Statelessness: Ethnic Cleansing and the Rohingya

UNHCR estimates that at least 10 million people around the world are stateless. People who are denied a nationality are automatically disentitled from everyday activities most of us take for granted. The inability to access banking, education, employment and healthcare is bound to produce debilitating effects on anyone’s life and make them profoundly vulnerable. Equally, not having a passport or not being able to participate in the political process by voting or not being able to say and do what you want is bound to result in a life of servitude. In Al-Jedda [2013] UKSC 62, recounting the horrors unleashed by the Reich Citizenship Law of 1935, Lord Wilson characterised statelessness as “evil” and highlighted that article 15 of the Universal Declaration of Human Rights 1948 provides that “everyone has the right to a nationality” and “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. Despite my Arabian name and Pakistani nationality, I do not write here as a “Muslim”. But nonetheless I write to mourn for the minority Muslim population of Myanmar, i.e. the Rohingya who were made stateless by the Burma Citizenship Law 1982. They can trace their history to the eighth century but are not recognised as one of the national races of Myanmar unless they can show “conclusive evidence” of their lineage or history of residence. Consequently, they are ineligible for any class of citizenship and are shunned by mainstream society.

According to Eric Fripp, “to be stateless in general terms is to be without attachment to a State as a national.” Since they are “resident foreigners”, or “illegal Bengali immigrants”, the Rohingya cannot hold public office, study or travel freely. Over the past three weeks, more than 400,000 Rohingya refugees have poured into Bangladesh to escape Rakhine State’s killing fields where the Buddhist majority is indiscriminately attacking helpless civilians whose terrified faces tell us everything. The UN high commissioner for human rights, Zeid Ra’ad al-Hussein, has called these shocking events a “textbook example of ethnic cleansing”. Satellite imagery obtained by Amnesty International shows widespread torching of hundreds of Rohingya villages and the application of scorched-earth tactics by the Myanmar military. The UN secretary general António Guterres has described the situation as a “humanitarian catastrophe” and is demanding “an effective action plan” to ease the suffering of Rohingya refugees. Guterres is calling for an immediate end to the “tragedy”. But the Myanmar authorities are mining the border to prevent the Rohingya from returning home or even escaping to Bangladesh in the first place.

Myanmar has also blockaded western relief agencies from operating in Rakhine State. The West’s great heroine Aung San Suu Kyi, who was globally elevated to the status of a saint and is presently Myanmar’s state counsellor and foreign minister, has chosen to follow in the footsteps of Bashar al-Assad by missing next week’s session in the UN General Assembly so as to avoid media scrutiny and accountability. In joining ranks with the Damascus dictatorship, the woman who western leaders built up for decades is expected to make a televised speech on “national reconciliation and peace” instead of going to New York. In all probability, as Myanmar’s de facto leader and head of the so-called “national league for democracy”, Suu Kyi will yet again issue blanket denials regarding the mass atrocities her generals are committing. (When she finally spoke, Suu Kyi disingenuously denied her army’s war crimes and claimed that her forces adhered to a strict code of conduct. As the army’s mouthpiece, burying her head in the sand about the horrors, she lied through her teeth by saying that all Muslims were safe in Myanmar and that they had access to healthcare and other social services. Only those displaced Rohingya who pass an official “verification process” would be allowed to return.)

Of course, Suu Kyi conveniently blames colonialism for everything. She has been seen cuddling up to India’s Narendra Modi who is her natural ally. Like her, he too wants the region to be cleansed of all things Islamic. Modi’s India is trying to deport the 40,000 Rohingya refugees who fled the persecution in Rakhine State – or Arakan – where they had lived for generations before fleeing for their lives. As for Suu Kyi’s long silence on Rohingya persecution, the strategy is quite deliberate and self-serving because it simultaneously enhances her popularity with hardline nationalists and strengthens her pact with the generals.

