Statelessness and Rohingya rights

Statelessness and Rohingya rights

It will take more than a political transition to address the plight of the Rohingya.
Rohingya community in Myebon, Rakhine state after they were brutally evicted in January 2013. (Photo: Mathias Eick, EU/ECHO/Flickr)
Rohingya community in Myebon, Rakhine state after they were brutally evicted in January 2013. (Photo: Mathias Eick, EU/ECHO/Flickr)

(This article is part of our special package on Myanmar. Read more articles here.)

Citizenship is man's basic right, for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen."

– US Supreme Court Chief Justice Earl Warren

Written in 1958, Chief Justice Earl Warren's observation rings true for more than a million Rohingya of Myanmar, stripped of their citizenship, rendered stateless, and subjected to grave human rights violations. Cases of documented abuse were so severe that in 2015, a study by the Yale International Human Rights Law Clinic found that there was enough evidence to suggest that the Rohingya are victims of an on-going genocide. The deprivation of citizenship has barred Rohingya of legal representation or redress, with even the most public interest-minded lawyers fearful of attracting the reprisal of Myanmar's Buddhist nationalists. This legal impunity has permitted the proliferation of forced population transfers, land confiscation, and apartheid-like conditions, forcing many Rohingyas into squalid camps for internally displaced people (IDPs), without adequate access to healthcare, education, and livelihood opportunities. Acts of sexual violence, torture, or killings go uninvestigated and unpunished in such a climate of impunity and, in turn, such conditions lead to inter-generational, psychological and social trauma. In the meantime, the destruction of mosques continues all over the country.

Without citizenship, the Rohingya are denied the freedom of movement, which further prevents access to adequate healthcare, education and employment, trapping many families into cycles of dependency on human smugglers or worse. In recent years, several national laws have been passed in Myanmar – restrictions on the number of children Rohingya families may have; strict control on religious freedoms; and regulation of religious conversions. There are severe fines and jail sentences for violations.

While civil rights, such as voting, have been strategically granted for political expediency in narrowly-contested elections in the past, the Rohingya have, by and large, been completely disenfranchised from the processes that directly affect their lives and livelihoods, and the intimidation of political allies suggests that such abusive policies will continue. Worryingly, in May 2016, Aung San Suu Kyi's National League for Democracy-led Government chided the US ambassador, Scot Marciel, for using the term 'Rohingya', reiterating Myanmar's nationalist claims that the Rohingya are not an officially-recognised ethnic group.

On statelessness
The modern legal framework on nationality emerged through a series of League of Nations treaties following World War I. Key among them was the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, which essentially granted states full sovereignty in determining citizenship. This absolutism in state sovereignty, however, was forever changed with the horrors of World War II.

The war magnified the problems of displacement and statelessness, giving rise to Article 15 of the 1948 Universal Declaration of Human Rights (UDHR), which guarantees to everyone the right to a nationality and prohibits the arbitrary deprivation of nationality or denial of the right to change nationality. The Convention Relating to the Status of Stateless Persons was adopted in 1954. The 1961 Convention on the Reduction of Statelessness offers further detail. Article 24 of the 1966 International Covenant on Civil and Political Rights (ICCPR) states that, "every child has the right to acquire a nationality," and that "every child shall be registered immediately after birth." Since Myanmar is not a state party to these conventions, they are, at best, non-mandatory guidelines that give policy-makers an understanding of accepted international standards. The likelihood of Myanmar ratifying either of the statelessness conventions or the ICCPR anytime soon is slim.

Myanmar does, however, have legal obligations based on its ratification of two other fundamental human rights conventions – the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Myanmar has been a state party to CEDAW since 1997, whose Article 9 provides that all states shall grant women equal rights to acquire and retain nationality and to pass nationality to their children. Similarly, Article 7 of the CRC requires registration immediately after birth and stresses that the state has an obligation to implement these rights, "in particular where the child would otherwise be stateless." Article 8 continues that, "States Parties undertake to respect the right of the child to preserve his or her identity, including nationality." Myanmar has been a state party to the CRC since 1991.

