Introduction : First Edition of Refugee Watch Online, 2013

Ishita Dey

In this edition of Refugee Watch online, we want to move beyond the understanding of Partitioning of the Indian Sub of partitioning of the sub-continent of 1947 as a cartographic exercise. What is interesting is how “contested spaces” were recreated and reproduced in post-colonial South Asia as a result of the massive forced migration across 370,000 square miles of territory leading to the formation of two nation-states of India and Pakistan. Much of the contested spaces have to do with how people negotiated with the “borders” that forced them to migrate, as well as become subjects and agents of post-colonial statecraft.

Decades later, populations across various territorial entities continue to suffer the impacts of this cartographic exercise which was responsible for inter community clashes and riots. Most of the people who were forced to migrate thought it was a temporary move. They would be able to return. Anisuzzaman, Eminent Scholar and Professor Emeritus, Department of Bangla, Dhaka University in his account echoed a similar feeling. He said his father chose to migrate to Khulna from Kolkata because it was near to Kolkata. In this interesting panel “Partition Experiences in South Asia: Memory, Literature, Media” in the recently concluded 14th IASFM Conference hosted by CRG on “Contested spaces and cartographic challenges” the presenters shared the varied experiences of partition across India, Bangladesh and Pakistan. In Anisuzzaman’s account, one could also realise the complex picture produced by the Language Movement and the Liberation War. Similarly the feminist reading of partition historiography critically looked at nation-hood and the ways in which nationalist histories were written. Even in literature, both vernacular and in English, partition continues to be be introspected from various lenses- narratives of “home”, gendered experience of partition and struggles on arrival or departure. In other words, partition was as much a historical event that led to redrawing of “borders” at various time scapes but it also produced newer complexities with regard to citizenship rights, claim making and contestations.

In another panel “ Other Histories of Partition- Lives in transit”, there was an attempt to look into how social structures were reproduced and contested spaces were created by the population movements in the “Eastern” side of the border the refugees struggled and continue to do so to find a place in post-colonial statecraft. In this context it is important to understand that the post-colonial statecraft’s narrative of ‘care and protection’ towards “refugees” was embedded and continues to be influenced by the existing social structures of religion, caste and gender. These “lives in transit” is representative of the “other’ histories of partition of how partition produced the “other” and created contested spaces of the ways in which the “other” could be co-opted as the three studies in this panel will reveal.

In other words, the politics of post-partition are located in the policies and experiences of exclusion/inclusion of the people who were forced to cross borders and who continue to live in the liminal zones. Hence, the partition of the Indian –subcontinent in 1947 continues to produce lives in transit as evident in the contributions in this edition of Refugee Watch Online.

Anwesha Sengupta in her piece “Being Minority, Being Migrant: A Note on the Muslims of West Bengal, 1947-1950” discusses the forced migration of Muslims from West Bengal to East Pakistan. Atig Ghosh, in his article on “The Inhabitants of Bangladeshi Chhitmahals in India” takes a critical look at “the question whether there are tangible conditions which actually mark out life in an enclave or is it merely a stereotypical reification, imbibed over time and regurgitated conveniently.”

In the section on Reviews, Tista Das in her re-reading of a short story “ Jaiba” by Narendranath Mitra takes a critical look at the ways in which gendered narratives makes its space in literature on partition. Tista is interested in the gendered violence that Sudatta faces during partition, post partition and within the familial structures. Through Sudatta’s journey into motherhood, Tista reads this fascinating story against the context of how “honour” is constructed around “women” and how it continues to produce multiple layers of violence.

Sohini Majumdar in her review of Neeti Nair’s work Changing Homeland: Hindu Politics and the Partition of India, Harvard University Press 2011; presents to us come of the complexities what shaped partitioning of the sub continent. According to Sohini, “She argues that the historiography of partition have tended to view partition as a logical culmination of a process of communalism where the monolithic Hindu and Muslim community was posited against each other. Interrogating this widely accepted view, she focuses on the ‘reality’ of the conflicting and intersecting identities that came to dominate the various decisions the people of Punjab took at various historical conjunctures”.

We look forward to your comments and feedback.

Supreme Court Promises to Look into Citizenship Rights or Refugee Status to Thousands of Displaced in Assam

In an article in Outlook India, Supreme Court reportedly “agreed to examine the plea for grant of citizenship or refugee status to thousands of displaced persons, mostly in Assam, of minority communities like Hindus, Buddhists, Sikhs and Christians due to their alleged religious persecution in Bangladesh”. What is critical to note is that the petition raises certain serious concerns over the citizenship act, amendment and the victimisation of minorities in Assam. What is interesting is the way the petition urges the court to look into the plights of the displaced within the international protection mechanisms for “refugees”.

Excerpts from the Report

“Citing the cut-off date of 25.3.1971 fixed by the Centre for granting citizenship to the migrants in the wake of the Assam Accord, the petition said victimisation of minorities continues even after the cut-off date and hence their case should also be considered sympathetically.

"In the facts of the present case, the ‘displaced persons’ also deserve protection in our country and the status of ‘refugees’ under the International Conventions, namely the Refugee Convention, 1951, and 1967 Protocol Relating to Status of Refugees; Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment, New York, 1984 and the International Convention for the Protection of All Persons from Enforced Disappearance, 2006," it said.”

Even in the case of “Bru” displaced media reports called them as “refugees”. While contestation over citizenship right is the central argument of this petition, it is interesting to see the ways in which citizenship rights is posited vis a vis refugee status/ rights.

For details see : “SC to examine B’desh Migrants’ Plea for Citizenship”, Outlook India,27 July 2012
http://news.outlookindia.com/items.aspx?artid=770192; Accessed on 10 September 2012

Right to Return for Bru Displacees

In the first edition of Refugee Watch Online we had published an interview with representatives from Mizoram Bru Displaced People’s Forum who had pointed out that they wanted to go back to Mizoram1. In May 2012, not a single Bru displaced people wanted to return back because they are scared of the socio-economic consequences they have to face when they return.

According to a report published in Economic Times not a single Bru displacee returned to Mizoram on the last day of the “repatriation” process that the Government of Mizoram had arranged with their counterparts in Tripura at Mamit ( a place bordering Tripura and Mizoram). The representatives of the Mizoam Bru Displaced People’s Forum expressed their anxiety indicating that around 85 % of the displaced people staying in the camps of Tripura would be treated as second class citizens as their names would not feature in the voter’s list prepared in 1995. According to the representative of Mizoram Bru Displaced People’s Forum, “Mizoram Government had agreed to take back only those refugees whose names figured in the final voters list published in 1995.”2 Apart from that they also expressed concerns that they will not be able to participate in the jhum cultivation and will lose out on a year’s harvest. They reportedly submitted their demands to the Union Home Ministry and the Mizoram Government.

For details see :

1.http://refugeewatchonline.blogspot.in/2012/03/we-want-to-go-back-to-mizoram.html.
2. ‘Fourth phase of repratriation of Bru Refugees from Tripura fail’ http://articles.economictimes.indiatimes.com/2012-05-16/news/31726960_1_repatriation-of-bru-refugees-mamit-mizoram-government; Accessed on 22 May 2012

Stateless People

Despite the September 2011 agreement on protocol of exchange concerning 51000 people in 162 enclaves between India and Bangladesh, there has been little headway at the ground level. A recently published report in Indian Express (see link below) reported that a German woman of Polish origin have declared to extend financial support towards a child’s education. She has already contacted ontacted Diptiman Sengupta, secretary of the India-Bangladesh Enclave Exchange Coordination Committee (BBEECC). In fact BBEECC has nominated two girls one from Indian side and one from Bangladesh side.

For details see:-
Madhuparna Das, “Offer from German Resident gives hope to stateless in India” 23 July 2012. http://www.indianexpress.com/news/offer-from-german-resident-gives-hope-to-stateless-in-india-bangladesh/978044/1; Accessed on 6 August 2012.

Being Minority, Being Migrant: A Note on the Muslims of West Bengal, 1947-1950

Anwesha Sengupta

On August 15, 1947 Calcutta and West Bengal was in a festive mood. Slogans like Bande Mataram, Jai Hind, Hindu-Musalman ek Ho, Allah ho Akbar, were raised in the streets of the city and its suburbs. People of different faiths embraced each other, distributed sweets and thus celebrated the much awaited independence.1 It seemed for a moment that the cloud of communalism had finally passed. It was a momentary relief though. Soon, the Muslims would realize that their lives were no longer safe in this city and in West Bengal. Within a year of independence, the communal situation started deteriorating. On the day of Muharram, 1948 the procession was obstructed near Maniktalla (Calcutta), brickbats and acid bulbs were thrown and on the following day there were chilling reports of Muslims being stabbed in some of the streets of Calcutta. It was also reported that the refugees from East Pakistan played a leading role in this.2

The scene outside Calcutta was no better. Nadia, a border district, for instance, was one of the majorly disturbed areas. Particularly notorious were the villages within the Shantipur Police Station of this district. The Muslims, mostly poor agriculturalists, were often harassed by the local Hindus. Their properties were looted, crops produced in their fields were forcefully taken away, and houses were occupied.3 As early as in July 1948, a riotous situation developed in Shantipur. It started when some Muslims allegedly attempted to molest some Hindu school girls. Whether this was a rumour or not4 is difficult to ascertain. But this (alleged) incident became the excuse for damaging the mosques, attacking the local Muslims and even killing them. Of course, incidents like this forced many Muslims to migrate. The following extract from the secret report on the situation of East Bengal for the first half of July 1948 will give an idea of the situation in Shantipur and the plight of the Muslims:

a serious outbreak of communal fury against Muslims occurred in the Shantipur thana of Nadia district on 19-20 July. Information in the possession of government shows that Hindu mobs with the connivance and sometimes active assistance of the police, attacked mosques and houses. At least 10 Muslims were killed, and scores injured. It is also reported that medical aid was denied to the injured by the Hindu doctors of the area. As a result of these disturbances many Muslims have migrated from Shantipur to Rajshahi, Jessore, Kushtia and Pabna districts of this province and their accounts of oppression endured by the Nadia Muslims has had an exciting effect on the minds of their hearers.5