The Rohingya in Myanmar live mostly in Rakhine State, the second poorest state in the country, and are estimated to comprise a population of 1.3 million out of a total state population of 3.6 million people (and a total national population of 51.5 million). The hideousness of Myanmar’s recent military campaign has brought renewed global attention to their longstanding suffering. But even now, they are the forgotten/invisible people who are apparently not worth caring about. Presumably to save her own skin, Suu Kyi prefers to remain mute on the recent horrors and she also ridiculously contends that the media and the “terrorists” have been twisting the truth by “a huge iceberg of misinformation”.

Following in president Trump’s Islamophobic footsteps, she considers reality and the true facts to be “fake news”. So great is her party’s desire to remain in power in breach of the very basic norms of humanity, that members of her administration are completely united with the army against “Bengali terrorists” and consider the Rohingya to be a direct threat to Myanmar’s national security. Strangely enough, instead of condemning the persecution in Myanmar, by tweeting that the terrorist “was in sight of Scotland Yard”, president Trump chose to mock his country’s closest ally in its hour of need when terrorism struck the London tube yesterday. Seems like him and Suu Kyi will get on like a house on fire!

The International Organisation for Migration thinks that the exodus of the Rohingya has parallels with the scale of upheaval witnessed in Syria. With an average of 20,000 people arriving everyday, the IOM described the rapid mass influx of Rohingya refugees into Bangladesh from Myanmar as “unprecedented in volume and speed”. Helpfully, Bangladesh has not stopped the Rohingya from entering its territory. But while visiting Cox’s Bazar to witness the plight of the arriving Rohingya first hand, Bangladeshi prime minister Sheikh Hasina urged Myanmar to “take steps to take their nationals back.” She is expected to appeal to global leaders for help at the UN next week. Bangladesh is setting up camps to restrict the movement of the fleeing refugees and it has also warned Myanmar’s military helicopters not to violate its airspace.

Had Muslims been persecuting Buddhists, the furore among the Americans, British and Europeans would have been much greater and we would never have heard the end of the matter. It would be on the front pages everyday. Theresa May, who welcomed Suu Kyi in Downing Street in September 2016, is remaining tight-lipped about the ongoing persecution of the Rohingya and prefers to stick to bringing about a hard Brexit, a hypocritical pet project in light of her historic pro-remain proclivities. But not everyone in her party agrees with May’s silent strategy of giving Suu Kyi the benefit of doubt. For example, the former British foreign secretary William Hague denounced Suu Kyi’s failure to condemn the persecution and taunted her for her inaction in his piece Come on, Aung San Suu Kyi, there is no defence for mass murder.

Although Rex Tillerson has urged the Myanmar military to cease atrocities against the Rohingya, in a joint press conference in Lancaster House with British foreign secretary Boris Johnson, the US secretary of state confirmed the commitment to continuing American support for Suu Kyi’s power sharing deal with senior general Min Aung Hlaing – the butcher overseeing the atrocities against the Rohingya who received a hero’s welcome in India this July. Johnson described the situation as an “abomination” but still remained unyielding in his praise for Suu Kyi and glorified her for restoring democracy in Myanmar. Both men remained preoccupied with Iran and North Korea (a close ally of Myanmar) and rather than criticising Suu Kyi for complicity with the military they hoped she would speak out and condemn the carnage of innocent Rohingya civilians in Rakhine State. Hence, the West’s double standards on human rights are only too apparent. The overall indifference to the situation is striking.

In fact, Tillerson totally let Suu Kyi off the hook by saying that she is in a “difficult and complex situation”. As things presently stand, nothing Suu Kyi says or does is capable of reversing the unimaginable suffering already inflicted on the Rohingya which general Min Aung Hlaing considers completing “unfinished business”. Their mass expulsion from Myanmar seems to be permanent and is likely to be perceived as a natural price to for them to pay owing to their Muslim heritage. Coupled with his deceptive stance on Brexit, Johnson’s serial support for Suu Kyi proves that he is completely untrustworthy and as long as he remains foreign secretary (or if he somehow miraculously becomes prime minister) we cannot have confidence in the UK to do the right thing. The EU’s top diplomat, Federica Mogherini, stressed that “Myanmar leadership needs to show that democracy is for all – beyond ethnic, social and religious boundaries”. Mogherini wants an immediate end to the violence to contain “one of the terrible refugee crises of our time”.  Perhaps her words are less hollow than those of her Anglo-American counterparts but no one knows what, if anything, she can do to change ground realities.

