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REFUGEES

“Never again,” as was said following the genocidal violence of World War 2, is happening again.

The forced expulsion of hundreds of thousands of Rohingya Muslims from their homelands in western Burma constitutes one of the most urgent humanitarian emergencies in the world today. The aim of the Burmese government is to literally wipe them off the map.

The United Nations has called the Rohingya Muslims of Rakhine State in western Burma the “most persecuted people in the world.” Following years of increasing rights restrictions on the Rohingya minority,  the Burmese army has led the campaign to systematically drive the Rohingya from their ancestral homeland in Arakhan (now known as Rakhine) State By very conservative estimates, at least 10,000 have been killed in the ongoing violence, though the real number is almost certainly much greater. Shocking atrocities and mass rapes have taken place, but despite widespread documentation the Burmese government continues to deny them.  Over 350 Rohingya villages have been destroyed, making repatriation extremely difficult.

The total number of Rohingya displaced by the genocide in Rakhine is unknown,but an estimated 1.5 million Rohingya refugees have been scattered across South- and Southeast Asia, making the perilous, often fatal journey by land and sea to find some basic measure of security in their lives.

The stateless Rohingya refugees join a larger cohort of almost 70 million refugees worldwide, the largest volume of refugees in modern history.


BANGLADESH

900,000 Rohingya are displaced into Bangladesh alone, including 340,000 children living in squalid, refugee camp conditions. Some 600,000 of that number reside in the massive, sprawling Kutupalong refugee camp in eastern Bangladesh.


In this location, time is not on the Rohingyas’ side. A recent joint study carried out by United Nations agencies and the Asian Disaster Preparedness Centre disclosed that around 200,000 Rohingyas are at risk of landslides and flash floods in the coming monsoon seasons. What is more, the chance of a violent cyclone raises the stakes even higher: past cyclones have led to over 150,000 thousand deaths, which does not even take into account the vulnerabilities inherent in the ramshackle living conditions of the refugees. If a large cyclone were to materialize and strike southern Bangladesh or eastern India the human cost would be astronomical.


PAKISTAN

Pakistan hosts an estimated 300,000 Rohingya refugees, concentrated mainly in and around Karachi. Karachi’s Rohingya community is one of the oldest of the Rohingya diaspora, many of whom arrived fleeing violence in Burma during the 1960s and 1970s. Thousands of Rohingya families are packed into one-room cement houses, particularly in the district of Arakanabad (named after the Rohingya’s native region of Arakan in Burma). Conditions are unsanitary in Rohingya neighborhoods and food is scarce.

Most are not able to acquire Pakistani identity cards, which are necessary for basic services such as attending school, using public hospitals, opening bank accounts, and getting formal jobs. This means that the vast majority must work in the informal economic sector, where likelihood of exploitation and mistreatment is high. There is essentially no official public policy for the Rohingya in Pakistan. As one of the largest Rohingya immigrant communities in the world outside Bangladesh or Burma itself, this is a major problem, but decades of life under these conditions has led to a tacit acceptance of the status quo by both the community and the government.


SAUDI ARABIA

There are roughly half a million Rohingya immigrants currently residing in Saudi Arabia. Rohingyas have sought asylum in the Gulf Kingdom since the extreme communal violence of the early 1970s in Burma. Another large wave arrived following the outbreak of state violence in Burma in 2012. The Rohingya identity is not accepted in Saudi Arabia, which means all Rohingya refugees are essentially mis-classified as Indian, Pakistani, Bangladeshi, or Nepalese. In January 2019, 128 refugees were forcibly deported to the refugee camps in Bangladesh. The detained refugees reported being abused by Saudi immigration police and forced to sign letters consenting to their deportation.

While a large Rohingya community has lived in Saudi Arabia for several decades, recently the environment has grown more difficult, with the Saudi government stepping up its measures to closely monitor the population. Recent asylum-seekers have been detained and sent to internment camps for deportation.


INDIA

The bulk of the 40,000 Rohingya currently seeking refuge in India began arriving after 2012, following the massive assault by the Burmese army on the population of Rakhine in that year. They are spread across the regions of Jammu, Haryana’s Mewat district, Dehli, Hyderabad, Jaipur, and Chennai. Approximately 18,000 of that number are officially registered as refugees with the United Nations High Commissioner for Refugees (UNHCR), 3,000 are registered as “asylum-seekers.” About 500 of them have long-term visas that allow them access to basic services like opening bank accounts and enrolling in school.

The living conditions are squalid. Most live in large refugee camps, which are essentially a vast network of sprawling, unsanitary slums. Since most do not have visas or citizenship and thus cannot legally work, they are forced to subsist through the informal sector or the black market at poverty wages, without any legal protections and thus likely to be subject to exploitative work conditions. Like refugees everywhere, the Rohingya in India are a marginalized, highly vulnerable group.

