By guest contributor Reigha Yangzom, an incoming LL.M. candidate at School of Oriental and African Studies, London. 

Background

The United Nations has described the Rohingyas as the most persecuted minority in the world. The gross human rights violations and persecution faced by the Rohingyas have led to thousands of Rohingyas fleeing Myanmar to escape alleged genocide and crimes against humanity. The Rohingya population that remains in the Rakhine state of Myanmar are denied citizenship, disenfranchised, subjected to widespread atrocities such as torture, enforced disappearances, rape and mass killings. They are denied access to adequate food, healthcare, education, employment, land ownership, religious freedom and freedom of movement. The Independent International Fact-Finding Mission on Myanmar established by the Human Rights Council of the United Nations have provided detailed reports on the threats of genocide and other serious crimes against the Rohingyas. 

On 23 January 2020, the International Court of Justice (ICJ), in the case of The Gambia v. Myanmar took cognizance of the imminent danger faced by the Rohingyas and delivered a provisional order directing Myanmar to comply with the obligations of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). The court further observed that all states that are parties to the Genocide Convention have an obligation to prevent genocide. This order has been unanimously issued by a 15 member bench of the ICJ under Article 41 of the Statute of the ICJ and is legally binding.

The Indian Supreme Court’s Order

The Supreme Court, on April 8, 2021, in Mohammad Salimullah v. Union of India, passed an order allowing the deportation of the Rohingya refugees in Jammu, India. This blog shall address the international law aspect of the order. The Supreme Court, observed that India may draw inspiration from international treaties and conventions provided such international law is not in contravention of India’s municipal laws. It becomes pertinent to note that India is mandated to comply with its international law obligations provided they are not inconsistent with India’s municipal laws as reiterated by the Indian Supreme Court in many landmark judgements. The petitioner had rightly argued that there exists no Indian law that is in conflict with the principle of non-refoulement as enshrined in the 1951 Refugee Convention thereby making the compliance of international law necessary. However, the court refused to take into consideration the petitioner’s argument and failed to elaborate on why the non-refoulement principle was not complied with. 

While the court had correctly noted that India is not a contracting party to the Refugee Convention, it failed to acknowledge that non-refoulement is a principle of customary international law, and therefore applies to all countries regardless of whether they are a party to the 1951 Convention. Therefore, the Indian government’s argument that India should not be bound by the principle of non-refoulement merely because India isn’t a party to the Refugee Convention is not legally valid.

Moreover, India has ratified various international treaties such as the International Covenant on Civil and Political Rights (ICCPR), Universal Declaration of Human Rights (UDHR), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and Convention of Rights of Children (CRC) which upholds the essence of the principle of non-refoulement through their provisions and the case law interpretation of these treaties. The duty of non-refoulement has evolved to be a mandatory and an indispensable component of international law.

Additionally, Article 3 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Torture Convention)  and Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance (CPPED) explicitly prohibit states from refouling persons where they would be exposed to substantial risk of torture and enforced disappearance. India being a signatory to both these Conventions has an obligation to refrain from practice that would result in the object of these treaties to be defeated. 

The principle of non-refoulement mandates the court to evaluate if the Rohingyas would be at risk of facing human rights abuses if sent to Myanmar. Hence, the situation in Myanmar is directly relevant in determining if the Rohingyas should be deported to Myanmar. Unfortunately, the Supreme Court bluntly stated that it could not comment on the state of affairs in Myanmar. The Supreme Court has abdicated its international law responsibility by refusing to consider relevant facts in adjudicating the fate of the Rohingyas. 

India, as a party to the Genocide Convention, has an obligation to prevent, prosecute and punish genocide. To the contrary, the Court’s conscious disregard of the ICJ’s order and the imminent genocidal threat faced by the Rohingyas if deported to Myanmar which are all inextricably connected with the issue of deportation of the Rohingya refugees lacks reasoning and is inconsistent with India’s international law obligations. 

Furthermore, the court disallowed the United Nations Human Rights Council (UNHRC) Special Rapporteur from making any submissions stating that it had received serious objections to such intervention. However, the court fell short of providing any information about the source or content of such objections. The legal rights of refugees and the principle of non-refoulement is not an exclusively domestic matter and should be interpreted in lines of the principle of international law and hence, the court’s refusal to hear the UNHRC Special Rapporteur is legally unsound and against the principle of natural justice.

Conclusion

The Supreme Court’s complicity in failing to protect the vulnerable Rohingyas amidst well-founded allegations of genocide and ethnic cleansing of the Rohingyas especially in light of the military seizing power in a coup d’état on February 1, 2021 is legally erroneous and morally reprehensive. The order is in breach of India’s binding commitment to the Genocide Convention and the principle of non-refoulement, both of which are non-derogable norms of international law. 

India has traditionally adhered to the policy of non-refoulement and has been a welcoming host to refugees from Tibet, Sri Lanka and other neighboring countries. However, the Indian Government has preferred a differential treatment towards the Rohingyas and have tagged them as “illegal immigrants” accusing them of posing a threat to India’s national security. In light of the persecution faced by the Rohingyas and the Indian government’s inhumane stance of deporting the Rohingyas, the Supreme Court has an additional burden to ensure that India continues to pay due regard to the principle of non-refoulement.

The April 8 order is subject to a final decision of the Supreme Court creating scope for the Supreme Court of India to redeem itself and reimagine its brand as a court that champions the rights of the most persecuted minority in the world. As the world looks to India, the Supreme Court still has another chance to deliver a judgement which showcases India’s commitment to prevent genocide and it’s respect for international human rights and humanitarian law thereby, paving the path for the international community to follow suit.

Photo Credit:

Photo 1: “Myanmar/Burma: Little hope for Rohingya IDPs” by EU Civil Protection and Humanitarian Aid is licensed under CC BY-ND 2.0

Photo 2: “Myanmar/Burma: Little hope for Rohingya IDPs” by EU Civil Protection and Humanitarian Aid is licensed under CC BY-ND 2.0

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