The terms of the 1982 citizenship law are such that “naturalised” or “associate” citizenship comes with diminished rights in comparison to full citizenship. Notably, the right to education and enrolment in courses for some professions such as medicine, law and engineering is available to full citizens only. Moreover, the right to stand for election remains restricted to full citizens born to full citizen parents. “Naturalised” and “associate” citizenship are revocable for showing “disaffection or disloyalty to the State” making these forms of citizenship less secure than full citizenship. In its report All You Can Do is Pray: Crimes Against Humanity and Ethnic Cleansing of Rohingya Muslims in Burma’s Arakan State (2013), Human Rights Watch found that communal violence was organised, incited and committed by local political operatives, Buddhist monks and ordinary Rakhines. These findings from five years ago are now being reconfirmed. Indeed, in relation to the present crisis, Reuters reports that the stark choice ethnic Rakhine Buddhists are offering the Rohingya is:

Leave, or we will kill you all.

Malala Yousafzai quite rightly denounced Suu Kyi, who is often trumpeted as “the Lady”, for failing to condemn the “tragic and shameful” treatment of the Rohingya and demanded that Myanmar must grant them citizenship rights. Malala called on Pakistan to do more to help the Rohingya. Pakistan is home to 200,000 expelled Rohingya but the country is also a major arms supplier to the Myanmar military and Malala should also seek to persuade Pakistan’s government to immediately cancel all contracts to supply the JF-17 Thunder multirole fighter to the Myanmar Air Force. In my view, Pakistan should expel the Myanmar ambassador in Islamabad and we should immediately recall our ambassador in Yangon. Perhaps the Pakistan foreign office should consider severing diplomatic ties with Myanmar altogether and close the embassy there for good.

In addition to Malala Yousafzai, five other female Nobel peace prize laureates have written a joint letter to Suu Kyi urging her to end the violence. Mairead Maguire (Ireland), Jody Williams (US), Shirin Ebadi (Iran), Leymah Gbowee (Liberia) and Tawakkol Kamran (Yemen) appealed to Suu Kyi to immediately raise her voice in aid of those “who have no voice”. Indeed, they are all disgusted at her departure from the “democracy” she had advocated in an earlier incarnation during her lengthy house arrest. Even Suu Kyi’s former comrade, the 85-year old Nobel peace prize laureate Desmond Tutu came out of retirement and urged his “dear sister” to return to the path of “righteousness” by ending the “slow genocide” of the Rohingya.

Myanmar recognises eight major ethnic groups (the Kachin, Kayah, Karen, Chin, Mon, Bamar, Rakhine and Shan), divided into 135 “national races”. Under the 1982 citizenship law, a group must have been present in Myanmar before 1823 for its members to be entitled to citizenship. Evidence suggests that Myanmar government officials are complicit in human trafficking and Rohingya women are subjected to sex trafficking in Rakhine State. Children are also subjected to sex trafficking and other forms of slavery. Traffickers practice deception to lure men into forced labour on palm oil and rubber plantations or in jade and precious stone mines.

Apatride, apolide or heimatlos are alternative terms used by Paul Weis to capture the predicament of persons who do not possess nationality under the law of any state. Eric Fripp explains that since nationality remains a function of states’ national law, the lack of such a bond “has to be determined by reference to national laws.”

As far as statutory immigration appeals are concerned, the culture of disbelief in relation to the plight of the Rohingya is readily observable in decisions such as AH (Disputed Nationality, Risk on Return, Rohingya Muslim) Burma [2004] UKIAT 00085 where a three member AIT panel remained dismissive about a Rohingya asylum-seeker’s prospects of being granted asylum in the UK. After being forcibly expelled to Bangladesh because of atrocities committed by Burmese forces in 1992, AH returned to Burma (renamed Myanmar) but faced further hardship and fled again. But the AIT found that despite him breaching the travel restrictions imposed on the Rohingya, returning him to Rangoon (renamed Yangon) was acceptable because the Burmese authorities would merely repatriate “him to the area where Rohingyas, according to them, should be and remain.”