Nadia, being a border district, received massive refugee influx from East Pakistan. By a warped logic of retribution, the refugees often took leading roles in torturing the Muslims. If they could not stay in Pakistan, they would not let the Muslims stay in India, perhaps, was their idea. The police and the local administration too often were a party to these assaults, either directly or by being mute spectators. The violence of Calcutta, Noakhali and Bihar riots, the reports and rumours about Hindu oppression in East Bengal and the general understanding of partition, made the majority of the people respond to the politics of the time in religious terms. So, in January 10, 1949 when a group of 30 refugees from East Bengal led by Debendra Nath Mandal, assaulted the Muslims of Haldipara village (Hanskhali police station, Nadia), the police did not take action. The same group, encouraged by the indifference of the police, again created trouble on 14 and 15th of the same month and even tried to kidnap a Muslim woman. Even then, the police allegedly refused to register any complaint lodged by the Muslims.6

The refugees needed lands to cultivate and homes to stay. They often forcibly occupied the houses of the Muslims, as well as their mosques and desecrated their graveyards.7 Often the Government of West Bengal had a more direct role in displacing the Muslims. For instance, on December 1, 1948, the West Bengal Government issued a notification to acquire land in twenty two villages of 24 Parganas district for rehabilitating the Hindu refugees. These villages, situated very near Indo-East Pakistan border, were populated primarily by the Muslims. Such a measure made them anxious and was seen as a deliberate attempt to “clean” the border areas off the Muslims.8

Being a refugee was also an equally difficult experience for the poor Muslim migrants. First and foremost, being uprooted from one’s home had deep psychological impact. Settling down in a new place required necessary capital, which the refugees often lacked. So they expected some help from the Government. Muhinuddin Ahmed from a village under Shantipur Police Station wrote the following letter to the District Magistrate of Jessore:

…Lands for construction of thatched roofing houses and lands for cultivation and weaving machines are urgently required for the refugees of Santipore. The refugees of Santipore who came here they left all things in Santipore. We do not want to be a burden on our Government and as such if facilities are offered to equip ourselves with necessary implements for cultivation and weaving, immediately people can start on work and earning. … at present arrangement for the 500 evacuees may kindly be made. For our help your honour kindly arrange for two tube wells in Jadavpore at a very early date and will kindly arrange for C.I. sheets of 10’-0 at controlled rate at a date when available. [sic.]9

There is an absolute lack of any research on the politics and process of relief and rehabilitation of the refugees in East Bengal. The refugee pressure increased in 1950 when there was an outbreak of communal riots in both East and West Bengal. Many, who initially thought of staying put in India, were forced to leave. This article does not have the scope to discuss the anatomy of this violence in great detail. But a quotation from the diary of Tajuddin Ahmed, who later became the first Prime Minister of independent Bangladesh, would give an idea of the flow of the Muslims from India to East Pakistan. He wrote on February 28, 1950:

After two and a half years of Pakistan’s independence, Dhaka is witnessing communal riot. The riot has affected the suburbs and interior villages as well. Dhaka is also witnessing a massive influx of Muslim refugees from West Bengal [because the communal riots have affected that province as well]. Dhaka for the first time is facing acute pressure of the refugees. A large section of the Hindus are also leaving East Bengal.10

Being a Muslim in West Bengal was a difficult experience during the ‘partitioned times’. This paper tried to shed some light on the woes of being a minority and a migrant, by focusing on the Muslims of West Bengal. Through the study of the condition of the Muslims in West Bengal after partition, it revealed the limitations of the “secular” Nehruvian India in safeguarding the interests of its religious minority.

Notes and References

1 Sekhar Bandyopadhyay, Decolonization in South Asia: Meanings of freedom in post-independence West Bengal, 1947-52, Routledge, London and New York, 2009, p-10.
2 Letter to the Editor from Abdul Majid, Azad, 14.11.1948.
3 F.No K.W. 19-199/48, Pol (C.R.);Bundle No 1, ‘B’ Proceedings, List 119, Archives and National Library (ANL), Dhaka.
4 Letter dated 27.9.1948 from the Deputy Secretary, Government of East Bengal to the Secreatry, Government of Pakistan, Ministry of Foreign Affairs and Commonwealth Relations, F.no- C.R.19-199/48, Bundle No 1, ‘B’ Proceedings, List 119, Bangladesh National Library and Archives, Dhaka.
5 F.No- C.R.19-199/48, Bundle No 1, Pol (C.R.); ‘B’ Proceedings, List 119, Archives and National Library (ANL), Dhaka.
6 From the Secretary to the Deputy High Commissioner for Pakistan in India to the Chief Secretary to the Govt. of East Bengal, Date 29.3.1949, F.No – 3C1-6/49, Bundle No 2, ‘B’ Proceedings, List 119, ANL.
7 Ibid. Also see, Joya Chatterji, ‘Of Graveyards and Ghettoes: Muslims in Partitioned West Bengal 1947-67,’ in M .Hasan and Asim Roy(eds), Living Together Separately: Cultural India in History and Politics, O.U.P., New Delhi, 2005.
8 F.No CR 5M-1/50 Pol (C.R.); Bundle No 2, ‘B’ Proceedings, List 119, ANL.
9 Letter to D.M, Jessore dated 22/8/1948 from Muhinuddin Ahmed ‘on behalf of refugees’, F.no- C.R.19-199/48, Bundle -1, List-119, ‘B’ Proceedings, ANL.
10 Tajuddin Ahmed, Tajuddin Ahmeder Diary, vol 2, Pratibhas, Dhaka, 2007 (second edition), p-87

The Inhabitants of Bangladeshi Chhitmahals in India

Atig Ghosh

Approximately 200 Indo-Bangladesh enclaves, which are sprinkled along the international border of Rajshahi state, Bangladesh, and Cooch Behar district, West Bengal, are collectively known as chhitmahal or chhit mohol in Bengali and constitute a bizarre political geography. A simple rendition of the chhit mohol as enclaves obfuscates the myriad spatial configurations and strategies that have emerged in the area over 60-odd years since partition. There are, for starters, counter-enclaves; that is, enclaves completely enclosed by another enclave. Shalbari, the second largest Indian enclave, for instance, encloses four Bangladeshi exclaves. There is also a globally-unique counter-counter enclave; the largest Indian exclave, Balapara Khagrabari, embodies one Bangladeshi exclave, Upanchowki Bhajni, which itself embodies an Indian exclave called Dahala Khagrabari, thus making the last one a counter-counter enclave. Then, there existed until very recently arguably the world’s only part-time enclave, Dahagram-Angarpota, which was connected to Bangladesh by the one-acre or tin-bigha corridor. The corridor used to remain open every alternate hour during day and completely closed during night. The Singh-Haseena agreement of September, 2011, however, has opened the corridor permanently, thus conferring the dubious character of a pene-enclave on Dahagram-Angarpota. Pene-enclaves are, however, not unknown to the residents of the area, though they have curiously escaped academic as well as journalistic scrutiny. Kalsi para or simply Kalsi, the Muslim-majority Indian proruption into Bangladesh, for instance, is a pene-enclave of sorts located in Kuchlibari. Though all our respondents pointed out that it is not a chhit or enclave technically, they unanimously concurred that the life conditions there best represented what is normally considered to be life conditions in an enclave. The observation, of course, begs the question whether there are tangible conditions which actually mark out life in an enclave or is it merely a stereotypical reification, imbibed over time and regurgitated conveniently. This study pays special attention to this critical concern.

During colonial times, the people of the enclaves did not face any difficulty graver than those experienced by their mainland counterparts. Sovereignty was not expressed in terms of territorial contiguity as in terms of jurisdiction and tax flows. Even after partition, for some years the old arrangement limped along, though gradual tightening of national territoriality was becoming evident. The apical moment of this territorial closure came in 1952, when the two governments of India and Pakistan agreed to introduce the passport regime. The agreement made no mention of the inhabitants of the enclaves and, as such, they were pushed into a curious situation of government-enforced statelessness. That is, if a person of, say, an Indian enclave in Bangladesh wanted to obtain passport and visa for free movement, she had to illegally trespass into Bangladeshi territory; if the person managed to reach a border outpost undetected, she had to be admitted illegally into Indian territory, for she carried no identification proof, and then travel hundreds of kilometres to the nearest consulate. If all this resulted in the issuance of a passport and a visa, then the person could return to the enclave only till the visa expired. Then she had to repeat the illegal procedure all over again.

The Indian and the Pakistan (later Bangladesh) governments came to a series of understandings to effect the exchange of enclaves. But none ever got beyond paperwork and diplomatic pleasantries. In the meanwhile, the people in the enclaves were confronted with a slew of identity-related options; none of them felicific, but such were the choices. William Van Schendel has identified at least three such self-reckoning strategies of the stateless people of the enclaves. Two of them, he argues, are transterritorial: the enclave-dweller could think of herself as a citizen of the patron state. Conversely, a Bangladeshi Hindu could identify with India and an Indian Muslim could identify with Bangladesh. This he calls ‘proxy citizenship’ which was often induced by the ideological goading of the mainland nation-states. This latter claim however does not fit neatly with evidence collected over time. In fact, Van Schendel himself finds a Muslim interviewee residing in an Indian enclave, Md. Bokhtaruddin, who describes how Pakistan had disowned him and his community after 1947. Suspended in this stateless void, the third available identity-related option was, of course, one of belonging to the enclaves. This is not trans-territorial but locally rooted. However, identity as a claim-making device can only be effective when it has numerical, economic and political teeth. The residents of the enclaves, separated by swathes of foreign, often hostile, territory, with no health, education, civic and administrative guarantees, could hardly make such identity claims effectively.

Add to this the atmosphere of coiled tension that often erupts into violent engagements. It is inarguable that the quantum of violence has dwindled since Bangladesh came into being. However, it has hardly disappeared. For example, in May 2000, a Hindu girl from India eloped with a Muslim youth from South Moshaldanga, a Bangladeshi enclave in India. On May 11, a crowd of Indians entered the enclave and looted five houses. A week later, the enclave was once more invaded by hundreds of Indians who set fire to fifty-five houses, wounded ten people and abducted four, and looted cattle and valuables. The 65-year-old Jitendra Nath Roy of Balapara Khagrabari, the largest Indian enclave in Bangladesh, on the other hand reports, “Bangladeshis used to loot our grain silos and rob our cattle by day. When night fell, we would all go and hide in the forests. When they came to rob us during night, they beat up the men and tortured the women.”