Myanmar's failure to adhere to its obligations and international standards on the right to nationality led a number of countries to raise the issue during the November 2015 Universal Periodic Review before the Human Rights Council. Several states explicitly called for Myanmar to amend the 1982 Citizenship Law in line with international norms and to grant full citizenship to the Rohingya.

Racialised citizenship
It was after Burma's independence from the UK, in 1948, that the Rohingya first confronted discriminatory nationality laws. The 1948 Union Citizenship Act limited Burmese citizenship to the eight ethnicities identified as 'indigenous races of Burma,' a list that did not include the Rohingya, among others. However, it also provided citizenship to those who, among other things, could prove they had resided in Burma before 1823, the year before the First Anglo-Burmese War. Many Rohingya were initially provided citizenship under this Act.

The International Crisis Group explains that before a compulsory registration law took effect in 1951, many people in Myanmar were without identification. After 1951, citizens over the age of twelve were issued 'National Registration Cards' (NRCs), including the Rohingya. Lost or damaged cards were replaced with Temporary Registration Certificates (TRC), otherwise known as White Cards, which were only intended to be temporary documents and granted their bearers few rights. According to the international human rights organisation, Fortify Rights, the government steadily decreased the issuance of registration documents to Rohingya children after Ne Win's 1962 military coup. This amounted to the denial of nationality to new generations of the Rohingya community. Ne Win enacted further policies that excluded those households who could not prove residency in Myanmar before 1823.

The 1982 Citizenship Law foreclosed the chances of full citizenship for the Rohingya. It created three categories of citizenship, which had not existed before: 'full citizen,' 'associate citizen,' and 'naturalized citizen'. Each 'category' of citizenship came with their corresponding and different sets of rights. An 'associate citizen' was one that met certain qualifications and had already applied for citizenship before the law took effect. The 'naturalised citizenship' status was available to foreign nationals, who could provide evidence that they or their parents had resided in Myanmar prior to independence and for anyone who had at least one parent who fulfilled the criteria of any one of the three newly instituted categories of citizenship. It could be stripped relatively easily. Similar to the 1948 Act, the Citizenship Law provided that "full citizenship" would be extended only to those belonging to the indigenous races of Myanmar. The list of 135 groups, who officially qualified for citizenship (that hasn't been amended since) was first disseminated at the time. The Rohingya were excluded once again.

However, Article 6 of the 1982 law did hold that anyone who was a citizen on the date the law came into force would be a citizen. At that time, many people from the Rohingya community held NRCs, a form of citizen identification, and were considered citizens. Their subsequent denaturalisation is not in accordance with the law and is therefore a violation of the prohibition on arbitrary deprivation of nationality. The government's insistence that Rohingya deny their identity and register as Bengali to apply for second-class naturalisation is no solution because the Convention on the Rights of the Child, as mentioned earlier, guarantees every child the right to an identity, and as such international human rights standards insist on the right to self-identification of minorities.

A Rohingya community leader in Yangon recalled how the 1982 Law was not immediately implemented across the country. He remembered that it wasn't really until 1990 that the full discriminatory effects began taking hold. This coincided with the 1989 citizenship verification campaign. Those who met the requirements of the new law had their National Registration Cards upgraded to Citizenship Scrutiny Cards (CSC). However, Rohingya NRCs that were submitted were not replaced with CSCs. From 1995, the government only began issuing White Cards to the Rohingyas, which do not confer citizenship status. This was done regardless of their citizenship status before the 1989 campaign – a flagrant violation of the 1982 Law.

Despite their name, Temporary Registration Certificates (White Cards) have been anything but temporary, with many Rohingya holding no other identification than the certificates they were issued more than 20 years ago. There was some cause for optimism that the Rohingya would gradually be accepted as citizens with the limited extension of civil and political rights that started with the 2010 general election. Granting White Card holders the right to vote stoked the hopes of citizenship because the Constitution provides that only citizens and the 'relevant national races' have the right to vote. Of course, as Human Rights Watch (HRW) points out, this provision has not always been applied, as seen by the fact the Rohingya were permitted to vote in 1990 as well. But in light of the rhetoric of greater democratic principles, expectations peaked in 2010.

