The Fleeing People of South Asia: Selections from Refugee Watch 9788190583572

Table of contents :
Front Matter
Half Title
Series Page
Title
Copyright
Contents
Acronyms and Abbreviations
Foreword by Ranabir Samaddar
Preface
Main Body
Ethical Issues
Introduction
Ethical Origins of Refugee Rights and Humanitarian Law, by Pooja Ahluwalia
Power, Fear, Ethics, by Ranabir Samaddar
Victim's Right to Communicate, by Samir Kumar Das
The Guiding Principles: Normative Status and its Effective Domestic Implementation, by Robert Kogod Goldman
Notes
The Boundaries of Belonging: Reflections on Migration Policies in the Twenty-First Century, by Alison Crosby
Notes
Laws
Introduction
Human Rights, Humanitarian Laws and the Continuing Displacement in Sri Lanka, by Jeevan Thiagarajah and Dinusha Pathiraja
Notes
The Foreigner and the Right to Justice in the Aftermath of September 11th, by Francois Crepeau
Notes
Exclusion from Refugee Protection in Europe: An Attempt at Legal Conceptualization, by Patrick Hoenig
Notes
Women's Rights, Asylum Jurisprudence and the Crises of International Human Rights Interventions, by Oishik Sircar
Notes
Strengthening Protection of the IDPs, by Roberta Cohen
Notes
French Suburbia 2005: The Return of the Political Unrecognized, by Rada Ivekovic
References
South Asia
Introduction
Refugees in South Adia: An Overview, by Aung Phyro and Tapan Kumar Bose
Internally Displaced Persons in Sri Lanka, by Joe William
A Matter of Ethnicity, by Narayan Katel
Scrutinizing the Land Resettlement Scheme in Bhutan, by Jagat Acharya
The Taliban Shelter Seekers or Refugee Warriors? by Arpita Basu Roy
Afghan Refugees Head for Tajikistan, Holed Up in the Pamir Mountains, A Correspondent
Impact of International Juridiction on Afghan Refugee Rights, by Salma Malik
Development Induced Displacmeent in Pakistan, by Atta ur Rehman Sheikh
On the Train of Burma's Internal Refugees, by Thierry Falise
Assault on Minorities in Bangladesh: An Analysis, by Meghna Guhathakurta
Neoliberal Globalization and Women's Experiences of Forced Migrations in Asia, by Ruchira Ganguly-Scrase, Gillian Vogl and Roberta Julian
Notes
Who Went Where and How are They Doing? Pakistanis and Indians Outside Sotuh Asia, by Papiya Ghosh
Notes
India
Introduction
Population Displacement in India: A Critical Review, by Samir Das and Sadyasachi Ray Chaudhury
Reporting from Gagan Geer: A Kargil War Refugee Camp, by Tapan K Bose
Barricaded Kashmiri Pandits Letting Go to the Right to Return? by Rita Manchandra
Homeless and Divided in Jammu and Kashmir, by Anuradha Bhasin Jamwal
Internal Displacement in North-East India: Challenges Ahead, by Subir Bhaumik
The North-East Today: Displacing Identities, Displaced Identities, by Monirul Hussain
Tibetan Refugees in India: Survival in Exile, by Rajesh S Kharat
Unrest and Displacement: Rajbanshis in North Bengal, by Sujata D Hazarika
Adivasis in the Coal Mining Tracts of Eastern India, by Kuntala Lahiri-Dutt
Notes
Gender
Introduction
Refugee Repatriation: A Politics of Gender, by Paula Banerjee
Families, Displacement, Partition, by Meghna Guhathakurta
Widows of Brindaban: Memories of Partition, by Subhoranjan Dasgupta
Agony Continues: Refugee Women of Bhutan, by Jagat Acharya
Dislocating Women and Making the Nation, by Paula Banerjee
Notes
Gender, Media and the Tsunami, by Ammu Joseph
Notes
Why Should We Listen to Her? by Maria Ahlqvist
Notes
Women, Trafficking and Statelessness in South Asia, by Paula Banerjee
Notes
The Bar Dancer and the Trafficked Migrant: Globalization and Subaltern Existence, by Flavia Agnes
Interview/Correspondence
Introduction
Voices from Exile - 1, An interview with Upendralal Chakma
Voices from Exile - 2, An interview with Ratan Gazmere
Daughter of Isis, A Talk with Dr Nawal El Saadawi
Right of Return: An Interview with Lev Grinberg
Letters from a Palestinian Refugee Camp
Representations
Introduction
Creativity's Mirror, by Subhoranjan Dasgupta
Notes
Writing Displacement: Creativity and Objectivity, by Pamela Philipose
Boundaries, Borders and Bodies, by Hameeda Hossain
Notes
Forced Displacement and Identity Formation in the EU, by Markus Mervola
Notes
The Changing Scales of Good and Evil: Morality Plays at the Profiled EU and US Borders, by Mika Aaltola
Notes
End Matter
Index

Citation preview

The Fleeing People of South Asia  Selections from Refugee Watch 

Anthem South Asian Studies Other titles in the series S Irudaya Rajan, Carla Risseew and Myrtle Perera (ed.) Institutional Provisions for the Care of the Aged: Perspectives from Asia and Europe (2008) Paranjape, Makarand (ed.) Science, Spirituality and the Modernization of India (2008) Kumar, Ashwani Community Warriors: State, Peasants and Caste Armies in Bihar (2008) Palit, Amitendu and Bhattacharjee, Subhomoy Special Economic Zones in India: Myths and Realities (2008) Roy, Kaushik (ed.) 1857 Uprising: A Tale of an Indian Warrior (2008) Sharma, Anita and Chakrabarti, Sreemati (eds.) Taiwan Today (2007) Gaur, Ishwar Dayal Martyr as Bridegroom: A Folk Representation of Bhagat Singh (2007) Bandyopadhyaya, Jayantanuja Class and Religion in Ancient India (2007) Chakrabarti, Radharaman India’s External Relations in a Globalized World Economy (2007) Sinha, Dilip Kumar Natural Disaster Reduction (2007) Fraser, Bashabi (ed.) Bengal Partition Stories: An Unclosed Chapter (2006) CSIRD Towards BIMSTEC–Japan: Comprehensive Economic Cooperation (2006) Banerjee, Sashanka S India’s Security Dilemmas: Pakistan and Bangladesh (2006)

The Fleeing People of South Asia  Selections from Refugee Watch 

Edited by Sibaji Pratim Basu

ANTHEM PRESS An imprint of Wimbledon Publishing Company www.anthempress.com This edition first published in India 2008 by ANTHEM PRESS C-49 Kalkaji, New Delhi 110019, India 75–76 Blackfriars Road, London SE1 8HA, UK or PO Box 9779, London SW19 7ZG, UK 244 Madison Ave. #116, New York, NY 10016, USA © 2008 Mahanirban Calcutta Research Group individual chapters © individual contributors This edition is published in collaboration with the Mahanirban Calcutta Research Group GC 45, Sector 3, Salt Lake, Kolkata 700106, India The support of the UNHCR, the Government of Finland, and the Brookings Institution is kindly acknowledged. However, they bear no responsibility for the views expressed here. The moral right of the authors has been asserted.

All rights reserved. Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book. ISBN-13: 978 81 905835 7 2 1 3 5 7 9 10 8 6 4 2

Printed at Roy Concern, 174/A Bhupen Roy Road, Kolkata

Contents Acronyms and Abbreviations

x

Foreword by Ranabir Samaddar

xiii

Preface

xv

ETHICAL ISSUES Introduction

3

Ethical Origins of Refugee Rights and Humanitarian Law Pooja Ahluwalia

6

Power, Fear, Ethics Ranabir Samaddar

18

Victim’s Right to Communicate Samir Kumar Das

32

The Guiding Principles: Normative Status and its Effective Domestic Implementation Robert Kogod Goldman

37

The Boundaries of Belonging: Reflections on Migration Policies in the Twenty-First Century Alison Crosby

49

LAWS Introduction

65

Human Rights, Humanitarian Laws and the Continuing Displacement in Sri Lanka Jeevan Thiagarajah and Dinusha Pathiraja

67

The Foreigner and the Right to Justice in the Aftermath of September 11th Francois Crepeau

79

Exclusion from Refugee Protection in Europe: An Attempt at Legal Conceptualization Patrick Hoenig

91

Women’s Rights, Asylum Jurisprudence and the Crises of International Human Rights Interventions Oishik Sircar

103

Strengthening Protection of the IDPs Roberta Cohen

119

French Suburbia 2005: The Return of the Political Unrecognized Rada Ivekovic

129

SOUTH ASIA Introduction

139

Refugees in South Asia: An Overview Anug Phyro and Tapan Kumar Bose

143

Internally Displaced Persons in Sri Lanka Joe Williams

150

A Matter of Ethnicity Narayan Katel

159

Scrutinizing the Land Resettlement Scheme in Bhutan Jagat Acharya

163

The Taliban Shelter Seekers or Refugee Warriors? Arpita Basu Roy

167

Afghan Refugees head for Tajikistan, holed up in the Pamir Mountains A Correspondent

172

Impact of International Jurisdiction on Afghan Refugee Rights 174 Salma Malik Development Induced Displacement in Pakistan Atta ur Rehman Sheikh

183

On the Trail of Burma’s Internal Refugees Thierry Falise

187

Assault on Minorities in Bangladesh: An Analysis Meghna Guhathakurta

190

Neoliberal Globalization and Women’s Experiences of Forced Migrations in Asia Ruchira Ganguly-Scrase, Gillian Vogl and Roberta Julian

196

Who Went Where and How are They Doing? Pakistanis and Indians Outside South Asia Papiya Ghosh

207

INDIA Introduction

225

Population Displacement in India: A Critical Overview Samir Das and Sabyasachi Ray Chaudhury

229

Reporting from Gagan Geer: A Kargil War Refugee Camp Tapan K Bose

234

Barricaded Kashmiri Pandits Letting Go the Right to Return? 239 Rita Manchanda Homeless and Divided in Jammu and Kashmir Anuradha Bhasin Jamwal

244

Internal Displacement in North-East India: Challenges Ahead 249 Subir Bhaumik The North-East Today: Displacing Identities, Displaced Identities Monirul Hussain

259

Tibetan Refugees in India: Surviving in Exile Rajesh S Kharat

265

Unrest and Displacement: Rajbanshis in North Bengal Sujata D Hazarika

274

Adivasis in Coal Mining Kuntala Lahiri-Dutt

283

GENDER Introduction

297

Refugee Repatriation: A Politics of Gender Paula Banerjee

300

Families, Displacement, Partition Meghna Guhathakurta

304

Widows of Brindaban: Memories of Partition Subhoranjan Dasgupta

311

Agony Continues: Refugee Women of Bhutan Jagat Acharya

315

Dislocating Women and Making the Nation Paula Banerjee

320

Geder, Media and the Tsunami Ammu Joseph

330

Why Should we Listen to Her? Maria Ahlquist

336

Women, Trafficking and Statelessness Paula Banerjee

343

The Bar Dancer and the Trafficking Migrant: Globalization and Subaltern Existence Flavia Agnes

355

INTERVIEW/CORRESPONDENCE Introduction

369

Voices from Exile – 1 An Interview with Upendralal Chakma

371

Voices from Exile – 2 An Interview with Ratan Gazmere

375

Daughter of Isis A Talk with Dr Nawal El Saadawi

378

Right of Return An Interview with Lev Grinberg

382

Letters from a Palestinian Refugee Camp

387

REPRESENTATIONS

Index

Introduction

397

Creativity’s Mirror Subhoranjan Dasgupta

400

Writing Displacement: Creativity and Objectivity Pamela Philipose

407

Boundaries, Borders and Bodies Hameeda Hossain

413

Forced Displacement and Identity Formation in the EU Markus Mervola

424

The Changing Scales of Good and Evil: Morality Plays at the Profiled EU and US Borders Mika Aaltola