From all accounts, it seems that the quotient of violence perpetrated against the residents of the enclaves was evenly matched in both countries. However, some fieldworkers have told that the Bangladeshis are harsher in their treatment of the stateless population than their Indian counterparts. Now, this is a very dangerous argument to make. But one sees why otherwise perceptive researchers would draw such conclusions. When our researcher reached Kuchlibari in Mekhliganj block, Cooch Behar, prima facie what struck him was the ease and comfort the people of the enclaves radiated. They were very happy in India, they said unanimously. Shambhunath Chowdhury, a resident of the Dhabalsuti Chhit Mirgipur of Bangladesh, declared that if the exchange of enclaves took place following the Singh-Haseena agreement, he will not leave for Bangladesh. He is a shop-owner. Our researcher insisted that they could not be that happy after all, what with statelessness and disenfranchisement. But he would not be budged. “All of us have Indian voter identification cards and ration cards. We are happy here,” he argued. Muhammad Belal Hussain, who has all his land in a Bangladeshi enclave, too echoed Mr Chowdhury. He would not leave.

The examples of xenophobic violence detailed above militate against such jolly instances of belonging. Accepted prima facie and outside their historical context, they may be misguiding. In the case of Dhabalsuti Chhit Mirgipur, for instance, a violent history of forcible expulsion in 1955, one could suggest, may have left only those who wanted to remain, to belong unconditionally. A horde of mainland Hindus had, in 1955, demanded “the blood of Muslims” and driven almost all dissenters into Bangladesh.

The respondents, nevertheless, fear that “those in the Indian enclaves in Bangladesh would come if the exchange happens. The government has promised to settle them. Where will the government settle them? There is no land but that of ours.” The tenuous belonging and wilful oblivion was slipping in face of the proximate possibility of dislocation when suddenly the group as if collectively snapped back into confidence. “But these governments will never reach an agreement; they never have,” they chuckled in self-assurance. Indeed, perhaps their confidence is not irrational. For India, the historical jingoism of the right-wing apart, recently another factor has cropped up to collude against an amicable exchange: the growth of tea gardens in the area. The enclaves, and their attendant instability in national space, have meant that land has been sold dirt cheap here, sometimes at as little as 8000 rupees per acre. Major players like Roshanlal Aggarwal, the Goels and NutriTea have bought land and started plantations. An eco-tourism resort of the GBC Enterprises Limited has come up a stone’s throw away from the Tin-Bigha Corridor which offers leisure walks through tea gardens, a modern saloon and massage parlour! If one provisionally accepts Giorgio Agamben’s (The Coming Community and Means without End: Notes on Politics) contention that attributes a determined character to the state and a determining power to the economic forces of capitalism that conditions particular forms of the state, then the Indian state is unlikely to rip through the tightening tangles of big investment. But, we offer this only as a possible outcome. Who knows, the nation-state may still surprise us.

Questions of statist ambition and quotidian statelessness, global processes and local exigencies, identity and the anamorphic ‘other’, get crosshatched in the fastnesses of the North-Bengal frontier; considerations of borders-in-the-mud get transformed into concern for the boundaries-in-the-mind. The story of statelessness in South Asia ultimately becomes a saga of survival techniques, self-making and, sometimes, strategies of status-quoist solidarity.

Partitioned Lives: Reading Narendranath Mitra’s Jaiba

by Tista Das

There is a problem that is associated with the word ‘violence’. One can never be quite sure as to what constitutes violence. While fear assumes new meanings in the context of homelessness, in popular parlance “honour” creates a separate space for women, considering the honour of a community rests upon women.

I shall read Narendranath Mitra’s short story Jaiba (of life) in this context. It was first published in Chaturanga in the winter of 1948 and republished in a collection- Galpamala (Mitra, Narendranath, Galpamala,1989, Ananda Publishers Limited, Kolkata). But, to begin with, one must come to terms with the thread of victimhood and violence in Bengal. Unlike Punjab, in Bengal, there were moments of violence (specifically related to the event of the Partition) scattered through many years, more than two decades. Such an image of waves might be one of the reasons why the story of violence in Bengal is not well marked. Moreover, the Bengali intelligentsia was somehow not comfortable with its narration. Violence remained out there as an ever present threat, but not something that affected one directly. It became the motif upon which the story is woven. It became something that happened to other people and threatened everyone in general and therefore changed the way of life. What complicated the scenario further was that such a narration of the Partition also had to accommodate the story of the women. The subjectivity of women was as much to their men as to the Nation. Such dual subjectivity made them more prone to violence. Their men were also their protectors and the class identity of the Hindus and Muslims of East Pakistan placed the women on a platform similar to but not quite the same as their men. One needs to ask, whether, once bereft of a home, the woman becomes more homeless than her men. Whether their rehabilitation is even more complex since it is figured not only vis a vis the State, but also vis a vis (other) patriarchal modes.

The kind of violence that the years around the Partition experienced was not what the modern mind would like to associate with the birth of a modern nation. Then, it must be said that the birth of the modern Indian Nation does not coincide with the end of colonialism in 1947. Such a nation remained ‘in making’. One can realize the weakness of this argument since such a modern nation can never be made. However, the point to be noted is that violence became the difficult terrain through which one had to pass through to become a part of the Nation; a necessary evil. That was the only explanation possible. It amounts to seeing violence as the blood bath, the test that a nation needs to pass through to achieve statehood. It is the sacrificial altar that purifies the moment of birth.

However, any explanation is a matter of hindsight. The bewilderment of the men on the spot must be taken into account.

Narendranath Mitra’s story revolves round a young middle class couple, Mriganka and Sudatta. The structure of the household is very modern, meaning nuclear, clearly marked by the absence of parents and relatives. Mriganka is a Professor of Chemistry, whose wife had been abducted in Lahore and recovered later. In her days of abduction, she had become pregnant. She cannot live with this reality and wishes desperately to destroy the unborn child, her link with the past. However, the doctors are not confident to abort the child since the mother is well into her pregnancy. Mriganka loves his wife and tries to talk her out of any scheme of abortion at such an advanced stage. He has accepted her back into the folds of their life. The reader does not come across any character who messes with this order. Sudatta gives birth to the child and arrangements are made to put the child in an orphanage. However, there is one impulsive moment (a moment of betrayal?) when she looks at her child’s face and at that moment it is her motherhood that dominates her being. She looks at her child with love. This does not go unnoticed and Mriganka decides to take the child home. He, however, develops an obsessive interest in biology, heredity and the effect of genes. Sudatta faces the greatest crisis when she finds her husband looking at the child and making notes in his diary and she becomes desperate to abort the second child she now conceives with her husband since she is afraid that this would only make him interested in a comparative study.

It is difficult to put a finger on the moment of violence in this story. Should one consider the moment when the woman was raped (which of course is before the narration begins), as the moment of violence? Or is it when she decides to abort the child conceived through the act of rape? Is such a destruction of order the moment of violence? How, then, does one read the moment when the husband looks at the child and makes notes? It is his response to his own fate rather than his wife’s. He comes to terms with the horrid past. It does not break the order of his modern middle class life as long as his wife is not able to accept the consequences of the past misfortune. However, when he finds that his wife has fallen in love with the child of those times of violence, this order breaks.

This problem of locating the moment of violence is perhaps the most baffling in any study of the Partition. The thread of violence makes the Partition belong to the modern State. No matter how clinically one tries to deal with the greatest event in the life of the independent State, no matter how one tries to explain, to categorise facts with the purpose of building a narrative of nationalism (the success and the failure of it, the latter helping to foster separatism) and separatism leading to the climactic point; and no matter how one tries to see violence as the entry point to a modern state, the Partition refuses to be relegated to the Nation’s past; it refuses to be contained. This is especially true of Bengal where the waves of migration spilled the Partition into the life of the independent State so that lives in general, remained partitioned.

Nair, Neeti. Changing Homeland: Hindu Politics and the Partition of India, Harvard University Press 2011, pp 1- 343

by Sohini Majumdar

In this book, Neeti Nair questions the teleological assumptions about the inevitability of partition that mark a dominant mode of historical thinking, focuses on the diverse choices that the people of Punjab made at different political conjunctions. She argues that partition was not the only option that the people of Punjab opted for. Rejecting the binary of communalism and anti- colonial nationalism in historicizing the colonial encounter and partition Nair questioned the monochromatic and rigid ideological categorization. She argues that the historiography of partition have tended to view partition as a logical culmination of a process of communalism where the monolithic Hindu and Muslim community was posited against each other. Interrogating this widely accepted view, she focuses on the ‘reality’ of the conflicting and intersecting identities that came to dominate the various decisions the people of Punjab took at various historical conjunctures (p 29). Thus her focus is on the complexity and contradictions that mark the various interplay of multiple loyalties, identities, imaginings of the nation and community as well as the various sites of conflicts and negotiations at shared political spaces marking the shifts in the political conundrum which defies any linear movement from an anti colonial nationalism to that of communalism in the body politic and body civic. Referential here is Joya Chatterji’s Bengal divided : Hindu Communalism and Partition 1932- 1947, Cambridge University press, 1995, which contrary to Nair de recognition of linear progression, focuses on the parochial interest of the Bengali Bhadralok classes whose inward looking politics to dominate the Bengal politics turned them from nationalists to communalists, their politics eventually leading to the partition.

Nair opines that the option of negotiation was always sought at when Punjab navigated among various options and opinion. But, it was these missed out chances for political accommodation which caused the partition. She focuses on the political rhetoric of the Hindus being a minority in Punjab while being a majority in India. She argues that it was the colonial context that created the categories of ‘minority’ and ‘majority’ which gained consequences when applied in the administrative structure (p31). Hence, it was colonial logic that lent credence to communal identity whence the British out of the multiple political identities emphasized the identity of belonging to a religious community (p31). Thus, it was the Punjab politicians who in view of safeguarding their minority interests played out in the political platform, exhibiting a diverse range of responses and choices from loyalty to anti colonial nationalism. In the process, they sometimes aligned with their co religionist in the wider nation while at other instances they sought negotiations with the other religious communities at the provincial level. And it in these diverse and twisted responses that Nair offers fresh interpretations of Punjab’s relationship with the national movement.

Nair states that the political history is complex enough to fit into clean categorizations and she questions the taxonomies of loyalist, communalist, or secularist. By focusing on the communitarian relations in Punjab, she focuses how the meaning of communalism changed according to the context. She argues this by citing the various choices the Punjabi Hindus exhibited, that deluded these clean categorizations. From a revisionist perspective, she reviews the position of Swami Shraddhanand a proclaimed Hindu communalist and a propagator of Arya Samaj who provided leadership to the anti-Rowlatt Act movement while preaching Hindu-Muslim-Sikh unity even as he became involved in shuddhi and sangathan in post Rowlatt days. Similarly, she focuses on the shifting politics of Lala Lajpat Rai who faced dilemma of imaging India that equated it with Hindus and a notion that prided the national over the communal. Another fresh interpretation she offers is the reading of the non violent politics of Bhagat Singh over the issue of treating the ‘political prisoner’ which offered a scope of uniting the divided elements of Punjab politics but failed to win over Gandhi who is fairly criticized for his failure to acknowledge Singh’s ideological affinity to himself while continuing to refer to Singh’s violent past. But though Nair is successful in portraying the attitude of Punjabi Hindu elites, her book precludes any analysis of the ‘subalterns’ domain of politics.

