma (1.1 and 1.2 respectively, compared
to an average in Arakan state of 2.99 beds per 10,000 people, and a national
average of 6.57). The same report also found that the number of rural health
centers per head was also dramatically less than in other parts of Burma,
in fact in Maungdaw it was half the national average. Unsurprisingly, infant mortality rates were
also the highest in Burma,
at 114 and 213 deaths per 1,000 births for Maungdaw and Buthidaung
respectively.
[19] SLORC
Announcement No. 1/90, July 27, 1990. The constituent assembly was not convened
until January 1993 and is still deliberating, though with only a handful of
elected representatives. See Janelle M. Diller "The National Convention in
(Burma) Myanmar,"
(Washington, D.C.:
International League for Human Rights), April 1996.
[20] In
response to these demonstrations two monks and a student were killed by the
army in Mandalay, and in November
1990 some 150 monasteries in Mandalay
and Rangoon were raided and
hundreds of monks were arrested. In Insein jail the hunger strikers were tortured,
and later the leaders were moved to prison labor camps far from their homes,
making family visits almost impossible. See Win Naing Oo, Cries from Insein
(Bangkok: ABSDF, 1996).
[21] See
Bertil Lintner, "Diversionary Tactics: Anti-Muslim campaign seen as effort
to rally Burmans," Far Eastern Economic Review (Hong
Kong), August 29, 1991.
[22] For
details of their allegations, see Asia Watch, "Burma:
Rape, Forced Labor and Religious Persecution in Northern Arakan,"
A Human Rights Watch Short Report, vol. 4, no. 13, May 1992; Amnesty
International, "Union of Myanmar (Burma):
Human Rights Violations Against Muslims in the Rakhine (Arakan) State" (London:
Amnesty International), ASA 16/06/92,
May 1992.
[23]
Ironically, much of the bamboo the Rohingyas had cut in Burma
was sold by soldiers on the black market to the UNHCR to build the refugee
camps.
[24] Bertil
Lintner, Burma
in Revolt: Opium and Insurgency since 1948 (Colorado: Westview Press,
1994).
[25] Bertil
Lintner, "Diversionary Tactics....” Far Eastern Economic Review.
[26]
"Hacked bodies of refugees found; 109 Burmese detained", Associated
Press, July 19, 1992.
[27]
Interview with the UNHCR, June 13,
1996
[28] See
Asia Watch, "Bangladesh:
Abuse of Burmese Refugees from Arakan," and US Committee for Refugees,
"The Return of the Rohingya Refugees to Burma";
Medicins Sans Frontières,
"MSF's concerns on the repatriation of Rohingya
refugees from Bangladesh
to Burma"
(MSF France/Holland, May 1995). Other
international humanitarian agencies working in the camps who supported the
position taken by MSF were Save the Children (UK) and Oxfam.
[29]
Although not guaranteed by the Convention on Refugees, the principle of
voluntariness has been affirmed in three UNHCR Executive Committee resolutions
since 1980: Conclusion 18 XXXI, 1980; and Conclusion 40 XXXVI, 1985; and
Conclusion 74 XLV, 1994). In May 1996, the UNHCR published a Handbook on
Voluntary Repatriation: International Protection which sets out the
"fundamental principles" of voluntary repatriation (Geneva:
UNHCR) 1996.
[30] UNHCR,
"Note on International Protection: International Protection and Mass Influx,"submitted by the High Commissioner to the 46th
Session of the Executive Committee, September 1995. She noted an
"increasing number of situations where various factors, including the
welfare of the refugee population, indicate that large-scale voluntary return
must nevertheless be considered despite the existence of less than optimum
conditions in the country of origin."
[31] UNHCR,
Executive Committee, Conclusion No. 18 XXXI, 1980.
[32] This is
based on conversations with UNHCR staff
based in Maungdaw and discussions between Werner Blatter
and NGOs in Washington DC,
September 1994.
[33] U.N.
Convention Relating to the Status of Refugees, Article 1 (A, 2).
[34] UNHCR, State
of the World's Refugees (London: Oxford University Press, 1995).
[35] Ibid.
p.62-63.
[36] This
concern was reflected in the April 1992 decision by the United Nations
Development Program (UNDP) whose governing body insisted that all programs in
Burma must be directed at the grassroots and that projects must be monitored
over a one-year period (rather than the usual five-year plans of action). See
also Martin Smith, Fatal Silence? Freedom of Expression and the Right to
Health in Burma
(London: Article 19, August 1996).