Not only were White Card holders allowed to vote, in an apparent attempt to defeat their Rakhine Nationalist Development Party (RNDP) opponents, the military-backed Union Solidarity and Development Party (USDP) ran self-identifying Rohingya candidates to capitalise on the newly enfranchised, mostly Rohingya White Card voters. Among them, Shwe Maung was elected to the Lower House and used his position to campaign for greater Rohingya rights.

Responding to demonstrations by hyper-nationalist Buddhist organisations, the USDP soon began backsliding on its extension of rights to White Card holders. A 2014 amendment to the Political Parties Registration Law forbade White Card holders from participating in party politics and later President Thein Sein announced that all White Cards were about to expire and were to be returned, again disenfranchising the Rohingya en masse. In June 2015, Rakhine immigration officials announced that they had collected nearly 400,000 White Cards, stripping their owners of what meagre identification and rights they possessed.

I first met Shwe Maung in August 2015. He had just found out that the Union Election Commission (UEC) had revoked his candidacy for the 2015 General Election. Following his rejection from the USDP, he had attempted to register as an independent but was denied by the UEC on the grounds that he was not a citizen and therefore ineligible, an odd claim considering his five years as a parliamentarian. According to the UEC, his parents were not citizens, a claim he denies noting that both of his parents had National Registration Cards before Ne Win's coup. His father was a police officer, he told me.

Shwe Maung argues that according to the Citizenship Law, the Rohingyas should be considered citizens:

The Rohingyas are not foreigners. Before independence, we were here. Before the British colonial period, we were here. While the Burmese were occupying Rakhine, we were here. Before the Burmese king occupied, when it was a Rakhine King, we were here. We never migrated from anywhere. Of course from one place to another in search of green pasture, people will migrate from one town to another. But these people are from this area.

The government intentionally misinterprets the 1982 Law, noted Wai Wai Nu, a Rohingya rights defender and former political prisoner who runs the Women Peace Network Arakan. Speaking one afternoon in her office, she explained that as much as she would like to see the 1982 Citizenship Law amended, the law doesn't necessarily need to be amended if the government would acknowledge history. For her, the solution seems simple: the government must recognise that the Rohingya have existed as a distinct and indigenous race in Myanmar since before 1823.

Contentious history
It was in the 16th century that King Bayinnaung unified much of the fragmented kingdoms in the region now comprising Myanmar, but the dynasty only lasted for 60 years. In 1599, the capital was burned to the ground by the rival coastal

Kingdom of Mrauk-U, in modern day Rakhine. The Kingdom of Mrauk-U had been founded in 1430 as a vassal territory of the Sultan of Bengal, but later, capitalising on the Mughal invasion of Bengal, the kingdom claimed independence in 1531 and expanded its territory into parts of modern-day Bangladesh. It staged raiding missions in the Bay of Bengal, increasing its mostly-Muslim slave population and when, in 1660, a Mughal prince and his followers were granted sanctuary in Mrauk-U, their numbers increased the Muslim population in the predominantly Buddhist kingdom. In this, we can arguably trace the roots of contemporary Buddhist-Muslim tensions in Rakhine.

The Rakhine capital, Mrauk-U, was eventually conquered by King Bodawpaya of the Konbaung Dynasty in 1785. This resulted in some 200,000 refugees fleeing to Chittagong, in present day Bangladesh. Following the sacking of Mrauk-U, Rakhine rebels mounted a guerilla insurgency against the Burmese king. In response, Bodawpaya expanded his empire into Chittagong, Bengal, Assam, and Manipur. These regions, explain Myanmar scholars Michael Aung-Thwin and Maitrii Aung-Thwin, appear to have been under the dual administration by Rakhine and British India at the time and the incursions from Myanmar likely set in motion the First Anglo-Burmese war. War was declared in March 1824 and concluded in December 1825 with the British annexation of Rakhine and other states.