However, the situation in India is rapidly deteriorating. Indian society is undergoing a nationwide revival of religio-nationalistic fervor. This trend has driven a spike in communal violence against Muslims in recent years.1 In addition, the Indian government has carried out its own crackdown against its Rohingya community. There are currently more than 200 Rohingya asylum-seekers in jails in different states of India. In October of 2018, the Indian government deported seven Rohingya refugees back to Burma, despite the life-threatening environment there. These Rohingyas were deported as “illegal immigrants.” This is a potential sign that the government may be planning to eventually deport many more or even all of the refugees. Furthermore, the Government of India and the Government of Burma have started cooperating to identify Rohingyas in India, and Rohingyas are being forced by Indian authorities to complete an “identification form” that appears to have been directly developed by the Burma government.2  It is almost certain that the express purpose of this form is to facilitate the deportation of more Rohingya refugees.

[LINK TO FULL BTF POLICY MEMO ON INDIA]


MALAYSIA

Malaysia is currently host to over 163,000 Burmese refugees and asylum-seekers, and about 88,000 of these are Rohingya. However, a great deal more may be in the country as unregistered individuals. Malaysia has traditionally been a place of refuge for the Rohingya, but since 2015 the country has been turning away growing numbers of them. However, after the massive outbreak of violence in September 2017, Malaysian government officials stated that no one seeking peace and safety would be turned away. 


  1. “Figures at a Glance in Malaysia,” UNHCR, https://www.unhcr.org/figures-at-a-glance-in-malaysia.html.  Accessed February 21, 2019.
  2.  Kok Xing Hui, “Rohingya refugees find uneasy solace in Malaysia,” February 25, 2018, https://www.cnn.com/2018/02/24/asia/malaysia-rohingya-refugee-school-intl/index.html. Accessed February 21, 2019.

Although conditions are relatively hospitable for Rohingya in Malaysia, they have no legal rights: no right to work, no right to public education, no right to medical treatment in hospitals, no right to public benefits. As a result they are forced to eke out an existence, like many refugees, in any jobs that can be found in the black or grey-market economy. Children attend schools run by the UNHCR and other non-governmental organizations, of which there are about 50. However, recently the government has indicated that it is considering a new policy for refugees that would allow them to attend public schools and hospitals. There are also pilot projects in development that allow refugees to find legal employment in the workforce.

Notably, Malaysia supports the referral of the Burma genocide to the International Criminal Court as a step toward safe and secure repatriation.


UNITED STATES

The United States has remained relatively open to Rohingya resettlement, especially since 2012. As of early 2019, about 8,000 Rohingya refugees have resettled in the United States, with particularly large communities located in Milwaukee, Chicago, and Fort Wayne. 

In the U.S. Rohingyas face the same challenges refugees everywhere face: linguistic and cultural barriers to integration into the broader society; legal obstacles to steady, secure employment; and difficulty securing important public benefits and resources from the government. But they do enjoy some benefits that are harder to come by in some other countries, such as access to free public education for children and a relatively robust network of nonprofit organizations that are dedicated to refugee rights, security, and empowerment. 

While resettlement in the U.S. remains a highly desired goal for many Rohingya refugees, the U.S. has allowed fewer and fewer refugees to enter the country in recent years. In 2018 only about 20,000 total were admitted, which is the lowest number since 1977. However, Congress has passed or proposed several resolutions and bills explicitly calling for official recognition of the genocide in Burma along with the appropriate federal response by the U.S. government. So far these legislative proposals have not successfully passed into law, but a vocal bipartisan constituency continues to highlight the issue and advocate for government action.


CANADA



Canada is a leading country in the UNHCR’s international refugee resettlement program, having consistently accepted thousands of refugee and asylum applicants each year for over a decade. Regarding the Rohingya, about 200 have currently been resettled in Canada. Additionally, and importantly, the Canadian government was the first to come out with an official declaration of genocide in Burma. The current government has made its position on the issue clear: no man-made humanitarian catastrophe of such a magnitude can be idly tolerated, so the international community has the responsibility to act. Canada will also donate over $300 million in the coming years for humanitarian, international aid to the Rohingya.

Refugees enjoy a robust set of rights when moving to or resettling in Canada. These include access to public educational institutions, employment options, and medical coverage, even in the application phase preceding official registration as refugees. Although rights such as these make Canada an exemplary leader in refugee rights, so far the number of Rohingya resettled in the country remains relatively low. Recently, the country offered to resettle a number of the refugees currently living in Bangladesh’s Kutupalong refugee camp, but the Bangladeshi government has not accepted the offer as of February 2019.


CITIZENSHIP

The issue of citizenship is at the heart of the Rohingya crisis. In Burma, hatred towards the Rohingya has combined with a network of discriminatory laws to generate a culture of hostile intolerance, not to mention a disregard for the human rights enshrined in many international instruments. It has led to forced deportations and mass murder. To fully understand the causes, consequences, and viable solutions of this crisis it is necessary to clearly understand the problem of citizenship and citizens’ rights in Burma, particularly as they are defined in the country’s constitutional foundation. Such an understanding makes it clear that any real resolution of the conflict must involve the right of safe return under the protections of fully restored citizenship according to the original constitution of the Union of Burma. 

