(COX’S BAZAR and BANGKOK, July 28, 2023)—The Government of India should immediately and unconditionally release indefinitely detained Rohingya refugees and end the arbitrary arrest and detention of refugees, said Fortify Rights today. The government should also investigate violations within its detention facilities and hold officials found responsible to account.
In a new investigation, Fortify Rights documented evidence of Indian authorities beating Rohingya refugees, denying them due process rights, and indefinitely detaining hundreds, in some cases for several years. Indian authorities have detained Rohingya refugees in at least New Delhi, Jammu, Manipur, and Assam for immigration-related offenses.
“The Indian government must end its indefinite detention of refugees and investigate the violent crackdown and beatings of Rohingya refugees in detention,” said Zaw Win, Human Rights Specialist at Fortify Rights. “No one should be imprisoned for being a refugee – a status no one willingly chooses. Indian authorities must protect Rohingya who have fled an ongoing genocide in Myanmar.”
Fortify Rights interviewed 14 people in India, including 12 Rohingya refugees, three of whom are currently detained in India. Fortify Rights also obtained and reviewed photographs and video footage from inside detention centers in India.
On July 24, 2023, Indian police reportedly arrested more than 70 Rohingya refugees in the northern state of Uttar Pradesh.
Earlier, in a separate incident, on July 18, 2023, hundreds of Rohingya refugees detained in Jammu protested their indefinite detention, including through a hunger strike. Indian authorities responded with tear gas and beatings, injuring several refugees. Two days after the incident, a Rohingya infant present during the incident reportedly died. Fortify Rights did not independently confirm the child’s cause of death.
A Rohingya refugee, 30, originally from Buthidaung Township in Myanmar’s Rakhine State, has been detained in India for five years. He told Fortify Rights how Indian authorities arrested and beat him on May 1 2018, at the India-Myanmar border in Manipur. He said: “[The Indian authorities] beat us with a rod asking us why we were ‘crossing the border illegally’ . . . They beat us very often. They beat my leg and knee. They beat us inside the custody [detention center].”
Later, and without legal representation, the authorities brought the man to court, summarily convicted him, and sentenced him for entering India without permission.
“I have been in detention for the last five years,” he told Fortify Rights. “It is hell here in detention . . . We want to be free.”
Another detained Rohingya man (location withheld for security reasons) told Fortify Rights that Indian authorities arrested him in December 2020 for immigration offenses under Section 14 of India’s Foreigners Act, 1946.. He remains in detention after being summarily convicted and sentenced to one year in prison. He said:
[The Indian authorities] detained me . . . It was on the bus . . . in Karimganj District in Assam . . . they took us to prison . . . [I have] stayed in detention for more than two and a half years now. Going through the court like this, I have become so hopeless.
Fortify Rights confirmed from the court documents that the court sentenced him to one year in prison. Despite serving this sentence and being a refugee recognized by the U.N. High Commissioner for Refugees (UNHCR), the U.N. agency mandated to protect refugees, Indian authorities continue to detain him. He told Fortify Rights: “UNHCR provided us with their cards, which means, from what I understand, that they must protect and help their cardholders as refugees . . . If a UNHCR-recognized refugee has to continue to stay in jail even after finishing his sentence, he is not safe.”
Another Rohingya refugee originally from Maungdaw Township in Rakhine State and now detained in India (location withheld for security reasons) told Fortify Rights how Indian authorities detained him while he was traveling in Assam:
We showed [the Indian authorities] our [UNHCR] refugee identification card. The policemen told us that the Indian government does not accept refugee identification for travel. So, they took us to the court. It was in Assam that we were arrested. We were detained for nine months in a detention center in Assam.
From 2021 to 2022, Indian authorities transferred this refugee between three different detention facilities. He said, “After three years, we were told that we would be moving [to a different facility] . . . We were told that our prison period had finished, and we were moved to the refugee camps, but it is not a camp; it is a detention center.”
Indian authorities effectively denied him legal representation. At the time of writing, he remains in indefinite detention.
Speaking about the conditions in the detention center, he told Fortify Rights: “UNHCR is not helping us in detention . . . We are not fed well in detention. They provide rice with lentils . . . There is no education for our children . . . We are hardly surviving.”
Fortify Rights also spoke to relatives of those detained and some who fled to Bangladesh and other neighboring countries out of fear of arrest or being forcibly returned to Myanmar.
A Rohingya man, 49, originally from Maungdaw Township, told Fortify Rights that he fled India to Bangladesh fearing arbitrary arrest by Indian authorities.
Another Rohingya man told Fortify Rights that he witnessed Indian authorities arrest and separate a refugee family in Narwal, Jammu in May 2021. Fortify Rights obtained and reviewed video footage of the incident, which shows a Rohingya woman being arrested by authorities, put into a vehicle, and separated from her infant child. The Rohingya man who witnessed the incident said:
In a family of a husband, wife, and four children, the police only arrested the mother and one child. A breastfeeding infant was not taken with the mother. The people are very traumatized by how the police forcefully separated the infant from the mother. Then the people tried to flee the area . . . I have videos of the breastfeeding child being left behind when the police arrested the mother.