436

453

Acronyms and Abbreviations AU AI AASU ABSU ADB AFMI AFP AGP AL ASTA BAC BNP CAAAW CAC CBAA CCL CEDAW CIA CIC CNRS CSP CTA CTRC DEVAW DIMA ECHR ECOSOC EU FGM FHA FOIL

African Union Amnesty International All Assam Students Union All Bodo Students’ Union Asian Development Bank American Federation of Muslims From India Australian Federal Police Assom Gana Parishad Awami League Anti-Terrorism and Security Act Bodoland Autonomous Council Bangladesh National Party Committee Against Anti-Asian Violence Coalition Against Communalism Coal Bearing Areas Act Central Coalfields Limited Convention on the Elimination of all forms of Discrimination against Women Coal India Limited Citizenship and Immigration Canada Centre National Pour La Recherche Scientifique Civil Servants of Pakistan Central Tibetan Administration Central Tibetan Relief Committee Declaration on the Elimination on Violence against Women Department of Immigration and Multicultural and Indigenous Affairs European Convention of Human Rights United Nations Economic and Social Council European Union Female Genital Mutilation Federation of Hindu Association Forum of Indian Leftists

xii GDP GOSL HRW HSC IB ICESCR ICRC IDP IOM IRB IRO ISI KNA KNU KPP LDC LOC LTTE MCRG MDGs MKSS MLAA MQM MSF NEFA NGO NSCN NWFP NYTWA OHCHR PIP PIPFPD PPV PSEPC RCMP RW SAARC SAFHR SAFRON

THE FLEEING PEOPLE OF SOUTH ASIA

Gross Domestic Product Government of Sri Lanka Human Rights Watch Hindu Students Council International Border International Covenant on Economic, Social and Cultural Rights International Committee of the Red Cross Internally Displaced Person International Organization for Migration Immigration and Refugee Board International Refugee Organization Inter-Services Intelligence Kuki National Army Karen National Union Kamtapuri People’s Party Lease Drivers Coalition Line of Control Liberation Tigers of Tamil Eelam Mahanirban Calcutta Research Group Millenium Development Goals Mazdoor Kisan Shakti Sangathan Migration Legislation Amendment Act Muttahida Qaumi Movement Medicines Sans Frontiers North-East Frontier Agency Non-governmental Organization National Socialist Council of Nagaland North-West Frontier Province New York Taxi Workers Alliance Office of the High Commissioner for Human Rights Prevention of Infiltration from Pakistan Pakistan–India Peoples’ Forum for Peace and Democracy Permanent Protection Visa Public Safety and Emergency Preparedness Canada Royal Canadian Mounted Police Refugee Watch South Asian Association for Regional Cooperation South Asia Forum for Human Rights Ministry of States and Frontier Regions

ACRONYMS AND ABBREVIATIONS

SASG SPGRC TLC UBLF ULFA UN UNDP UNEP UNHCR UNHRC UNICEF VHP VHPA WPDA WFP

South Asia Solidarity Group Stranded Pakistani General Repatriation Committee Taxi and Limousine Commission United Bengali Liberation Force United Liberation Front of Asom United Nations United Nations Development Programme United Nations Environment Programme United Nations High Commissioner for Refugees United Nations Human Rights Council United Nations Children’s (Emergency) Fund Vishwa Hindu Parishad Vishwa Hindu Parishad of America Water and Power Development Authority World Food Programme

xiii

Foreword by Ranabir Samaddar Refugee Watch came into the world in 1998 – exactly a decade ago – for the task of documenting the flows of forced migration in South Asia. It was probably the first such initiative in this region followed by an imaginative publication from Dhaka, and then other publications and initiatives. Refugee Watch while being a proud member of the human rights community of the region, which is aware of its responsibility towards victims of forced migration, continues to be a unique publication. From its inception, the initiative marked its regional coverage in its structure, authorship, news and style. It gradually brought before the readers the news of other regions, the relevant analyses, informed comments, and commentaries on campaigns and events relating to forced migration. It also aimed to be distinct, and readers will realize that this remains the case till now, on two counts. First, it did not want to be a scholastic publication. It brought out creative writings, narratives, critical legal opinions, experiences of the refugees themselves along with commentaries on partition refugees in a comparative light, and above all fresh perspectives infused with a sense of history. In this sense it aimed at not only being inter-disciplinary, but also at crossing the divide of academic publication and commitment bound writings and presentations. Second, in Refugee Watch the refugee appeared not only as a particular category of the displaced, but also as a figure of all kinds of displacement and forced migration. Thus, articles on internal displacement, trafficking in women, statelessness, immigration control regimes, humanitarian practices of protection, and many other associated themes were published in the journal, a glimpse of which the readers can get now through this superb editorial work by Sibaji Pratim Basu, the editor of Selections. Indeed, Selections not only present the current histories of the flows of forced migration in South Asia but also

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reflect how the field of forced migration studies has developed in these ten years. On the occasion of the publication it is important to recall the founders and early supporters of this initiative. The journal started as a joint initiative of the South Asia Forum for Human Rights (SAFHR) and the Calcutta Research Group (CRG). Since 2003, CRG has been solely carrying on the task of publishing Refugee Watch with support from writers from around the globe, in particular from South Asia. The publication is used as instruction material in the Annual Winter Course on Forced Migration. It also carries the research output of the CRG programme on forced migration. In all these, the UNHCR, the Government of Finland, and the Brookings Institution have remained our understanding collaborators. On the occasion of the publication of the Selections we recall with gratitude the support of all our friends. We hope that as Refugee Watch continues publishing regularly, the support will increase as demands for the protection of the victims of forced migration increase in the wake of new violence, new controls, new repressions and new evictions resulting in increased mass destitution and homelessness.

Preface The history of human civilizations is also the history of human displacements. Civilizations are both inclusive and exclusive. They foster a sense of unity among different social/cultural groups in given times and places; create loose yet culturally homogenizing identities, and, by the same token, alienate others, who could not be fit in the schemes of such homogeneity; identify them as ‘aliens’ and even ‘enemies’; and, in may instances, purge them from the so-called geopolitical territories of given civilizations, giving birth to ancient Greek words like ‘exodus’ and ‘diaspora’. There have been displaced populations for millennia. We are told in the Exodus how the persecuted and enslaved Israelites fled Egypt. In the sixth century, persecuted Muslims fled Mecca for Medina in the Hijra and the fifteenth century saw the mass expulsion of Moors and Jews during the Spanish Inquisition. However, in the contemporary world, World War II and its aftermath was the watershed event in the history of the refugee problem. The tragedy of forced exile still exists and is growing throughout the world, so the last century has in fact been described as the ‘century of refugees’. Many of them, like the Palestinians living in numerous camps, have endured this traumatic experience for years or even generations, without ever having known any other type of life. According to an estimate, there were about 22 million refugees in the world in 2001. If we look at Asia and Africa alone, we would encounter a very grim reality of human sufferings.

I To begin with South Asia, the partition of the Indian subcontinent into India and Pakistan in 1947 resulted in the largest human movement in history: an exchange of 18,000,000 Hindus and Sikhs (from Pakistan)

xviii

THE FLEEING PEOPLE OF SOUTH ASIA

for Muslims (from India). During the Bangladesh Liberation in 1971, more than 10 million Bengalis fled to neighbouring India. In recent history, we saw (and have been continuously seeing) most alarming refugee influx from Sri Lanka and also the plight of Bhutanese refugees of Nepalese origin. A large number of Chakmas of the Chittagong Hill Tract in Bangladesh are also spending life in exile in different parts of north-east India. India also shelters a huge number of Tibetan refugees since the Chinese takeover of Tibet in 1959. Pakistan has been another big shelter for Afghan refugees, the world’s largest refugee population. Iran has also acted as a refuge for the people of northern Afghanistan. The situation is also grim in South East Asia. The Korean War (1950–3) gave birth to a huge number of refugees. Large numbers of Vietnamese refugees came into existence after 1975 when South Vietnam fell to the communists. Many tried to escape, some by boat, thus giving rise to the phrase ‘boat people’. West Asia has been the theatre of exodus since the creation of Israel, the state for the Jews, after World War II, which resulted in the Palestinian Exodus, continued through the 1948 Arab–Israeli War and after the armistice that ended it. The great majority have remained refugees for generations, as they were not permitted to return to their homes. The First Persian Gulf War, just after the end of the Cold War, in 1990–1, also produced a large number of Iraqi refugees. Iran had provided asylum for 1,400,000 such refugees who had been uprooted as a result of the First Gulf War. Sudan: Burundi: Democratic Republic of Congo: Somalia: Liberia: Angola: Eritrea: Rwanda: Ethiopia: Chad: Sierra Leone: Uganda: Central African Republic: Republic of the Congo: Nigeria: Côte d'Ivoire: Ghana:

930,612 485,764 462,203 389,272 335,467 228,838 131,119 63,808 63,105 52,663 41,801 31,963 31,069 28,152 23,888 23,655 14,767

PREFACE Togo: Zimbabwe: Senegal: Cameroon:

xix 10,819 9,568 8,332 7,629

The African refugee scenario is also alarming. Since the 1950s, many nations in Africa have suffered civil wars and ethnic strife, thus generating a massive number of refugees of many different nationalities and ethnic groups. According to an estimate, produced by the United Nation High Commissioner for Refugees (UNHCR) in 2004, the largest number of refugees are from Sudan and have fled either the long-standing and recently concluded Sudanese Civil War or the Darfur conflict and are located mainly in Chad, Uganda, Ethiopia and Kenya. Above are the figures given by UNHCR: ‘World Refugee Trends’, 2004. By any standard, the above picture (going by sheer number) of refugees in Asia and Africa is of great concern for all individuals and institutions who/which care for human rights. The scenario seems worst if we look at the refugee situation in other parts of the world, like the Balkan refugee problem in the former state of Yugoslavia, the Chechen refugees flowing from Russia or the situation in both the East and West Timor. Let us not forget that the above figures only comprise of the persons, who have been formally designated as ‘refugees’. A huge number, without such formal status, is leading an unbearable life in exile. Another key issue facing the world concerning refugees is that of Internally Displaced Persons (IDPs). IDPs constitute the single largest group of refugees in the world. However, IDPs do not meet the definition of refugees, according to the 1951 Convention, since they have not left their homeland. The UNHCR estimates that there are 25 million IDPs globally. As a result of ethnic conflicts, so-called security reasons or ‘development’ programmes, or man-made/natural disasters these hapless people are dispersed within their own country. The United Nations (UN) institutions have finally formally recognized the problem in the early 1990s. A bunch of ‘Guiding Principles on Internal Displacements’ have been duly formulated. However, these principles lack any formal legal status or any monitoring agency, till date.

