THE TERROR SUFFERED BY ROHINGYA: BACKGROUND AND ANALYSIS ON INDONESIA’S OBLIGATION TO ACCEPT ROHINGYA REFUGEES

Introduction

The Rohingya stands as the biggest stateless population in the world.^[1] They have faced a long history of persecution and discrimination, which has resulted in statelessness and forced migration. Although international law has progressed to accommodate universal human rights, the Rohingya have been denied citizenship and fundamental rights, forcing many to flee their homes and seek refuge in other Southeast Asian countries.^[2] This legal review serves as a reminder that improper implementation of international law and the lack of commitment to peace results in chaos, and the deprivation of human rights. Currently, the International Court of Justice (ICJ) has rejected all 4 Myanmar’s preliminary objections to the case brought by Gambia regarding Myanmar’s alleged genocide against the ethnic Rohingya population in Rakhine State.^[3] This is a step forward in protecting the lives and human rights of the Rohingya. However, many Rohingya refugees still face uncertainty regarding their status and have suffered rejection by local communities in Indonesia.

Myanmar Oppressions on Rohingya

The dispute between the Government of Myanmar (GoM) and the ethnic Rohingya minorities is the crux of the refugee conflict, which unfolded during World War II when the colonists created divisions between the Rohingya and other communities. The Rohingya sided with the British, meanwhile, other communities, including the Rakhine state of Myanmar, sided with the Japanese, since they had promised Myanmar their Independence.^[4] In 1978, the GoM began a large-scale military operation called “Naga Min”, also known as Operation King Dragon. This operation was intended to eradicate the Rohingya, who were accused of conducting separatist efforts in the northern region of Arakan. As a result, millions of Rohingya were forced to flee and seek refuge in Bangladesh, escaping the military operation. Since that incident, the Rohingya are considered illegal immigrants.^[5]

In 1982, the conflict increased when the GoM imposed the 1982 Citizenship Law, which stated that the only ethnicities recognised by the GoM were ethnic groups that had long resided in Myanmar since the British colonial occupation in 1824. The Citizenship Law only acknowledges 135 ethnicities, however, this excludes the Rohingya.^[6] Consequently, under this policy, many life-long Rohingya residents of Myanmar have effectively been rendered stateless.^[7] The discrimination does not end there, as the Rohingya continued to be treated unfairly throughout the 1990s. It was during this period that the GoM passed a new law that required inhabitants of the Rakhine State to gain permission from the GoM before obtaining a marriage license. In this sense, men are obliged to shave their beards for their license photographs, whereas women are prohibited from wearing religious head and face coverings. Furthermore, the Rohingya women are required to take pregnancy tests before the marriage permits can be issued. This policy appeared solely because the GoM supposes that the Rohingya population is reproducing faster than “international standards”.^[8] However, the authorities have offered no evidence to support this claim. These policies are solely based on an order issued in 1993 by The Border Region Immigration Control Headquarters of Maungdaw relating to population control for Rohingya.^[9]

Violence against the Rohingya worsened between June and November 2012, which caused 200,000 Rohingya in the Rakhine State to flee their homes. In 2013, Nasaka, a security force consisting of police, military, intelligence, customs officers and riot police, operated in Rakhine State under the control of the Ministry for Border Affairs. Despite the abolition of Nasaka, the Rohingya were nevertheless forced to participate in forced labor by the Myanmar Army. It was through the army’s campaign that unauthorized mosques and around 5,000 homes of the Rohingya were destroyed. The GoM also restrained the Rohingya from freedom of movement by the requirement to obtain a travel permit from their local Peace and Development Council chairman in order to cross township and state boundaries. Furthermore, the GoM shut down mosques as well as Islamic schools, ultimately utilising them as government administrative offices.^[10] In addition, The Myanmar Army, the Nasaka, the Myanmar Police, and Rakhine villagers have raped and sexually assaulted Rohingya women and girls, in which some women have died as a result of gang rapes. At least 6,700 Rohingya, including at least 730 children under the age of 4, were killed in the month after the violence incited by the Myanmar Army.^[11] Throughout 2012 the violence in the Rakhine State has internally displaced over 140,000 Rohingyas. 

