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Bangladesh has witnessed a steady influx of Rohingya for most of the past decade. Members of this group are locally referred to as "new arrivals," even though some of them arrived as long as ten years ago. Over the past ten years some Rohingya have chosen not to stay in the camps, but rather to live and work in eastern Bangladesh. Since the commencement of the repatriation program in 1992, however, the Bangladeshi government has also denied newly arriving Rohingya access to the refugee camps. The term "new arrivals" in the Bangladesh case therefore refers to those Rohingya not registered in either of the two remaining refugee camps or in Dhaka. For the purpose of this report, we refer to this group as "undocumented Rohingya."
Estimates of the number of undocumented Rohingya varied broadly in 1999 but an article citing a Bangladeshi official put the population at some 150,000.56 With only minor differences in language and appearance, the average Bangladeshi cannot readily distinguish a Rohingya from a Bangladeshi.57 The fact that Bangladesh does not have a system of national identity cards has also made it difficult to identify Rohingya. Well-established networks allow the Rohingya to find jobs and be absorbed into local communities.58 From Teknaf in the far south to the port city of Chittagong, the Rohingya have occupied lower tier occupations in the Bangladeshi economy including those of rickshaw driver, fisherman, and domestic servant. Officials and NGO representatives alike suspect that many Rohingya have also made their way into Dhaka, where they would be even less detectable than in the southeastern districts.
Thus far Bangladeshi villagers have tolerated the presence of the Rohingya. Indeed, Human Rights Watch was told that Rohingya women have assumed leadership roles in some local women's organizations. It is also an open secret that some Rohingya have been registered to vote in local elections by politicians. Some Bangladeshi officials and businessmen have also profited illegally by demanding bribes and hiring the Rohingya at lower wages.
There are signs, nevertheless, that anti-Rohingya sentiment may be building. Local authorities and residents of Cox's Bazar told Human Rights Watch that small-scale clashes have occasionally erupted over the effects of Rohingya labor on the market wage. Manual laborers in these areas already earn a mere one hundred to one hundred fifty taka per day (around three US dollars). Rohingya work for sixty to eighty taka, further suppressing the local wage. Some villagers permit Rohingya to build homes in their community only if the Rohingya agree to work away from the immediate area.59 In February 1999, Bangladeshi authorities expelled two hundred and fifty undocumented Rohingya families from St. Martin's Island after villagers there claimed that the families were taking their jobs.60 Other locals have claimed Rohingya engage in theft and abuse narcotics.61 The Bangladeshi government's annual disaster report includes negative commentary on the Rohingya, claiming that "armed Rohingya activists" control seven out of eight blocks in Nayapara camp and that the Rohingya are involved in "communicating with the Talebans, trafficking women and children, and other illegal and unsocial works."62
Some Bangladeshi officials have made known their concerns about the presence of thousands of undocumented Rohingya. In an article in a Cox's Bazar newspaper, the RRRC drew attention to the presence of some 100,000 to 150,000 "new arrivals."63 He was reported to have called for measures to be put in place to identify, arrest, and expel all illegal Rohingya immigrants from Bangladeshi territory.64 Some efforts to repatriate undocumented Rohingya are already underway. In an interview with NGO staff, Human Rights Watch learned that community leaders in the slums around Cox's Bazar have been instructed to identify those Rohingya families and homes in their respective communities and to submit lists of their names to the authorities. 65 In addition, RRRC staff told Human Rights Watch that Rohingya could be identified by their lack of Bangladeshi voter registration cards. Sixty percent of Bangladeshi voters are registered and the process of registration is continuing.