II This uncertainty and marginality place refugees and the IDPs in a most vulnerable position. And here begins the role of the national and

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international humanitarian institutions and other NGOs. Particular attention must be given to international organizations like the UNHCR and the United Nations Human Rights Commission (UNHRC). The former, a descendent of the former International Refugee Organization (IRO), came to existence in December 1950. Originally created as a temporary organization, the charter of the UNHCR, however, has been repeatedly renewed for successive five-year terms as the refugee problem grew in every continent during the second half of the twentieth century. The UNHCR is responsible for protecting international refugees and assisting with the problems created by mass movements of people resulting from civil disturbance or military conflict. The high commissioner follows policy directives handed down by the UN General Assembly. It gets assistance from and works in cooperation with several UN organizations. On the other hand, the UNHRC is responsible to raise the recent UN-concern for the growing number and problems of the IDPs. It is mandatory, in this respect, to look at some basic international laws/agreements that define ‘refugees’; spell out refugee rights and guide the functioning of institutions. Among them, the 1951 Convention Relating to the Status of Refugees of the UNHCR is particularly important. The Convention outlines the way in which refugees are to be treated with respect to travel, family unity, welfare services, and asylum and resettlement issues. Equally important is the 1967 Protocol Relating to the Status of Refugees. These two instruments work as the basis of refugee status and thereby rights. Under the 1951 Convention and 1967 Protocol, a nation must grant asylum to refugees and cannot forcibly return refugees to their nations of origin. Activists and academics must also go through the Guiding Principles on Internal Displacement framed in the late 1990s. It is necessay for an overall understanding of the UN Universal Declaration of Human Rights of 1948, which upholds the right of a citizen of a country to live in that country or to enter it any time at his will. However, many nations routinely ignore these treaties. Despite an increased awareness of interdependence among peoples and nations, some States, guided by their own ideologies and particular interests, arbitrarily determine the criteria for the application of international obligations. On the other hand, in countries that had in the past offered a generous reception to refugees, there is now a disturbingly similar trend of political decisions aimed at reducing the number of entries and discouraging new requests for asylum. While moments of economic recession can make the imposition of certain limits on reception

PREFACE

xxi

understandable, respect for the fundamental right of asylum can never be denied when life is seriously threatened in one’s homeland. It is troubling to witness the reduction of resources earmarked for the solution of the refugee problem, as well as a weakening of political support for the structures purposely created for such humanitarian service.

III In this background, the first volume of Refugee Watch (RW) came out in January 1998. It was a thin bulletin-like journal, without glossy covers, published by South Asia Forum for Human Rights (SAFHR) and Mahanirban Calcutta Research Group (MCRG) under the editorship of Ranabir Samaddar. It promised to be ‘a quarterly newsletter on the flow of refugees, migrants and the internally displaced persons in South Asia’. As it grew with time, RW went beyond the boundaries of South Asia. Articles on other parts of Asia and even of Africa, Europe and the Americas also found space in it. Of course, that was not done at the cost of South Asia. Rather, rich articles of diverse dimensions, on South Asia, were regularly published. In a spell of one decade, RW has made its commendable place in the refugee-related journals of the world. Within this period, editors interchanged their places but the RW team as a whole worked together with conviction and camaraderie. So far, 26 volumes of the journal (including double issues) have been published. People around the world, who care for human/refugee rights in South Asia, must go through the pages of this journal. However, it is neither possible for interested readers to get through all the volumes at a time, nor are they available, even if one wishes to procure them. Only a few ‘office-copies’ are stored in the MCRG office. To bridge this gap between demand and supply, the editorial board has decided to bring out the present Selections. But the work of selection, from a huge mass of rich and important articles is equally difficult and not without controversy. Any Selections like the present one should primarily take three things into consideration: a) content; b) form and c) size. Our main motto has been to produce a ‘focused’ volume. Otherwise, a book with 350–400 pages will lead its reader nowhere. Therefore, we have chosen pieces mostly based on South Asian or largely Asian experiences (without neglecting the problems of Europe and the Americas). These issues also form the main bulk of RW. On this

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area, a large variety of articles are found on issues like the ‘external’ refugees and/or the IDPs and the role of development and violence/war/ethnic clashes for such internally and externally displaced people. Special emphasis has been given to refugee laws. Another major variety is of course the gender issue. There are ample (good) articles on it. Some theoretically oriented writings on the key terms/problems also must find place in our edition. Problems of representation of the refuges/displaced have been also adequately dealt with. The interview part gives the reader a chance to listen to the ‘voices’ (notwithstanding Spivak’s warnings) of the displaced/ marginalized. We have also included some touching letters written from a refugee camp of Gaza to Aditi, a section on ‘creative writings’ and the role of the media on the refugee issue. Above all, we have tried to arrange the selected articles in a chronological way (as far as possible) to give the reader a sense of historical development. Further, we have introduced articles separately section-wise. To make this Selections possible we worked as a team. But as an individual, I must express my gratitude to Dr Ranabir Samaddar, director and the guiding spirit of the MCRG and the RW. I am extremely grateful to my friend, Dr Samir Das, of Calcutta University and MCRG for his valuable advices and tolerance that he has shown towards the editor of this volume despite severe failings in meeting deadlines. My heartfelt thanks are for Dr Paula Banerjee (Calcutta University) and Dr Sabyasachi Basu Ray Chaudhury (Rabindra Bharati University), the Executive Committee members of MCRG. And finally, I take this opportunity to acknowledge my debts to all the members and the staff of the MCRG. Sincere thanks are also due to Anthem Press and especially to Sridevi Ranganathan for her hard work and enthusiastic support. Any lapse in this Selections is purely mine. Sibaji Pratim Basu July 2008

ETHICAL ISSUES

INTRODUCTION ‘Refugee’, the Concise Oxford English Dictionary tells us, is ‘a person who has been forced to leave their country in order to escape war, persecution, or natural disaster’. Thus, even this simple dictionary definition makes ‘refugee’ a person living on the edge of human existence and at the mercy and will of ‘others’ (i.e. the willing and, most of the time, unwilling, even hostile ‘host-states’). And, the definition becomes complex and varied if we move through various international instruments that defined ‘refugee’ since the days of the League of Nations and the definition provided by the United Nations High Commissioner for Refugees (UNHCR). Pooja Ahluwalia’s ‘Ethical Origins of Refugee Rights’ thoroughly deals with these definitions, especially with the later ones developed by the UNHCR and other organizations under the UN. Although the UNHCR definition is seen by critics as ‘too narrow’, as it does not include all the reasons that clearly inform us why someone might actually become a refugee, it is the world’s largest refugee rehabilitation organization that is striving to protect refugee rights since its inception in 1950. Ahluwalia meticulously follows the evolution of the discourse of definition provided by the UNHCR since the 1951 Convention and the subsequent development of another crucial category of Displaced Persons. This thorough and meticulous nature of the article makes it ‘a must’ for all who care for refugee rights. And the author correctly puts emphasis on ‘ethics’ at the beginning of the title because the basis of all rights, positive or natural, are essentially ‘ethical’ in nature. While speaking of ethics, especially in the realm of refugee status and shelter, one cannot avoid the questions of power – its structure and location, and also of fear, a sufficient amount of which (judged by the host-state authorities) acts as the foundation for granting the fleeing/ exiled person the status of a refugee and thereby providing certain minimum rights. In a very remarkable piece, ‘Power, Fear, Ethics’,

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Ranabir Samaddar draws our attention to the relationship between this bond and the administration of refugee justice, particularly in the liberal–humanitarian regime. Samaddar brilliantly exposes the politics of humanitarianism of the liberal democracies, which seem to be more closed than open to shelter seekers by imposing various legal constraints devoid of the age-old ethics of ‘care, kindness and hospitality’. Liberal democracies, he argues, under the mask of humanitarianism actually privilege patriarchy and thereby acknowledge possibilities of all the injustice/crime done under patriarchy, and then seek to partially redress the wronged. Moreover, the ideology of humanitarianism makes the liberal regime exclude the asylum seekers on political grounds. Samaddar, referring to the case of denial of the refugee status to the Naga insurgent leader, Thuingaleng Muivah by the UNHCR, hints at the link between Muivah’s appeal to the UNHCR on political grounds and the latter’s denial. (Perhaps, politics will pollute the noble [sic] ideal of humanitarianism!) The author cites the example of the medieval tradition of hospitality in Europe, which was arguably more generous than the modern system of refugee management. The modern system, according to him, in the name of coordination, actually streamlines refugee entry and ultimately controls and discourages it. This section also contains Samir Kumar Das’s ‘Victim’s Right to Communicate’, in which Das reveals the theoretical as well as practical dichotomy between the rights to information and communication. The former is the prerogative of the state/authority, which decides what and how much information (policy decisions, implementations, abuses, etc.) is to be disclosed for public consumption, while the latter refers to the victim’s right to question and confront the state/authority and thereby organize other victims politically, and protest over the state’s policy of internal displacement – which the state promotes: either in the name of national security or national development. Thus, the author argues that the right to information creates a kind of passive citizenship because the people/victims are merely recipients of information doled out by the government. But the right to communication is a right that has to be claimed by the victim/claimant by opposing the state. Therefore, it transforms a ‘victim into an active and creative subject who can communicate her claim to rights and thereby transcend her victimhood’. Das, very originally, also distinguishes between ‘rights’ in the universal sense and ‘right to communication’ defined in terms of particular/individual situation. The former stands for certain universal values and collective goals, while the latter

INTRODUCTION

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‘individuates the victim and isolates her from the collectivity’ at the ‘risk of being stigmatized as ‘anti-national’ and ‘unpatriotic’. Another important development that took place in recent times is the formulation of the Guiding Principles on Internal Displacement in the late 1990s. However, the issue of the plight of the Internally Displaced Persons (IDPs) (whose worldwide figure was estimated at 20–25 million in 1995), caught meaningful international attention only in the early 1990s. Robert Kogod Goldman at a public lecture in Kolkata (organized by the MCRG on 6 August 2005), titled ‘The Guiding Principles: Normative Status and its Effective Domestic Implementation’, described the process through which the issue gained UN institutional attention and the subsequent appointment of a representative of the Secretary General on the Human Rights of IDPs and later framing of the Guiding Principles – consisting of 30 odd principles. However, despite the very pressing nature of the issue in the postWorld War II scenario, at the beginning, it received a sort of left-handed appreciation from the UN. Apart from appointment of the representative, the principles, framed by International Law experts, are only ‘normative’ in nature: ‘they do not even constitute typical soft [international] law’, nor have they ‘any monitoring or enforcement mechanisms’. But, Goldman saw hope in the ways through which appreciations had been showered, later, by Secretary General Annan and the United Nations Human Rights Council (UNHRC). The UNHCR has also developed various programmes based on the principles. Alison Crosby’s touching article revives the memory of a 2001 photograph, (entitled The Indifference of the West) taken on a beach in Tarifa, Spain, in which lay a dead body beside two beachgoers, sitting under an umbrella. But even such a scene, which raised huge controversy and criticism, was not unique. ‘Since the implementation of the Schengen Agreement in 1993’, argues Crosby, ‘and the ensuing Spanish Ley de Extranjería (Law on Aliens), bodies have been washing up on the beaches of Tarifa’. The author exposes the ‘politics of indifference’ of present-day Europe and links it with the ‘politics of categorization’, which led to the adoption of policies of ‘containment’ (which define and hold people within particular definitional boundaries) and the ‘securitization’ agenda, especially, in the aftermath of 9/11. He finally holds: ‘Categorization fragments, segregates, and creates hierarchy. We need to step back and see the wider frameworks, interactions and interconnections that create the context for people who move’.

ETHICAL ORIGINS OF REFUGEE RIGHTS AND HUMANITARIAN LAW †

Pooja Ahluwalia

REFUGEES The term ‘refugee’ is a term of art, i. e. a term with a content, verifiable according to principles of general international law. In ordinary usage, it has a broader, looser meaning, signifying someone in flight, who seeks to escape conditions or personal circumstances found to be intolerable. The destination is not relevant; the flight is to freedom, to safety. Likewise, the reasons for flight may be many – flight from oppression, from a threat to life or liberty, flight from prosecution; flight from deprivation, from grinding poverty; flight from war or civil strife; flight from natural disasters – earthquakes, flood, drought and famine. Implicit in the ordinary meaning of the word ‘refugee’ lies an assumption that the person concerned is worthy of being, and ought to be, assisted, and, if necessary, protected from the causes and consequences of flight. The ‘fugitive’ from justice, the person fleeing criminal prosecution for breach of the law in its ordinary and non-political aspect, is therefore often exempted from this category of refugees. For the purposes of international law, states have further limited the concept of the refugee. For example, ‘economic refugees’ – the term is generally disfavoured – are not included. The solution to their problem, perhaps, lies more within the province of international aid and development, rather than in the institution of asylum, considered as protection of whatever duration on the territory of another state. †

Research analyst at RocSearch, Refugee Watch, 23 December 2004.

