“No one leaves home unless home is the mouth of a shark. You only run for the border when you see the whole city running as well.” This evocative stanza from poet Warsan Shire’s ‘Home’ hit a nerve online recently. Explaining, in short verses, the unthinkable choices refugees must take, Shire writes: “no one puts their children in a boat unless the water is safer than the land.”
Human existence since its inception has been a winding tale of power struggles, confrontations, armed conflicts between nations, people and individuals which yielded in millions of homeless people and forced migrations to seek shelter in another country or another place within the country. Every year, hundreds of thousands of people are leaving their countries. Being different from normal immigrants, these people are actually forced to leave their homeland. The reasons vary but have one thing in common: they fear to go back. They are called refugees.
The practice of granting asylum to people fleeing persecution in foreign lands is one of the earliest hallmarks of civilization. The refugee problem is a phenomenon of our age. It is the product not only of the most catastrophic and fiendish wars of history, the two World Wars, of modern dictatorial regimes, and of the national awakening of the people, but also of the closed frontiers which was a characteristic of the 20th Century. There were refugees in earlier centuries but no refugee problem in the modern sense, for the involuntary migrant could merge with those who by choice sought new homes elsewhere, for our time, the refugee problem has been distinguished from refugee movements of earlier days by its scope, variety of causes, and difficulty of solution.
According to the UNHCR Global Trends 2016 Report, by the end of 2016, 65.6 million individuals were forcibly displaced worldwide as a result of persecution, conflict, violence, or human rights violations. Over the past two decades, the global population of forcibly displaced people has grown substantially from 33.9 million in 1997 to 65.6 million in 2016, and it remains at a record high. These figures are an alarming indicator of the world community to safeguard the basic human dignity of people in their own states. A significant number of refugees living at a place are often a good indicator of a breakdown in the governance of their place of origin or of the fact that they have become the victims of their own government’s abuse or of that inflicted by an external aggressor or that a coherent governance has ceased to exist.
Throughout the 20th Century, the international community steadily assembled a set of guidelines, laws and conventions to ensure the adequate treatment of refugees and protect their human rights. The process began under the League of Nations in 1921. In July 1951, a diplomatic conference in Geneva adopted the Convention relating to the Status of Refugees (1951 Convention), which was later amended by the 1967 Protocol. These documents clearly spell out who is a refugee and the kind of legal protection, other assistance and social rights a refugee is entitled to receive. It also defines a refugee’s obligations to the host country and specifies certain categories of people, such as war criminals, who do not qualify for refugee status. The 1951 convention was initially pertaining to European refugees in the aftermath of World War II, but the 1967 Protocol expanded its scope as the problem of displacement spread around the world.
A refugee is someone who has been forced to flee his or her country because of persecution, war, or violence. A refugee, according to the Convention Relating to the Status of Refugees, 1951 has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group. It is important that he should be outside the country of his origin and owing to such fear, and is unwilling to or unable to avail himself of the protection of that country or being outside the country of his habitual residence is unwilling or unable to return to it.
The Refugee convention, 1951 helped inspire important regional instruments such as the 1969 OAU Refugee Convention in Africa, the 1984 Cartagena Declaration in Latin America and the development of a common asylum system in the European Union.
The Organization of African Unity [OAU] Convention Governing the Specific Aspects of Refugee Problems in Africa, a regional treaty adopted in 1969, added to the definition found in the 1951 Convention to include a more objectively based consideration, namely “Any person compelled to leave his/her country owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality”. In 1984, a colloquium of Latin American government representatives and distinguished jurists adopted the Cartagena Declaration. Like the OAU Convention, the Declaration adds a more objectively based consideration to the 1951 Convention refugee definition to include: Persons who flee their countries “because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”.
Besides identifying the essential characteristics of the refugee, the 1951 Convention also imparts a number of obligations on the State party which are crucial in achieving the goal of protection and desirable solution. The most important among these is the principle of non-refoulement under Article 33(1) of the 1951 Convention . As stated in the Convention, no refugee should be returned in any manner whatsoever to any country where he or she would be at risk of persecution. While the principle of non-refoulement is basic in character, it is recognized that there may be certain cases in which an exception to the principle like considerations of national security can legitimately be made under Article 33(2).
THE ROHINGYA CRISIS AND INDIA’S REFUGEE POLICY
Rohingyas refugee crisis is the most recent crisis faced by the world today, primarily South East Asian countries. They are a Muslim ethnic group who have been living in Myanmar’s Rakhine state, formally known as Arakan. The Myanmar Government objects to the very use of the word Rohingyas countering their claim by arguing that they are not citizens of Myanmar but Bengalis who entered the country during British rule or after the 1971 Bangladesh War.
