V. CONTINUED ABUSE AND DISCRIMINATION IN BURMA
According to the U.N. Special Rapporteur to Burma:
Lt. Gen. Mya Thinn [the minister for home affairs] recalled that the Muslim population of Rakhine State were not recognized as citizens of Myanmar under the existing naturalization regulations, and they were not even registered as so-called foreign residents. Consequently, the Minister added, their status situation did not permit them to travel in the country...They are also not allowed to serve in the State positions and are barred from attending higher educational institutions.17
In mid-July 1997 a researcher from Refugees International visited Cox's Bazaar and interviewed thirteen Rohingyas in slums around the town, all of whom had arrived within two weeks of the interview date. All said they had fled because of starvation, a claim which is supported by evidence of the situation in Arakan.18 This has led theBangladesh government to conclude that most or all of the new arrivals are economic migrants, not bona fide refugees. Nonetheless, even if the lack of food and economic opportunity were the most pressing reason for flight, further questioning revealed that in fact they had been subject to abuses such as forced labor, arbitrary taxation, denial of freedom of movement and access to educational institutions in a manner which discriminates against them on the basis of their race and religious beliefs.
Human Rights Watch and Refugees International believe that the discriminatory laws and practices which the majority of Rohingyas in Arakan state are subject to amount to persecution according the criteria established by the UNHCR. That is, the laws and practices "lead to consequences of a prejudicial nature for the person concerned, e.g., serious restricitons on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities" which "produce, in the minds of the person concerned, a feeling of apprehension and insecurity are regards his future existence."19
This is not to say however, that all Rohingyas should therefore be classified as prima facie refugees, since there are circumstances in which some individuals and families may not be subject to abuses of sufficient severity to amount to persecution. Much depends on the attitude of the local military commander or other government officials such as NaSaKa officers and IMPD personnel. Abusive officials, however, are in no danger of being punished by their superiors and their victims have no legal recourse. In some cases, individuals or families may be protected from abuse by their social or financial position, their willingness and ability to cooperate with the authorities, perhaps at the expense of other Rohingyas, or other factors. Thus, there are Rohingyas from Arakan in Bangladesh who do not have a fear of persecution and are living as economic migrants. These include businessmen who travel between the two countries, others who regularly travel to Bangladesh to find work with relatives during the lean months in Burma, or those who live and work in Dhaka and elsewhere. But these are usually not the people who end up in the slums around Cox's Bazaar.
Under Burma's 1982 Citizenship Law, which was promulgated shortly after Rohingya refugees returned from the 1978 exodus to Bangladesh and was designed specifically to deny citizenship to the Rohingyas, a person in order to become a full citizen must prove the residency in Burma of all his or her ancestors back to 1823, the year before the British government annexed Arakan.20 This law violates several fundamental principles of customary international law, and in 1993 the U.N. requested that the SLORC repeal or amend it to bring into line with international standards.21 In particular, the law violates the 1961 Convention on the Reduction of Statelessness, the International Covenant of Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child.22
Given the over-burdensome requirements for citizens in the 1982 law, few Rohingyas qualify as either full, associate or naturalized citizens (the three categories created by the law), and even those who do would find proofalmost impossible. Citizenship is essential in Burma to gain access to basic social, educational and health services. To add to the difficulties faced by Rohingyas, in 1989 the Burmese government began to issue new identity cards to all citizens, which include not only a photograph of the bearer, his or her father's name, place of residence and so on, but also ethnicity and religion. The identity card must be carried at all times, and the card number has to be given when buying tickets to travel; registering children in school; staying overnight with friends outside one's own council area; applying for any professional post, including all civil service posts; buying or exchanging land and other acts of everyday life. All residents in Burma had to apply for these new cards, and even for those with old cards (which included many Rohingyas who had been able to get some form of citizenship under pre-1982 laws), proof of citizenship had to be reestablished. Across Burma the process of issuing the new cards is not yet over-in ethnic minority areas in particular, the process has been very slow-but for Rohingyas it never really began.
Because citizenship is so vitally important, the registration process continues to be a major concern for the refugees and all Rohingyas, and has also been taken up by the UNHCR in their negotiations with the Burmese authorities. At the time of the forced repatriations in July, the UNHCR representative in Cox's Bazaar was quoted as saying, "The Rohingyas are not citizens of Myanmar. The question of formal Myanmar nationality for the Rohingyas is a crucial issue."23 The UNHCR endeavored to ensure that the returnees-and to prevent non-discrimination between returnees and Rohingyas who did not leave, all Muslims in northern Arakan State-were given some form of identity cards and in July 1995 the government, through the Immigration and Manpower Department (IMPD), moved to regularize the population of northern Arakan by issuing new identity cards to all resident Rohingyas.