The most recent massacre occurred on August 25, 2017, which forced around 617,500 Rohingya to cross the Cox’s Bazar border and flee to Bangladesh. The latest report by the US State Department on the violence against Rohingya stated that the massacre of Rohingya was carried out in a coordinated and planned manner by the GoM.^[12] Bangladesh authorities claim that 1,092,136 Rohingya refugees are now sheltering in their country and 790 hectares of land (2000 acres) have been provided for the camp. With this scale, it poses as the world’s largest refugee camps to house more than 800,000 Rohingya refugees. In spite of the multitude of Rohingya that have escaped Rakhine, around 600,000 Rohingya Muslims still remain in Myanmar in an extremely vulnerable situation.^[13]

Some of the violations against the Rohingya include the following: extra-judicial killings, torture, rape and sexual violence, two-child rule, political arrests and detentions, forced eviction, forced relocation, destruction of livelihoods and confiscations of land and resources, firing in homes and business areas, forced labor, child labor, human trafficking, herding people into fenced stockades, destruction mosques, and restriction on freedom of movement, assembly, association, expression, and religion. In view of the violations above, the atrocities towards the Rohingya supposedly came from deeply-rooted Buddhist nationalism and accumulated sentiments, such as disbelief, hatred, and imagined fear of the Rohingya in a Buddhist society.^[14]

Legal Protection of Rohingya Refugees under International Law

As previously mentioned, the Rohingya has suffered many human rights violations, causing them to be stateless. Consequently, the Rohingya fled by boats to find safety and a better life in other countries. Due to this, many question the legal status of the Rohingya who fled to surrounding states. The Universal Declaration of Human Rights (UDHR) serves as a legal source in protecting human rights. Specifically, Article 14 of the UDHR provides that everyone has the right to seek and enjoy asylum in other countries to avoid persecution.^[15] This rule is further elaborated in Article 1 of the 1951 Convention on Refugees (“1951 Refugee Convention”), which defines a refugee as someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.^[16] With this, the Rohingya fled Myanmar for the sole purpose of their fear of being persecuted. As they enjoy no legal protection in Myanmar, they are always prone to discrimination. Therefore, the Rohingya are refugees. 

Furthermore, one of the key important rights in the 1951 Refugee Convention is the prohibition of expulsion or return (also known as the non-refoulement principle) which is envisaged in Article 33. Article 33 of the 1951 Refugee Convention states that refugees have the right not to be expelled to their original state that can threaten their life.^[17] This provision gives rights to Rohingya refugees to enter the territory of another country, even without complete documentation, and should be granted permission to enter for a temporary period. Moreover, every asylum seeker has the right not to be expelled or forcibly returned when they have arrived in a country. As one of the substantial provisions in this Convention, if not imposed then the lives of refugees are not in safe hands. The non-refoulement principle can also be found in Article 3 of the Convention Against Torture, Article 45 paragraphs 4 of the 1949 Geneva Convention (IV), Article 13 of the International Covenant on Civil and Political Rights and other human rights instruments. This principle has been recognized as part of international customs. Hence, the country that has yet to become a party to the 1951 Refugee Convention are obligated  to respect the non-refoulement principle.^[18]

Indonesia’s Obligation to Accept Rohingya Refugees in Accordance with International Law

According to the United Nations High Commissioner for Refugees (UNHCR), 11 boats consisting of 70% of women and children of at least 1,700 Rohingya refugees have landed in Aceh and North Sumatra since November 2023.^[19] Indonesia is one of the surrounding countries of Myanmar that has not yet become a state party to the 1951 Refugee Convention. Due to this, Indonesia has no erga omnes partes obligation to accept Rohingya refugees under this Convention. Despite this, Article 33 (1) of the 1951 Refugee Convention, which is a codification of the principle of non-refoulement has attained the status a customary international law and must be implemented by all countries that have not yet become a state party to this Convention. Therefore, Indonesia has the obligation to accept the Rohingya refugees under the principle of non-refoulement. The best way that Indonesia can do is to accommodate them temporarily while determining the next process, whether to give asylum, relocate to another country, or return them to the country of origin when conditions are indeed possible.^[20]