To support this goal, this memo defines the issue and lays out the key conditions for a genuine restoration of citizenship for the Rohingya. It therefore explains how a just, safe, and dignified repatriation can be secured as an indispensable element in any process of reconciliation. Accordingly, it will not address in detail the complicated demographic and social history of the


broader region, but will focus instead on the political and legal rationale for citizenship as a condition for the resolution of the crisis and the restoration of peace. 


The Current Situation

The United Nations has called the Rohingya Muslims of Rakine State in western Burma the “most persecuted people in the world.”1 The Burmese army has led the campaign to systematically drive the Rohingya from their ancestral homeland in Arakhan (now known as Rakhine) State. The Rohingya, who are mostly farmers, have almost no means of defense of any kind, much less any that could be effective against a modern, well-armed and professional miltary.2 By very conservative estimates, at least 10,000 have been killed in the ongoing violence since 2017, though the real number is almost certainly much greater. 800,000 are displaced, including 340,000 children living in squalid, refugee camp conditions.3 Meanwhile Buddhist extremists, inflamed by a volatile mix of religious fundamentalism and militant nationalism, have carried out mass pogroms against the Muslim residents of Burmese towns and cities. Some of the country’s leading monks excuse and even advocate the wholesale destruction of Rohingya Muslim communities. The civilian government, led by the Nobel Laureate, Aung Suu Kyii, has for all practical purposes looked the other way while an entire people has been driven out by a hate-fueled, forced exodus directly under its watch. 

Within Rakhine State itself in Western Burma, the Rohingya live in a state of de facto apartheid. Rohingya Muslims are forced to carry “National ID Cards” clearly marking them as non-citizens – a law stemming from the 1982 Citizenship Act. Without this card they cannot get past police and military checkpoints and can be punished if caught without it. Given the constant military surveillance and harassment, simply moving around freely is impossible for the Rohingya. 

The Muslim Rohingya and the Buddhist Rakhine population have a long history of coexistence, mutual respect, and even marital relationship. However, in 1962 a military junta led by the General Ne Win took state power and methodically worked to change this state of affairs. Government authorities within Myanmar now refer to the Rohingya as ‘Bengali,’ explicitly differentiating them from the Buddhist ‘Burmese.’ The majority Buddhist population historically enjoyed social and economic privileges that eventually became codified within their government as laws. As a result, “ethnic Burmese groups enjoy certain privileges compared to those labeled as non-Burmese.”4  The restoration of citizenship is essential for any viable solution to this de facto state of apartheid. International leaders are beginning to recognize the absolute necessity of restoring citizen status to the Rohingya to secure their safe repatriation to their former homeland.


The Historical and Political Basis of the Right to Citizenship in Burma

The complexities of the citizenship issue in Burma cannot be understood without reference to the country’s long history as imperial property. For most of the nineteenth century and until halfway through the twentieth century Burma was a colonial dominion, ruled over first by Great Britain and then, from 1942-45, by the Japanese Empire. Following the close of the war, Burma sought independence from colonial control, which it fully obtained in 1948. The new national government was chartered on the basis of its first constitution in 1947, enacted by the constituent assembly for the post-Independence Union of Burma. This constitution represents the  democratic foundation of modern Burma, which was rechristened as Myanmar in 1989.  

The founding Myanmar constitution clearly recognizes the right to citizenship of every individual within its territorial borders. It includes the Union Citizenship Act, the original statute of Burmese citizenship, as one of its central pillars. The law states in section 3 (1): “For the purposes of section 11 of the Constitution the expression ‘any of the indigenous races’ of Burma shall mean the Arakanese, Burmese, Chin, Kachin, Karen, Kayah, Mon or Shan race and such racial group as has settled in any of the territories included within the Union as their permanent home from a period anterior to 1823 A. D. (1185 B.E.).”5 This clause clearly shows the inclusive scope of citizenship in the original constitution, bringing the “Arakanese” as well as any group that has settled prior to 1823 into the Union on equal footing. Unlike the later, controversial 1982 Citizenship Law, indigineity is defined capaciously and inclusively, clearly defining the Arakanese as one of the indigenous races of Burma. Furthermore, the ethnic category “Bengali” is not mentioned in the definition of citizenship. The clause proceeds from the principle of ius soli, the right of citizenship based on birth within the boundaries of a given national territory.

Usage of the term “Arakanese,” rather than Rohingya, might seem to leave room for the Burmese government’s preference for excluding Rohingya Muslims from the category of “Arakanese.”  However, the first Prime Minister of Burma, U Nu, made clear that this is not a legitimate interpretation of the constitution when he explicitly recognized the citizenship of all minority communities of Burma. He proclaimed in 1954 that, “the people living in Maungdaw and Buthidaung regions are our nationals, our brethren. They are called Rohingyas…they are one of the ethnic races of Burma.” Thus, the first Prime Minister of Burma made it known in no uncertain terms that the Rohingya are indeed recognized as one of the constituent demographic groups of modern, post-colonial Burma. 