The new cards were issued under the 1949 Residents of Burma Registration Act and the 1951 Residents of Burma Registration Rules, both of which were superseded by the 1982 Citizenship Law but were reintroduced in order to be used solely for the registration of Rohingyas. Theses laws allow for the issuing of Temporary Registration Certificates to foreign residents or stateless persons and for citizenship applications to be made by the holder at some point, although it is not known if there is a time limit within which the application has to be made. Some returnees interviewed by a Refugees International representative in January 1997 were able to produce these temporary cards. The cards carry a number, as well as the bearer's photograph, name, year of birth, ethnicity, and religion, color of hair and eyes, father's name and father's ethnicity and religion. The card obtained by Refugees International stated "Muslim, Islam" in the space marked "race/religion," and there was nothing on the card to show place of birth or residence. While the UNHCR and others may hope that these cards will offer a permanent future for the Rohingyas in Burma, by June 1997 there was no sign that the cards would be the first step towards Burmese citizenship. Unless the 1982 Citizenship Law is repealed or amended, there seems to be little point in Rohingyas applying.
In short, Rohingyas in Burma continue to be non-citizens under the prevailing law, which was designed to exclude them as an ethnic group and make naturalization virtually impossible. Deprivation of citizenship has resulted in deprivation of fundamental rights, to which all persons, citizens and non-citizens alike, are due. The withholding of citizenship has become a mechanism for discrimination and persecution on the basis of ethnicity. Thus, Rohingyas are doubly at risk in a country where citizens face abuese such as forced labor, forced relocation, and denial of freedom of speech, association and assembly on a daily basis.
All the interviewees reported an increase in forced labor, to around two weeks per month in the three months prior to their departure. Two of those interviewed had worked clearing land at a place called Angooma by the coast in Maungdaw township. One man, a forty-five-year-old father of three, described how the NaSaKa (BorderAdministration Force)24 came to his village near Maungdaw town to decide how long each person would have to work on this project. Those with enough rice or funds to buy rice for three days were taken, with their rice, to work for three days. Those who could afford more were taken for longer. However, since it was a two-day journey, on foot, to reach the work site, the rice would not last. He was told he would be taken for twenty days but escaped before he had to go. Another man from south Maungdaw reported that he had had to work for two weeks every month since the Burmese new year (April) building houses for Burmese Buddhist families whom the government had relocated to the area.
Since most of the Rohingyas are unskilled day laborers, one day of work without pay can mean one day without food for the whole family. The availability of work depends very much on the agricultural cycle, and during the dry season (December - July), there tends to be very little work. In the past, Rohingyas would have traveled to find work in towns or in areas where work was available, but since 1991 their freedom of movement has been severely restricted by the NaSaKa (see below). They thus have very few sources of income to begin with, and since the dry season also happens to be the best time for construction work when forced labor demands are most intense, the burden on the Rohingyas is particularly acute.
Forced labor occurs throughout Burma. Because it is not targeted specifically at Rohingyas UNHCR has said that while the practice is abusive, it cannot be considered grounds for refugee status. Rather, UNHCR has taken a pragmatic approach and attempted to negotiate a reduction in the burden of forced labor on the returnees.25 The agency has maintained since 1994 that returnees are only required to work four days of every month (one day per week) and that monitoring by UNHCR representatives in Arakan has not revealed any increase. Returnees and visitors to the region, however, consistently report that the burden of forced labor remains much higher than the figure cited by UNHCR, and there is concern that UNHCR's sixteen international staff in Arakan cannot effectively monitor the situation for the 200,000 returnees in an area where transportation is extremely difficult.26
Confiscation of Land and Property
In addition to having to work for the government for no pay, those among the new arrivals who had been landowners told Refugees International that their land had been confiscated by the military, leaving them with no means of livelihood.
In Burma all land is owned by the government. Tenants may have land use rights, which can be inherited by children, but on land designated for rice cultivation (paddy land), which constitutes over half the agricultural land in Burma, use rights cannot be rented or sold.27 As associate or naturalized citizens or as foreign residents (seebelow), Rohingyas are not permitted land use rights. Nevertheless, customary law applies in most villages, and Rohingyas have been able to acquire tenancy of land over the years. In many parts of Maungdaw, Buthidaung and Kyauktaw townships, however, the military has confiscated land to build roads, "model villages" (see below), military barracks, hydroelectric stations, prawn farms and other commercial activities. In cases where land is taken in this way, there is no compensation for the owner and no recourse to law. The confiscation of land for development occurs throughout ethnic minority areas of Burma. While ethnic Burmans can also been relocatedfor urban or rural development projects they are give given, or have the possibility of buying at discounted rates, new land or housing, which ethnic minorities including the Rohingya, do not.