The annexation of Rakhine into British India meant that previous political boundaries were done away with, making cross-migration all the more easier. Academics Maung Zarni and Alice Cowley have argued that the fluidity of territorial borders characteristic of the few hundred years before colonisation coincided with equally fluid ethnic identity formation. Although there were admittedly already populations of Buddhists in Bengal and Muslims in Rakhine, the expansion of British India into the territory meant considerable labour migration of Muslims from Bengal into the region. The International Crisis Group (ICG) explains that such migration "changed the ethnic and religious mix, created socio-economic problems, and led to considerable resentment from the Rakhine Buddhist community."

There is striking evidence in support of Rohingya claims to indigeneity. In fact, the first English-language reference to Rohingya dates to a 1799 text by Francis Buchanan, a doctor with the British East India Company. Buchanan wrote of a group of Muslims, "who have long settled in Arakan [Rakhine], and who call themselves Rooinga, or natives of Arakan". At the same time, the instability and major population flows over several centuries helps to explain Myanmar's  dominant nationalist narrative, which brands the Rohingya as outsiders and migrants. The two narratives, however, seem reconcilable. Rohingya have resided in present-day Myanmar since well before 1823 and, at the same time, been subjected to centuries of conflict and persecution, resulting in an itinerant past both within and across contemporary political boundaries. The boundaries themselves have been nearly as equally transient from warring kingdoms in the 16th century to the shifting front lines of World War II to the gradual decolonisation of the Subcontinent.

When the chaos of World War II arrived in Myanmar in 1942, it was the Northwest frontier of Rakhine that again became the front line as it had been during the First Anglo-Burmese War. This time, however, the invaders were Japanese, who were at first welcomed by many Burmese as a means of liberation from British occupation. Indeed, the Japanese had been making inroads for several years already. The year before, Su Kyi's father, General Aung San, and others including Ne Win, had been receiving guerilla warfare and other military training from Japanese Colonel Keiji Suzuki.

Those who were pro-independence in Myanmar began to grow disillusioned with the Japanese and switched their allegiance to the British. Rakhine had become a major battlefield of World War II in Southeast Asia by 1944. According to the ICG, most of the Muslim population of Rakhine had remained pro-British from the start of hostilities. Matthew Walton, the Aung San Suu Kyi Senior Research Fellow in Modern Burmese Studies at Oxford University, has observed that while diverse forces in Myanmar eventually allied against the Japanese, they were likely "fighting against the same enemy but fighting for very different visions of the future."

In 1971, the Liberation War in East Pakistan, now Bangladesh, produced thousands of refugees who fled into the Rakhine State. Most of the refugees returned to Bangladesh within a year but this border instability presented both a legitimate security concern for Ne Win's military junta and a likely foundation to expand existing nationalist policies of exclusion.

In 1978, the military launched Operation Naga Min, or Dragon Head, to investigate suspected illegal immigrants from East Pakistan and take action against them. Again many Rohingya NRCs were confiscated, stripping them of proof of residence and forcing them to be identified as foreigners. According to the Irish Centre for Human Rights, the campaign quickly descended into chaos, with "widespread reports of army brutality, including rape, murder and the destruction of Muslim mosques". As a result, more than 220,000 Rohingya fled across the border into Bangladesh. The International Commission of Jurists notes that a few displaced Rohingya had preserved their citizenship papers that they showed to journalists in Bangladesh to prove they were legal residents of Myanmar.

Under pressure from the United Nations, Myanmar and Bangladesh arranged for the repatriation of many of the refugees but this was conducted often without support from the UN Refugee Agency and independent experts remain critical of the repatriation project – more specifically of how successful the process really was. Many of the Rohingya who were repatriated were not greeted as returned citizens but were subjected to new forms of discrimination. The repatriated Rohingyas, who could prove their citizenship through NRCs, suffered another blow when the 1982 Citizenship Law forced the Rohingyas to give up their NRCs, which institutionalised the discriminatory and arbitrary deprivation of nationality.