In sum, the founding document and the first Prime Minister of independent Burma clearly included the people now known as Rohingya in their definitions of national citizenship. This, in turn, means that the later, 1982 Citizenship Law amounts to an arbitrary disenfranchisement of citizenship status and legal protections on the part of the military regime of Myanmar. This contravenes all established standards of international law.


The Return to Ius Sanguinis in the 1982 Citizenship Law

The 1982 Citizenship Law is widely acknowledged to be a watershed document in the history of the Buddhist-Rohingya conflict in Burma. It was the legal culmination of a long, gradual campaign of ethnonationalist retrenchment on the part of Burma’s military regime. It codified, in statute, what had been the regime’s unofficial policy of ethnic purification on the behalf of the allegedly indigenous Burmese Buddhist majority. The Rohingya were just one of the many minority groups that found themselves being defined out of the national existence of Burma, now deprived of legal rights or protections of any kind. However, as some researchers have noted, “this law was mainly created with the aim of excluding the Rohingyas.”6

The 1982 law effectively repealed the Union Citizenship Act of 1948, replacing its implicit promise of birthright citizenship with a blood-and race-based definition of membership in the national Burmese community.7 It listed a three-tiered schedule of citizenship categories, from “full” (native) to “naturalized” (non-native) citizenship, of which the Rohingya were now classified in the third category as naturalized citizens. Having been defined out of the category of “full” [i.e., native] citizenship, the Rohingya were exposed by the law to the arbitrary dicta of the Council of State, or the “Central Body” in the text of the law, which was now empowered to determine which ethnic groups were truly Burmese nationals – and which were not. The law thus imparts autocratic authority to an unaccountable, centralized body to make whatever decisions it likes around the issue of citizenship. Furthermore, in section 58 it stipulates that: 

“The “Central Body” (Council of State) may revoke naturalized citizenship if anyone infringes any of the following provisions: trading or communicating with enemy countries or assisting the enemy countries during war; committing any act to endanger sovereignty, showing disaffection or disloyalty to the State, giving information or leaking any secret to other states, or committing any moral crime for which a sentenced of imprisonment has been imposed.”8

With this language, the 1982 law opens the door to the arbitrary persecution and disenfranchisement of any minority group that is deemed undesirable by the military regime. The invocation of national security as the ultimate basis for revoking citizenship is ambiguous enough to allow the designation of almost any group as a security threat, should it be so desired. In its claims to be removing a terrorist threat through its assaults on and disenfranchisement of the Rohingya, this is exactly the strategy the Burmese regime is pursuing today.

The 1982 law revokes full citizenship from the Rohingya, which they had previously possessed since the original 1948 constitution, and establishes legal pretexts for the most savage campaigns of persecution and legal disenfranchisement. Looking forward, repatriation on the basis of restored full citizenship for the Rohingya must be at the center of any process of reconciliation.


The Need for Repatriation, Not Refoulement

Now, despite the democratic foundation of Burma, most of its ethnic minorities find themselves under siege from a revanchist military machine. The majority of its victims have been Rohingya Muslims, but the violence is spreading indiscriminately to other groups. Increasingly the Kachin people of Northern Burma, who are 90% Christian, are now staring down the barrels of the guns of the Tatmadaw, which has been waging an escalated war on them since early 2018. The inescapable impression is of a rogue military regime that has spun out of all control. However, this is a mistake. The Burmese military has been systematically pursuing a campaign that capitalizes on domestic, Buddhist fundamentalism to expel certain populations from land that has been targeted for new economic development.9 Indeed, satellite evidence has documented the construction of security bases, infrastructure, and even new settlements atop the burnt remains of destroyed Rohingya villages. The re-population of formerly Rohingya land is one of the overriding goals of the Burmese regime, and it presents serious challenges for the process of repatriation.  

Unless the regime is somehow pushed into accepting an internationally supervised process of resettlement, the refugees will face the prospect of intensified persecution on their return. This raises the prospect of refoulement, illegal under international law, in which refugees will be knowingly sent back to dangerous, life-threatening conditions. The Burmese regime has no incentive to allow their return under international supervision without the existence of a credible threat. Up until 2015, that was provided by comprehensive economic sanctions, but closely following their repeal late that year, the Burmese military stepped up its assaults on its minority populations and has not let up since.10 Thus, re-imposing full sanctions, with the exception of food and medicine, should be seen as  option for forcing the regime to the bargaining table. 

Furthermore, it is critically important to avoid any language referencing a “pathway to citizenship” in any potential agreement. Such phrasing appears, for example, in the “Memorandum of Understanding” between Myanmar, the United Nations Development Program, and the U.N. High Commissioner for Refugees.11 The Burmese regime prefers this language, because it maintains the situation in a state of limbo in which Rohingya can continue to be denied basic rights, such as the right to move around and work freely, under a veneer of legitimacy. The “path to citizenship” effectively never ends.

Instead of the “pathway to citizenship,” the campaign for safety, security, and justice for the Rohingya must insist on “full citizenship now.” It is only on the basis of a full restoration of citizenship based on the original, 1948 Burmese constitution that the campaign for repatriation can hope to have any chance of success.