Things became even more skewed by the time country guidance was imparted in TS (Political Opponents – Risk) Burma/Myanmar CG [2013] UKUT 281 (IAC) and, in light of all the greatness misattributed to Suu Kyi, again a confused and indifferent three member panel misrepresented the reality of events and unwisely stated:

There is evidence of positive changes in Burma which as they become embedded may result in the need for the present country guidance to be revisited by the Upper Tribunal in the short to medium term.

It was the view of the Upper Tribunal that the question whether a person is in need of protection depends “upon past and future political behaviour”. In addition to this huge miscalculation, Judges Dawson, O’Connor and Rintoul also unreasonably insisted that the Myanmar regime is “keen to avoid adverse publicity” from human rights abuses. The veracity, if any, of their remarks is clearly limited to adverse publicity generated by the detention of “international activists” such as Suu Kyi. Indeed, the ongoing ethnic cleansing clearly demonstrates that in reality the government is unafraid of international condemnation when it comes to persecuting the Rohingya.

Equally shamefully, none of the countries in the region subscribe to the Refugee Convention 1951 but there are already 900,000 Rohingya refugees in Bangladesh, 200,000 in Pakistan, 100,000 in Thailand and smaller numbers in Malaysia and Indonesia. Despite an original intention to safeguard the rights of the stateless persons, the Refugee Convention did not address this important issue. Statelessness is of two types. De jure statelessness refers to a situation where persons are not nationals of any state because (i) at birth or subsequently they were not given any nationality or (ii) they lost their nationality during their lifetime and failed to acquire a new one. De facto statelessness refers to a situation where persons leave the country of their nationality because (i) national authorities refuse to assist or protect them or (ii) they themselves refuse the protection or assistance of the country of their nationality.

Renewed efforts to address the evil of statelessness and improve the status of stateless persons by an international agreement resulted in the Convention relating to the Status of Stateless Persons 1954 being adopted and it entered into force in June 1960. Notably, with only 89 parties and 23 signatories, subscription to the 1954 Convention is meagre and it only applies to non-refugees. However, the lacuna came to be filled by the Convention on the Reduction of Statelessness 1961 – the product of international negotiations during the 1950s aiming to reduce the incidence of statelessness – which provides coverage to those who are refugees and corrects the earlier erroneous assumption that most de facto stateless persons were refugees. The “most surprising feature” of the 1961 Convention, observes Laura van Waas, “is the absence of idealistic preambles and loftily formulated general principles.”

No one really knows what is happening on the ground in Rakhine State because the Myanmar authorities have prohibited the international media from reporting on the crisis. Worse still, apart from not having any present guidance on the Rohingya at all, in light of the “positive” changes in Myanmar’s political culture attributed to Suu Kyi, the Home Office strikingly takes the view that in light of the eased entry/exit procedures prevalent in the country the guidance in TS and in HM (Risk Factors for Burmese Citizens) Burma CG [2006] UKAIT 00012 should not be followed at all because “persecution is significantly reduced”.

Myanmar has sporadically conducted a limited “verification process” of the citizenship status of Rohingya and as a result of a pilot project the authorities have granted citizenship to some 800 Muslims – of both Kaman and Rohingya ethnicity – out of reported 1000 applicants. However, since they think that accepting Bengali ethnicity is tantamount to admitting an illegal status linked to Bangladeshi origin, the Rohingya overwhelmingly rejected the procedural requirement that they must state their ethnicity as “Bengali”. In any event, this route for applying for citizenship is unavailable to the vast majority of Rohingya. Thus, the Rohingya are arguably stateless in both de jure and de facto terms because they are not given Myanmar’s nationality and also renounce its assistance and protection. During the Second World War, they supported the British against the Japanese in the hope of winning their independence whereas the Buddhists fought alongside the Japanese army. Some like Alicia de la Cour Venning argue that their persecution is aimed at “producing a ready supply of slaves”.