Nair questions the monolithic frame that denigrates all kind of violence as ‘genocide’. She states that there were particular context, temporal or spatial, for every instance of violence that defies the generalizing framework. Her effort is to understand the nuances to focus on the contextual and situational aspect of violence rather than clean categorizations. The partition violence that engulfed Punjab was accompanied with a sense of disbelief. There was battle for space, with neighbours turning against neighbours with the breakdown of social equations. But this was no undifferentiated picture of communal violence. People of one religious community continued to help those of others while continuing to live their closed knit community. Such instances, Nair claimed, upset the ‘master narratives of “communal violence” (p197). There was no distinction between the perpetrators and the victims. But it was this ‘unplanned’ violence that represented the crumbling of an old order with the abdication of responsibility of minorities at both side of the border (p218). And it was this which turned the minorities into the new categories of ‘refugees’ in the context.

Conducting oral interviews of Delhi based migrants she focuses on their memories which was marked with a sense of confusion as they changed homelands. There was absence of any anticipation of uprooting among them. She portrays the various strands of understanding and attitudes towards the Muslims that marked the migrants’ sentiment which remained ambivalent there while it was clearly represented in the secular traumas. The experiences of partition are explained in the migrants’ terms and language. She argues that their experience of partition was less accompanied by sense of trauma and loss, stereotype in partition literature, since they fared well as they shifted to Delhi. Their questioning of these myths bring fresh insight to secular notions which are relevant for understanding religious differences which engulf modern South Asia.

Introduction for the III Edition, 2012

Anuradha Gunarathne

With the theme of 2012 “Refugees have no choice. You do” the World Refugee Day was celebrated in June by the UNHCR and most of the countries in the world honours the courage, strength and determination of women, men and children who are forced to flee their homeland under threat of persecution, conflict and violence. According to the estimate of the UNHCR more than 43 million people have been forcibly displaced worldwide.

In the official statement on the refugee day by UN Secretary - General Ban Ki-moon expressed that "We must work together to mobilize the political will and leadership to prevent and end the conflicts that trigger refugee flows. [...] Despite budget constraints everywhere, we must not turn away from those in need. Refugees leave because they have no choice. We must choose to help."

The third edition of RWO draws attention on refugee issues marking the refugee day 2012 and the task remains on UN refugee day. In the section of Perspective Arani Sanyal and Anwesha Sengupta write about famous Arul Varma’s judgment on Rights of Refugees; Emdadul Haque on Opinion of South Asian frame work of refugee protection and Srabani Mia on Bangladesh’s obligation for the protection of refugees.

The book ‘The Plight of the Stateless Rohingyas: Responses of the State: Society & the International Community’ published by University Press Limited, Dhaka, Bangladesh has been edited by Imtiaz Ahmed (co-written by Delwar Hossain, Shahab Enam Khan and Md. Faridul Alam) is reviewed by Priyanca Mathur Velath in the section of review.

In the news section, reports the Bangladesh rejection of international appeals of Rohingya Refugees and President Barack Obama’s administration announcement of policy directive to halt deportation of young immigrants. Finally the upcoming event section covers the information of 4th Asia Pacific Consultation on Refugee Rights to be held on 22-24 August, Seoul South Korea.

We welcome your comments and feedbacks.

Protection of Rohingya Refugees: Bangladesh Rejects International Appeals

Bangladesh continued to “push back” the Rohingyas feeling sectarian violence in the Northern Rakhine State of Myanmar ruling out appeals from international communities and human rights organizations.

The Government of the United States, United Nations High Commissioner for Refugees (UNHCR) and Human Rights Watch (HRW) among others urged Bangladesh Government to open its border and allow the Rohingyas fleeing violence to get temporary refuge. The violence reportedly costs 80 lives.

At home the main opposition party, Bangladesh Nationalist Party (BNP) has also heavily criticized the government for not considering “humanitarian aspects of the Rohingyas.” Mainstream national human rights activists and civil society groups also urged the government to respect international humanitarian norms and allow the Rohingyas to take “temporary refuge.”

Human Rights Watch (HRW), the New York-based human rights watchdog had appealed to the Government of Bangladesh on 20 June 2012 for providing the “Rohingyas humanitarian assistance and grant them temporary refuge until it is safe for them to return home.”

“By closing its border when violence in Arakan State is out of control, Bangladesh is putting lives at grave risk,” Bill Frelick, Director of Refugee Programme at HRW, said in a press statement. (http://www.hrw.org/news/2012/06/19/bangladesh-stop-boat-push-backs-burma).

However, Bangladesh government rejected all appeals concerning requests to open its border referring to “security concerns.” The Minister for Foreign Affairs, Dr. Dipu Moni, at the National Parliament and public events said that Bangladesh has no obligation to provide refuge to the Rohingyas since it was not a party to the UN Refugee Convention of 1951 and it’s Protocol of 1968.

However, experts from the HRW and independent legal academics have different views; according to them, as a norm of customary international law, the Rohingyas deserve international protection while they are fleeing threats to their lives, and Bangladesh is expected to respect those international norms.

According to BBC reports, Bangladesh, until 6 July, has “pushed back” reportedly 900 Rohingyas.

Bangladesh has provided refuge to the Rohingyas in 1978 and during 1991-92. Still now, there are about 28,000 Rohingyas who are the residual of the latest influx. They are living in two official refugee camps in the southern district of Cox’s Bazaar. Apart from that there are reportedly 200,000 to 500,000 Myanmar nationals, mainly the Rohingyas in Bangladesh without any legal status.


ERT’s Situation Report on Rohingya Crisis in Myanmar and Bangladesh

The Equal Rights Trust (ERT), a London-based advocacy group has heavily criticized the governments in Myanmar and Bangladesh for their failure to protect the Rohingyas, an ethnic Muslim minority group of Northern Rakhine State in Myanmar (Burma).

The ERT has launched a report, Burning Homes, Sinking Lives: A Situation Report on Violence against Sstateless Rohingya in Myanmar and their Refoulement from Bangladesh. The report presents the findings and observations of ERT researchers who were on the fields. (http://www.equalrightstrust.org/newsstory%20020712/index.htm)

The report, which includes testimony collected from over 50 interviews with Rohingya in the period between 13 and 29 June 2012, paints an extremely bleak picture, which demands urgent action to prevent further human rights violations including loss of life, suffering, forced displacement and damage to property.
The report also reviews the legal obligations of the parties to this crisis and makes recommendations to the governments of Myanmar and Bangladesh, the UNHCR and the international community.

The ERT recommendations to the Government of Myanmar for urgently taking all necessary steps to end the violence and protect all individuals in Myanmar; fully cooperates with UN agencies to enable independent monitoring of the situation and the provision of humanitarian assistance and support to affected communities; brings martial law in the region to an end as soon as possible; conducts an impartial and transparent enquiry into the causes of the violence; and reduces statelessness in Myanmar by establishing clear paths towards the acquisition of citizenship and effective nationality for all stateless persons including the Rohingya.

The report recommends to the Government of Bangladesh to open its borders to Rohingya refugees fleeing violence and persecution in Myanmar and refrains from refoulement or forcible return of all refugees, asylum seekers and persons of concern; fully cooperates with UN agencies and international NGOs to enable the provision of humanitarian assistance and support to all refugees; and fully cooperates with the international community in providing humanitarian support and protection in a fair and non-discriminatory manner to all long-term Rohingya refugees and persons of concern within Bangladesh.

Obama Holts Deportation of Young “Illegal Immigrants”

President Barack Obama’s administration has announced a policy directive on 15 June 2012 which is to halt deportation of young immigrants, who were brought to the US illegally as children.

The Administration also has announced that these young people may apply for authorization to work in the U.S. legally for the first time.

For this directive, an estimated 800,000 young people will be benefitted, as The Christian Science Monitor (CSM) has reported on 15 June (http://www.csmonitor.com/USA/Politics/2012/0615/DREAM-Act-stalled-Obama-halts-deportations-for-young-illegal-immigrants-video).

“The administration has been under considerable pressure to take action on the behalf of young immigrants, as Congress has been sharply divided about the DREAM Act, proposed legislation that grants conditional residency to select young people brought to the US illegally,” the CSM reported.

The policy has been viewed as a “relief for thousands of young people who are caught in a difficult situation where they consider the United States home but don’t have legal residency.”

It is also considered as a political step-forward for President Obama with Latino voters, who have criticized the administration’s deportation policies.
The U.S. Committee for Refugees and Immigrants (USCRI) has immediately praised President Obama’s announcement and hoped that the federal government immediately will halt the deportation of undocumented immigrant children and young adults who meet certain criteria.

USCRI operates a national program serving the legal and social needs of immigrant children, and fights for policies that respect their rights.

“We are very pleased with the bold and historic announcement by the White House today,” said Lavinia Limon, President and CEO of USCRI. “This policy decision for undocumented immigrant children and young adults is humanitarian, compassionate and practical, all at the same time. This is an important expansion of President Obama’s earlier order that prosecutorial discretion be exercised by government lawyers in non-priority deportation cases. It should allow hundreds of thousands of young people to come out of the shadows and become full participants in our society. I also hope the President’s action today will inspire Congress to find needed, permanent solutions for the other hardworking undocumented migrants who live among us.”

June 15, 2012, (http://www.refugees.org/about-us/in-the-news/press-releases/president-obama-announcement.html)

Rights of a Refugee. The Court as Refuge

Arani Sanyal and Anwesha Sengupta

Say this city has a million souls,
Some live in mansions, some live in holes:
Yet there is no place for us,
My dear, there is no place for us,
Once we had a country and we thought it fair,
Look in the atlas and you will find it there:
We cannot go there now,
My dear, we cannot go there now.