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Defining refugees may appear an unworthy exercise in legalism and semantics, obstructing a prompt response to the needs of people in distress. States have nevertheless insisted on fairly restrictive criteria for identifying those who benefit from refugee status and asylum or local protection. For the victims of natural calamities, the very fact of need may be a sufficient indicator, but for the victims of conditions or disasters with a human origin, additional factors are required. The purpose of any definition or description of the class of refugees is thus to facilitate and to justify, aid and protection; moreover, in practice, satisfying the relevant criteria ought to indicate entitlement to the pertinent rights or benefits. In determining the content in international law of the class of refugees, therefore, the traditional sources – treaties and the practice of states – must be examined. […]

REFUGEES DEFINED IN INTERNATIONAL INSTRUMENTS 1922–46 In treaties and arrangements concluded under the auspices of the League of Nations, a group or category approach was adopted. That someone was (a) outside their country of origin and (b) without the protection of the government of that state, were sufficient and necessary conditions. A Russian refugee, for example, was defined in 1926 to include ‘any person of Russian origin who does not enjoy or who no longer enjoys the protection of the Government of the Union of Socialist Soviet Republics and who has not acquired another nationality’. In this instance, presence outside the country of origin was not explicitly required, but was implicit in the objectives of the arrangements, namely, the issue of identity certificates for the purpose of travel and resettlement. A similar approach was employed in the 1936 arrangements for those fleeing Germany, which were later developed by Article 1 of the 1938 Convention, to cover: • Persons possessing or having possessed German nationality and not possessing any other nationality, who are proved not to enjoy, in law or fact, the protection of the German government. • Stateless persons not covered by previous conventions or agreements who have left German territory after being established therein and who are proved not to enjoy, in law or in fact, the protection of the German government.

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Article 1(2) of the 1938 Convention concerning Status of Refugees coming from Germany excluded from the definition persons who left Germany for reasons of purely personal convenience. At a meeting in Evian in the same year, participating states resolved to establish an Inter-governmental Committee on Refugees with its primary objective of ‘facilitating involuntary emigration from Germany (including Austria)’. Included within the scope of the Committee’s activities were those who had yet to emigrate on account of their political opinions, religious beliefs, or racial origin, as well as those who had already left for these reasons and had not established themselves elsewhere. A major review at the Bermuda Conference in April 1943 expanded the mandate to include ‘all persons, wherever they may be, who, as a result of events in Europe, have had to leave, or may have to leave, their country of residence because of the danger to their lives or liberties on account of their race, religion or political beliefs’. Commenting on definitions, Simpson observed already in 1938 that they each had certain inherent deficiencies. […] While the notion of the impossibility or intolerability of continued residence illustrates the problem of the refugee in broad strokes, after World War II more precise criteria emerged. This is evident first in the Constitution of the International Refugee Organization (IRO), then in the Statute of Refugees. […] The Constitution of the IRO continued the practice of earlier instruments, and specified certain categories to be assisted. ‘Refugees’ thus included victims of the Nazi, Fascist, or Quisling regimes which had opposed the United Nations (UN), certain persons of Jewish origin, or foreigners or stateless persons who had been victims of Nazi persecution, as well as persons considered as refugees before the outbreak of World War II for reasons of race, religion, nationality, or political opinion. The IRO was also competent to assist ‘displaced persons’, including those deported or expelled from their own countries, some of whom had been sent to undertake forced labour. In addition, the IRO Constitution included as refugees those unable or unwilling to avail themselves of the protection of the government of their country of nationality or former residence. […] In 1949, the UN began to look forward to a post-IRO period. Several states were opposed to the adoption of a broad approach, considering it essential to identify refugees who were in need of international protection. The US favoured a narrow definition of those who would fall within the competence of a new, temporary agency, a de-emphasis of resettlement, and concentration of ‘legal protection’ pending integration in countries of refuge, as opposed to assistance or similar

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activities; the main purpose was to prevent refugees from becoming a liability to the internal community. Other refugee categories, such as those created by population transfers, were mostly entitled to rights afforded by their countries of residence, and thus in no need of international protection. […]

REFUGEES FOR THE PURPOSES OF THE UN The Office of the United Nations High Commissioner for Refugees (UNHCR) succeeded the IRO as the principal UN agency concerned with refugees; the scope and extent of its competence are considered more fully below, taking account of the impact of developments within the UN, such as Article 14(1) of the Universal Declaration of Human Rights, (‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’) the relation of ‘asylum’ to persecution and the 1967 Declaration on Territorial Asylum. The bases for an international legal concept of the refugee are thus to be found in treaties, State and UN practice, and in the Statute of the UNHCR.

Statute of the UNHCR UNHCR was established by the General Assembly to provide ‘international protection’ and to seek ‘permanent solutions for the problem of refugees’. According to its Statute, the work of the Office shall be of an entirely non-political character – it is to be ‘humanitarian’ and ‘social’ and to relate, as a rule, to groups and categories of refugees. The Statute first brings within UNHCR’s competence refugees covered by various earlier treaties and arrangements. It next includes refugees resulting from events occurring before 1 January 1951, who were outside their country before the events occurring from 1 January 1951, who are outside their country of origin and unable or unwilling to avail themselves of its protection ‘owing to a well-founded fear of being persecuted’ or ‘for reasons other than personal convenience’. Finally, the Statute extends to: Any other person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had a well-founded fear of persecution on account of his race, religion, nationality or political

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opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence. This description is of universal application, containing neither temporal nor geographical limitations. The substantive or ideological criteria are nevertheless a significant restriction on the scope of refugees ‘strictly so-called’, who must establish a well-founded fear of persecution on one or more of the stated grounds. The definition remains a critical point of departure in determining who is entitled to the protection and assistance of the UN, for it is the lack of protection by their own government, which distinguishes refugees from ordinary aliens. […] Simultaneously, ‘protection activities’ may focus on specific issues peculiar to the refugee: for example, ensuring that no refugee is returned to a country in which he or she will be in danger, ensuring that asylum seekers have access to an informed procedure and that every refugee is recognized as such, that asylum is granted, that expulsion is prevented, that travel and identity documents are issued. […]

Development of the Statutory Definition and Extension of the Mandate The UNHCR Statute nevertheless contains an apparent contradiction. On the one hand, it affirms that the work of the Office shall relate, as a rule, to groups and categories of refugees. On the other hand, it proposes a definition of the refugee, which is essentially individualistic, seeming to require a case-by-case examination of subjective and objective elements. The frequency of large-scale refugee crises over the last 45 years, together with a variety of political and humanitarian considerations, has necessitated flexibility in the administration of UNHCR’s mandate. Consequently, there has been a significant broadening of what may be termed the concept of ‘refugees of concern to the international community’. A major role in these developments has been played by the UN General Assembly and the UN Economic and Social Council (ECOSOC), whose policy directions the High Commissioner is required to follow. More recently, a similar influence has been exercised by the Executive Committee of the High Commissioner’s Programme. Established in 1957, the Executive Committee’s terms of

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reference include advising the High Commissioner, on request, in the exercise of the statutory functions; and advising on the appropriateness of providing international assistance through UNHCR in order to solve such specific refugee problems as may arise. It was also in 1957 that the General Assembly first authorized the High Commissioner to assist refugees who did not fully come within the statutory definition, but whose situation was ‘such as to be of concern to the international community’. The case involved large numbers of mainland Chinese in Hong Kong whose status as ‘refugees’ was complicated by the existence of two Chinas, each of which might have been called upon to exercise protection. […] In 1959, in anticipation of World Refugee Year, the General Assembly called for special attention to be given ‘to the problems of refugees coming within the competence’ of UNHCR, while simultaneously authorizing the High Commissioner to use his good offices in the transmission of contributions for the assistance of refugees ‘who do not come within the competence of the United Nations’. On the same day, the General Assembly had no hesitation in recommending that the High Commissioner continue his efforts on behalf of refugees from Algeria in Morocco and Tunisia, pending their return to their homes. […] Indeed, there is little to distinguish the resolution in question from that adopted three years earlier on refugees from Hungary. After the reference to ‘good offices refugees’ in the General Assembly’s 1963 resolution on the report of UNHCR, the term does not recur again until its final appearance in 1973. The 1965 resolution referred generically to the protection of refugees and to solutions for the ‘various groups of refugees within (UNHCR) competence’. Thereafter, the language changed, became more composite and began to reflect the notion of refugees ‘of concern’ to UNHCR. General Assembly resolutions are rarely consistent in their language, and their rationale, too, is often hidden. […] At the same time, the situations in question shared certain factors in common: the people in need (a) had crossed an international frontier, (b) as a result of conflicts, or radical political, social, or economic changes in their countries of origin. The very size of refugee problems in Africa in the 1960s made individual assessment of refugee status impractical, as did the absence of appropriate machinery. Moreover, the pragmatic, rather than doctrinal approach to the new problems was almost certainly influenced by factors such as the desire to avoid the imputation carried by every determination that a well-founded fear of persecution exists; and the feeling, not always made manifest, that while ‘political conditions’ had

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compelled the flight of the entire group in question, it might not be possible to establish a well-founded fear on an individual case-by-case basis. […] From the mid 1970s, the General Assembly has spoken of and unanimously commended the High Commissioner’s activities on behalf of ‘refugees and displaced persons of concern’ to the Office. The reference to ‘displaced persons’ dates at least from 1972, when the ECOSOC acted both to promote the voluntary repatriation of refugees to Sudan, including measures of rehabilitation and assistance, and also to extend the benefit of such measures to ‘persons displaced within the country’. The ECOSOC lead was followed by the General Assembly in the first of the references to displaced persons, which were soon to acquire a regularity and substance of their own. In 1974 and 1975 the General Assembly reiterated its recognition and concern for refugees to UNHCR, and acknowledged an additional category of ‘special humanitarian tasks’ undertaken by the High Commissioner. […] In November 1976, the General Assembly formally endorsed the ECOSOC resolution and recognized the need to strengthen further the international protection of refugees. In 1975, in a short resolution, the General Assembly approved continued humanitarian assistance to ‘Indo-Chinese displaced persons’. Originally intended for UNHCR activities inside Laos and Vietnam, it has come to be seen as contributing an international dimension to the notion of displaced persons by its apparent recognition of the fact of external displacement. […] ‘Displaced persons’ had a special meaning in the Constitution of the IRO, but had otherwise been commonly employed to describe those displaced within their own country, for example, by the effects of civil strife or natural disasters. Whatever its current dimensions, the ‘displaced persons’ category was initially introduced to deal with two problematic but related areas of activity. First, it was addressed to the situation of countries divided in fact, if not in law; this included countries split by civil war, such as Sudan, or Vietnam and, to a lesser extent, Laos prior to 1975. In the case of Vietnam, the legal situation was complicated by the respective constitutions and laws of the divided parts, each of which purported to acknowledge the existence of only one legitimate, truly representative entity. Again, in the case of Vietnam, necessity required that UNHCR, as occasion demanded, deal with three different parties – the north Vietnamese, the south Vietnamese and the Provisional Revolutionary Government. The ‘displaced persons’ category, with its foundations in humanitarian necessity, was the natural successor to the ‘good offices’ approach; in its

