Myanmar's Rohingyas are refugees, not infiltrators

The Rohingya issue has received a fair degree of media coverage over the last few weeks. Admittedly, voices in favour of granting them admission to Bangladesh were far outweighed by those sharing the government's position of denying admission. While the former based their case on moral and legal grounds, the latter's case has been shaped by, what one may say, a misguided notion of state interest and unsound understanding of the international human rights and refugee laws. Politicians, pundits and policy-makers belonging to the latter group have put several reasons in justifying their position.

One of the most common arguments put forward by opponents of admission and asylum for the Rohingyas is that Bangladesh is an overpopulated country and cannot afford to shoulder another group of aliens. Implicit in this line of argument is that these Rohingyas are here by choice, and resource constraints is a valid ground for rejecting them.

However, any objective analysis of the unfolding of events in northern Rakhine district in Myanmar would reveal that the Rohingyas were compelled to flee their usual place of residence. Mention must be made that, during a visit to the affected areas, a UN team found smouldering villages and estimated that about 30,000 people have been displaced. The regime itself has conceded that as many as 90 people have so far been killed in the mayhem. Under such circumstances there is no scope to view them as economic migrants attempting to move into the greener pastures of Bangladesh. One would need to be a cynic to suggest that these asylum-seekers are putting on a carefully scripted act.

Another allegation against the Rohingyas is that they are not law-abiding and are engaged in antisocial activities in the Cox's Bazaar-Ukhia region. A growth in their number would lead to further deterioration of law and order in the concerned areas. This claim that the Rohingyas are more inclined to criminal activities than locals is not borne out by facts. No research has been done on the issue nor has any analysis of police records been conducted that establishes the merit of such a claim.

This perception is very much in consonance with the stereotypical view of migrants, asylum-seekers and refugees held worldwide. These voiceless people make perfect scapegoats for any and every ill of any society. In reality, the security of the Rohingyas has all along been at stake. Often they are the victims of exploitation by employers, contractors and recruiters. This writer has documented many cases in which employers, particularly in the construction and fishing sector, systematically underpaid Rohingya workers. In certain cases they were denied a substantial portion of their earnings.

Rohingyas have been blamed for causing harm to the environment around the vicinity of their shelters. The logical inference is that the presence of more Rohingyas would contribute to further damage. The refusal of successive Bangladesh governments to extend protection to the Rohingyas who came after 1992, when the window to claim refugee status was shut, has forced these people to squat in a disorganised way. Unlike those who arrived before 1992 and were fortunate to gain refugee status and be housed in camps, the latecomers did not have access to shelter nor any kind of support.

Under such circumstances, they had little option but to depend on natural resources for their basic survival. The ill-conceived policy of the Bangladesh authorities to deny access to status determination procedure to the late arrivals and to prohibit international NGOs from extending support to this vulnerable group took a severe toll both on the Rohingyas and the environment. Therefore, it would be unfair to lay the blame only on the Rohingya community for causing harm to the environment.

Rohingyas have been blamed for usurping Bangladeshi labourers in countries like Saudi Arabia and Malaysia. Some have even suggested that when Rohingyas are engaged in criminal activities in those countries, the blame falls on Bangladeshi workers. Again, there is little evidence to support these claims. If these Rohingyas had indeed travelled with Bangladeshi passports, then it speaks volumes about the laxity of the immigration and passport departments of the Bangladesh government. It may be pertinent to mention here that, for their stateless condition, the Rohingyas receive a modest level of favourable treatment with regard to employment in Saudi Arabia.

Some are putting forward the argument that at a time when Myanmar is opening up, the Rohingya issue should not be allowed to be an irritant to improving diplomatic relations with that country. This group strongly feels that real politik and pragmatism dictate that we should shun human rights issues and promote economic ties.

One could argue that "constructive engagement" and the "Look East" policies of various governments have yielded little results for Bangladesh. While Bangladesh was experimenting with those options, Myanmar continued with its policy of ethnic cleansing and creating unfavourable conditions for the Rohingyas in the northern Rakhine state, so that they were compelled to leave.

A few commentators have argued that by denying admission to the Rohingyas, Bangladesh has not breached any legal obligation, as the country has not ratified the 1951 UN Refugee Convention. It has been pointed out that this claim is unconvincing, as Bangladesh is obliged to uphold the principles of the Universal Declaration of Human Rights, and is a state party to the International Covenant on Civil and Political Rights, the Convention on Torture and the Convention on the Rights of the Child. These instruments oblige Bangladesh not to send individuals forcibly back to their country of origin if there is a threat to their life and liberty.

Some experts have further argued that, as the Rohingyas were not victims of state persecution, they cannot claim refugee status. This is an erroneous reading of the relevant section of international refugee law (detailed in the Status Determination Handbook on Refugees of the UNHCR, the authoritative text on asylum claims). Refugee law states that the agents of persecution can be state agents as well as non-state actors. The law therefore covers all forms of persecution - when it originates directly from official agents of the government or is instigated by state authorities, and also when private individuals inflict persecution.

Therefore, to qualify for refugee status, one does not have to be subjected to only "state persecution". Persecution at the hands of non-state actors is very much a legitimate ground for seeking asylum. In the recent Rohingya case, narratives of victims, as well international media reports quoting independent sources in the northern Rakhine state, have noted that in many instances law enforcement agencies not only abetted arson and torture, but also actively aided the perpetrators in those acts. We need to be mindful of the fact that persecution is a broad concept and encompasses human rights violations and other kinds of serious harm. The Rohingya case meets all these prerequisites.

From the above discussion one may conclude that both in government and non-governmental quarters, a prejudiced view of the Rohingyas has precluded a rational response with regard to the new arrivals. It also highlights the serious gap that exists in the appreciation of the operation of international human rights law and refugee law in dealing with this group of people. Such a gap has contributed to a flawed policy of denial of entry to a group of people at high risk who are essentially asylum-seekers and not intruders or infiltrators as many would like to portray them to be.

CR Abrar teaches international relations and coordinates the Refugee and Migratory Movements Research Unit of the University of Dhaka.