W.H. Auden, ‘Refugee Blues’

Being a Tamil in Sri Lanka had been increasingly difficult since 1980s when the country witnessed intense civil war between the government and LTTE, the most important Tamil militant organisation. The war had killed thousands, forced millions of Tamils to migrate to India and caused massive hardship for the people, economy and the environment of the country. Tamil refugees from Sri Lanka arrived in India in four waves. Among them, one was Chandra Kumar who fled to India in 1990 as the second Elam War began. After spending around two decades in India, he decided to go to Italy in search of a better life. However, he was arrested by the immigration officers as he did not have valid travel documents. He was charged for committing the offences of cheating, impersonation and forgery r/w/s 14 of the Foreigners Act, 1946. He spent six months in judicial custody before he was brought to the court. There, Chandra Kumar admitted his crime, but claimed that he committed them unknowingly, being duped by a travel agent. If he was an Indian citizen, in all probability he would have set free, after spending 6 months in judicial custody. But his status was complicated because of his refugee identity. The government wanted this man to be deported to Sri Lanka for his offence. This position was based on the Government Order F.No. 25019/3/97 – F.III dated 2.7.1998 of the Foreign Division, Ministry of Home Affairs, which stated that a foreigner is to be deported from India in case s/he commits any offence.

For Chandra Kumar, deportation would mean going back to Sri Lanka. Of course, Kumar was unwilling to make this return trek to his homeland, as he feared persecution. The counsel of the convict tried to revoke the verdict. He pointed out that according to the principle of non-refoulement of Customary International Law; Indian government had no right to deport him to Sri Lanka as his life was not safe there.1 And, the Article 51(c) of the Constitution of India states that ‘the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another.’ According to the Indian Constitution too, the government is bound to protect the life and liberty of all citizens and non-citizens alike (article 21). The counsel also referred to numerous other judgments delivered by various High Courts of India, where the High Courts have stopped the deportation proceedings on humanitarian grounds. Since, Kumar, had done nothing that might have threatened the security of the country, he ought not to be deported, argued the Counsel. He requested the court to allow his client consult UNHCR, Delhi to avert deportation.

After listening to both the sides, Arul Varma, a metropolitan magistrate of New Delhi (Special Court No 2, Dwarka Courts), gave his verdict in favour of Chandra Kumar. Recognising the plight of the Tamils in Sri Lanka, he accepted that Chandra Kumar indeed had a ‘well founded fear of persecution’ (wherein he stated that such possibility must appear to be reasonable and the refugee need not show that persecution will result on deportation) in case he was sent back to Sri Lanka. Therefore, deportation would mean a violation of the principle of non-refoulement, which was ‘a cornerstone of basic human rights’. Though India is not a party to the 1954 Convention or its optional protocol relating to status of refugees (1967), the principle of non-refoulment is implicit in the Article 21 of Indian Constitution, opined Arul Varma. He cited a particular verdict (Louis De Raedt Vs. Union of India, AIR 1991 SC 1887) of the Supreme Court which stated that this Article, which guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law, was valid for citizens and non-citizens alike. Similarly, citing another case, the judge argued that every person, irrespective of his/her nationality, should be considered as equal before the law and the state should protect his/her life and liberty. Since persecution denies the right to live with dignity, deportation of Chandra Kumar to Sri Lanka would mean denial of Article 21. To quote Arul Varma: ‘By handling over a person to a nation where he fears persecution, would make us nothing short of abettors in that persecution’. Also, Varma questioned the definition of ‘foreigner’ in the 1946 Foreigners Act, where a foreigner was defined as a non-citizen of India, and therefore included refugees within its ambit. He stressed on the need of treating the refugees in a humane way and to consider them as a separate category different from tourists or illegal migrants as otherwise, refugees would be deprived of privileges available under numerous international instruments. The Court opined that treating refugees, and illegal migrants on the same footing as the Foreigners Act does, would be violative of Article 14 of the Constitution which mandates equality before the law. (A logical extension of this is that unequals are to be treated unequally by applying the principle of ‘intelligible differentia’) Also, a ‘well founded fear of persecution’ includes, within its scope, a fear of being subject to torture and since India is a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, should ideally be bound by its international commitment to follow the principle of non-refoulement.

The judge applied a liberal interpretation of Constitutional tenets to accommodate refugees’ rights under Article 21 and went as far as to say that a law (The Foreigners Act, 1946) which treats persons unequally circumstanced at par, is on the face of it unconstitutional. He also laid emphasis on the non-derogability of the principle of non-refoulement and more importantly, by citing Vishakha vs. State of Rajasthan, 1997 (6) SCC 241, he noted that in case of a void in domestic law, it was the Court’s prerogative to fill such void by taking recourse to international law. (Something which the Court actually did in this case)

Notes

1. Non-refoulement is a principle of the international law, i.e. of customary and trucial Law of Nations which forbids the rendering a true victim of persecution to their persecutor; persecutor generally referring to a state-actor (country/government). See en.wikipedia.org/wiki/Non-refoulement

Bangladesh’s Obligation for the Protection of Refugees

Srabani Mia

[Is an LL.M. Student at Stamford University Bangladesh and an Intern at the South Asian Institute of Advanced Legal and Human Rights Studies in Dhaka]

A person becomes a refugee because of circumstances that are beyond her/his control. Refugees are human beings.

Bangladesh is the host country of asylum seekers and refugees, mainly from Myanmar (Burma). It has been hosting the Rohingya, an ethnic Muslim minority from Myanmar for decades.

As per records of the United Nations High Commissioner for Refugees (UNHCR) and Government of the People’s Republic of Bangladesh, there are around 28,000 Rohingyas who are “officially recognized refugees” now living in two camps in the southern district of Cox’s Bazaar. They are the residual of recorded 258,800 Rohingyas who fled Myanmar during 1991-92 and took refuge in Bangladesh. Apart from that there are reportedly 300,000 to 500,000 Myanmar nationals, mainly the Rohingyas in Bangladesh without any status.

Though, Bangladesh does not have a national legislation to deal with asylum seekers and refugees, however, the State has registered and granted “refugee status” once to those 258,800 Rohingyas through an “executive order” 1991. By the time, UNHCR was invited and it signed a Memorandum of Understanding (MoU) with the Government and mandated to look after the protection issues.

Bangladesh is also not a party to the 1951 UN Convention Relating to the Status of Refugees (Refugee Convention) or its 1967 Protocol. Despite of that the state has been providing refuge to the Rohingyas along with tolerating their “illegal presence.”

However, recent denial by the Bangladesh Government of extending any refuge to the Rohingyas fleeing communal violence in the Northern Rakhine State, and apparent “push back” have created concerns among the human rights organizations and international communities.

Obligation of Bangladesh Under International Law

The 1951 Refugee Convention and its 1967 Protocol are basic legal instruments with regard to protection of refugees.

The 1951 Convention provides criteria to be recognized as a refugee, their rights and obligations, and visa vie obligations of State parties.

Under 1951 Convention, a person can claim refugee status with three conditions: (i) being out of the country, (ii) well-founded fear of persecution for specific grounds, and (iii) unable or unwilling avail protection from the government of the country of origin. And, the specified grounds are of persecution are based on one’s race, religion, nationality, membership of special group, and political opinion.

The Convention (Article 33) also provides the principle of non-refoulement- meaning no person shall be return to a territory where he/she may be exposing to persecution. This principle is now considered as part of international customary law and is widely practiced (including Bangladesh in previous years, even for the Rohingyas).

The Principle has indeed expanded State's protection obligations beyond the 1951 Refugee Convention framework; therefore, one cannot be returned to his or her country of origin; hence, contributing to deprivation of life, and putting forward to torture, or cruel, inhuman or degrading treatment or punishment.

Generally, those countries which are parties to the Refugees Convention are legally bound to follow all the provisions thereof.

Bangladesh, despite of not being a party to the Refugee Convention is expected to respect the principle of non-refoulement as part of customary international law, as argued by Mostafa Mahmud Naser, an Assistant Professor of Law at the University of Chittagong in his article published in The Daily Star on 23 June 2012 (link: http://www.thedailystar.net/law/2012/06/04/index.htm). According to this academic, who is now pursuing his doctoral research at Australia’s Macquarie University, Bangladesh has obligation to asylum seekers and refugees despite of not ratifying the 1951 Convention or 1967 Protocol as because it is a member to the United Nations and is thus obliged to protect and promote human rights. Apart from that Bangladesh is a party to the International Covenant on Civil and Political Rights, 1966 (ICCPR) and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (CAT) among other human rights isnstruments.

Article 14 of the Universal Declaration of Human Rights 1948 (UDHR), guarantees for “…right to seek and to enjoy in other countries asylum from persecution.” The UDHR is consider as jus cogens, thus those rights are universally accepted and enforced by all parties despite of whether they are party to the 1951 Convention or 1967 Protocol.

Bangladesh has also obligation under Article 3 of CAT (non-return of a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture).”

In case of the Rohingays, it is very likely that they would be targeted for torture, inhuman and degrading treatment upon pushed back to Myanmar which is tantamount to persecution.

Also, persecution by “non-state actors” (in presence of apparent reluctance or inability by State actors to prevent or/and prosecute such persecution) does qualify one for a refugee status under refugee law.

Obligation Under National Laws

Though Bangladesh does not have any national law as such to deal with asylum seekers and refugees; however, some Constitutional provisions are instrumental in protecting and promoting their rights.

Article 25 of the Constitution states that “…State shall base its international relations on the principles of respect for .... international law and the principles enunciated in the United Nations Charter”.

Article 31 of the Constitution provides for equal protection of law for “each citizen” and “every other persons staying in the country for time being.” Thus, the Article extends protection the asylum seekers and refugees (non-citizen) who for the time being are staying in the country.

The Constitution also guarantees for right to life and personal liberty for all (Article 32).

The Supreme Court of India has also upheld “right to life and personal liberty” for refugees in India despite of the State not being a party to the 1951 Convention [National Human Rights Commission v.The State of Arunachal Pradesh (1996 (SC) AIR 1234)].

The Foreign Minister of Bangladesh, Dipu Moni has reportedly said in the National Parliament that: “ it is not in the country's best interest to allow more Rohingyas into the country while Bangladesh is already burdened with Rohingya refugees, and many of them are involved in subversive and militant activities.”

This generalized branding of Rohingya population in Bangladesh does not relieve the State from its international obligations.

Opinion: South Asian Framework for Refugee Protection

Emdadul Haque

[Is a Faculty Member at the Department of Law and Justice, Southeast University, Dhaka, Bangladesh]

Amid scores of shortcomings the South Asian region has been generous to host a large number of refugees for decades and accommodating them despite the absence of a related legal framework.