REFUGEES

“Never again,” as was said following the genocidal violence of World War 2, is happening again.

The forced expulsion of hundreds of thousands of Rohingya Muslims from their homelands in western Burma constitutes one of the most urgent humanitarian emergencies in the world today. The aim of the Burmese government is to literally wipe them off the map.

The United Nations has called the Rohingya Muslims of Rakhine State in western Burma the “most persecuted people in the world.” Following years of increasing rights restrictions on the Rohingya minority,  the Burmese army has led the campaign to systematically drive the Rohingya from their ancestral homeland in Arakhan (now known as Rakhine) State By very conservative estimates, at least 10,000 have been killed in the ongoing violence, though the real number is almost certainly much greater. Shocking atrocities and mass rapes have taken place, but despite widespread documentation the Burmese government continues to deny them.  Over 350 Rohingya villages have been destroyed, making repatriation extremely difficult.

The total number of Rohingya displaced by the genocide in Rakhine is unknown,but an estimated 1.5 million Rohingya refugees have been scattered across South- and Southeast Asia, making the perilous, often fatal journey by land and sea to find some basic measure of security in their lives.

The stateless Rohingya refugees join a larger cohort of almost 70 million refugees worldwide, the largest volume of refugees in modern history.


BANGLADESH

900,000 Rohingya are displaced into Bangladesh alone, including 340,000 children living in squalid, refugee camp conditions. Some 600,000 of that number reside in the massive, sprawling Kutupalong refugee camp in eastern Bangladesh.


In this location, time is not on the Rohingyas’ side. A recent joint study carried out by United Nations agencies and the Asian Disaster Preparedness Centre disclosed that around 200,000 Rohingyas are at risk of landslides and flash floods in the coming monsoon seasons. What is more, the chance of a violent cyclone raises the stakes even higher: past cyclones have led to over 150,000 thousand deaths, which does not even take into account the vulnerabilities inherent in the ramshackle living conditions of the refugees. If a large cyclone were to materialize and strike southern Bangladesh or eastern India the human cost would be astronomical.


PAKISTAN

Pakistan hosts an estimated 300,000 Rohingya refugees, concentrated mainly in and around Karachi. Karachi’s Rohingya community is one of the oldest of the Rohingya diaspora, many of whom arrived fleeing violence in Burma during the 1960s and 1970s. Thousands of Rohingya families are packed into one-room cement houses, particularly in the district of Arakanabad (named after the Rohingya’s native region of Arakan in Burma). Conditions are unsanitary in Rohingya neighborhoods and food is scarce.

Most are not able to acquire Pakistani identity cards, which are necessary for basic services such as attending school, using public hospitals, opening bank accounts, and getting formal jobs. This means that the vast majority must work in the informal economic sector, where likelihood of exploitation and mistreatment is high. There is essentially no official public policy for the Rohingya in Pakistan. As one of the largest Rohingya immigrant communities in the world outside Bangladesh or Burma itself, this is a major problem, but decades of life under these conditions has led to a tacit acceptance of the status quo by both the community and the government.


SAUDI ARABIA

There are roughly half a million Rohingya immigrants currently residing in Saudi Arabia. Rohingyas have sought asylum in the Gulf Kingdom since the extreme communal violence of the early 1970s in Burma. Another large wave arrived following the outbreak of state violence in Burma in 2012. The Rohingya identity is not accepted in Saudi Arabia, which means all Rohingya refugees are essentially mis-classified as Indian, Pakistani, Bangladeshi, or Nepalese. In January 2019, 128 refugees were forcibly deported to the refugee camps in Bangladesh. The detained refugees reported being abused by Saudi immigration police and forced to sign letters consenting to their deportation.

While a large Rohingya community has lived in Saudi Arabia for several decades, recently the environment has grown more difficult, with the Saudi government stepping up its measures to closely monitor the population. Recent asylum-seekers have been detained and sent to internment camps for deportation.


INDIA

The bulk of the 40,000 Rohingya currently seeking refuge in India began arriving after 2012, following the massive assault by the Burmese army on the population of Rakhine in that year. They are spread across the regions of Jammu, Haryana’s Mewat district, Dehli, Hyderabad, Jaipur, and Chennai. Approximately 18,000 of that number are officially registered as refugees with the United Nations High Commissioner for Refugees (UNHCR), 3,000 are registered as “asylum-seekers.” About 500 of them have long-term visas that allow them access to basic services like opening bank accounts and enrolling in school.

The living conditions are squalid. Most live in large refugee camps, which are essentially a vast network of sprawling, unsanitary slums. Since most do not have visas or citizenship and thus cannot legally work, they are forced to subsist through the informal sector or the black market at poverty wages, without any legal protections and thus likely to be subject to exploitative work conditions. Like refugees everywhere, the Rohingya in India are a marginalized, highly vulnerable group.