A sixty-year-old man from Maungdaw township had arrived in Cox's Bazaar with his three wives and sixteen children. He had owned a fairly large farm, but in June 1997 military intelligence officers came to his house and ordered him to give up his land. He refused and the next day they came back and raped one of his daughters and took a second daughter to jail. Eleven days later, after much begging, he was swapped for his daughter and spent twenty days in jail. During that time he was beaten. He and the rest of the family fled after he was released; he later learned that the daughter who was raped had died. When they reached the border his family were pushed back by Bangladesh guards. Burmese NaSaKa troops then took all the money they had before letting them go. After a five-day walk, they crossed into Bangladesh at another crossing.
A fifty-year-old man from a village twenty-five miles south of Maungdaw told Refugees International that his land was confiscated by the government in September 1996. Later a family of Burmese Buddhists were given this land. As his savings decreased, he sold his cattle to survive. His son left to escape the demands of forced labor, and when he had nothing left, he finally took the rest of his family to Bangladesh. This man had not been a refugee in the past.
A woman, a widow with three children, from south Maungdaw said she left after the military confiscated her small plot of land on which she grew beetles. Having no other means of support, and being afraid of abuse by the NaSaKa, she left for Bangladesh.
Taxation in Burma is notoriously arbitrary.28 As a condition of exercising land use rights, tenants must pay taxation in kind to the government: usually, a percentage or quota of the harvest that the farmers must sell to the government at a price fixed by the government. In Arakan state the rice tax is calculated as a percentage of the land acreage available to the farmers, rather than on the basis of the yield of the land. The calculation has a discriminatory impact on Rohingyas, who for the most part have access to only the poorest quality land where yields are much less than for good land.
In addition to the land tax, Rohingyas have also been subject to increasing new forms of taxation since 1992. It seems that all forms of business are now taxed. Every family in northern Arakan has to pay a chili tax, regardless of whether they actually grow chilies. As a result, many Rohingyas are forced to buy chilies at the market rate of 500 kyats, and "sell" them to the NaSaKa at the government rate of 100 kyats. Refugees who had arrived in Bangladesh in February 1996 told Human Rights Watch that they had had to pay a fee when going on to the river to fish and when going the forest to cut bamboo. The fishing fee only applies to the Rohingyas, as Buddhist Rakhines do not fish. New arrivals in 1997 said that the taxes had been extended to farm animals; the owners of a cow must pay 80 Kyats a year, while a goat is assessed at 30 Kyats a year. Finally, Rohingyas have to pay for permits to travel from their village to the next, or to the market village to sell whatever produce they may have. A thirty-five-year-old man from Maungdaw township interviewed by Refugees International in July said he had to pay 20 Kyats every time hewanted to travel to the market to sell his eggs or chicken meat. In the end it was not worth his while, because once at the market the military would come to his stall and take whatever they wanted without paying for it.
The SLORC appears to be working on a program of population engineering, moving all Muslims in Arakan from areas outside Maungdaw and Buthidaung into those townships, and moving Burmese or Arakenese families into "model villages" in the wealthiest parts of Maungdaw and Buthidaung. In most cases the Burmese families are the relatives of soldiers based in the area, and as the military has continued to expand nationally (from 280,000 men under arms in 1988 to around 400,000 in 1996), so military barracks have become an ubiquitous presence in every village. Reports from visitors to Arakan and from the BBC correspondent in Dhaka suggest that many of the new arrivals in 1997 were from Kyauktaw township, an area of mixed Rohingya and Rakhine villages which previously had seen no exodus of refugees. The UNHCR has confirmed this impression, though as they do not operate in Kyauktaw they could give no reasons for the outflow.29 However, Human Rights Watch/Asia and Refugees International believe that it is forced relocations from Kyauktaw to Buthidaung and Maungdaw, or simply the confiscation of Muslim-owned land in Kyauktaw, which has caused people to flee.