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time, ‘good offices’ had accommodated the need for prima facie eligibility, while ‘displaced persons’ came in to describe UNHCR action on the ground – providing humanitarian assistance to those displaced within divided countries, by the effects of civil war or insurgency. In this practical context, protection was of secondary or incidental concern; there is indeed no necessary or inextricable link between protection and assistance, even if these notions have come to run together with the refugee and displaced persons categories in the General Assembly resolutions, which succeeded and consolidated these developments. The refugee crises in the period 1975–95 illustrate both the development in the refugee definition and the problems that arise in applying it consistently to large numbers of asylum seekers. Over one and a half million people left Cambodia, Laos and Vietnam, from April 1975. Already involved in the region, with the turn of events in the spring of 1975, UNHCR was called upon to assist many who had left their countries of origin. […] Official documentation of the period reveals a reluctance to apply the term ‘refugee’ to those assisted by UNHCR. Instead, the papers refer, for example, to ‘displaced persons from Indo-China outside their country of origin’, and to ‘persons leaving the Indo-China peninsula in small boats’. […] In 1976, [the Executive Committee, UNHCR] spoke of ‘asylum seekers’ who had left their country in small boats, and in 1977 referred expressly to the problems of refugees from Indo-China. In that year, the High Commissioner for Refugees also requested the Executive Committee to clarify the distinction between refugees and displaced persons. No formal advice was tendered, although there was considerable support for the view that refugees had crossed an international frontier, whereas displaced persons had not. Notwithstanding the focus on Internally Displaced Persons (IDPs) in the 1990s, which has been accompanied by the search for a jurisdictional base, a competent protecting and assisting agency, and an applicable body of rules and standards, by 1977 UNHCR responsibilities for refugees and displaced persons had clearly established their place in the language of the General Assembly. […] The field of UNHCR competence, and thus the field of its responsibilities, has broadened considerably since the Office was established. Briefly, the movement has been from the Statute through good offices and assistance, to protection and solutions. […] Apart from purely humanitarian considerations, this tendency shows awareness of the difficulty of determining in the case of a massive exodus that each and everyone has a well-founded fear of persecution in the sense of the

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UNHCR Statute. It also suggests that something more general, such as lack of protection, should serve as the criterion for identifying persons ‘of concern’ to the High Commissioner. […] The lack of protection may occur as a matter of law, for example, in the case of stateless persons; or as a matter of fact, where individuals or groups are unable or unwilling to avail themselves of the protection of the government of their country. This may be due to a well-founded fear of persecution for reasons of race, religion, nationality or political opinion; or to some man-made disaster, such as conflict or violence resulting from a variety of sources. For example, in establishing a Group of Governmental Experts on International Co-operation to Avert New Flows of Refugees in 1981, the General Assembly reaffirmed its strong condemnation of ‘policies and practices of oppressive and racist regimes, as well as aggression, colonialism, apartheid, alien domination, foreign intervention and occupation’, which it identified among the root causes of refugee movements. […] Lack of protection by the government of the country of origin is already an element in the statutory definition of refugee. Given the impracticability of individual determinations in the case of large-scale movements of asylum seekers, that element acquires great significance. ‘Protection’ here implies both ‘internal protection’, in the sense of effective guarantees in matters such as life, liberty and security of the person; and ‘external protection’, in the sense of diplomatic protection, including documentation of nationals abroad and recognition of the right of nationals to return. The ‘right to return’, in particular, is accepted as a normal incident of nationality. In the case of those leaving Vietnam, however, that right was initially subject to significant qualification. Although in 1975 the Provisional Revolutionary Government of South Vietnam requested UNHCR to promote voluntary repatriation, it stressed at the time that authorization to return fell within its sovereign rights and that each case would need to be examined separately. […] Although no objection was raised to UNHCR’s activities on behalf of persons leaving Indo-China, challenges to the Office’s competence have arisen with respect to other groups. In discussion of the High Commissioner’s report in the Third Committee in 1979, for example, the representative of Afghanistan referred to UNHCR’s ‘assistance to fugitive insurgents in Pakistan’. Recalling Article 1F of the 1951 Convention, he observed that assistance to those committing acts of aggression against Afghanistan contravened the UNHCR Statute, the 1951 Convention, and the UN Charter. At the Executive Committee in 1948 the observer for Afghanistan claimed that Afghans in Iran and Pakistan, if not insurgents,

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were nomads and migrant workers; this was roundly rejected by representatives of the receiving and other countries. […] Despite the protests of individual governments, the internal community at large has not hitherto demurred when UNHCR has exercised its protection and assistance functions in cases of large-scale movements of asylum seekers. This, together with other developments, permits the conclusion that the class of persons within the mandate of, or of concern to, UNHCR includes: (1) those who, having left their country, can, on a case-by-case basis, be determined to have a well-founded fear of persecution on certain specified grounds; and (2) those often large groups or categories or persons who, likewise having crossed an international frontier, can be determined or presumed to be without, or unable to avail themselves of the protection of the government of their state of origin. This is the broad meaning of the term ‘refugee’ for the purposes of the UN, and this is the class for which UNHCR will in principle seek the immediate protection of temporary refuge, treatment in accordance with minimum standards, and appropriate long-term solutions. […]

REFUGEES IN THE SENSE OF THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES The states which acceded to or ratified the 1951 Convention agreed that the term ‘refugee’ should apply, first to any person considered a refugee under earlier international arrangements; and, secondly, to any person who, broadly speaking, qualifies as a refugee under the UNHCR Statute. In discussions leading up to agreement on the definition in the ad hoc committee on refugees and stateless persons, the US remained concerned that ‘too vague a definition’ would entail unknowable (and excessive) responsibilities, and provoke disagreements between governments with respect to its interpretation and application. However, the definition should not be narrow or the field of application of the Convention excessively restricted. It proposed four categories of refugees outside their country ‘because of persecution or fear of persecution’, which were intended also to include those who had fled since the beginning of World War II or ‘who might be obliged to flee from their countries for similar reasons in the future’. The UK proposed an alternative, general definition. […] Its provisional draft identified a number of categories, such as the victims of the Nazi or Falangist regimes and by reference to previous international

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agreements, but also adopted the criterion of well-founded fear and lack of protection. The drafters thus used the IRO Constitution as a model for the formulation of certain categories of existing refugees. […] Originally, the definition, like the first part of that in the Statute, limited application of the Convention to the refugee who acquired such status ‘as a result of events occurring before 1 January 1951’. An optional geographical limitation also permitted states, on ratification, to limit their obligations to refugees resulting from events occuring in Europe prior to the critical date. Finally, the substantive or ideological basis for the essential ‘well-founded fear of persecution’ differs slightly from that in the UNHCR Statute, by including the criterion ‘membership of a particular social group’ in addition to race, religion, nationality, or political opinion. The differences between the two definitions are due to amendments accepted by the Conference of Plenipotentiaries, which adopted the final draft of the Convention. […] From the outset, it was recognized that, given its various limitations, the Convention definition would not cover every refugee. […] Convention refugees are thus identifiable by their possession of four elemental characteristics: (1) they are outside their country of origin; (2) they are unable or unwilling to avail themselves of the protection of that country, or to return there; (3) such inability or unwillingness is attributable to a well-founded fear of being persecuted; and (4) the persecution feared is based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

REGIONAL APPROACHES The 1951 Convention and the 1967 Protocol remain the principal international instruments benefiting refugees, and their definition has been expressly adopted in a variety of regional arrangements aimed at further improving the situation of recognized refugees. It forms the basis for Article I of the 1969 OAU Convention on Refugee Problems in Africa. […] Latin America has long been familiar with the practice of diplomatic asylum and with the concept of asilado. […] The beneficiaries are usually described as being sought ‘for political reasons’ or ‘for political offences’, although the 1954 Caracas Convention on Territorial Asylum expressly refers to persons coming from a state ‘in which they are persecuted for their beliefs, opinions, or political affiliations, or for acts which may be considered as political offences’.

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The refugee crisis in Central America during the 1980s led in due course to one of the most encompassing approaches to the refugee question. The 1984 Cartagena Declaration proposed a significant broadening, analogous to that of the OAU Convention. […] It is not a formally binding treaty, but represents endorsement by the states concerned of appropriate and applicable standards of protection and assistance. Moreover, it recommends that the definition of a refugee to be used in the region include, in addition to the elements of the 1951 Convention and the Protocol, persons who have fled their country, because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances seriously disturbing public order. This expanded definition, which clearly matches the developments within the UN, has also been proposed as the criterion generally applicable in situations of mass influx, although care is required in calculating the precise legal implications.

REFUGEES IN MUNICIPAL LAW: SOME EXAMPLES The municipal law practice of non-extradition of political offenders is one antecedent to current principles protecting refugees from return to a state in which they may face persecution. It remains doubtful whether the narrow principle of non-extradition reflects a rule of international law, despite its wide acceptance in municipal law, but apart from the extradition context, many states have nevertheless recognized that the refugee is someone worthy of protection and assistance. In some countries, the principle of asylum for refugees is expressly acknowledged in the constitution. In others, ratification of the 1951 Convention and the 1967 Protocol has direct effect in local law, while in still other cases, ratifying states may follow up their acceptance of international refugees.

POWER, FEAR, ETHICS Ranabir Samaddar

†

Below is the abridged text of an inaugural lecture given in a seminar on population movement and population displacement organized by the Northeast Regional Council of the Indian Council for Social Science Research, Shillong, 12– 13 July 2001. The reason why we should pay attention to the issues of power, fear and ethics in studies of ‘humanitarian politics’ – a name under which a significant chunk of the international politics of war and peace goes on is because without examination of these we cannot lodge human rights and humanitarianism at the heart of a politics of justice. I wish to inquire into the entire problematic in terms of a look into the management of refugee care. In the process, I also wish to continue my inquiry into the nature of constitutionalism and legalism of the existing kind that limits our capacity to resolve conflicts and generate an ethic of care, kindness, hospitality and responsibility. The new mix of forced and illegal population flows and the inadequate appreciation of the new phenomenon in refugee studies raises the problem of method from several angles. It is important to note the following in this context. First, studies of forced population movements have been hitherto pursued from economic and demographic angles. The link between state formation (particularly postcolonial) and population flow cannot be seen through rose-tinted glasses. Second, the notion of forced is so narrowly defined, that the structural violence permeating these societies escapes our attention, though violence and coercion are considered as benchmarks in determination of refugees. […] Third, †

Director of Calcutta Research Group, India, Refugee Watch, 14 June 2001.

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population flow under various conditions of coercion has been occurring through ages, epochs and centuries. Yet, conditions of modernity guide us to a state of oblivion, where there is only the present of the conflict to envelop our minds; and the history of enmeshing of peoples recedes into some hoary past in which contemporary scholars engaged in fixing problems and finding solutions have little interest. Fourth, the politics of humanitarian regime subsumes the ethic and sentiment of care, protection and hospitality that are supposed to be the core of humanitarianism guiding international work on refugees, and refugees studies in this respect is still a halfway house. […] Fifth, the closure in studies of forced population movements is largely due to a neglect of the subject in forced migration studies, the subject who moves, who makes the movement. […] I shall speak of the inadequacy of refugee studies briefly mentioned above, by addressing three issues in the connections - power, fear and ethics, to show why there is a need for refugee studies to become sensitive to the realities of power, fear and ethics, and in order to be so, needs to reinstate itself in history.

