By deporting 7 Rohingya men, Supreme Court and Government of India failed to uphold international humanitarian obligations

[dropcap]O[/dropcap]n October 4, 2018, seven Rohingya men were handed over to authorities from Myanmar in Moreh, Manipur at the Indo-Myanmar border. The seven men were initially remanded into judicial custody in 2012, after being caught by the police from Shilchori-Nagatila area in Assam for illegal entry. After serving their sentence of three months for entering India without valid documents, however, they were held in detention in Silchar Central Jail for six years, until this week.  The news broke that the handover of these men by the Government of India to Myanmar was to take place on October 4, and the matter was raised in the Supreme Court on October 3. Due to change introduced in mentioning procedure, it could not be heard the same day. However, due to the urgency of the situation, the Bench agreed to hear it the next day.

The decision came down to the wire, on the day of the deportation. By the time the matter was being heard, however, the men had already been moved from Assam to Moreh, Manipur. The apex court refused to stop the deportation from taking place, citing that as per the Government's statement, the men had consented to being repatriated, and that Myanmar had accepted them as "citizens/nationals" and arranged for travel documentation/certificates of identification for the seven Rohingyas. We believe that the key considerations based on which the Supreme Court refused intervention in the deportation of the Rohingya men were gravely misplaced.

Questionable consent

One of the key factors behind the Supreme Court's decision seemed to be that the Rohingya men concerned have volunteered to return to Myanmar. However, the written affidavit submitted by the Government at the Supreme Court did not even mention that the men had consented to returning to Myanmar, nor was any signed document submitted by the detainees to that effect. Furthermore, the UNHCR ExCom, of which India is a member, laid down in one of its Conclusions on International Protection that repatriation must be freely expressed and should only be carried out in conditions of absolute safety. The UNHCR's Handbook on Voluntary Repatriation dictates that firstly, "voluntariness" should include the absence of measures that push the refugee to repatriate; that there should be no physical, psychological or material pressure on the person. Secondly, the legal status of the person in the country of asylum must be scrutinised while evaluating the nature of a person's consent to repatriate. Thirdly, the person must be informed of the conditions in the country of origin so that a decision to repatriate is an informedone.

The consent given by the Rohingya men in this situation is debatable as they did not have access to any legal counsel. Additionally, in this case particularly, the assessment of consent is a must. There were no indications by the Government of India or Myanmar regarding the safe conditions to which the men would be returned. The situation in Rakhine State continues to be volatile and Rohingya refugees have refused to go back due to the lack of assurance of what their status will be upon return. It has also been reported by Human Rights Watch that Rohingya returnees face arrest, mistreatment and torture at the hands of Myanmarese security forces. The atrocities committed by the Tatmadaw (Myanmarese Military) against the Rohingyas have been extensively documented, and have invited international condemnation across the board. Given the current situation in Rakhine and their prolonged incarceration in India, it is highly suspect that these men gave free, informed consent for their return.

Nationality like never before

The Government of India has stated that the Government of Myanmar has accepted the men as nationals and citizens of Myanmar. This has been the first de factoindication of the Government of Myanmar accepting Rohingyas as citizens. However, under the Burma Citizenship Law of 1982, the Rohingya ethnicity is not recognised as one of the "national races" of Myanmar. While the law also stipulates that those who can definitively prove that their ancestors settled in the country before 1823 also qualify as citizens, and the Rohingya presence in the Arakan region can be traced back to 8th century, this ethnic group continues to be denied citizenship. Rohingyas have systematically been denied legal status in their country of origin and thus far there has been no law enacted or amended that proves that Rohingyas will be given Myanmarese citizenship.

It is also worth noting that the Ministry of External Affairs statement regarding the deportation that was issued on October 4differs from the affidavit submitted by the MHA in court. While the affidavit refers to the Rohingyas as nationals/citizens, the MEA statement refers to them as residents of Myanmar. This loose and interchangeable use of the terms "national", "citizen" and "resident" suggests the dubious categorisation of the Rohingya men's identity in Myanmar and casts doubt on the process followed by the Government, as well as the decision made by the Supreme Court to allow the deportation to occur.