The latest atrocities against the Rohingya began after members of the jihadist leaning Arakan Rohingya Salvation Army (ARSA), whose leader Ata Ullah was born in Karachi to Rohingya refugee parents, allegedly attacked numerous police and army posts in Rakhine State and killed 12 servicemen. The disproportionate response by the army has reportedly resulted in 400 deaths according to Myanmar’s official sources. However, given the intensity of the military offensive, it is likely that the real figure is much higher and runs into the thousands.

In answering the question when is a genocide a genocide? the co-founder of the Institute on Statelessness and Inclusion Amal de Chickera convincingly argues that the persecution of the Rohingya stretches back four decades. He concludes that Suu Kyi has not been silent and has instead been using her voice to manifest hatred towards the Rohingya and deliberately suppresses their identity by even refusing to utter their name from her mouth. Suu Kyi is clearly complicit in the larger economic agenda of the army to reclaim burned Rohingya land, which can now be resumed by the state, and use it for a special economic zone in Maungdaw. As de Chickera says:

And so, she no longer has any moral authority to speak of. She is a failed leader, who is watching her country burn, her people turn against their neighbours, her military perpetrate the most unspeakable and atrocious crimes and who has taken a calculated and cynical decision to stand with the oppressors.

History is full of examples of one man’s terrorist being another man’s freedom fighter. For example, during her time as prime minister, Margaret Thatcher condemned the African National Congress for being a “terrorist organisation” and supported the Apartheid government that had imprisoned Nelson Mandela on Robben Island for 27 years. Mandela ultimately triumphed and addressed – in Thatcher’s presence – both Houses in Westminster Hall as the iconic first president of an apartheid free South Africa. Because of the unavailability of a democratic alternative, Mandela’s “terrorism” became the legitimate symbol of armed struggle against a tyrannical and racist regime.

Ethnic cleansing traces its roots to the crimes against humanity perpetrated by the murderous systems of governance created by Hitler and Stalin. Mass expulsions and deportations and other brutal techniques employed by them have been used again and again by extremists everywhere. Unsurprisingly, ethnic cleansing is a crime against humanity under the statute of the International Criminal Court (ICC). It is plainly the case that the Rohingya are fleeing extreme barbarity and have not burned their villages down themselves. On the basis of the evidence in the public domain, it is not at all unrealistic to suggest that senior general Min Aung Hlaing and his accomplice Aung San Suu Kyi have a case to answer in the ICC. Sadly, however, with the exception of Bangladesh, none of the states in the region have an appetite for the principles of the ICC.

The international community has launched a $77m appeal to help some of the Rohingya refugees in the coming months. But given the magnitude of the crisis, this is probably just small change (i.e. $77m/400,000 = $192.5 per refugee) and in terms of the scale, it is just a drop of money in an ocean of refugees. Statelessness is an evil thing. That is for sure.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, Bangladesh, Brexit, Citizenship and Nationality, Deportation, Ethnic Cleansing, Genocide, India, Karachi, Myanmar, Pakistan, Persecution, Politics, Racism, Refugee Convention, Rohingya, Statelessness, Terrorism, UKSC, United Nations, United States and tagged , , , , , , , , , , , . Bookmark the permalink.

2 Responses to Statelessness: Ethnic Cleansing and the Rohingya

  1. truthaholics says:

    Reblogged this on | truthaholics and commented:
    “It is plainly the case that the Rohingya are fleeing extreme barbarity and have not burned their villages down themselves. On the basis of the evidence in the public domain, it is not at all unrealistic to suggest that senior general Min Aung Hlaing and his accomplice Aung San Suu Kyi have a case to answer in the ICC.

    The international community has launched a $77m appeal to help some of the Rohingya refugees in the coming months. But given the magnitude of the crisis, this is probably just small change (i.e. $77m/400,000 = $192.5 per refugee) and in terms of the scale, it is just a drop in an ocean. Statelessness is an evil thing. That is for sure.”

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