However, the situation in India is rapidly deteriorating. Indian society is undergoing a nationwide revival of religio-nationalistic fervor. This trend has driven a spike in communal violence against Muslims in recent years.1 In addition, the Indian government has carried out its own crackdown against its Rohingya community. There are currently more than 200 Rohingya asylum-seekers in jails in different states of India. In October of 2018, the Indian government deported seven Rohingya refugees back to Burma, despite the life-threatening environment there. These Rohingyas were deported as “illegal immigrants.” This is a potential sign that the government may be planning to eventually deport many more or even all of the refugees. Furthermore, the Government of India and the Government of Burma have started cooperating to identify Rohingyas in India, and Rohingyas are being forced by Indian authorities to complete an “identification form” that appears to have been directly developed by the Burma government.2  It is almost certain that the express purpose of this form is to facilitate the deportation of more Rohingya refugees.

[LINK TO FULL BTF POLICY MEMO ON INDIA]


MALAYSIA

Malaysia is currently host to over 163,000 Burmese refugees and asylum-seekers, and about 88,000 of these are Rohingya. However, a great deal more may be in the country as unregistered individuals. Malaysia has traditionally been a place of refuge for the Rohingya, but since 2015 the country has been turning away growing numbers of them. However, after the massive outbreak of violence in September 2017, Malaysian government officials stated that no one seeking peace and safety would be turned away. 


  1. “Figures at a Glance in Malaysia,” UNHCR, https://www.unhcr.org/figures-at-a-glance-in-malaysia.html.  Accessed February 21, 2019.
  2.  Kok Xing Hui, “Rohingya refugees find uneasy solace in Malaysia,” February 25, 2018, https://www.cnn.com/2018/02/24/asia/malaysia-rohingya-refugee-school-intl/index.html. Accessed February 21, 2019.

Although conditions are relatively hospitable for Rohingya in Malaysia, they have no legal rights: no right to work, no right to public education, no right to medical treatment in hospitals, no right to public benefits. As a result they are forced to eke out an existence, like many refugees, in any jobs that can be found in the black or grey-market economy. Children attend schools run by the UNHCR and other non-governmental organizations, of which there are about 50. However, recently the government has indicated that it is considering a new policy for refugees that would allow them to attend public schools and hospitals. There are also pilot projects in development that allow refugees to find legal employment in the workforce.

Notably, Malaysia supports the referral of the Burma genocide to the International Criminal Court as a step toward safe and secure repatriation.


UNITED STATES

The United States has remained relatively open to Rohingya resettlement, especially since 2012. As of early 2019, about 8,000 Rohingya refugees have resettled in the United States, with particularly large communities located in Milwaukee, Chicago, and Fort Wayne. 

In the U.S. Rohingyas face the same challenges refugees everywhere face: linguistic and cultural barriers to integration into the broader society; legal obstacles to steady, secure employment; and difficulty securing important public benefits and resources from the government. But they do enjoy some benefits that are harder to come by in some other countries, such as access to free public education for children and a relatively robust network of nonprofit organizations that are dedicated to refugee rights, security, and empowerment. 

While resettlement in the U.S. remains a highly desired goal for many Rohingya refugees, the U.S. has allowed fewer and fewer refugees to enter the country in recent years. In 2018 only about 20,000 total were admitted, which is the lowest number since 1977. However, Congress has passed or proposed several resolutions and bills explicitly calling for official recognition of the genocide in Burma along with the appropriate federal response by the U.S. government. So far these legislative proposals have not successfully passed into law, but a vocal bipartisan constituency continues to highlight the issue and advocate for government action.


CANADA



Canada is a leading country in the UNHCR’s international refugee resettlement program, having consistently accepted thousands of refugee and asylum applicants each year for over a decade. Regarding the Rohingya, about 200 have currently been resettled in Canada. Additionally, and importantly, the Canadian government was the first to come out with an official declaration of genocide in Burma. The current government has made its position on the issue clear: no man-made humanitarian catastrophe of such a magnitude can be idly tolerated, so the international community has the responsibility to act. Canada will also donate over $300 million in the coming years for humanitarian, international aid to the Rohingya.

Refugees enjoy a robust set of rights when moving to or resettling in Canada. These include access to public educational institutions, employment options, and medical coverage, even in the application phase preceding official registration as refugees. Although rights such as these make Canada an exemplary leader in refugee rights, so far the number of Rohingya resettled in the country remains relatively low. Recently, the country offered to resettle a number of the refugees currently living in Bangladesh’s Kutupalong refugee camp, but the Bangladeshi government has not accepted the offer as of February 2019.


CITIZENSHIP

The issue of citizenship is at the heart of the Rohingya crisis. In Burma, hatred towards the Rohingya has combined with a network of discriminatory laws to generate a culture of hostile intolerance, not to mention a disregard for the human rights enshrined in many international instruments. It has led to forced deportations and mass murder. To fully understand the causes, consequences, and viable solutions of this crisis it is necessary to clearly understand the problem of citizenship and citizens’ rights in Burma, particularly as they are defined in the country’s constitutional foundation. Such an understanding makes it clear that any real resolution of the conflict must involve the right of safe return under the protections of fully restored citizenship according to the original constitution of the Union of Burma. 

