Statelessness and identity in the Rohingya refugee crisis

The Rohingya are stateless. While this is a widely known and uncontroversial fact, it has not been adequately factored into national and international responses to the Rohingya crisis. There are many reasons why this is so, and many seen and unseen consequences. It reflects a wider lack of capacity among humanitarian and other actors to identify statelessness, recognise how it relates to their work and respond accordingly. It also reflects a lack of serious engagement – by all influential players – with the most important, structural and root causes of the crisis. Inevitably, this has contributed to the cyclical denial of identity, persecution, displacement, lack of protection and repatriation that has plagued the Rohingya since the 1970s.

Statelessness and displacement

Not all refugees are stateless, and not all stateless people are refugees (in fact, the majority of each group have no overlap with the other). But being made stateless can be an act of persecution, and one which makes it easier to inflict and even justify further persecution. Similarly, being displaced, particularly over multiple generations, increases vulnerability to statelessness – especially for children born to refugee parents. For more on the nexus between statelessness and forced migration, see the Institute on Statelessness and Inclusion and Norwegian Refugee Council’s online toolkit on understanding statelessness in the Syria refugee context: http://www.syrianationality.org/index.php?id=15. The Rohingya are a prime example of this link – their statelessness is a direct consequence of systemic discrimination, persecution and exclusion by Myanmar law, policy and practice over decades. The fact that Rohingya children born abroad (in Bangladesh, Malaysia, Thailand, India, Pakistan, the UAE, Saudi Arabia and elsewhere) remain stateless is emblematic of the lack of protection and pathways to citizenship for refugees.

The failure of humanitarian actors to recognise and act on this link is illustrated by the fact that UN High Commissioner for Refugees (UNHCR) global statistics treat the two groups separately – if a group is included in the refugee statistics, it cannot also be in the statelessness statistics. This approach has been criticised for its failure to accommodate complexity and the real-world repercussions that people who are both state-less and refugees can face. For more on how UNHCR compiles and reports data on statelessness, as well as more generally on the challenges of measuring statelessness, see Institute on Statelessness and Inclusion, The World’s Stateless, 2014 (http://www.institutesi.org/worldsstateless.pdf); and Institute on Statelessness and Inclusion, ‘Counting the World’s Stateless: Reflections on Statistical Reporting on Statelessness’, in UNHCR Statistical Yearbook 2013 (http://www.unhcr.org/54cf99f29.pdf). Only the scale of Rohingya displacement after August 2017 prompted UNHCR to ‘exceptionally’ report Rohingya refugee and IDP populations in Bangladesh and Myanmar in both its displacement and statelessness statistics for 2017. UNHCR’s global statelessness statistics for 2017 were published in June 2018 in its annual Global Trends report (www.unhcr.org/globaltrends2017/). It is unclear if this will be a oneoff, or will result in a revision of UNHCR’s statistical approach.

This is not merely a question of statistics, but more importantly of protection and durable solutions. Identifying statelessness or the risk of statelessness among refugees is an essential prerequisite to a fit-for-purpose humanitarian response. It should influence the actions of the refugee-receiving state and potential resettlement states, and underpin any discussion of repatriation. All humanitarian actors need to be aware that how they perceive and register refugees can have long term consequences for their protection and their ability to reintegrate into society.

In the context of the Rohingya, this clearly has not happened. The position of Bangladesh that Rohingya are ‘forcibly displaced nationals of Myanmar’ ‘Bilkis Irani, Foreign Secretary Shahidul: The Rohingya Are Forcibly Displaced Myanmar Nationals, not Refugees’, Dhaka Tribune, 29 September 2017 (http://www.dhakatribune.com/bangladesh/law-rights/2017/09/29/foreign-secretary-shahidul-rohingya/). exemplifies the failure of the host state to acknowledge that the Rohingya are stateless refugees with specific protection needs. Similarly, Bangladesh’s refusal to allow registration of the births of Rohingya babies See Natasha Arnpreister, ‘Saving Newborn Rohingya from a Legal Abyss’, Open Society Foundations Voices, 10 August 2018 (https://www.opensocietyfoundations.org/voices/saving-newborn-rohingya-legal-abyss). is a disavowal of a basic obligation under Article 7 of the Convention on the Rights of the Child to protect every child’s identity, of which nationality is a key element. Bangladesh has been praised for opening its borders to Rohingya refugees. But the truth is that Bangladesh too has for decades been responsible for its own statelessness crisis – the statelessness of Rohingya refugee babies, born on Bangladeshi territory but denied the right to a nationality.