POWER One of the recent cases in South Asia’s political history of escape and refuge is the denial of refugee status to Thuingaleng Muivah, the leader of the Naga insurgent organization fighting for Naga independence, the National Socialist Council of Nagaland (NSCN (I-M)), by the United Nation High Commissioner for Refugees (UNHCR) in spite of his appeal to the latter for grant of refugee status. Muivah who had been the chief negotiator of the NSCN (I-M) in peace talks with the Indian government was on his way to The Hague via Bangkok, on 19 January 2000 to attend the eighth round of the ongoing peace talks when he was arrested at the Bangkok International Airport on the charge of travelling on a fake South Korean passport. […] Mr Muivah was jailed for nearly eight months before he was released on bail. After his arrest, Muivah had appealed to the UNHCR office in Bangkok for recognition as a refugee. The appeal was made on political grounds (as distinct from humanitarian, whose significance we shall in course see). The UNHCR rejected the appeal. This rejection poses three problems for a politics of justice and humanitarianism. First, we have here the problem posed by the connection between grant of refugee status to a person declared an outlaw by a state, the need for his

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immunity from the draconian law of that state and the viability of a peace process. Second, we face here the problem posed by the location of the power to define, determine and exclude from the status of the refugee. Third, we are required to take into account the problematic of the political ethic of care and reconciliation in determining the humanitarian nature of an international arrangement. Let me begin with the first, the immediate and the most obvious one. The appeal of the NSCN (I-M) that Muivah’s deportation from Thailand and his arrest in India would put unbearable strains on the ceasefire and peace process apart from placing him at great personal risk, and that therefore Muivah should be given asylum in a third country, has grounds. The UNHCR is the de-facto ‘gateway’ for third country asylum, being the only UN agency empowered to ‘recognize’ or ‘exclude’ persons from the definition of a refugee under the 1951 UN Convention Regarding Refugees. The decision of the UNHCR, apart from becoming a denial of Muivah’s right to effective remedy and right to public hearing, rights guaranteed by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, becomes a part of a policy of hostility instead of being a part of humanitarian settlement and reconciliation. This brings us to the second problem, that is, the ‘location of power’ to define, determine and exclude persons relating to refuge. […] The office of the UNHCR and the states have determined everything from the beginning, and the persons who needed refuge had no voice in it, though the principle of justice demanded that while under the 1951 Convention, responsibility for excluding lay with the states or in case of an application to the UNHCR with the UNHCR, there had to be substantially demonstrable grounds, in other words the responsibility was not to just exclude, but establish grounds of exclusion. In short, the claimant has to be given fair hearing. […] Article 1F(b) of the 1951 Convention also specifically mentions that crimes to be considered under the exclusion provision have to be ‘nonpolitical’. Yet, we must remember that the system grew in the wake of cold war and great power competition, and possesses no capacity to respond to the imperatives of justice and reconciliation. Therefore, the UNHCR, as it has happened in this case, remained deaf to the wider political winds blowing outside the glass-roofed house at Geneva. The significant point to note here is that Thuingaleng Muivah took a completely political ground in his appeal letter to the UNHCR against the latter’s rejection of his application for protection under the UNHCR mandate. He referred to the background of his flight from India, as there were ‘no democratic channels through which the Naga people

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(could) redress their grievances’. He referred in the Preamble to the Universal Declaration of Human Rights that recognized that ‘if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’ […] and denied that he or his organization had ever committed ‘excludable offences which may be characterized as war crimes and serious non-political crimes’. The question is, in such case, who defines justice? What constitutes just war? If the state’s deployment of a law that permits summary killing and its assurance of immunity to its armed officers for meting out summary death is just, for law considers it as correct and permissible, who will say that a war of independence is unjust and therefore a person is engaged in crimes and hence he is to be excluded from the benefit of refuge? […] This brings us to the third problematic posed by the ethic of care and reconciliation. If Muivah had, as the UNHCR admitted, ‘the characteristics of a refugee’, it clearly denotes an ambiguous situation. He is an escapee, he needs refuge, but he cannot be given refuge for he has conducted war against a state and has fought the state with his politics of independence. Clearly, the Convention of 1951 with its exclusion clause is inadequate to handle the dilemma. […] The inability to understand the new imperatives and implications reflects the crisis of the liberal principles that underlie the moral economy of refuge today – an economy characterized by the language of protection and ground reality of rejection. Yet, in order to understand this moral economy, we must think deeply how law, that hallmark of a modern regime, has made this combination possible, how it has made fear operate in unison with an arrangement of care. We must think also on the ethical issue of care and hospitality, how the ethical issue reflects on law, why therefore it invites reflections on the issue of method and rules in studies of humanitarian politics today. […] It has been increasingly pointed out how power structure in democracies makes groups of people its victim, one such group being the immigrants. This is a question of democratic deficit. […] Democratic deficit is also a humanitarian deficit. For, while the erection of a humanitarian system aims at covering the deficit in the international political management of conflicts, democratic inadequacy produces a deficit in the ‘humanitarian’ itself. Nowhere is it more apparent than in the way women feature as refugee–subjects in refugee management. The critique of citizenship as a status marked by universality and equality flows above all from the fact the structure of the liberal–humanitarian is characteristically patriarchal. This implies that the humanitarian system by itself dominates women, or is constituted by forms of rule in which

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men will systemically dominate women. The humanitarian law is almost a male agency. […] The gender-blind concept and application of humanitarian law can go to a harsh extent on the basis of what I call the procedural neutrality of law. Procedural neutrality in this case recognizes that there may be a specific nature of abuse suffered by a ‘social group’ (it is primarily this route by which a vast number of abuses are identified), but upholds general principles as the basis of adjudication of claims. Hence the humanitarian law may be procedurally neutral, as law under patriarchy is often so; but this procedural neutrality on which the humanitarian law is based bases itself on a prior construction of a liberal– humanitarian regime where male power is entrenched. Thus rape, violence, mass murder, eviction, girl-sale, illegal underpaid female labour, sex slavery, pity – all these flourish because the humanitarian only aims at protecting the population facing abuse, turning them into victims whose appeals (in law claims) have to be adjudicated, while the very gender structure of abuse continues. Case studies of population flows show how state formation in the de-colonized era, population movements, and gender-subjection have been closely connected; and how the humanitarian regime built around such states and gender differences develop a precarious relation with women. The nation building projects in South Asia have led to the creation of a homogenized identity of citizenship, denial of spaces of difference, and the segregation of minorities on the basis of caste, religion and gender from the collective. […] Paula Banerjee in a recent essay on women as dislocated subjects deals with institutional policies, responses and control with regard to abducted women in the Indian partition, displaced women from Sri Lanka in India and in Sri Lanka, statelessness of displaced women from Burma, and Afghan women refugees in Pakistan, and shows, how in all these cases the institutional structure of humanitarian regime has been built on denials of experiences of women as dislocated subjects and their political agency. She cites the example of Angela King's mission to Peshawar and Islamabad. When Afghan women requested the UN through Ms King that they would like to mobilize educated Afghan women in peacemaking, Ms King reportedly asked them to apply for UN jobs instead. After the meeting the women felt ‘confused, insulted, hurt, angry and substantially ignored’. But they noted bitterly ‘this is not an unusual situation – neither within our societies, nor within the UN agencies’. In this context there are three significant points for our consideration. First, taken individually the cases reflect on specific characteristics of women's de-politicization due to dislocation. But taken collectively they

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portray that the overwhelming presence of women among the refugee populations is not an accident of history. It is a way by which states have made women political non-subjects. Second, it should be recognized that even in their marginality refugee women are never merely victims, and they exert agency. Dislocation is a debilitating experience no doubt, but women have many times transformed it into an empowering one. Third, and this seems to me most significant in the context of our discussion of method, a system-centric narrative on the situation of refugee women leads to their trivialization as mere victims. It shifts attention from the argument that policies have been by themselves gender-specific to the extent that such humanitarian policy would consider death or a serious threat to liberty a reason for asylum but not rape or vulnerability to human trafficking. […] Banerjee argues that to escape from the despotism of a structurally discriminating regime, it is essential to retrieve women's experiences from such marginalities, recognize individual voices of refugee women in any narrative of displacement, for in her word, ‘only by retrieving refugee women's own voices and not dismissing their individual experiences as anecdotal can we centre the marginal’. […]

FEAR The 1951 Convention speaks of ‘well founded fear’ to be a ground for determination of status of refugee. Kafka in the Penal Colony said that the punished experienced pain and punishment on his own body without the formal knowledge of the sentence upon him. The victim asks for shelter, ‘the immigration office judge demands, “Justify your fear, and give reasons for it”. He answers: “My father has been killed by the police of my country” […] “Ah”, says the judge, “you must accept that fear is valid when it is based on facts […] Let us have a look at the facts. People are being killed in your part of the world, some Tamils in particular. But then people are always killed in your part of the world. On the basis of the true facts as I know them I can find no systematic persecution of Tamils or any group amongst you. There is no objective basis for your fear as you are under no real and substantial risk” […] I cannot admit you for a moment’. The role of the judge thus changes gradually from a recipient of request to an interrogator of grounds, who arrogates to himself the sovereign authority to interpret, assess and declare the past pain of the refugee and his fear of future torture, and makes his evaluation shareable with the shelter seeker. […] If fear is well-founded, it must match up to the

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language of law, justice and the judge; if not, the refugee is lying. If the refugee is inarticulate, he is not in fear. The outcome of this translation of fear into knowledge and then reason, is the extreme injustice to one who in fear had sought shelter and who irrespective of the outcome now symbolizes what Jean Francois Lyotard calls the ‘violent double bind’, an ‘ethical tort’ (the differend), the extreme form of injustice […]. The massive refugee flow, forced repatriation, the decline of liberal asylum practices, the creation of non-entree regime indicating the existence of a ‘fortress Europe’, and the security mentality overwhelming the refugee care arrangement have made the vision of 1951 inadequate for negotiating the population flow in the world of today. In any case the 1951 Convention was intended for Europe, and did not consider the millions fleeing homes in the wake of de-colonization, partition and the emergence of new states. No UN administration took exception to the walls of Europe being raised higher to stop the refugees. A report in the Human Rights Tribune describes in details the charade of the Dublin Convention, the Amsterdam Treaty and the new Charter of the Fundamental Rights of the European Union (EU) that do not take into account the rights of the non-European citizens – and this despite the passage of immigration and asylum matters to the first pillar under the Amsterdam Treaty. […] The same report then describes two incidents out of many such happenings. In 1998 Semira Adamu was being deported from Belgium to her native Nigeria. Although only 20 years old, 11 gendarmes and two airline company employees accompanied her and two gendarmes stayed with her on the plane. To stifle her protests, one of the men held her head down into a cushion for about 20 minutes while, as surveillance tapes later revealed, he and his colleague joked and laughed. Ms Adamu lost consciousness and was taken to hospital where doctors were unable to revive her. But, strangulation has not been enough to keep the tide away. Men and women have to be tied and chained. The same report then says: In 1999 Marcus Omofuma, 25, was being deported from Austria to his native Nigeria via Bulgaria. Police had bound his arms and legs on the way to the airport. As he continued to protest on the airplane, they covered his mouth with tape. When the officers removed the tape after landing in Sofia, they realized he was unconsciousness. By the time a doctor arrived Omofuma had died. The police was apparently unaware that Mr Omofuma suffered from chronic bronchitis. […] In face of the structural adjustment policies that produce what the historian of indentured labour Hugh Tinker called ‘new slavery’, and with an entire affluent continent being populated today by aliens leading

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a submerged existence – whom following Eric Wolf we may call, ‘people without history’, it is meaningless to refer to 1951 as the defining moment. The phenomenon of forced migrants, unwanted migrants and migrants of the submerged world within the country, across the country, makes the relevance of the year of genesis of institutionalized care and protection suspect. Also, as Judge Geoffrey Care of the International Association of Refugee Law Judges has demonstrated, the peculiar nature of the Convention leaves a tremendous burden on jurisprudence and gives enormous freedom to the state. Referring to one particular case, he has commented that increasingly the courts and tribunals have given interpretation of the states’ obligations under the Convention, which are not always in conformity with the views of the executive of the state itself. The manner in which the Convention is applied has also frequently been with the reality for the individual himself or herself very much in mind. In his words, ‘to put it another way, the courts have distanced themselves from the litigant parties, as courts do. […] I have in mind […] two decisions of the Court of Appeal (in UK). The courts were faced with refugees who, under the interpretation of the regulations, which the state would have followed, would put the refugees on the street. The courts interpreted the regulations to prevent this saying that “parliament could not have intended such an inhumane result”. Parliament did however, because the regulations were promptly amended’. […] The more fundamental question is, how much can decisions of determination of refugee status on individual basis but taken on broad collective political, economic and cultural considerations be able to set up an international ethic and framework of care, hospitality and kindness? Also, how would law in such cases settle on proofs? Judge Care has reminded us again while referring to another case of similar nature involving a Sri Lankan Tamil who had fled persecution allegedly at the hands of the Liberation Tigers of Tamil Eelam (LTTE) (R. SSHD ex parte Karunakaran 25 January 2000, unreported) that, the civil standard of proof, which treats anything, which probably happened, is part of a pragmatic legal fiction. […] Therefore, it is not merely the issue of narrowness of determination principle but a more fundamental structural issue is here at stake. The refugee flees in fear from the induced violence of the state, private armies, systemic discriminatory institutions, environment disaster and developmental catastrophe – but s/he flees from a state where s/he is a citizen, and lands in another state no matter where it is, and here is an international system that tries to frame rules of the game – escape and refuge, how you are to escape and how you are to get refuge.