To support this goal, this memo defines the issue and lays out the key conditions for a genuine restoration of citizenship for the Rohingya. It therefore explains how a just, safe, and dignified repatriation can be secured as an indispensable element in any process of reconciliation. Accordingly, it will not address in detail the complicated demographic and social history of the


broader region, but will focus instead on the political and legal rationale for citizenship as a condition for the resolution of the crisis and the restoration of peace. 


The Current Situation

The United Nations has called the Rohingya Muslims of Rakine State in western Burma the “most persecuted people in the world.”1 The Burmese army has led the campaign to systematically drive the Rohingya from their ancestral homeland in Arakhan (now known as Rakhine) State. The Rohingya, who are mostly farmers, have almost no means of defense of any kind, much less any that could be effective against a modern, well-armed and professional miltary.2 By very conservative estimates, at least 10,000 have been killed in the ongoing violence since 2017, though the real number is almost certainly much greater. 800,000 are displaced, including 340,000 children living in squalid, refugee camp conditions.3 Meanwhile Buddhist extremists, inflamed by a volatile mix of religious fundamentalism and militant nationalism, have carried out mass pogroms against the Muslim residents of Burmese towns and cities. Some of the country’s leading monks excuse and even advocate the wholesale destruction of Rohingya Muslim communities. The civilian government, led by the Nobel Laureate, Aung Suu Kyii, has for all practical purposes looked the other way while an entire people has been driven out by a hate-fueled, forced exodus directly under its watch. 

Within Rakhine State itself in Western Burma, the Rohingya live in a state of de facto apartheid. Rohingya Muslims are forced to carry “National ID Cards” clearly marking them as non-citizens – a law stemming from the 1982 Citizenship Act. Without this card they cannot get past police and military checkpoints and can be punished if caught without it. Given the constant military surveillance and harassment, simply moving around freely is impossible for the Rohingya. 

The Muslim Rohingya and the Buddhist Rakhine population have a long history of coexistence, mutual respect, and even marital relationship. However, in 1962 a military junta led by the General Ne Win took state power and methodically worked to change this state of affairs. Government authorities within Myanmar now refer to the Rohingya as ‘Bengali,’ explicitly differentiating them from the Buddhist ‘Burmese.’ The majority Buddhist population historically enjoyed social and economic privileges that eventually became codified within their government as laws. As a result, “ethnic Burmese groups enjoy certain privileges compared to those labeled as non-Burmese.”4  The restoration of citizenship is essential for any viable solution to this de facto state of apartheid. International leaders are beginning to recognize the absolute necessity of restoring citizen status to the Rohingya to secure their safe repatriation to their former homeland.


The Historical and Political Basis of the Right to Citizenship in Burma

The complexities of the citizenship issue in Burma cannot be understood without reference to the country’s long history as imperial property. For most of the nineteenth century and until halfway through the twentieth century Burma was a colonial dominion, ruled over first by Great Britain and then, from 1942-45, by the Japanese Empire. Following the close of the war, Burma sought independence from colonial control, which it fully obtained in 1948. The new national government was chartered on the basis of its first constitution in 1947, enacted by the constituent assembly for the post-Independence Union of Burma. This constitution represents the  democratic foundation of modern Burma, which was rechristened as Myanmar in 1989.  

The founding Myanmar constitution clearly recognizes the right to citizenship of every individual within its territorial borders. It includes the Union Citizenship Act, the original statute of Burmese citizenship, as one of its central pillars. The law states in section 3 (1): “For the purposes of section 11 of the Constitution the expression ‘any of the indigenous races’ of Burma shall mean the Arakanese, Burmese, Chin, Kachin, Karen, Kayah, Mon or Shan race and such racial group as has settled in any of the territories included within the Union as their permanent home from a period anterior to 1823 A. D. (1185 B.E.).”5 This clause clearly shows the inclusive scope of citizenship in the original constitution, bringing the “Arakanese” as well as any group that has settled prior to 1823 into the Union on equal footing. Unlike the later, controversial 1982 Citizenship Law, indigineity is defined capaciously and inclusively, clearly defining the Arakanese as one of the indigenous races of Burma. Furthermore, the ethnic category “Bengali” is not mentioned in the definition of citizenship. The clause proceeds from the principle of ius soli, the right of citizenship based on birth within the boundaries of a given national territory.

Usage of the term “Arakanese,” rather than Rohingya, might seem to leave room for the Burmese government’s preference for excluding Rohingya Muslims from the category of “Arakanese.”  However, the first Prime Minister of Burma, U Nu, made clear that this is not a legitimate interpretation of the constitution when he explicitly recognized the citizenship of all minority communities of Burma. He proclaimed in 1954 that, “the people living in Maungdaw and Buthidaung regions are our nationals, our brethren. They are called Rohingyas…they are one of the ethnic races of Burma.” Thus, the first Prime Minister of Burma made it known in no uncertain terms that the Rohingya are indeed recognized as one of the constituent demographic groups of modern, post-colonial Burma. 