Fortify Rights also received and reviewed a mobile-phone audio recording from July 19, 2023, between a Rohingya relative and a family member inside a detention center—the location of which is withheld for security reasons. In the audio recording, a Rohingya woman explains that Indian authorities had beaten her, and she pleads with her relative to tell the authorities not to beat her, saying: “[A]t night, we will be beaten, and [I] already have been beaten so badly . . . Please ask my brother to ask [the police] not to beat me . . . Please tell them not to beat me.”
She also pleaded in the audio recording to be granted bail and have a lawyer represent her. At the time of writing, she remains in detention.
Indian authorities have also cracked down on Rohingya en masse in detention. Most recently, on July 18, 2023, Indian authorities violently cracked down on Rohingya refugees in Hiranagar Detention Center in Jammu. According to mobile-phone video footage obtained and reviewed by Fortify Rights and substantiated by interviews with refugees, Rohingya detainees staged a protest against their indefinite detention. Some took part in a hunger strike, calling for their release. Indian authorities responded with tear gas and beatings, injuring several refugees and reportedly killing a detained infant.
Mobile-phone footage reviewed and on file with Fortify Rights shows the aftermath of the protest and crackdown by authorities in the detention center. On July 20, 2023, two days after the crackdown, Fortify Rights spoke to a relative of a detainee at the Hiranagar Detention Center. He said: “When I [spoke to] him, he told me, ‘There are people who got injured as [the authorities] fired teargas [at us]. . . We are doing a hunger strike here.”
Media reports and Rohingya advocates allege that the Rohingya child who died in the Jammu detention facility died from injuries related to tear gas inhalation. Indian authorities denied the allegation to Indian media, claiming the death was unrelated to the crackdown.
A Rohingya refugee community leader in India, knowledgeable of the incident, told Fortify Rights that some Rohingya in the Hiranagar detention facility “have been detained for more than two years.”
On July 18, 2023, Superintendent of Kathua District Detention Center Koushal Kumar told journalists: “[Rohingya refugees] tried to break open the gate and come out, but we closed the gate . . . I cannot [say] the exact number of persons injured.”
On July 19, 2023, the Rohingya Human Rights Initiative, a leading Rohingya organization in India, said they “strongly condemn” the Indian authorities’ crackdown on Rohingya refugees and called for “an immediate end to the human rights abuses and arbitrary detention.”
India should conduct an independent investigation into the violent incident at the Hiranagar Detention Center and release those detained, Fortify Rights said today.
“We’re concerned that the recent violence against Rohingya in India could lead to renewed calls to force them back to Myanmar, and that must be avoided at all costs,” said Zaw Win. “Refugees have rights, and India is obligated to respect those rights.”
On March 5, 2021, the Government of Jammu and Kashmir invoked powers under Section 3(2)(d) of the Foreigners Act of 1946 and Section 2(d) of the Citizenship Act of 1955 to convert Hiranagar Detention Center in Kathua District to a “holding center” to detain Rohingya with immigration-related offenses.
Section 2(b) of the Citizenship Act, 1955 defines “illegal migrants” as foreigners who entered India without a valid passport or travel documents or those who entered with a valid passport or travel document but remained in the country beyond the permitted period. The Foreigners Act regulates the entry of foreigners into the country, their presence, and departure. Section 3(2)(d) of the Foreigners Act empowers the central government to issue orders removing or restraining the presence of foreigners in specific areas.
Customary international law and Article 9 of the International Covenant on Civil and Political Rights (ICCPR), to which India is a state party, forbids the arbitrary, unlawful, or indefinite detention of any person, including refugees and migrants. Refugees may only be detained as an exceptional measure of last resort following an individualized assessment and after the exhaustion of all alternatives to detention.
Article 21 of the Indian Constitution protects this right stating that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Moreover, Article 22 of the Constitution protects all persons arrested and detained. These protections include the right to know the grounds of arrest and detention, the right to a lawyer, and the right to be presented before a court.
India has also signed the Universal Declaration of Human Rights (UDHR) and ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). As emphasized by the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance in 2019, Indian authorities’ discrimination against Rohingya, who are an ethnic minority, violates India’s obligations under the UDHR, ICCPR, and CERD. While the Foreigner’s Act empowers the Indian central government to place restrictions on groups of foreigners, such restrictions should not override its commitments under CERD. Any restrictions also should not violate refugee rights to equality before the law and the equal protection of the law guaranteed under Article 14 of the Indian Constitution.
India has signed but has not ratified the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). As a signatory, India is bound to follow the principle of non-refoulement, which is a peremptory norm of international law. Article 3 of UNCAT enshrines the principle of non-refoulement, prohibiting states from returning any person on its territory or under its jurisdiction to a country where they face persecution. India’s previous returns of Rohingya to Myanmar, which is committing genocide, war crimes, and crimes against humanity against the Rohingya people, violated this peremptory norm.
India should also sign and ratify the 1951 U.N. Refugee Convention and its 1967 Protocol, said Fortify Rights.
In 2019, Fortify Rights documented Indian authorities beating and threatening to return Rohingya refugees to Myanmar while forcing dozens into Bangladeshi territory. All Rohingya in that instance were UNHCR-recognized refugees.
“India should provide a safe haven for Rohingya fleeing genocidal attacks and other international crimes in Myanmar,” said Zaw Win. “Rather than continuing their persecution, the Indian government should allow Rohingya refugees access to legal status, education, livelihoods, and freedom of movement.”
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