The region is rapidly growing as a “refugee melting pot” with insufficient international attention. All the original member States of the South Asian Association for Regional Cooperation (SAARC) (except the newly joined Afghanistan) did not ratify the UN Convention Relation to the Status of Refugees, 1951 (Refugee Convention) and it’s Protocol of 1967.

The problems of refugees in Europe, America, Australia and Asia particularly in South Asia are not alike. The lack of national laws and regional instruments on refugees and Internally Displaced Persons (IDP) has grossly accentuated this crisis which not only harms the rights of refugees and asylum seekers, but also affects the social and political stability of host countries by undermining the rule of law, human rights, and democracy.

These countries are being assisted by the United Nations High Commissioner for Refugees (UNHCR) which includes ensure protection of asylum seekers and refugees and promotion of international refugee law standards vise vie promotional activities for adoption of national legal framework in line with international standards. However, the reluctance of respective governments in ratifying the Refugee Convention or adopting national legal framework and complexities of refugee issues with regional dimensions, there is a need to look into the prospect of a regional approach to address forced migration and refugee protection issues in South Asia region.

There are almost 43 million refuges all over the world and out of which 80 percent is based in developing countries. Although South Asia contains around 23 percent of the world's population, it currently hosts nearly 10 percent of the world's refugee population.

The Refugee Convention is the commanding instrument to govern international protection of refugees worldwide. This Euro-centric document promulgated soon after the World War II to cope with the influx of refugees in Europe have many limitations in the present context, though the Protocol of 1967 had been adopted to overcome such inadequacy.

However, experts in the region find four major dilemmas in the Refugee Convention with regard to definition of a refugee, material assistance, shared-responsibilities, and unraveling consensus in observing standards of international law.

The Refugee Convention has been the point of fierce contention for the developed and developing nations. The developed countries are tendering for a rights-based approach while developing countries on the other hand have been voicing their equitable approach. That’s why some prominent scholars feel that before acceding to the Refugee Convention or the Protocol of 1967, South Asian States should go ahead for adoption of a rights-based national legal framework to deal with asylum and refugee issues. At the same time, some scholars recommend that the states of the region should ratify the Refugee Convention and its Protocol without further delay.

However, as compared to many developed countries of the world who have adopted very strict entry procedures, States under SAARC have adopted rather soft policies on entry and stay of asylum seekers and refugees, e.g., Bangladesh, India, Nepal and Pakistan. The States have also given shelter and other humanitarian relief to different groups fleeing persecution- who are victims of forced migration, including victims of natural disaster or people fleeing generalized violence, abuse of human rights by State and non-State actors, communal and ethnic strife and the victims of man-made ecological disasters. However, in some cases, there are reported incidences of refoulement- pushing back to the territory where lives of individual were at risks.

Since States in the regions, are apparently look upon cross-border migrations (including forced migration) as bilateral issues within the framework of national security, thus, time and again, the significance of international protection of a refugee is ignored. There is nothing in this regard within the framework of the SAARC Charter.

In the absence of laws concerning general treatment and protection of asylum seekers and refugees, the response to refugee influxes remains provisional or on ad hoc basis. The refugees here have no legal protection against summary expulsions as they are treated as illegal immigrants and not as refugees fleeing persecution. As a result, UNHCR has also not been able to ensure effective and meaningful protection to most refugees in the region. Even international humanitarian agencies are often not allowed to assist refugees in real crisis in most of these countries. This was evident once again in the treatment of “Rohingya boat people” in Bangladesh this time (June 2012). In case of India, it does not allow UNHCR staff to enter and work in the North East territory.

Many of these problems can be avoided both through the enactment of legal norms on entry procedure status and on the creation of rights for asylum seekers and refugees. There is an absence of an inter-governmental mechanism at the regional level for protecting the returnees in their home countries.

Thus absence of a legal framework results in arbitrary, provisional and discretionary decision making which undermines fair refugee protection as per international norms. The asylum seekers and refugees can end up being treated like any other foreigner.

Therefore, a legal structure is necessary to effectively deal with a complicated refugee problem. In the absence of a legal framework, respective activities of the governments vary from case to case and are determined by political considerations and bilateral negotiations. These do not provide predictable and durable solutions.
However, given the reluctances of Sates in adopting national laws to deal with asylum seekers and refugees, a regional framework needs to be considered.

Like African and American States, SAARC countries should initiate a regional framework for refugee protection paving the way for appropriate platform on the issue of refugee crisis demonstrating their commitment for a new comprehensive plan of action to this end as every nation in the South Asia has produced as well as received refugees.

This will contribute to establish transparency, fairness and a humane treatment of refugees, as a matter of fact, through these laws the states of South Asia will give a formal expression to existing practices and responses to the refugees.

Hopefully, that will inspire to adopt national legal framework in the same line. Having a national law would not only ensure the protection of refugees and uphold obligations enjoined by the constitutions of most of the countries it will also enable the States to discharge their international treaty obligations. Ultimately both the States and the asylum seekers will derive benefits from such laws. Adoption of a harmonized national law on refugees by all the countries of the region would be a first step towards seeking a regional solution to this problem.

It will also facilitate to establish human rights communities and other institutions of civil society- a basis to campaign against any violations of refugee rights.

4th Asia Pacific Consultation on Refugee Rights (APCRR4), from August 22-24th, 2012

This event will be hosted by the Asia Pacific Refugee Right Network(APRRN), Human Asia, the Graduate School of International Studies of Korea University and Hwajeong Peace Foundation, The Dong--‐AIbo.

The key objectives of the consultation are to provide a platform to share and show case experiences, best practices and strategies, to identify key priority areas for stakeholders, in order to expand protection spaces, and combat susceptibility to trafficking and people smuggling, to build the capacity of participants in issues such as immigration detention, legal aid, mental health, advocacy etc., to develop a stronger Network, better cooperation/collaboration amongst members and identify new potential members, to review and develop concrete joint actions plans, campaigns and strategies to be taken for the period 2012-2014 and to select a new Steering Committee for the period 2012-2014.

www.aprrn.org

Review of The Plight of the Stateless Rohingyas: Responses of the State: Society & the International Community, Edited by Imitiaz Ahamed

Priyanca Mathur Velath

The month of June traditionally celebrates World Refugee Day. However the month of June in 2012 brought back international attention on one of the world’s “most persecuted and most forgotten” peoples, the Rohingyas, when communal clashes in western Myanmar claimed more than 60 lives, displaced more than 30,000 and forced hundreds to flee into the neighbouring state of Bangladesh. Since then Bangladesh has turned back more than 2,000 Rohingyas who tried to enter the country after the deadly sectarian violence between Rohingyas and ethnic Rakhine Buddhists erupted in the Burmese Arakan state.1

Rohingya ‘boatpeople’ have for decades been leaving Myanmar and entering Bangladesh but discrimination and denial of citizenship has forced them to flee further. 2 The book being reviewed here is the outcome of a study carried out by Centre for Alternatives, Bangladesh, that brought together the efforts of both the students and faculty of the Universities of Dhaka, Chittagong and Jahangirnagar to relook at the condition of Rohingya refugees (both documented and undocumented) in Bangladesh. Underlying the enquiry is the hypothesis that “the Rohingya refugee crisis has been long ignored in the development discourse in Bangladesh”. As the book emphasises, “in tracing the plight of the Rohingya refugees, the study shows that the Rohingyas are both stateless and refugees.” (First they became stateless in their homeland and then eventually they had to embrace the status of refugeehood under the conditions of persecution, discrimination and torture) The crucial point of understanding is that the causes and conditions of their refugeehood are becoming almost identical.

The book ‘The Plight of the Stateless Rohingyas: Responses of the State: Society & the International Community’ 3 has been edited by Imtiaz Ahmed and co-written by Delwar Hossain, Shahab Enam Khan and Md. Faridul Alam. All Bangladesh based academics, the four authors have penned the chapters separately that together went into the making of this book. The Myanmar state has systematically denied the existence of the Rohingyas so much so that the word ‘Rohingya’ is not officially recognised in Myanmar. While tracing the historical origins of the Rohingya refugee migration in Bangladesh, Ahmed notes that the “patterns of refugee migration are a product of the interrelationship among the oppressive regimes in Myanmar, crisis in identity (ethnic, religious and political), and the lack of attention from the international community.” In the second chapter Delwar Hossain addresses the identity concerns of the second generation Rohingyas in Bangladesh by also asking if states can realistically respond to the challenges posed by the same.

Chapter three seeks to analyse the psychosocial dimensions of refugeehood while chapter four views the situation from the ‘security’ lens. It emphasises that security concerns are four dimensional (politico-military, economic, social and human) and that the responsibility of security must be shared by multiple actors viz., both country of origin and host country, both refugee populations and locals, by donor states, regional organisations, the UNHCR, its operational partners – all alike. But the essential understanding is that the relationship between refugees and the internal security of the state of Bangladesh is a complex one, further complicated by the reality that physical resemblance between Rohingyas and Bengalis which merges the demarcation between ‘legitimate and illicit political dissents’.

While chapter five, interrogating the role of Bangladesh in handling this refugee issue urges the Bangladesh government to adopt a national policy on refugees and provide a framework that addresses the repatriation needs, chapter six evaluates the actions of the international community in protecting their lives and ensuring the livelihoods. Shahab Enam Khan notes that the response of the international community is positive and proactive but there is still a lot of work to be done particularly with the undocumented Rohingyas living outside the camps, to address the continuing and increasing cross border flows. Mere humanitarian support will not be enough. In the next chapter Md. Faridul Alam observes a dichotomy in the involvement of non-state actors as the latter impact policy developments in the field of environment and human rights more than they impact refugee lives. Finally Ahmed, in the concluding chapter, lists tasks to be done by various stakeholders in the refugee discourse, laying out not “timescales in implementing the recommendations” but the “level of involvement.”