In sum, the founding document and the first Prime Minister of independent Burma clearly included the people now known as Rohingya in their definitions of national citizenship. This, in turn, means that the later, 1982 Citizenship Law amounts to an arbitrary disenfranchisement of citizenship status and legal protections on the part of the military regime of Myanmar. This contravenes all established standards of international law.


The Return to Ius Sanguinis in the 1982 Citizenship Law

The 1982 Citizenship Law is widely acknowledged to be a watershed document in the history of the Buddhist-Rohingya conflict in Burma. It was the legal culmination of a long, gradual campaign of ethnonationalist retrenchment on the part of Burma’s military regime. It codified, in statute, what had been the regime’s unofficial policy of ethnic purification on the behalf of the allegedly indigenous Burmese Buddhist majority. The Rohingya were just one of the many minority groups that found themselves being defined out of the national existence of Burma, now deprived of legal rights or protections of any kind. However, as some researchers have noted, “this law was mainly created with the aim of excluding the Rohingyas.”6

The 1982 law effectively repealed the Union Citizenship Act of 1948, replacing its implicit promise of birthright citizenship with a blood-and race-based definition of membership in the national Burmese community.7 It listed a three-tiered schedule of citizenship categories, from “full” (native) to “naturalized” (non-native) citizenship, of which the Rohingya were now classified in the third category as naturalized citizens. Having been defined out of the category of “full” [i.e., native] citizenship, the Rohingya were exposed by the law to the arbitrary dicta of the Council of State, or the “Central Body” in the text of the law, which was now empowered to determine which ethnic groups were truly Burmese nationals – and which were not. The law thus imparts autocratic authority to an unaccountable, centralized body to make whatever decisions it likes around the issue of citizenship. Furthermore, in section 58 it stipulates that: 

“The “Central Body” (Council of State) may revoke naturalized citizenship if anyone infringes any of the following provisions: trading or communicating with enemy countries or assisting the enemy countries during war; committing any act to endanger sovereignty, showing disaffection or disloyalty to the State, giving information or leaking any secret to other states, or committing any moral crime for which a sentenced of imprisonment has been imposed.”8

With this language, the 1982 law opens the door to the arbitrary persecution and disenfranchisement of any minority group that is deemed undesirable by the military regime. The invocation of national security as the ultimate basis for revoking citizenship is ambiguous enough to allow the designation of almost any group as a security threat, should it be so desired. In its claims to be removing a terrorist threat through its assaults on and disenfranchisement of the Rohingya, this is exactly the strategy the Burmese regime is pursuing today.

The 1982 law revokes full citizenship from the Rohingya, which they had previously possessed since the original 1948 constitution, and establishes legal pretexts for the most savage campaigns of persecution and legal disenfranchisement. Looking forward, repatriation on the basis of restored full citizenship for the Rohingya must be at the center of any process of reconciliation.


The Need for Repatriation, Not Refoulement

Now, despite the democratic foundation of Burma, most of its ethnic minorities find themselves under siege from a revanchist military machine. The majority of its victims have been Rohingya Muslims, but the violence is spreading indiscriminately to other groups. Increasingly the Kachin people of Northern Burma, who are 90% Christian, are now staring down the barrels of the guns of the Tatmadaw, which has been waging an escalated war on them since early 2018. The inescapable impression is of a rogue military regime that has spun out of all control. However, this is a mistake. The Burmese military has been systematically pursuing a campaign that capitalizes on domestic, Buddhist fundamentalism to expel certain populations from land that has been targeted for new economic development.9 Indeed, satellite evidence has documented the construction of security bases, infrastructure, and even new settlements atop the burnt remains of destroyed Rohingya villages. The re-population of formerly Rohingya land is one of the overriding goals of the Burmese regime, and it presents serious challenges for the process of repatriation.  

Unless the regime is somehow pushed into accepting an internationally supervised process of resettlement, the refugees will face the prospect of intensified persecution on their return. This raises the prospect of refoulement, illegal under international law, in which refugees will be knowingly sent back to dangerous, life-threatening conditions. The Burmese regime has no incentive to allow their return under international supervision without the existence of a credible threat. Up until 2015, that was provided by comprehensive economic sanctions, but closely following their repeal late that year, the Burmese military stepped up its assaults on its minority populations and has not let up since.10 Thus, re-imposing full sanctions, with the exception of food and medicine, should be seen as  option for forcing the regime to the bargaining table. 

Furthermore, it is critically important to avoid any language referencing a “pathway to citizenship” in any potential agreement. Such phrasing appears, for example, in the “Memorandum of Understanding” between Myanmar, the United Nations Development Program, and the U.N. High Commissioner for Refugees.11 The Burmese regime prefers this language, because it maintains the situation in a state of limbo in which Rohingya can continue to be denied basic rights, such as the right to move around and work freely, under a veneer of legitimacy. The “path to citizenship” effectively never ends.

Instead of the “pathway to citizenship,” the campaign for safety, security, and justice for the Rohingya must insist on “full citizenship now.” It is only on the basis of a full restoration of citizenship based on the original, 1948 Burmese constitution that the campaign for repatriation can hope to have any chance of success.

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