A policeman registers the names of Rohingya refugees after they were detained while crossing the India-Bangladesh border from Bangladesh, at Rayermura village on the outskirts of Tripura capital Agartala on January 22, 2019. | Photo Credit: AFP
The world has been watching Myanmar descend into a brutal military dictatorship again. The scenes from the past few weeks have been terrible — peaceful protestors being killed, detained, and communities terrorised. In all this, the people of Myanmar have been pleading with the international community to support them in their hour of need. It is incumbent upon Myanmar’s neighbours to stand up for rule of law, democracy and human rights.
While many in India are supportive of those in Myanmar calling for democracy, the Indian government has been engaging in doublespeak. On the one hand, India has made relatively strong, laudable statements as part of the UN Security Council and at the UN Human Rights Council in Geneva in support of the people of Myanmar. On the other, the government is simultaneously detaining and preparing to deport Rohingya refugees to Myanmar.
The Ministry of Home Affairs has also recently issued a diktat to border States to check “illegal influx” from Myanmar to India. The Ministry wrongly labels those fleeing into India as “infiltrators”, arguing that they are not to be considered refugees as India has not signed the UN Refugee Convention.
This is an erroneous position in international law. These individuals would fall within the legal definition of refugees i.e., those who have a well-founded fear of persecution, and the customary international law norm of non-refoulement is legally binding. This means that no State can send individuals back to a situation of danger, which is clearly the case in Myanmar. Non-refoulement applies to those countries which have signed the conventions as well as those that have not.
This is of particular relevance to those police and security personnel refusing illegal orders to attack protesters, instead seeking refuge in India, as multiple credible reports indicate. There are growing calls from the UN and states for the atrocities committed by Myanmar security forces in the course of these protests to be investigated as possible crimes against humanity, given their scale, coordination and their widespread and systematic nature. Furthermore, this week, the Independent Investigative Mechanism for Myanmar (IIMM), a UN established body that is mandated to investigate and build case files for international crimes committed in Myanmar since 2011, issued a public call to security personnel to reach out and provide information regarding illegal orders and policies, which are a necessary component of building cases against those higher up in the chain of command. India must shelter these individuals and allow the IIMM access, should they indicate willingness to cooperate in these international investigations.
Coinciding with the mass crackdown against protesters in Myanmar this month, reports emerged of Rohingya refugees being rounded up and detained in India, in preparation for deportation to Myanmar. The office of the UN High Commissioner for Refugees in India was denied access to individuals detained in Delhi. The Rohingya are refugees who have fled years of atrocities and a genocidal campaign, and must not be sent back to Myanmar where their lives are in certain danger. There are also international legal proceedings ongoing in relation to the Rohingya. A case before the International Court of Justice relates to violations of the Genocide Convention by Myanmar, and has been brought against it by The Gambia, with Canada, the Netherlands and Maldives joining the case recently. Simultaneously, the Prosecutor of the International Criminal Court is investigating international crimes against the Rohingya. These international legal proceedings are indications of the seriousness and gravity of the crimes against the Rohingya, which India would do well to heed.
To turn its back on the people of Myanmar would be unconscionable now, and India would be in breach of international law in doing so.
Priya Pillai is an international lawyer and head of the Asia Justice Coalition secretariat
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