[37] The
role of China
was confirmed to Human Rights Watch by western and Asian diplomats in 1992. The
High Commissioner's former role as Special Expert to Burma for the U.N.
Commission on Human Rights under the confidential 1503 procedure in 1991, and
the experience of the then UNHCR director for Asia and the Pacific, Werner Blatter, as UNHCR representative in Rangoon during the
1976-78 repatriation, were also helpful.
[38] See
USCR, "The Return of Refugees...." pp. 6-9.
[39] UNHCR
has since informed Human Rights Watch that staff in Arakan
State did follow up this case, and
their efforts “resulted in an arrest and trial”
[40] Ibid.
[41] UNHCR, Information
Bulletin, June 1995.
[42] UNHCR
Executive Committee, "Note on International Protection," A/AC.96/799,
August 25, 1992.
[43] It
should be noted however, that figures produced in the UNCHR magazine, Refugees:
The High Cost of Caring in 1995 show that of all programs undertaken by
the UNHCR in 1995, the Rohingya repartiation alone
was not only funded sufficiently, but donor governments had contributed
$600,000 more than was required for that year.
[44] The
repatriation had been stopped at the time because Burma
had closed the border after an outbreak of bubonic plague in India.
A subsequent EU report expressed concern about the difficulties of monitoring
the returnees, but considered that overall the repatriation should be
supported. A similar mission proposed by
the US State Department was rejected by the SLORC in March 1995.
[45] MSF France,
"The Rohingyas: Forcibly Repatriated to Burma,"
September 22, 1994.
[46] MSF Holland,
"Awareness Survey: Rohingya Refugee Camps, Cox's Bazaar
District, Bangladesh,"
March 15, 1995.
[47] For an
analysis of the unrest and violence in Bangladesh,
see Human Rights Watch/Asia, "Bangladesh:
Political Violence on All Sides,” A Human Rights Watch Short Report,
vol. 8, no. 6 (C), June 1996.
[48] In 1978
as well, the then government of Burma
established a limit of 200,000, leaving some 30,000 Rohingyas to integrate
locally in Bangladesh.
Having done so, however, the current government has insisted to UNHCR officials
and diplomats in Rangoon that more
people were returned to Burma
than actually left from Arakan state in 1978.
[49] UNHCR,
"Note on 'Conditions of Safety' in Arakan Relating to Mass Repatriation of
Rohingyas," no date.
[50]
UNHCR/NGO Document, "Myanmar Country Report," presented at the
Regional ParInAc (Partnership In Action) meeting for South/South
East Asia and Oceania, May 3, 1995.
[51] When
questioned by Human Rights Watch/Asia,
Rohingyas who knew the head of the Maungdaw IRAC, Dr. Tun Aung (also known as Nurul Hoque), refugees described
him as a "SLORC lackey" or as simply being politically ambitious at
the expense, rather than for the betterment, of Rohingyas. In 1990 Dr. Tun Aung
formed the Mayu Youth and Development Party which won no seats and was later
dissolved.
[52] UNHCR,
"Report on Health Related Issues in Project Area (Arakan
State)," August 1994.
[53] Quoted
by the Special Rapporteur to Burma, Professor Yokota, in his "Report on
the Situation of Human Rights in Myanmar, prepared by Mr. Yozo Yokota, Special
Rapporteur of the Commission on Human Rights, in accordance with Commission
resolution 1995/72," (Geneva: UNECOSOC) E/CN.4/1996/65, February 5, 1996.
[54] This
includes others of south Asian origin, and ethnic Chinese. The total population
of immigrants is thought to be around one million people (see also Martin Smith, Ethnic Groups of
Burma).
[55]
Personal communication.
[56] Issued under the 1949 Residents of Burma
Registration Act.
[57]
Personal communication.
[58] Henry Domzalski, UNHCR Senior Protection Officer,
"International Protection and the Myanmarese Refugees in Bangladesh,"
unpublished paper, April 4, 1992.
[59] At the
time, the IMPD was a department of the Home and Religious Affairs Ministry. In
June 1995 the SLORC created a new Ministry of Immigration and Manpower under
military hard-liner, Lt Gen Maung Hla (who is also responsible for military
appointments, and was formerly Military Operations Commander). The IMPD is the
only department of the new Ministry.