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How can an ethic of care and kindness and a framework of responsibility grow from that? If at all it can, it will develop very incrementally. […] The geography and politics of fear is thus perched on power that influences in a substantive manner the ways in which discourses of fear are manufactured through institutionalized politics with the effect that fear reinforces the exercise of power. It is significant therefore to look into how fear is defined and utilized within hegemonic discourses, the ways in which fear is constructed around certain social identities, how it is reflected in experiences of public spaces, territories and environments, how fear surfaces in relation to racism, homophobia, sexism, ethno-sectarianism and contemporary patterns of political, legal and social exclusion. All these indicate the need to re-conceptualize the theme of refuge, one of the most important aspects of humanitarian politics in today’s world. […]

ETHICS After all, care, kindness and hospitality are issues of ethics that remain always beyond the assured horizon of law. Yet, the paradox is that while the humanitarian law has drawn its legitimacy from the task of protecting humanitarian virtues of care, kindness, hospitality and justice for the wronged and the victim, the institutional practices of protection build up on the legal compulsion of determining the need and the quantum to care, to be kind, and to be hospitable. In this institutional compulsion, as we have seen briefly, we have the reappearance of the problematic of genealogical procedure of applying ethics to law. It reflects fundamentally on the method of refugee studies. In order to understand the problematic we must distinguish between what are legal doctrines, systems and sentiments. Though in the world of refugee studies, sentiments come last, in the world of humanitarian ethics sentiments come first. Care, kindness and hospitality – the most acceptable route through which people desire minimal justice for the wronged, deprived and the victim, are first of all emotions. […] Such sentiment carries the message of a good life, sometimes a unitary concept of such good life. Thus, it may be that irrespective of the identity of the shelter seeker, by and large some people may be inclined to offer shelter. Again, such a sentiment does not carry a doctrine, but a notion of happiness and a moral satisfaction in being altruistic. The way the common people of West Bengal and Tripura offered shelter to the

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refugees of East Pakistan was an indication that such sentiment resides in one’s morality as exercised in judgment. […] Such sentiment, as we can see, carries a diffused sense, implicitly an acknowledgement of variety, it belongs to the genre of what we call ‘mood’. It indicates sensibility, hence sensitivity, a good sentiment. Such sentiments can be at times remarkably a political emotion, but mostly a moral emotion, sometimes without being noticed a mix of both. Thus, care for the refugees from Nazi Germany, from East Pakistan, from South Africa under apartheid, have been a mix of both; care for refugees from Bolshevik Russia or Communist Cuba a case of political emotion; care for the people fleeing from hunger a moral emotion. One need not look for three distinct categories; they are mixed in real world, but suffices that there are different types of emotions involving care, kindness and hospitality. […] But, sentiments, powerful as they may be, are not enough as governing tools. The same ethic that forms the emotions becomes the material for government, the political technology of administering, in this case, population flow. Therefore, we have the next set of issues around who deserves entry into the neighbourhood, who is eligible for kindness, and who will be kind and share the burden of hospitality. Diffused sentiments suffer deficit in order to become elements of a humanitarian system. We have here the classic problem of Dostoevsky; we love humanity, but hate human beings. The system that builds up on convention, protocol, office, role of special rapporteur, budget, grants, relief–rehabilitation–resettlement allocation, inspection, determination and repatriation, is one of love for humanity and often of hatred of human beings. David Kennedy, 15 years ago, like a sleuth had brought out the foundational history of the international system of political care, and the historically contingent nature of the idea of asylum as a solution contrasting the current notion with notions of asylum before 1,700. He showed how while hospitalities and protection accorded by princes and other authorities were quite prevalent, this was without a coherent doctrinal notion of asylum. […] ‘One found merchants fleeing debts, peasants seeking to escape feudal bonds, or replace collapsing allegiances, children of mixed-up parentage seeking license to trade, members of religious orders and their flocks seeking princely support or freedom to practice their faith, and traders seeking military assistance against pirates or in recovery of property at sea. […] Princes welcomed exiles, not because their status triggered a duty, but because it was just to do so unless there was some reason rendering it unjust to do so. Since the welcome granted was not triggered by the doctrinal structure of the exile, it was never doctrinally elaborated.’

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The international notion of refuge protection came hand in hand with the notion of status. In Kennedy’s words, ‘To be beyond legal status is to be nothing […] the need for a legal status simply did not arise in a world which neither placed the sovereign at its center nor distinguished law from politics and morality’. The regularized system of international protection came in the wake of the development of a unified notion of unilateral sovereign capacity (of states and an international authority) to grant asylum. The positivist development of law resulted in making care and protection dependent on a set of jurisdictional boundaries instead of a set of notions about justice. The further consequence has been in the form of a colossal loss of history and memory of a vast variety of experiences of care, protection and responsibility. […] Faith in an infinite legal process rather than attending to institutional actions has resulted in this loss, also a loss of that vision which sees the penumbra of human rights law developing into valid rights. Therefore, we are faced with this paradox, and how are we to explain this paradox, where law results in loss of ‘rights’, instead of their validation? To study that deficit, it is clear by now that analysing the process whereby a system supercedes or overwhelms emotions is not enough. […] The doctrine of international care and relief draws its strength from other sources as well besides the emotions we have referred to, such as notions of sovereignty, test, harmonization and law. Obviously, a vast amount of care and hospitality, as we mentioned just now, is borne by the public, privately, as studies of refugee care and protection show that in the profile of protection, non-state protection is more than the state protection, refugees and immigrants get shelter more from private (clan, other affinitive ties, extended families, and what Charles Tilly calls the transplanted networks) sources. Yet to bear a less share of burden, why does a system need a doctrine? Not only does knowledge produce power, its availability disciplines emotions and thick feelings, on which humanity thrives. Thus, studies of ethnicity, violence, law, humanitarian intervention, mass policing, safe zoning, asylum, repatriation, resettlement, exile status and strategies of conflict management, form the core of what we know as refugee studies. […] People displaced by agencies/other people are, prima facie, wronged. How shall we judge the moral obligation of others, in this case other states, towards the wronged, the actual and potential victims? We have here not only the relevance of the ethic of care, kindness and hospitality, but an added ethic, that of responsibility. Responsibility has two implications – responsibility of the state and of the international community.

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The word, responsibility, carries two senses also – responsibility of the host and that of the expelling state. Cosmopolitan ethic or the ethic based on morality of states – both admit that the task is one of respecting and promoting human virtues, and ensuring that these virtues suffer least damage in the process of its transformation from human virtues into a doctrine of humanitarianism and humanitarian politics. Ethically then the issues, they must confront, but unfortunately fail to do so, are – what is morally owed to the victims of displacement? How do we place and apportion responsibility for man-made disasters, say from a developmental process (a dam, a highway, a famine, a flood)? What is the politics of reparation in these cases? And, what will be the norm of responsibility in the more complex cases of indirect displacement and repeated displacements? What will be the method? How shall we settle for what is known as minimal justice? These are questions of ethics staring before those who have held that issues of care, kindness and hospitality are matters of system and a humanitarian doctrine. […] We can see the ethical dilemmas inherent in current global politics from one more angle. What can be the principles guiding our choice if we are to move from the angle of marginality and not to say that our choices are guided by considerations of marginal gain in improving the ‘humanitarian situation’? Should we have an equal-sharing perspective, that is to say, a perspective of egalitarianism in distribution of costs (and benefits)? There are considerations of horizontal equity, compensation, and finally maximization of steps for the conditions of the worst off. In considerations of minimal justice and in judging the effectiveness of an institutional system for care, kindness and hospitality, we cannot ignore these questions of ethics, for the notion of minimal justice hinges on precisely these questions. […] Sovereignty is a significant problematic in this, but only one. What can be the principle in the choice between national sovereignty and international intervention when we know that it is a closed game, and yet we are forced to opt for one of the two? What is preferable expulsion of one community from Kosovo by a majority centric state or mass bombing to stop that? If neither of the two is preferred, what can be proffered instead? Thus, beyond sovereignty, the more urgent issue that confronts us is the ethical issue of responsibility for which the language of international studies is not prepared. […] In a chapter titled ‘Shefali’ in The Marginal Nation, this was my inquiry, which to re-state is, how are we to frame a pedagogy of the victim, which prizes the values that I have mentioned, above procedures, institutions and laws? How to reinstate the refugee in refugee studies?

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HISTORY Consider the evolution of the rules of the game of protection. It is not enough to note that these rules begin by defining who a refugee is, that he is not a fugitive fleeing criminal persecution and breach of law, that he is not an economic migrant, not an escapee from developmental disaster or natural or man-made catastrophe, but is one fleeing from violence, persecution or threats of persecution to freedom and safety. The rules began not so much with humanitarian intent, but it began under the League in 1926 to shelter persons of Russian origin fleeing the Soviet Union. A similar approach was employed in 1936 for those fleeing Germany. It developed later into Article 1 of the 1938 Convention. But from the beginning the Convention while framing rules of shelter began framing rules of exclusion also. Thus Article 1(2) excluded from definition persons who left Germany for purely personal convenience. The European scenario continued to dominate the development of refugee law (Bermuda Conference of April 1943), the formation of the International Refugee Organization (IRO) and subsequently the UNHCR. Thus, the massive population flows in the period of post-war de-colonization passed unaddressed. Only in 1957 the General Assembly for the first time instructed the High Commissioner to assist refugees who did not come fully within statutory definition, but whose situation was of ‘concern to the international community’. That is how developed the idea of High Commissioner’s good offices. […] ‘Humanitarian considerations’ or ‘displaced persons’ were terms that started to be slowly used by the General Assembly, which wanted to address situations of civil war as in Sudan, Laos or Vietnam. The 1967 protocol improved the situation only marginally, for the expanded definition was still woefully inadequate in addressing either the political issue of negotiating the population flows from all kinds of duress or the ethical issue of erecting a framework of care, hospitality and acceptance of burden. In this double jeopardy, the imitational legal humanitarian framework could at best be a hopeful presence, at worst a system that was open for cynical use of great powers. In any case, just as states have never borne the brunt of caring and sheltering the evicted which has been always greatly carried out privately, i.e. publicly by communities, families, villages, towns and other solidarities, in this case also the international public authority could carry only a minimal burden. And, as common sense rules the political world most of the time, in this case also an amazing array of practices – regional, national, international, common, customary, judicial and constitutional – inhabit the world of the humanitarian. The scenario is one of a hierarchical order, where at the top major decisions, policies, laws,

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formulations and practices can be invoked at will by the international regime, which may not have a necessary organic justification for such invocation, to negotiate situations as warranted by the major powers. Below the top we have the second tier represented by regional decisions, formulations, policies, laws, and practices. Finally, countries faced with hosting most of the flow do as common sense demands. The maintenance of this hierarchy above all demands the ideological discipline of definition and arrangement. It should not therefore cause surprise, that in spite of the attempts to widen the definition, 1951 acts as the moment of beginning, and its vice-like grip over the field remains unshakable. […] In order to address the question and even to frame it properly, we must pay attention to other issues that lurk from behind, the ethical and the historical. First, refugees are today a phenomenon of mass flight; mass movement, and massive displacement, so that individual determination of the status of the shelter seeker that comes as a shadow of the principle of no forcible return overwhelms the principle. Second, the movement of the displaced is so mixed that, while states today do not claim anymore an absolute right to return a refugee to persecution and peril, there is a greater freedom of action made available to the states by this new phenomenon with the result that the terminology of refugee protection is obsolete with the rise of new words such as, displaced persons, illegal immigrants, economic migrants, aliens, stowaways, interdiction, safe third country, visa requirements, carrier sanctions and finally the internally guaranteed security zones. Third, hospitality is now subject to rules, procedures, regimes, systems and doctrines. We are now seeing the last act in an opera on the death of emotions.