Failure to recognise and address root causes

The statelessness of the Rohingya has been a key element in their decades-long persecution in Myanmar, in their lack of protection as refugees outside Myanmar, and in the challenges involved in finding durable solutions. Indeed, one of the main characteristics of the Rohingya crisis is its repetitive nature, coupled with its increasing intensity. The Rohingya suffered cycles of mass violence, persecution and disenfranchisement in 1978, 1991, 2012, 2016 and 2017. In between these peaks, which caught global media attention, their ‘normal’ daily existence was made increasingly suffocating, abusive and undignified through a series of draconian policies and practices. The conditions under which the Rohingya have lived since the 1980s – deprived of free movement; vulnerable to arbitrary arrest, torture and forced labour; denied access to adequate healthcare, education and livelihoods; served with restrictions on marriage and children – have been extensively documented by human rights organisations. See, for example, Fortify Rights, Policies of Persecution: Ending Abusive State Policies against Rohingya Muslims in Myanmar, February 2014 (http://www.fortifyrights.org/downloads/Policies_of_Persecution_Feb_25_Fortify_Rights.pdf); International State Crime Initiative, Countdown to Annihilation: Genocide in Myanmar, 2015 (http://statecrime.org/data/2015/10/ISCI-Rohingya-Report-PUBLISHED-VERSION.pdf).

Myanmar’s 1982 citizenship law, which grants nationality along ethnic lines, led to the exclusion of the Rohingya and several other ethnic minority groups from full citizenship. After the law came into effect, many Rohingya submitted their old identity documents (many of which established their claim to citizenship) to obtain new citizenship documents. Most were either not given new documents or provided with ‘temporary registration cards’, which did not recognise them as citizens. Similarly, many Rohingya who had undergone ‘citizenship verification’ after 2014 also had their old documents confiscated. This process of citizenship verification and denial reinforces the Myanmar government’s inaccurate claim that the Rohingya are illegal immigrants who should be expelled. Even if it were practically safe for the Rohingya to return, their statelessness and lack of documentation mean that the majority are unlikely to pass any verification process, and will continue to suffer persecution.

At no point has the international community made a serious and sustained effort to break this vicious cycle. As long as Myanmar remained closed to the world, the problem was hidden. When Myanmar opened up, the narrative was one of ‘democratisation’ and ‘transformation’. The reality lived by the Rohingya was an annoyingly contradictory detail to be brushed aside. When Rohingya fled mass persecution in 1978 and 1991, the international community facilitated their repatriation without addressing the root causes of their flight, of which denial of identity and nationality was one. When the Myanmar authorities subjected the Rohingya to crimes against humanity in 2012, the international community endorsed Myanmar’s characterisation of the violence as ‘communal’ and went ahead with lifting sanctions. Myanmar’s then president was even awarded a Peace Prize by the International Crisis Group in April 2013. As I wrote at the time:

Every time the international community endorses a watered-down description of the situation, or prefixes any criticism of Burma with a litany of praise for progress made, or endorses the lifting of sanctions, or awards a peace prize to a man who must answer allegations of crimes of the most serious nature; it constitutes a massive metaphorical slap in the face of the Rohingya community. Such praise is ‘premature and dangerous’, and is likely to undermine not only the rights of the Rohingya, but of all other victims of human rights abuse in the country. Amal de Chickera, ‘The Rohingya: Bargaining with Human Lives’, openDemocracy, 3 June 2013 (https://www.opendemocracy.net/5050/amalde-chickera/rohingya-bargaining-with-human-lives).

Sadly, the trend has continued and the worst we feared has happened. However, there is little evidence to show that lessons have been learnt. The post-2017 response has been worryingly familiar.