But with Rohingya refugees mere involvement will not provide solutions; the commitment to protect and secure the lives of this tragically displaced population demands serious accountability in actions from all concerned actors. While there is international condemnation of the Bangladeshi push-back of the fleeing Rohingyas there are voices within Bangladesh urging the government to provide temporary refuge. 4 Some within the academic community of Bangladesh have also been arguing that ‘opening doors to the Rohingyas is a duty not charity’ and that pushing the Rohingyas back is a violation of the fundamental principle of non-refoulement. There is reiteration that the state of Bangladesh needs to frame a national law for refugees that would lay down basic principles of refugee treatment and set up necessary administrative structures to deal with situations such as the Rohingya inflow. “If proper procedures were in place the government’s reaction would not have been as reactive.” 5

The highlight of this compilation are the detailed evocative fifteen case studies of Rohingya refugees living in the Kutapalong and Nayapara refugee camps and in Chittagong, conducted by students of the Universities of Dhaka and Chittagong. Written in first person they are emotional accounts of personal histories of hope and despair, with equally emphatic titles like ‘Dream’, ‘Shame’, ‘The Void in a merciless world, ‘A moment of silence’, ‘Irony of fate’, ‘Denied from denied’, ‘We pass our days crying’, ‘I have nothing else to do’, ‘Better to kill us all by bombing’, ‘Living like insects’, ‘Son of the soils’, ‘We stay by crying’. They are narratives that underline that while trauma and traumatic memories continue to shape the Rohingya identity, so does the hope and dream of a future of return and freedom. The present and the future for these persecuted and forgotten people is one that all regional and international actors need to come together to protect, ensure and enshrine.

Notes

1. See - ‘Bangladesh: Stop Boat Push-backs to Burma’, Human Rights Watch, June 20, 2012 - http://www.hrw.org/node/108156
2. See – ‘Rohingya Boatpeople sentences on Immigration Charges’, June 22, 2012, http://www.irrawaddy.org/archives/7537
3. by University Press Limited, Dhaka, Bangladesh, 2010.
4. See online petitions like
http://www.avaaz.org/en/petition/Open_borders_to_Myanmar_Refugees
5. See CR Abrar, ‘Opening doors to Rohingyas: duty, not charity’, New Age, Dhaka, June 20, 2012, http://www.newagebd.com/detail.php?date=2012-06-20&nid=14308

Introduction to II Edition, 2012

Priyanca Mathur Velath

The current issue of RWO draws our attention to rights against exclusion and homelessness through the lens of Islamophobia, Statelessness and the Cessation Clause. In the first piece of the Perspectives Section Guillaume Cliche-Rivard urges further interrogation of the Cessation Clause for Rwandan refugees, followed by Anasua Basu Ray Chaudhury’s analysis of the unique position of those stateless in South Asia. Geetisha Dasgupta highlights the growing intolerance, racial hatred and xenophobia particularly in the United States.

Cliche-Rivard’s piece, titled ‘Pending questions: UNHCR Recommendations regarding the Cessation Clause for Rwandan refugees’ questions UNHCR’s invocation of Cessation Clause in the light of compelling evidence of continuing violations of civil and political rights in Rwanda. The arguments point to concerns regarding Kagame government’s claims of free and fair elections and substantive democratic reforms. “As the recommendation expresses that the Cessation is not going to be applied on Rwandans who escaped the country after 1998 or are still seeking asylum, it clearly indicates that fundamental, durable, and positive changes have not occurred in Rwanda.” It throws uncomfortable questions into the public domain - How could any host State and UNHCR justify the invocation of the Cessation Clause when these changes are not countrywide? What is driving UNHCR’s agenda? How was the decision to recommend the Cessation Clause for Rwandan refugees made? Understanding the current situation presented by Amnesty International and IDMC, why is cessation recommended at this time?

The condition of statelessness creates a condition where there is literally a complete absence of a right to a life of dignity for the nowhere people. Basu Ray Chaudhury’s article titled ‘People of Nowhere: Stateless in South Asia, points out how for the stateless it may not be possible to work legally, to get appropriate wages, to purchase property, to open a bank account, to attend school or university, to marry a person from other communities, to register births and deaths, to vote or access the national justice system. It succinctly notes that “suspicion has driven South Asian states to progressively tighten the strings on who may claim membership goods, thus creating growing pockets of statelessness at their cultural and geographical margins. Examining the changes that have been introduced to citizenship laws of South Asian states provides a clear narrative of how this tightening of strings has proceeded: largely by restricting the acquisition of citizenship by right in favour of granting citizenship at the government’s discretion.”

Dasgupta in her article titled ‘Law, Islamophobia and the United States of Exclusion’ empathically states that more than half of the United States’ population has spun on the axis of renewed racial hatred that found expression in xenophobic profiling of the other half that is creating a new category of stateless, that was founded on exclusion based on religious identity. “Despite loud and clear declarations at the administrative levels that the United States government will not support any activity in hatred towards the believers of Islam or of Arab origin, there have been steady repercussions from the agents of the state and the government on these lines, when it came to arresting people for suspicion of terrorist activities. As a result, there have been repeated strikes and counter strikes and all over the last twelve years during which a large group of people became homeless and stateless.” This demands urgent attention as it reflects a foreign policy and geopolitical status of a country that affirms its ability to reach anybody that it deems inimical to its own security. This was visible in not just an increase in hate crimes but also when students were picked up from rallies of the Occupation Movement in New York City or Boston, and detained in federal prisons for anything up to three months without questions being asked.

In the News Section, we report on the continuing protests of the Rohingya asylum seekers outside the UNHCR Delhi office and provide a link to the latest Asia Pacific Refugee Rights Network Newsletter. Finally in the Events section there is information that the Legal Aid and Advocacy Working Group of APRRN proposes to hold a Legal Aid Training for the South Asia region from May 26 - 28, 2012 in Kathmandu, Nepal. Also enclosed is the Call for Papers for the 14th conference of the International Association for the Study of Forced Migration that will be held in Kolkata in January, 2013.

We look forward to your comments and feedback.
 

Pending Questions: UNHCR Recommendations Rgarding the Cessation Clause for Rwandan Refugees

Guillaume Cliche-Rivard

The 1951 Convention Relating to the Status of Refugees defines that the refugee status is temporary. Articles 1C (1) to (6) describe the so-called ‘Cessation Clauses’. When invoked, these provisions cease the international protection of a specific group of refugees: ‘He [the refugee] can no longer, because of circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality’[1]. Since 2002, the Government of Rwanda has repeatedly requested UNHCR to recommend the invocation of the Cessation Clause for Rwandan refugees. This pressure succeeded as UNHCR’s Executive Committee’s 60th Session (2009) declared that it was considering invoking the Clause in 2011.


To counter this measure, the Fahamu Refugee Programme, other NGOs and concerned individuals signed a petition, which argued that such a drastic measure was not appropriate at this point in time. This strategy succeeded in temporarily postponing the invocation of the Cessation Clause to June 2013, while UNHCR has recommended that States ‘commence to progressively implement throughout 2012 all aspects of cessation of refugee status’ [2]. Invoking the Cessation Clause signifies the end to the international protection of certain refugee groups. UNHCR’s recommendation at this time, in the case of Rwanda, raises fundamental political, ethical and juridical concerns. This article examines these issues and questions the whole rationale behind UNHCR’s recommendation to invoke the Cessation Clause and aims to mobilise the international community to request its withdrawal.

Assessing Change in Rwanda 

UNHCR’s Comprehensive strategy for Rwanda recalls that both the 1951 Refugee Convention and the OAU Refugee Convention require that cessation of refugee status can only occur when ‘positive changes have taken place in the country of nationality (or country of habitual residence), such that the causes of refugee flight no longer exist. The changes must be of a fundamental and durable character’[3]. This requirement, however, necessitates further elaboration: How have ‘positive’, ‘fundamental’ and ‘durable’ been defined? After what period of time are changes reputed to be durable? How are host States to be convinced that these changes are real?

NGO reports, such as the 2011 country report by Amnesty International, raise important concerns with the political stability of Rwanda and the protection of fundamental human rights under President Kagame’s administration, especially the violation of freedom of expression and the vague charge of ‘genocide ideology’[4]. There are also numerous concerns regarding Kagame government’s claims of free and fair elections and substantive democratic reforms. In light of the evidence that civil and political rights in Rwanda continue to be violated, how can it be argued that fundamental and durable changes have occurred justifying the invocation of the Cessation Clause? As the recommendation expresses that the Cessation is not going to be applied on Rwandans who escaped the country after 1998 or are still seeking asylum, it clearly indicates that fundamental, durable, and positive changes have not occurred in Rwanda.

Additionally, the Guidelines on International Protection state that ‘changes in the refugee’s country of origin affecting only part of the territory should not, in principle, lead to cessation of refugee status’ [5]. According to the Internal Displacement Monitoring Centre (IDMC): Some refugees had been prevented from returning home by the [Forces Democratiques de liberation du Rwanda] FDLR, but they had also been reluctant to return because did not trust the Rwandan Gacaca courts and did not think they would be able to reintegrate. The prospects of returnees and those resettled depend on continuing reconciliation and the equitable distribution and management of scarce land [6].

How could any host State and UNHCR justify the invocation of the Cessation Clause when these changes are not countrywide and understanding that some Rwandan refugees do not trust the country’s administration?

Moreover, Paragraph 135 of the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees states that the Cessation Clause will be invoked when ‘fundamental changes in the country, which can be assumed to remove the basis of the fear of persecution’ have occurred [7]. Paragraph 115 states that the Cessation Clause can be invoked only if ‘the reasons for a person becoming a refugee have ceased to exist’. Is there a difference between ‘fundamental changes’ in the country and ‘ceased to exist’ conditions? What could be understood as ‘fundamental changes’ and is this requirement less restrictive than the ‘ceased to exist’ conditions? These conflicting terminologies are confusing to both legal advisors and refugees. Even if it were agreed that fundamental changes have occurred in Rwanda, given that Rwandans continue to flee, it would be impossible to argue that the previous conditions leading to these exiles have ‘ceased to exist’.

According to the UNHCR Executive Committee Conclusion 69, before invoking the Cessation Clause ‘States must carefully assess the fundamental character of the changes in the country of nationality or origin’ (emphasis added) [8]. Given that this statement stresses that States are responsible for assessing these ‘fundamental changes’, why is UNHCR appearing to have already made this determination in the case of Rwanda? Moreover, if UNHCR has already determined that the changes in Rwanda are fundamental and durable, under which criteria was this assessment made? What response was given to NGO concerns? Understanding that both the invocation of the Cessation Clause and the assessment of fundamental changes are States’ responsibilities, why does UNHCR seem to be leading the discussion of States’ obligations? What is driving UNHCR’s agenda? How was the decision to recommend the Cessation Clause for Rwandan refugees made? Understanding the current situation presented by Amnesty International and IDMC, why is cessation recommended at this time?