The Indian Government’s announcement to deport the Rohingya refugees has sparked a debate in the country which already hosts 200,000 refugees. India is a host to a diverse mix of refugees coming from diverse ethnicities. Refugees have come from different parts of the world including Afghanistan, Bangladesh, Sri Lanka, Tibet, Myanmar, Somalia, Congo, Eritrea, Iran, Iraq, Sudan and Syria. India has a long history of granting asylum and protection to people fleeing persecution and violence despite not being a signatory to the 1951 UN Convention on Status of Refugees and 1967 Protocol. India has no national refugee protection framework or immigration policy and is not under any obligation to provide rights set out in the UN Conventions to the refugees as it is a non signatory to the UN Conventions safeguarding the rights of the refugees and stateless persons. Due to lack of a clear asylum policy India takes its decisions on granting long-term visas to refugees on adhoc basis which allows different governments to adopt policies driven by their own political considerations.
The Indian Law and practice for refugees provides a distorted and incomplete framework for their rehabilitation and protection. The Indian law at the minimum fails to even recognize refugees as a distinct category of person and treats them at par with all other foreigners, thereby failing to appreciate their special circumstances. This failure on the part of Indian legal system to ensure the basic human rights runs against the basic spirit of the law of the land i.e. Indian Constitution and India’s International commitment.
The Honorable Supreme Court of India has in various cases emphasized and reiterated on the importance of interpreting the International Conventions which are not inconsistent with the Constitution and are in harmony with its spirit must be respected so as to promote the objective of constitutional guarantee. One such instance was in 1996, In N.H.R.C v. State of Arunachal Pradesh, the Apex Court ruled that the protection under Articles 14 and 21 are available not only to citizens but also to non-citizens and said that If there exists a “reasonable apprehension”, or a “well founded fear of persecution”, or “a clear and present danger”, foreigners would be entitled to the protection of Article 21 of the Constitution; and the state government would be required to act impartially and carry out its legal obligations to safeguard the life, health and well-being of foreigners.
Recently, The apex court yet again emerged as the saviour of the homeless trying to strike a delicate balance between the security of the nation and humanitarian considerations. The Honorable Court has said the Government cannot be oblivious to the plight of innocent Rohingya women and children. It urged the Government to “strike a balance between human rights and national security interests”.
There is not even an iota of doubt or confusion on the point that any immigrant indulging in “anti-national” activities should be treated with utmost severity and must be denied entry and deported if there is concrete information available against them. This indicates to an important aspect that providing appropriate protection to refugees does not mean that governments should allow blanket access but at the same time, it is unfair and inhuman to brand all 40,000 Rohingyas who have entered India as terrorists and deport them back to a country where they will surely meet a horrendous fate.
The Government needs to put in place enhanced scrutiny process and better check at the borders and if need be the refugees should be restricted and stopped at the borders itself if they are seen as a threat to India’s security. It is unimaginable that the movement of such great numbers across border went unnoticed by the authorities over the years and now they are being branded as terrorists having links with the global jihadi groups. Ironically, Rohingyas are the only unfortunate ones seeking refuge in India whom the Union Government plans to deport overlooking its previous much lauded decisions of granting asylum.
Several observers believe that the Government’s stand against Rohingyas may be rooted in India’s “look east policy” to counterweight to the strategic influence of China. Instead of deporting Rohingyas, India should use its global position to help end further migration of Rohingyas and muster international support to create a safe environment for Rohingyas to return. Many misunderstand the concept of granting refuge as permanent resettlement, once the conditions which made the people flee their country of origin seize to exist, refugees cease to be the special category safeguarded by the UN Conventions and are to return to their country of origin. What is required today is a more pragmatic approach which is not based on any religious, ethnic or like considerations for granting asylum to the refugees.
The world community as a whole has to come together to resolve the refugee crisis which would generate a positive response in the third world countries. Today ten countries which account for just 2.5 percent of the global economy are hosting more than half the world’s refugees.
Since the problem is global in nature, the search for solutions must also be global. It is equally important to ensure that any solution enhances the system of human rights and is in accord with its principles. This opinion has attempted to show that restrictive legislative measures, temporary stop-gap approaches, and attempts to deflect refugees to other countries do not stop the refugee flows or ameliorate conditions for those who are already refugees.
Another important aspect is that we should harness the ability and willingness of differentiated responsibilities, meaning that beyond common duty to provide first asylum, states could assume a range of protection roles within their responsibility-sharing quota (protection for duration of risk; exceptional immediate permanent integration, residual resettlement) – though all states would be required to make contributions to both (financial) burden- sharing and human responsibility- sharing, with no trade-offs between the two.
There are Various examples of positive impact on the economies of countries granting refuge to the persecuted like that of Germany , Sweden to name a few as many refugees arrive with marketable skills in the host countries and if given the right environment and opportunities they have proved to be catalyst for the economic growth.
Refugees are the ultimate victims of all that is worst in this world. They have suffered loss of home, economic deprivation, physical violence, psychological trauma as well as bureaucratic harassment, hostility in receiving States, and a life in exile. The fact that over fifty percent of these victims are children highlights and underscores the need for quick and fair solutions to their plight. At the very least they deserve to be treated with recognition of their human status. As Coles comments, “the individual is always more than a refugee, for the individual remains a human being.”