Further, as indicated earlier, most significantly, the court entirely disregarded the ongoing contextual background to the situation of the seven Rohingya men in question, and failed to duly acknowledge what has been termed as a textbook example of "ethnic cleansing". Less than a month ago, the UN Human Rights Council's Independent Fact-Finding Mission has conclusively said the persecution of Rohingyas by the Myanmar military alongside civil actors is evidence of genocidal intent — thus, citing the most crucial element required to establish the crime of genocide. Moreover, last month, the International Criminal Court, in its landmark ruling, gave authorisation to the Prosecutor to investigate the crimes against humanity committed against the Rohingya community, despite Myanmar not being a member state of the court. Against such a backdrop, the deportation of the seven Rohingya men has evinced a sharp turn-about in India's overall asylum policies that has traditionally allowed Rohingyas to reside in the country on humanitarian considerations, and clearly violated India's international obligation to observe the principle of non-refoulement and also to prevent genocide in this particular scenario.

Prior regard for non-refoulement

In the past, courts in India have indeed been seized of matters concerning deportation of foreigners who happen to be refugees. In such cases, the judiciary has duly acknowledged the international protection refugees deserve notwithstanding the applicability of India's Foreigners Act, and has respected the cardinal principle of non-refoulementas a part of the right to life under Article 21 of the Constitution (that extends to all persons, including refugees).

As recent as 2016, the Delhi High Court elaborated on the necessity to involve and consult UNHCR in any proceeding brought against a refugee. Justice Ashutosh Kumar presiding over this matter found it prudent to act in line "with the golden traditions of this country in respecting international comity and according good treatment to refugees", and ordered the FRRO, the MHA division to consult UNHCR in the deportation matter pertaining to two Burmese refugees. Thereby, holding that the refugees, whose return to their home countries is likely to lead to infliction of torture or grave violation of their human rights, must notbe deported.

Also, on a previous occasion, the Gujarat High Court intervened in the deportation of two Iraqi nationals and ordered the state government to hold the "right perspective from the humanitarian point of view" in dealing with refugees when there is material on record that indicates that there are likely to face persecution upon return due to their identity. Moreover, even in instances where the refugees are not registered with the UNHCR in New Delhi and have not had an opportunity to apply for obtaining the refugee certificate, the courts have gone on to direct the government authorities to allow the foreigner detainees to be referred to UNHCR in order to process their claim for refugee status.

Thus, in the backdrop of credible material on record evincing the extremely dangerous situation for Rohingyas in Myanmar, and the high likelihood of them being subjected  to torture and even death, the refoulementof the seven men in question is a violation of customary international law by India.

India has obligation to prevent genocide

India has ratified the Genocide Convention, 1948, which under its Article I inter alia obligates states to prevent genocide whether in wartime or in peacetime. Despite India's ratification of the Genocide Convention in 1959, no legislation was enacted on the subject. However, the absence of legislation on the subject was justified by Union MoS for home affairs, Kiren Rijiju, in the Rajya Sabha, who stated that by acceding to the Convention, India has recognised genocide as an international crime. The principles embodied in the Convention are part of general international law and therefore already part of common law of India.

It is therefore important to look into the content of the state's obligations enshrined under international law in this regard. It is noteworthy that the ICJ, in the Bosnia/Serbia Genocide case (2007) has expounded that the obligation to prevent genocide is not limited by territory, and further, that it is an obligation of conduct, not of result. Thus, the states "have an obligation to exercise due diligence and employ all means reasonably available to them, so as to prevent genocide so far as possible".

According to the ICJ, the obligation to prevent genocide admittedly varies greatly from one State to another, "depending, amongst other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds". Given India's geographical proximity with Myanmar, and an ample record of well-established political links and developing bilateral relations between the states over the years, India is arguably obliged to not take any positive steps against the persecuted Rohingya community that would place them in a vulnerable situation where they "face the danger of, or the reality of genocide."  In the present scenario, the Indo-Myanmar authorities arrived at an agreement to facilitate the return of the seven Rohingya men, and in an unprecedented move, Myanmar even issued them travel permits for the purpose.

Furthermore, a State's obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. Not only have the statements by the National Human Rights Commission and the human rights agencies over the past expressed deep concerns on India's deportation threat against the Rohingyas, even in the days leading up to the deportation, the illegality and internationally wrongful nature of the said act was specifically intimated to the Indian government.

The sudden regression adopted in India's policy towards refugees that has traditionally been applauded for its humanitarian values, is worrisome. The disregard indicated towards India's international commitment throughout the episode of the return of the seven Rohingya men raises grave concerns about India's international obligations and its willingness to preserve basic human rights.

Nayantara Raja and Ishita Kumar are refugee lawyers based in New Delhi.