However, the local community of Aceh seems to reject the presence of Rohingya refugees as on December 27 2023, over a hundred students assaulted 137 Rohingya, which consists of mostly women and children refugees that had been placed temporarily in a car park. Reportedly, the students verbally and physically assaulted the refugees before forcing them onto trucks and transported them to the local immigration office where the students asked the refugees to be deported. In many places in Aceh, local residents have tried to prevent Rohingya boats from reaching the shore, and surrounded the tents of Rohingya on beaches and other temporary locations, and demanded that they have to be relocated. Similar to the local residents in Aceh, the Indonesian navy apparently shares the same sentiments as they pushed a Rohingya boat back out to sea off Weh Island, Aceh’s northernmost area.^[21]

This action went against Indonesia’s international legal obligations under the International Convention on Maritime Search and Rescue (SAR) and Customary International Law to grant access to refugees, to search and rescue in international waters, and to refrain from sending anyone back to a location where they would actually be in danger of persecution, torture, or other cruel treatment.^[22] Furthermore, Indonesia has a long-standing humanitarian reputation for helping refugees at sea. Thus, the conduct of rejecting Rohingya refugees is inconsistent with both international law and long-standing practices. In order to respond to boats transporting Rohingya refugees, Southeast Asian governments should cooperate more, whether regionally and internationally. As part of the international community, the governments of Indonesia, Malaysia, and Thailand should ensure that Rohingya refugees have access to proper asylum processes and are not detained indefinitely, confined in uncomfortable conditions, or threatened with forced deportation to Myanmar.^[23]

Conclusion

In conclusion, Indonesia has the obligation to accept the Rohingya refugees under the principle of non-refoulement. This obligation prohibits Indonesia from refusing Rohingya refugees and demands Indonesia to give safe passage for Rohinga refugees to enter Indonesian territory by conducting search and rescue. However, the existence of the refugees can lead to cultural change in society and when the problem is not resolved quickly by the government it can cause losses in Indonesia. The rapid increase of asylum seekers and refugees in Indonesia occur every year. Indonesian society is essentially a humanitarian community that tends to be tolerant of each other. Nevertheless, apart from the point of view of international relations, refugees and asylum seekers can cause a bad influence.

For instance, In Lebanon, Palestinian refugees are seen as a breeding ground for developing political violence and terrorism. The government of Lebanon claimed that ISIS and al-Qaida used the refugee crisis as a cover to infiltrate the Palestinian camps.^[24] The radicalization and terrorism are supposedly rooted from the increasingly dire social and living conditions of refugees in Lebanon, especially in the Palestinian camps.^[25] To this end, Refugees can also cause similar problems to any country that accepts refugees and asylum seekers, including Indonesia. Moreover, the extent of attachment to Indonesia in providing assistance in the form of shelter, housing, health facilities, and education to the refugees can be a problem when Indonesia has yet to ratify the 1951 Refugee Convention. 

Against this backdrop, there are a few aspects that Indonesia has to consider before ratifying the 1951 Convention and the 1967 Protocol. One of which is the increasing of border controls as well as maritime defense and security. The defense and maritime security of course require the provision of equipment and weapons that are complete and in good condition, for officers in patrolling the sea and border areas of Indonesia. The ratification of the 1951 Convention and the 1967 Protocol must also have an impact on the Indonesian economy. This is related to refugee handling and asylum seekers will be fully borne by the government. Concerns have also been raised concerning transnational crime and the growing number of refugees.^[26] Ratifying the 1951 Convention and 1967 Protocol will result in Indonesia’s cooperation with organizations like UNHCR decreasing because the handling of refugees will be carried out by the Indonesian government. The socio-cultural conditions of Indonesian society also become one of the considerations because there will be social jealousy from the people of Indonesia.^[27]