Efforts to repatriate undocumented Rohingya are likely to face significant obstacles. Documents can be bought on the black market and the Rohingya can move elsewhere to avoid raids. Ultimately though, the greatest obstacle will likely prove, as it has on other borders, that the Burmese government will not readily accept them back. During the Thai government's November 1999 attempt to deport thousands of Burmese migrants, the Burmese authorities simply refused to receive them and even reportedly threatened to shoot them if Thai immigration officials attempted to deposit them at the official checkpoint in Myawaddy.66 The Burmese government has also already refused to take back Rohingya from Bangladesh who have been arrested there for illegal entry or have served jail terms in Bangladesh for other reasons. Many of these Rohingya remain in detention in Bangladesh as illegal immigrants despite having completed their sentences.67 Even if Bangladesh is able to deport large numbers of Rohingya, there is a strong likelihood, given current conditions in Arakan, that many will soon make their way back to Bangladesh. The costs of detention and deportation will continue to be significant and will continue to fall on the Bangladeshi government. The only way to end the cycle of exodus and return is for the Burmese government to end abuses and address the fundamental problems that have prompted the refugee flows from Arakan. The international community must take the lead in pressing the SPDC to make these reforms.
Refugee status determination
For the past decade, Rohingya have continued to cross the border into Bangladesh both to escape human rights abuses and for economic reasons. With no access to the protection and assistance of UNHCR, "new arrivals" have often opted to seek employment in the Bangladeshi labor market, making it difficult to distinguish victims of abuse in Arakan, who would qualify as refugees, from purely economic migrants, who would not. Although the Bangladeshi government contends that all such Rohingya are illegal migrant laborers and UNHCR itself believes that the majority could fall into this category, there could be thousands among them who, were their stories known, would be eligible for UNHCR protection as refugees.
Rumors of an official crackdown on illegal immigrants have circulated throughout the Chittagong region since mid-1999. Should such a crackdown materialize, undocumented Rohingya with a legitimate fear of persecution if returned to Burma would be particularly at risk. Yet, neither the Bangladeshi government nor UNHCR have set in place a mechanism through which potential asylum seekers can identify themselves and seek protection and assistance.
According to UNHCR officials, their office is routinely notified by the Bangladeshi authorities when any Rohingya are arrested in order that UNHCR may interview them as a means of determining whether they are refugees in need of protection. UNHCR officials also visit prisons and detention centers from Chittagong to Teknaf and make occasional visits to the border. According to UNHCR, all the Rohingya whom the agency has interviewed in the first half of 1999 had crossed the border for economic reasons. Distinguishing economic migrants from those who fled because of human rights abuses is particularly difficult in this context, however. Initially, villagers may say that they have come to Bangladesh because they have been unable to make a living in Burma, but under more thorough questioning it may emerge that the reason they were destitute in Burma was related directly to the use of forced labor, arbitrary taxation, and the confiscation of goods and land from Rohingya.
UNHCR has no established set of criteria for identifying Rohingya with a genuine fear of persecution if returned to Burma. The agency has never undertaken individual status determinations in the refugee camps, so the question to what extent the use of forced labor and arbitrary confiscation of property in Burma should be considered grounds for conferring refugee status and protection on Rohingya has not been decided. Nor has the question of the Rohingya's lack of full citizenship rights, and the relevance of this to determining refugee status, been adequately addressed.
A refugee is defined as someone who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."68
Although there is no universally accepted definition of "persecution," the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (hereafter referred to as the "Handbook") provides some guidance on how to interpret "persecution," some of which is applicable to the Rohingya refugees. The term "nationality" in the refugee definition should be interpreted more broadly than `citizenship,' according to the Handbook: "It refers also to membership of an ethnic or linguistic group and may occasionally overlap with the term "race." Persecution for reasons of nationality may consist of adverse attitudes and measures directed against a national (ethnic, linguistic) minority and in certain circumstances the fact of belonging to such a minority may in itself give rise to well-founded fear of persecution."69 The Rohingya constitute such a distinct ethnic, linguistic and racial group and the discrimination they experience in Burma is based on their membership of such a group.
The Handbook goes on to assert that discrimination against different groups in a society would amount to persecution if it led "to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities".70 All of these restrictions apply to the Rohingya in Burma, who because of their lack of full citizenship rights experience severe and "substantially prejudicial" social, economic, and legal exclusion.