Denying historicity
The former United Nations Special Rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana, has stated that the 1982 Citizenship Law contravenes generally accepted international norms. When I asked the chairman of the Myanmar National Human Rights Commission, Win Mra, whether the commission was involved with the implementation of the CRC and explicitly the state's obligation to grant nationality to children who would otherwise be stateless, he responded that it was more appropriate to discuss the matter with the authorities dealing with immigration and citizenship applications. The current Minister of Home Affairs is General KoKo, implicated in war crimes and crimes against humanity (between 2005-2006) by a 2014 report by the International Human Rights Clinic at Harvard Law School.

While states retain the sovereignty to determine their own criteria for granting nationality, these criteria must conform to international obligations. Numerous independent experts have ruled that the current law in Myanmar violates international standards. For Human Rights Watch, the law is most objectionable insofar as it deliberately denies citizenship to individuals who had previously been granted citizenship. This deliberate denial of citizenship has almost exclusively targeted the Rohingya.

The escalating implementation of discriminatory laws, that have systematically denied the Rohingya their right to nationality, constitute a clear violation of the fundamental right to be free from discrimination. The corresponding violation of equality before the law means that any such implementation constitutes an arbitrary imposition of the law, and if this leads to the loss of nationality, it is furthermore a violation of the already expressed customary international law prohibiting arbitrary deprivation.

The UN Human Rights Committee, in 1994, found that Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which holds that in those states in which minorities exist, the right to enjoy one's culture, religion or language cannot be denied, and this right does not depend on state recognition. Those minorities to be protected, furthermore, need not be citizens of the state. Although Myanmar is not a state party to the ICCPR, the covenant points to a general international standard, guaranteeing the Rohingya the right to self-identification, regardless of recognition by the state, and certain minimum protections, regardless of the citizenship question. Speaking in 2014, Quintana said that the denial of Rohingya self-identification is a violation of their human rights.

The prevailing nationalist narrative has been that the term 'Rohingya' is an invention from the 1950s to promote a Bengali political agenda, a striking anachronism in light of Buchanan's 1799 text. Win Mra says that the government position of denying the name Rohingya is not the denial of the protected right to self-identify. He claims not to be refuting the naming of an ethnicity but specific political aspirations. The Rohingya clearly do have political aspirations – Shwe Maung certainly did – but these aspirations are to be accepted by the state and the Rohingya should be afforded the same rights guaranteed to other citizens of Myanmar under the Constitution.

The political transition, heralded by the elections in November 2015, has clearly been insufficient to bring about the cultural change necessary to reverse generations of exclusionary narratives. The international community, foreign government officials in Myanmar or private corporations must not accept the rhetoric from the State but should insist on dialogue, critical historical inquiry, and full citizenship rights. Ceasefire negotiations and conflict resolution challenges distract the government from the Rohingya issue, as do attempts to consolidate power away from the military into more civilian-held positions. Sequencing of peace and justice in post-conflict and transitional states is always a case-by-case challenge. However, the failure to address rampant discrimination and the denial of equal participation in such periods of transition only guarantees the institutionalisation of these human-rights violations.

Moving forward
In 2014, the United Nations General Assembly adopted the non-legally binding resolution A/RES/69/248, calling on Myanmar to allow equal access to full citizenship for Rohingya and self-identification. On 13 January 2015, Human Rights Watch had sent a letter to the then President Thein Sein about seeking assistance from the United Nations to amend the 1982 Citizenship Law to conform to international standards. This includes ensuring a non-discriminatory basis for granting citizenship and ensuring Myanmar upholds its obligation that no child is ever made stateless. Human Rights Watch has furthermore challenged the category of 'associate citizen' and related marginalised nationality-based provisions as being inherently biased and called for their elimination. The amendment or abolition of the law is necessary; however, it is no panacea. Without down-playing the herculean task of amending the Citizenship Law, achieving human rights for the Rohingya also requires a cultural transformation.