Internal Contradictions

In 2003, UNHCR produced Guidelines on International Protection: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses). The Guidelines state ‘Cessation under Article IC(5) and IC(6) does not require the consent of or a voluntary act by the refugee’ [9]. However, this interpretation in contested in some host States. The First Secretary of the Rwandan High Commission in Uganda, Mr John Ngarambe, at a meeting held in Nakivale Refugee Camp on 28 February 2012, was reported as stating that ‘the Cessation Clause does not allow anyone to forcefully repatriate Rwandan refugees’ [10]. It is unclear when — and to whom — UNHCR or a State intends to ‘operationalise’ the ‘non-requirement for consent. What is UNHCR’s response to this statement of Mr Ngarambe?

In addition, is UNHCR promoting the Cessation Clause globally or just for Africa? It has appointed ‘focal points’ for 21 African States, but remained silent on how the invocation is to affect other continents. Have all African States hosting Rwandan refugees accepted UNHCR’s recommendation for invocation and does UNHCR expect States to apply its guidance on the exemptions procedures guidelines?[11] What if States develop their own guidelines or if they do not decide to invoke the Cessation Clause at all? What would be the consequence of inconsistent decisions? Could refugees then seek asylum in another State that had refused to invoke it?

Other Protection Issues

If the Cessation Clause is invoked by 30 June 2013, as recommended by UNHCR, the process will raise several other protection issues — particularly with regard to legal aid and State assistance. The Comprehensive Strategy states that ‘UNHCR will provide advice and technical or such other support and resources as may be required by States for the implementation of the Cessation Clauses’ [12]. What will this ‘advice and technical or such other support and resources’ constitute? Will UNHCR recruit lawyers for each African host State to assist in interviewing Rwandans as was done for Sudan?[13] There is strong evidence to suggest that most Rwandan refugees currently resist the notion of return. Will there be any legal aid provided so as to ensure they are competently represented before a State or UNHCR adjudication process?

Concerning Rwandans in Europe, a telephone conversation on 17 April 2012 with Michele Cavinato (Policy Officer at UNHCR’s European Bureau in Brussels and focal point for Rwandan Cessation Clause in Europe), assured that Europe is unlikely to follow UNHCR’s recommendation to invoke the Cessation Clause for Rwandan refugees [14]. What impact could such a decision have on UNHCR’s credibility?

While Mr Cavinato noted that the majority of Rwandans have been locally integrated in their host States, the concern was expressed for those currently seeking asylum in Europe. Mr Cavinato was reassuring in his confirmation that Europe will normally not consider Rwanda as a safe country of origin, and hopes that the recommendation will not affect the new refugees or persons who are seeking asylum for facts occurring after 1998.

Unlike Europe, up until now, no provisions for local integration in Africa have materialised, and the cessation recommendation is still pending. Why is UNHCR pursuing cessation before provisions for local integration are official? How can refugees be asked to choose between repatriation and local integration when the terms of ‘local integration’ have not yet been defined?

As this article was being revised, The Daily Guide reported on the situation of Liberian refugees in Ghana who are facing the Cessation Clause on 30 June 2012. Those who do not want to repatriate must report to the Ghanaian immigration office by 30 April to seek local integration. However, provisions for local integration ‘[have] not yet been defined by the Ghana government’ [15]. This situation is not unique to Ghana as the Lusaka Times[16] reported on 26 April 2012 a discussion about Angolans in Zambia also facing cessation in June 2012. What choice are refugees expected to make if the provisions for local integration are inexistent? There is, in fact, no choice [17].

Exemptions

Paragraph 5 of the Guidelines on Exemption Procedures describes two categories of refugees who should be exempted from cessation: ‘(1) refugees who continue to have a well founded fear of persecution, despite general positive changes in the country of origin, and (2) refugees, who due to compelling reasons arising out of previous persecution, cannot be expected to return to their country of origin’ [18]. The Guidelines on Exemption Procedures admit that there is ‘no fixed definition of, or scale on which acts of persecution are so severe that an exception on the basis of ‘compelling reasons’ is warranted’. However, it defines that ‘sufficient severity can be inferred from the act itself, e.g., including but not limited to genocide, torture and other degrading treatment, detention in camps or prisons, acts or threats of severe violence, including mutilation, rape and other forms of sexual assault’ [19]. If the recommendation is maintained, will every person who feared the genocide or acts/threats of severe violence be exempted? Would people who fled Kagame’s military intervention in DRC (including innocent Hutu and civilian Tutsis) be included in the exemptions as defined? Moreover, is a test (singular) necessary to assess the severity of the acts? Whether UNHCR will then provide the necessary medical and physiological expertise remains to be seen, and it is possible that refugees will be responsible for paying these services.

We know of cases of ‘Hutu’ refugees of ‘mixed’ parentage who came to Uganda before 1998 and subsequently returned to Rwanda, only to find living there intolerable and thus returned to Uganda. If they have returned to Uganda since 1998, will they be exempted?

Acquired Rights?

In several discussions at the annual UNHCR/NGO Consultations, George Okoth-Obbo, of UNHCR’s Africa Bureau, has spoken about ‘acquired rights’. The document, UNHCR Note on Suspension of ‘General Cessation’ Declaration in respect of particular persons or groups based on acquired rights to family unity, refers to social and economic rights.

UNHCR Note on Suspension of ‘General Cessation’ Declaration in respect of particular persons or groups based on acquired rights to family unity provides for a suspension of the Cessation Clause ‘to particular persons or group based on right to family unity’. This ‘suspension’ can be declared for someone who ‘cannot be expected to leave the country of asylum, due to a long stay in that country resulting in strong family, social and economic links’.

The suspension is not an exemption to the Cessation Clause and is limited to a maximum of one year. It would allow refugees to continue to benefit from protection ‘until such arrangements are agreed and/or implemented’ [20]. What constitutes these ‘arrangements’? Would one year be enough to establish the right to remain with one’s spouse? Do all States have such provisions for respecting family unity? And, more importantly, what is this document suggesting when it refers to ‘social and economic links’? Is this a reference to rights conferred by the International Covenant for Economical, Social and Cultural Rights?

Many Rwandans in Uganda have acquired land and property, the majority of whom have paid taxes to the Ugandan government over many years. Unknown numbers of Rwandan refugees have received university education in their host countries in Africa. Tutsi Rwandans in Tanzania were naturalised; have any of these Rwandans returned to Rwanda after the genocide, but returned to Tanzania again? Rwandans in Uganda and Tanzania were employed in various sectors of the economy. The majority of these refugees arrived before 1998. Would these elements facilitate local integration and status regularisation?

Some Final Questions

In its document, UNHCR Comprehensive Strategy for Rwandan Refugee Situation, UNHCR admits that the likelihood for local integration remains low. It states that, ‘broadly speaking, governments in countries of asylum have yet to step forward with concrete offers of local integration for Rwandan refugees generally, or to define the categories of refugees who may be eligible for this solution, many being reluctant to commit to local integration options absent clear progress with regard of voluntary repatriation’ [21].

Which States are expected to change their position and allow local integration? What would be Rwandans’ immigration status? What rights would be granted to them? Have any States agreed to naturalise Rwandans? We have noted that neither Ghana nor Zambia have done so yet. Despite this, the cessation clause is still recommended for Rwandans for June 2013. What is the rationale behind such a hurry?

The cessation of refugee status itself is not the fundamental problem raised by this recommendation. The main issue represents the absence of local integration policies and the inexistent choices that Rwandan refugees have to face. A cessation clause accompanied by large provisions for local integration would mean there is a real choice for refugees; it would not force them to repatriate. This article raised an important number of political, ethical and juridical issues generated by UNHCR’s recommendation to invoke Cessation Clause for Rwandan refugees and has demonstrate why it is not time for such decision for Rwanda. The Fahamu Refugee Programme is asking individuals, NGOs, and governments to refuse the recommendation for cessation.

References

[1] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.
[2] UN High Commissioner for Refugees, Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR’s recommendation on the Applicability of the ‘Ceased Circumstances’ Cessation Clauses, Inter-Office Memorandum No. 093/2011, 31 December 2011, AF/00/DIR/048/11.
[3] Ibid.
[4]Amnesty International: Rwanda Annual Report 2011; ‘Rwanda urged to end clampdown on dissent as Charles Ntakirutinka released’, March 2012; ‘Vague laws used to criminalise criticism of government in Rwanda’, 2010.
[5] UN High Commissioner for Refugees, Guidelines on Exemption Procedures in respect of Cessation Declarations, December 2011.
[6] International Displacement Centre, Rwanda: Ensuring durable solutions for Rwanda’s displaced:a chapter too early closed.
[7] UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, January 1992.
[8] UN High Commissioner for Refugees, Cessation of Status, ExCom Conclusions 69, October 1992.
[9] UN High Commissioner for Refugees, Guidelines on International Protection No. 3: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the ‘Ceased Circumstances’ Clauses), 10 February 2003, HCR/GIP/03/03.
[10] Mutuyimana Manzi, Report of the meeting of the 28 February 2012 held in Nakivale Refugee Camp, unofficial.
[11] Op cit., UN High Commissioner for Refugees, Guidelines on Exemption Procedures.
[12] Op cit., UN High Commissioner for Refugees Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation.
[13] Siddiqui, Y. Reviewing the Application of the Cessation Clause of the 1951 Convention relating to the Status of Refugees in Africa, 2009, Oxford University.
[14] Telephonic communication with Michele Cavinato, Policy Officer of UNHCR’s European Bureau and focal point for Rwanda Cessation Clause in Europe, 17 April 2012.
[15] The Daily Guide, ‘The Dilemma Liberian Refugees’, 28 April 2012.
[16] Lusaka Times, ‘Angolan Refugees Asked to Leave Zambia’, 26 April 2012.
[17] See also Lusaka Times, ‘Zambia has no intentions of integrating refugees’,12 July 2011.
[18] Op cit., UN High Commissioner for Refugees, Guidelines on Exemption Procedures.
[19] Ibid.
[20] UN High Commissioner for Refugees, Note on Suspension of ‘General Cessation’ Declarations in respect of particular persons or groups based on acquired rights to family unity, December 2011.
[21] Op cit., UN High Commissioner for Refugees Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR’s recommendations on the Applicability of the ‘Ceased Circumstances’ Cessation Clauses.

The author wishes to acknowledge the helpful comments on this article by Dr Alice Edwards, Dr James Hathaway, Martin Jones, Dr Galya Ruffer, and Manzi Mutuyimana, and states that any errors in interpretation are his own.

Courtesy – FAHAMU Refugee Legal Aid Newsletter –
http://frlan.tumblr.com/post/22196505143/may-2012