Freedom of Movement
There is no freedom of movement for Rohingyas, as Lt. Gen. Maung Thinn made clear in the statement quoted by the U.N. Special Rapporteur in his 1996 report. All of the new arrivals mentioned the lack of freedom of movement as a major factor in forcing them to leave Burma. Indeed, some noted that it was considerably easier to travel from their villages to Bangladesh than it was to travel within Arakan State. Rohingyas are not allowed to travel anywhere beyond their village boundaries without getting prior permission. Request to travel must be made to the village council, which then passes on the request to the nearest NaSaKa base. Here, the IMPD, police, riot police, military intelligence, and customs all have to agree to the request. Once that happens, a permit must be purchased. In most cases passes are only given for a twelve-hour round trip to nearby villages: only in exceptional cases are Muslims permitted to stay overnight. To travel further, for instance to the township capitals at Maungdaw or Buthidaung, or the state capital at Sittwe, is virtually impossible. The sheer complexity and cost of this arrangement was said by some Muslims to dissuade them even for applying to leave their village. While everyone in Burma has to register and pay a small fee at the local SLORC office when staying overnight in a town or village other than their own, only non-citizens, such as the Rohingya, have to apply for permission prior to leaving their home. Being unable to travel, even within Arakan state, makes it extremely difficult for landless Rohingyas to find work during the dry season, when there is very little agricultural work available.17 Special Rapporteur to Burma, "Report on the Situation of Human Rights in Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 1995/72," U.N. Document No. E/CN.4/1996/65, February 5, 1996. 18 Extreme poverty among the Muslims in Arakan led the World Food Program to conduct a malnutrition survey in late 1996. The results of this survey were not made public. In addition, in mid-1997 the whole of Burma suffered rampant inflation, with the value of the Kyat falling from $1 = 120 Kyat in January to $1= 380 Kyat in June. In Arakan rice prices increased to 60 Kyat per kilo in June 1997 (compared to 20 Kyats in June 1996), when an average wage for a day laborer was only 50 Kyat. While rice prices increased, the SLORC refused to allow local traders to import rice from Bangladesh. The UNHCR and WFP negotiated with the local military commander to overturn this decision in June, but there were no reports of a change in this policy. 19 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocal relating to the Status of Refugees" (Geneva: UNHCR) January 1988 20 For a full discussion of citizenship in Burma, see Human Rights Watch/Asia, "Ending the Cycle..." pp. 24 - 29. 21 The former U.N. Special Rapporteur to Burma, Prof. YozoYokota, first made this recommendation in his "Report on the Situation of Human Rights in Myanmar." U.N. Doc. No.E/CN.4/1993/37, February 17, 1993. It was then incorporated into the U.N. Commission on Human Rights resolution on Burma in April 1993. 22 Burma's practice is contrary to prevailing international norms enjoining states to reduce statelessness as well as the Universal Declaration of Human Rights Article 15 stiputlation that "no one shall arbitrarily be deprived of his nationality." The Convention on the Rights of the Child, to which Burma acceded in 1992, obliges states to provide children who would otherwise remain stateless with the right to acquire a nationality. 23 Van To Nguyen , quoted in "Burmese Refugees Set Preconditions for Going Home", Reuters, July 26, 1997. 24 NaSaKa was created in 1992, after the Rohingya exodus, and comprises five different government agencies: the police, military intelligence (MI), Lone Htein (riot police, notorious for their involvement in the killings in Rangoon in March and April 1988), customs, and the Immigration and Manpower Department (IMPD). The NaSaKa is under the direct command of the SLORC and the army's Western Commander based in Sittwe and is thus a quasi-military body. 25 UNHRC has concluded, "Extensive recruitment for compulsory labor was believed to be one of the main reasons for the mass-exodus in 1991/92 and continues to be an issue of concern. UNHCR has [...] focused on this issue and has repeatedly intervened with regard to returnees being called for compulsory labor. Whilst the aim of this intervention is the eventual elimination of this practice, UNHCR has to be pragmatic in its approach and therefore sought to minimize the burden placed on the population of northern Rakhine [Arakan] State." See "Voluntary Repatriation and Reintegration: Bangladesh/Myanmar. Situation Update," (Geneva: UNHCR), September 1996. 26 See "Situation Update...", and also Human Rights Watch/Asia "Ending the Cycle..." ; U.S. Committee on Refugees, "The Return of the Rohingya Refugees to Burma: Voluntary Repatriation or Refoulement?"(Washington, D.C: March 1995). 27 See World Bank, "Myanmar: Policies for Sustaining Economic Reform," Country Report, 1995. 28 For a discussion of taxation in Burma, see "Burma: A Country Study," U.S. Embassy, Rangoon, July 1996. 29 UNHCR representatives in Cox's Bazaar speaking to Human Rights Watch on June 31, 1997. Also confirmed in a telephone conversation with the UNHCR Head of Asia Division, Francois Fouinat, on July 29, 1997.