Wai Wai Nu, of the Women Peace Network Arakan, calls for raising the issue of an independent historical investigation into the Rohingya past. In any project of transitional justice, Elizabeth A Cole, director of the fellows programme at the US Institute of Peace, argues that history education, in particular, must be one of the state instruments that are deployed but she has also acknowledges the highly political nature of teaching a country's past. It is not enough to simply research the past and change curricula without examining certain structures of power.

Critical engagement with the past is empowering and political because it threatens the interests of those who benefit from oppressive historical and cultural structures. This reaffirms the importance of not only curriculum design but also a structural approach to education in Myanmar. Educators at all levels will have as important a role to play as lawyers in adopting new laws and cultural practices on citizenship and in this, the role of the Minister of Education should be scrutinised.

If the Myanmar National Human Rights Commission adheres to its mandate, it will have to promote public awareness of human rights and non-discrimination; monitoring and promoting compliance with international human rights law; and reviewing existing laws or proposing new bills to ensure Myanmar fulfills its international human rights obligations. At present, the Commission is battling the lack of public confidence and criticism from human rights defenders, civil society organizations as well as international observers, who point out that as an institution, it lacks the independence to tackle human-rights violations in the country. But since the Commission is mandated to play a guiding role in the development of human rights, it should be involved in the review of the 1982 Citizenship Law and relevant investigations. The ongoing failure to do so only reiterates that the current political climate is such that government bodies and agencies are unwilling or unable to address serious human rights violations against the Rohingya.

Finally, there is arguably a greater role for the regional ASEAN human rights bodies. The ASEAN Intergovernmental Commission on Human Rights and ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) are both empowered with relatively robust mandates but still suffer from a lack of independence and weak enforcement capabilities. However, since Myanmar is a state party to human rights conventions like CEDAW and CRC, there is a substantial opening for the ACWC to implement ASEAN's commitment to human rights in the region.

Currently, the ACWC's mandate includes the development of policies and innovative strategies to promote and protect the rights of women and children; the promotion of public awareness and education; and assisting ASEAN member states to implement CEDAW and CRC. ACWC's directive furthermore empowers it, in Article 5.4, "to advocate on behalf of women and children, especially the most vulnerable and marginalized," and, Article 5.12, "to propose and promote appropriate measures, mechanisms and strategies for the prevention and elimination of all forms of violation of the rights of women and children." Stateless Rohingya women and children are, without question, among the "vulnerable and marginalised" and, as such, the AICHR and ACWC must be empowered to take further steps toward eliminating statelessness in Myanmar.

This may however require more specialised complaint mechanisms. For instance, human rights mechanisms with a mandate over CEDAW and CRC should ensure that they are prepared to receive and investigate complaints of arbitrary denaturalisation or the denial of nationality at birth. A regional human-rights court would provide an additional forum for the independent investigation and prosecution of widespread or systematic deprivation of the right to nationality and resulting human rights violations. Birth registration is crucial. The ACWC mandate requires the organisation to ensure compliance with the right to birth registration. It should arguably take a more active role in raising public awareness and harmonising birth registration, working with child protection and gender experts in Myanmar.

Many countries have gone through episodes of darkness, when the will of the dominant majority had to be challenged in order to bring about a more just and fair society, from the civil-rights movement in the US to anti-apartheid campaigning in South Africa and around the world. Myanmar is likewise facing a moment of profound transition. Addressing gross violations and expanding equal access to citizenship will remain contentious and challenging, requiring a long-drawn-out campaign. Increasing awareness and unrelenting pressure from multiple stakeholders are needed if the Rohingya are to find justice in their land.

~Michael Caster is a graduate student at the Fletcher School of Law and Diplomacy at Tufts University. Previously he worked as a human rights advocate and civil society consultant based in East Asia.

~This article is part of our special package on Myanmar. Read more articles here.

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