Moreover, the Handbook also provides guidance on the difficulties in distinguishing between an economic migrant and a refugee which is of particular relevance to the Rohingya. "The distinction between an economic migrant and a refugee is, however, sometimes blurred in the same ways as the distinction between economic and political measures in an applicant's country of origin is not always clear. Behind economic measures affecting a person's livelihood there may be racial, religious or political aims or intentions directed against a particular group. Where economic measures destroy the economic existence of a particular section of the population (e.g. withdrawal of trading rights from, or discriminatory or excessive taxation of, a specific ethnic or religious group), the victims may according to the circumstances become refugees on leaving the country" (our emphasis), states the Handbook.71 The Rohingya are subjected to excessively high taxation, arbitrary confiscation of their property, and other economic restrictions precisely because of their membership of a specific ethnic and religious group.
The refugee legal scholar, Guy Goodwin Gill, provides a synopsis of the term "persecution" which is particularly relevant to the Rohingya case:
In its broader sense, however, it remains very much a question of degree and proportion; less overt measures may suffice, such as the imposition of serious economic disadvantage, denial of access to employment, to the professions, or to education, or other restrictions on the freedoms traditionally guaranteed in a democratic society, such as speech, assembly, worship and freedom of movement.72
Lack of citizenship exposes the Rohingya to serious human rights violations including restrictions on their movement, exclusion from some education and employment opportunities, and arbitrary confiscation of their property. These violations, in combination with forced labor and the constraints on political rights faced by all Burmese, may well constitute persecution as elucidated in the UNHCR Handbook.73 Accordingly, many Rohingya likely would have valid claims to refugee status. They should be given a proper opportunity to present these claims to both UNHCR and to the Bangladeshi government, to have their claims assessed in a full and fair manner, and to receive full refugee protection where necessary.
56 Aman-ud-dollah, "Worrying information in government documents: 150,000 Rohingyas are permanently residing in the Chittagong region," The Daily Janakontha, July 17, 1999 (In Bengali).
57 Locals of the Chittagong region claim to be able to identify Rohingya from their dress and speech.
58 Local observers have noted that this is a long-standing network that can absorb small movements of Rohingya refugees but can in no way accommodate mass exoduses such as those of the 1970s and 1990s.
59 Local NGO workers suggested that a consequence of this pattern is that women become vulnerable. The men often move to Dhaka and are not heard from again leaving the women alone in the village unable to provide for themselves or their children. Some have been reported to resort to commercial sex work or have become vulnerable to human traffickers. Traffickers are said to have sent women and children to South Asia and the Persian Gulf states. In the Gulf states, Human Rights Watch was told young boys are used as jockeys in camel races. Many boys have lost their lives in such races.
60 C.R. Abrar, "Human Rights Condition of the Rohingya Refugees," Daily Star, 16 May 1999.
61 Internal report from a humanitarian agency working in Bangladesh, 1998.
62 Bangladesh: Disaster Report 1998, Dhaka, pp. 235, 236.
63 NGOs which closely monitor the undocumented Rohingya population estimate the population to be just above 150,000.
65 Human Rights Watch Interview with non-governmental organization, August 6, 1999.
66 The Nation, "Junta vows to shoot returnees," November 4, 1999.
67 The government estimates there to be some 1,700 Rohingya in prisons throughout the country, the majority serving or having completed terms for illegal entry. United News of Bangladesh, "Rohingya-Prisoners," October 25, 1999.
68 Article 1(A) (2) 1951 Convention Relating to the Status of Refugees
69 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, UNHCR, reedited Geneva, January 1992, p. 18
72 Guy S. Goodwin Gill, The Refugee in International Law, (Oxford: Clarendon Press) 1996, p. 68.
73 The Burmese government has routinely violated the rights of all Burmese citizens by denying them the freedom of speech, assembly and association.