The failure to recognise statelessness has played a role in the premature discussions and agreements between Bangladesh and Myanmar, as well as Myanmar and the UN, around the repatriation of the Rohingya from this most recent influx. The wide support these have received from the international community is symptomatic of how much global powers would like to see this problem disappear. The idea that the world can begin so soon to discuss the return of a stateless, persecuted minority to a country responsible for inflicting the harshest of crimes against humanity – even genocide – on its members is inhumane to say the least. Responding to the idea of such a repatriation agreement, my organisation published seven criteria that must be met for repatriation to be realistic and in accordance with international legal norms. These criteria were:

1. Voluntariness: Any repatriation of Rohingya refugees must be voluntary. ‘Voluntariness’ requires inter alia that all refugees:
   a. Are provided with adequate information about their rights under international law, including their right to seek refuge and to not be forcibly returned.
   b. Are provided with viable alternatives – protection in Bangladesh or resettlement to third countries – so that their choice to return is not influenced by a lack of international protection.
   c. Should be consulted individually and not be put under pressure to agree to return to Myanmar as a group.
2. UN oversight: Any repatriation effort must be supervised by the UNHCR, with additional oversight by the OHCHR.
3. Right to nationality: All returning refugees and internally displaced Rohingya (as well as the non displaced Rohingya population) should be guaranteed their rights to nationality, self-identification and documentation under international law.
4. Equality and human rights: All Rohingya should be guaranteed equal treatment under the law and be protected from discrimination. They should be able to enjoy their basic human rights, including the freedom of movement, the right to liberty and security of the person, the right to education and right to an adequate standard of living.
5. Normalisation: Any repatriation should be preceded and accompanied by steps taken by Myanmar which include:
   a. Granting full access to humanitarian and human rights agencies, including UN investigators and monitors.
   b. The reconstruction of all destroyed properties and the guarantee that ownership will be reverted to the displaced occupants, and that they will be able to return to their homes.
   c. The demilitarisation of North Rakhine State and the ensuring of security of all returnees.
6. Accountability: Repatriation should be complemented with an independent process (with OHCHR and international oversight and participation) to document all violations committed against civilians; to ensure accountability of all perpetrators; and to compensate victims and their successors.
7. Rehabilitation and integration: Community rehabilitation and integration should be prioritised, including through identifying and combating hate speech and through desegregation. See Institute on Statelessness and Inclusion, ‘Repatriation, Statelessness and Refugee Status: Three Crucial Issues in the Unfolding Rohingya Crisis’, 10 October 2017 (http://www.institutesi.org/repatriation_statelessness_and_refugee_status_2017.pdf).

Rohingya groups have made similar demands of the international community, and reports from the Office of the High Commissioner of Human Rights and human rights NGOs reiterate many of these points. These seven criteria provide a roadmap, not just for the return of the Rohingya, but for a resolution to this decades-long crisis.

Looking ahead

The solution is clear. The challenge lies in the lack of political will among the main actors to protect the Rohingya, address the root causes of statelessness and bring perpetrators to justice. Myanmar – no doubt – is the protagonist in this regard, but Bangladesh and other Rohingya-receiving countries also hold responsibility. The weakness of the international community, which has so far been unable to speak with a unified voice – even when faced with crimes so horrendous that we promised they would be committed ‘never again’ – has allowed these states to treat the Rohingya as sub-human over many decades. The impotence of the international community is another sign that we need to collectively rethink and reshape the institutions that are meant to preserve peace (not least the UN Security Council). The failure of the UN and international NGOs to put human rights first and strike the right balance between maintaining humanitarian and development access while calling out structural discrimination and persecution has also allowed the situation to steadily erode. It is important to remember that all UN agencies are obliged to fulfil their mandates in accordance with principles of human rights – something which does not often happen in reality, particularly when working in difficult environments.

Even so, there are positive signs. I recently met a group of Burmese activists and lawyers of various ethnic groups and regions. They unanimously agreed that the 1982 citizenship law had to be repealed and replaced, not only because its ethno-based character excluded groups like the Rohingya, but also because it was a remnant from the military junta era, which had no place in the multicultural, progressive and democratic Myanmar they envisioned.

As with countless tragedies before, the Rohingya crisis provides us with an opportunity for introspection, humility and the learning of important lessons. Unless those of us who occupy international protection and human rights spaces demonstrate the capacity to do so, the future of the Rohingya and of other vulnerable groups may once again mirror their past.

Amal de Chickera is Co-Director of the Institute on Statelessness and Inclusion.