[60] 1982
Citizenship Law, sections 30 (c) and 53 (c).
[61] Yozo
Yokota, "Situation of Human Rights in Myanmar"
(Geneva: U.N. Commission on Human
Rights) E/CN.4/1993/3, February 17,
1993. Yokota resigned as Rapporteur to Burma
in April 1996, in protest at a lack of financial and administrative support
from the U.N. for his mandate and has been replaced by Mr. Rajsoomer Lallah.
[62] These
are traditionally the most popular subjects at universities in Burma
as they enabled students to seek work permits abroad or in shipping lines.
[63] Yozo
Yokota, "Report on the Situation of Human Rights in Myanmar,"
UNECOSOC E/CN.4/1993/37, February 17, 1993.
[64] For a
discussion of the implications of statelessness, see Human Rights Watch/Middle
East, The Bedoons of Kuwait: Citizens without
Citizenship, (New York: Human Rights Watch, 1995).
[65] Ibid.,p. 92.
[66] UNHCR, State
of the World's..., p. 67.
[67] See
Human Rights Watch/Asia, "The Mon: Persecuted in Burma,
Forced out of Thailand,"
vol. 6, no. 14, December 1994; See Human
Rights Watch/Asia,"Burma: Abuses Linked to
the Fall of Manerplaw" , vol.7, no.5, March 1995; See Human Rights
Watch/Asia, "Burma:
Entrenchment or Reform?" Vol. 7, No.10, July 1995; Amnesty International,
"Myanmar:
Human Rights Still Denied" ASA 16/18/94, November 1994; "Myanmar:
No Place to Hide" ASA
16/13/95, March 1995; U.N. Special Rapporteur to Burma,
“Reports on the Situation of Human Rights....”
[68] See
World Bank, "Myanmar:
Policies for Sustaining Economic Reform," Country Report, 1995.
[69] Ibid.
The ratio in 1989/90 was 0.45 and in 1993/4 it was 0.59.
[70] See
Khin Maung Kyi, "Burmese Gleam: Will it Endure and Glow or Flicker and
Die? Prognosis of recent economic changes in Burma,"
National University of Singapore, mimeo, 1995.
[71] Many people
in Arakan state told Human Rights Watch that since 1992 they had only been
permitted to grow rice on their land, as part of the governments agricultural
program. As a result, the price of
vegetables had dramatically increased.
[72] Yozo
Yokota, "Situation of Human Rights in Myanmar,"
(Geneva: U.N. Commission on Human Rights, February 23, 1995).
[73] See
Human Rights Watch/Asia, "The Mon: Persecuted in Burma,
Forced out of Thailand,"
and Human Rights Watch/Asia,"Burma: Abuses Linked to
the Fall of Manerplaw."
[74] A
Muslim with full citizenship who was the assistant manager for the Myanmar
Economic Holdings Bank (a bank owned by the military) in Buthidaung was called
to Rangoon by his head office in
September 1992. Despite his position,
the Arakan state LORC did not permit him to purchase a plane ticket in Sittwe. The same month a Muslim (not a Rohingya) veterinary
surgeon, who was also working for the government, was taken ill in Buthidaung
and required treatment which was only available in Rangoon. Again, despite the fact that his family were
still living in Rangoon, he was not
permitted to leave, and he died in Sittwe hospital.
[75] UNHCR
State of the World's
Refugees, 1995.
[76] The
UNHCR still retains, under the rubric of solutions, third-country resettlement
and integration in the country of first asylum, but for the most part, the
emphasis is now nearly always on voluntary repatriation.
[77] UNHCR,
"Findings and recommendations of the Working Group in International
Protection...."
[78] Ibid.
[80] It is likely that this high percentage is due to the
governments' low estimate of the population in northern Arakan. However, as the
population in all ethnic minority areas in Burma is equally underestimated, the comparison still stands.
Population figures, as with all statistics in Burma, are notoriously unreliable.
[81] The
Rakhine Democracy League won each of these seats. For the rest of Arakan State, the NLD won nine seats, the Rakhine League for Democracy
took eleven seats, the Mro or Khami
National Solidarity Organization and the Kamans
National League for Democracy took one seat each. The government-backed
National Unity Party failed to get any seats, and got only thirteen per cent of
the vote.
No comments:
Post a Comment