VICTIM’S RIGHT TO COMMUNICATE Samir Kumar Das

†

Although in common parlance victims of forced displacement are often clubbed together as a single and monolithic category, there are significant variations in the nature and extent of victimhood suffered by them. Thus, the victims of development induced displacement constitute a category separate in many ways from those who have been displaced as a result of say, interethnic conflicts and violence. The first category of victims may have lost their homes or cultivable lands but may continue to subscribe to the same development paradigm and view displacement as one of its necessary costs that one should bear albeit with great pain, in the collective interest of the nation. The same person on the other hand, may look upon ethnic violence as simply macabre and senseless and hence detrimental to the nation and its development. It could as well be the other way round. One who finds ethnic violence as an inevitable and unavoidable means of asserting one’s identity is unlikely to discover any virtue in the development of the nation as a vibrant, multicultural entity. The graded nature of victimhood therefore should not escape our notice.

COMMUNICATING RIGHTS CLAIMS Accordingly, their rights can hardly be of one and the same type. One wonders whether it will ever be possible for us to evolve an agenda of rights common to all of them. Notwithstanding the differences that their respective agendas might reflect, the elementary principles on the basis of †

Professor at the University of Calcutta, Senior Researcher of Calcutta Research Group, India, Refugee Watch, 20 December 2003.

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which they make their claims to rights including the right to information and communication are unlikely to be substantially different from each other for it involves the fundamental task of transforming the victim into an active and creative subject who can communicate her claim to rights and thereby transcend her victimhood. […] The term ‘rights’ in our context may be used in two rather diametrically opposed senses – universal and communicative. In the first sense, all human beings by virtue of being human beings are entitled to some rights that are defined as the conditions of their survival as human beings. These rights are usually known as human rights. One’s right to life may be regarded as an example of such a right. […] They are too obvious and selfevident to be claimed. There are indeed problems associated with such a universalistic notion of rights. While all human beings qua human beings are entitled to human rights, there is certainly no guarantee that all of them will be successful in enjoying them. Entitlement certainly is not enjoyment. […] Moreover, what if the rights are violated on the ground that the aggressor does not consider the victims as human beings so much so that violation of their rights does not amount to human rights violations? One of the running themes of the hate literature that grew at the time of the Gujarat carnage (2002) is that the so-called victims, for whom the ‘pseudosecularists’ seem to be shedding tears, do not deserve to be called ‘human beings’ in the first place. The invectives hurled against them actually smack of ‘animal’ imageries. Violation of human rights especially during group violence is usually preceded by such de-humanization. Rights in the second sense, exist primarily as claims couched in reasons put across and expounded by those who claim them, that is to say, the claimants. The reasons they advance must be both intelligible and plausible to those from whom they are claimed. Unless they sound intelligible and plausible, the claimants cannot ‘hold them under some obligation or duty’ that is essential for their entitlement to and enjoyment of these rights. Rights in the second sense therefore presuppose a communication between the claimants and their adversaries – an individual, a group or any of their combinations and of course, the state. The liberal theory of rights looks upon the state necessarily as a potential violator of rights.

COMMUNICATION CONTRA NATION It is in the context of the communication between the two apparently opposing parties that the victim’s right to information and communi-

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cation acquires some importance. Although claimed in the same breadth, right to information will have to be distinguished from right to communication. For one thing, the victim’s right to information is taken to mean merely her right to be informed of her displacement reasonably well before the actual displacement takes place presumably by being served with a notice and most importantly, of her entitlements and compensations if there are any, in the event of any such displacement. She is the passive recipient of this information and it is now up to her to adjust herself to the whole process and accordingly make it less painful. Right to communication on the other hand is her right to act on the information. This for example, gives her the right to organize the victims, create a common political platform for them and protest against the policies that lead to displacement and so on and so forth. Right to communication confers some form of subjectivity on the victim. For another, right to information is claimed and enjoyed without interrogating in any manner the sacrosanct nature of the so-called ‘collective goal’ that displaces or threatens to displace her. It is always in the interest of ‘national security’ or ‘national development’ that one gets displaced. Displacement per se is neither unconstitutional nor illegal in India. […] Right to information in short is constitutive of the grand collectivity that we call, nation. Right to communication on the other hand cannot be claimed without opposing in some way or the other, the ‘collective goal’ that is invariably invoked while displacing the victims. It is a right that individuates the victim and isolates her from the collectivity. While claiming this right, she always runs the risk of being stigmatized as ‘anti-national’ and ‘unpatriotic’. Right to information viewed in this light is of limited value. First of all, it is critically dependent on the availability of information and unless the provider obliges, one can hardly enjoy this right. The victim has her reasons of being informed as much as the state as the potential provider has its reasons of denying it. […] Secondly, information we may have, but what do we do with that information? The Mazdoor Kisan Shakti Sangathan (MKSS) of Rajasthan for example, launched a movement in the early 1990s demanding the villagers’ right to access the files relating to public works of the government and obtain duly authenticated copies of the official papers. By 1994, the organization became only partially successful. The government decided to open the files for people’s inspection, but did not grant them the right to obtain photocopies, let alone, the attested and authenticated ones. It only means that the people may have the information about corruption at high places of government, but they cannot establish it in any court of

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law for they do not have the information that has any juridical status worth its name. Implicit in it, there is the subtle distinction between truth and the establishability of truth. […]

COMMUNICATION AND ITS LIMITS The imperative of making the rights claims intelligible and plausible to those who are responsible for the displacement of the victims imposes restrictions on the communication by the victims. It renders certain claims to rights simply incommunicable and screens them off from the public domain. Right to communication is not necessarily the communication of rights. Rights in simple terms, do not exhaust the entire field of communication and in our pursuit of this right, we must not lose sight of those other means of communication through which victims try to communicate their claims. I propose to elaborate this argument by way of referring to the narrative that one can reconstruct from an interview of Ms Arati Dasgupta facing the threat of being displaced from what she considers as her home as a result of the government’s decision of widening the Beliaghata Circular Canal (in north Kolkata) as part of urban planning. […] When asked how she had come to settle in the place from where she now faces the threat of being evicted, she replies: With God. I came here holding the hands of God. Don’t you believe? This is my motherland. I had nobody. On the other hand, I had everybody. My mother died after giving birth to me. I have never seen my father. The people on the banks of this canal raised me. One grandma raised me up during my childhood at her place. She too died when the ice factory had caught fire. Believe me, my dear sister, I grew old by crawling on this soil and bathing in this canal. You will see, no one will be able to evict me. I came here holding the hands of God. God will lift me. It does not matter whether my home is destroyed. How can they deprive me of this soil and sky? (Translation mine) A careful reading of the above narrative brings us face to face to face with at least three major reasons that run counter to those of the modern state. As a result, they will sound unintelligible and implausible to it: First, Dasgupta seeks to establish her right to home through what once was known as, the divine theory. It was through the accident of her birth and the quirk of circumstances beyond her control that she

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was born as a child without a home. While a child’s home is always the home of the parents, she was deprived of it. It was only due to God’s will that she could grow up and live without a parental home. In her case, home did not precede her existence; it was her existence that preceded her home. Doesn’t the fact of her living existence entitle her to a home? […] Secondly, she proposes to establish her claim by way of emphasizing the fact that she was raised in the same place, crawled on the soil and took bath in the same canal. It was an altogether different home of neighbours that she discovered here. Thirdly, she also feels that she has a right to the place on the ground that the bounties and endowments of nature (like, soil and sky) are for everyone to enjoy. Each of these reasons goes against the reasons of the modern state. One’s existence does not automatically entitle one to one’s home as much as the fact of one’s being raised at a particular place does not justify one’s claim to it. The state understands only the language of ownership titles established by the due process of law. Why do the Chakmas who lost their homes and cultivable lands in Chittagong Hill Tracts of Bangladesh in the mid 1960s when the Kaptai Dam on the River Karnaphuli was constructed, find it difficult now to merely prove that they were once the inhabitants of the same land? Precisely because they inhabited it for generations without ever bothering to get their titles registered. […] With the shrinkage of people’s access to common property resources, people thriving on them are facing an unprecedented threat to their livelihood. Today the reasons of the modern state threaten to gobble up many a reason of Dasguptas and the victims of their ilk. Don’t the reasons of the modern state render their reasons incommunicable through the dominant language of rights? Doesn’t communication as a strategy call for a certain disentangling of these two kinds of reasons? Communication of the victims’ reasons is possible only by transcending the rules and limits set forth by the public domain.

THE GUIDING PRINCIPLES: Normative Status and its Effective Domestic Implementation †

Robert Kogod Goldman

Text of a public lecture by Robert Kogod Goldman in Kolkata on 16 August 2005. I would like to thank the Mahanirban Calcutta Research Group (CRG) for inviting me to give a series of lectures touching on issues related to Forced Displacement, the Guiding Principles on Internal Displacement and International Law. […] As I worked very closely with Francis Deng and Walter Kalin in developing the normative framework applicable to Internally Displaced Persons (IDPs), I hope that these lectures will provide some useful insights into the origins, substantive content and normative character, as well as the impact to date, of the Guiding Principles on Internal Displacement.

ORIGIN OF THE UN MANDATE ON IDPs It was not until the early 1990s that international concern began to increasingly focus on the plight of IDPs, i.e., people forced from their homes as a result of armed conflict, communal violence, serious human rights and humanitarian law abuses and/or natural or man-made disasters and who remain uprooted and at risk within their own †

Professor, Washington College of Law, American University, U.S.A., Refugee Watch, 24–6 October 2005.

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countries. Unlike persons who flee across international borders and thereby may be entitled to the status and protective international legal regime applicable to refugees, IDPs remain within their country and, as such, are subject to the jurisdiction of their own government, whose very actions or policies may have caused their displacement and which all too frequently may be unwilling or unable to protect or assist them. Although IDPs are theoretically entitled to enjoy the same human rights as the rest of the country’s citizenry, experience amply indicates that they are rarely able to do so. Indeed, forced displacement frequently entails multiple human rights violations since it ‘breaks up the immediate family […] cuts off important social and community ties; terminates stable employment relationships; precludes or forecloses formal educational opportunities; deprives infants, expectant mothers, and the sick of access to food, adequate shelter, or vital health services; and makes the displaced population especially vulnerable to acts of 1 violence, such as attacks on camps, disappearances, or rape’. Whereas in 1982, it was estimated that some 1.2 million were forcibly displaced in 11 countries, by 1995 an estimated 20 and 25 million IDPs were located in some 40 countries, approximately double the number 2 of refugees worldwide. […] As Roberta Cohen of the Brookings Institution has noted, relief agencies and Non-governmental Organizations (NGOs) working in the field, recognizing the magnitude of this humanitarian crisis, sought to help IDPs, but ‘they found that they had no clear rules for doing so. Indeed, the UNHCR, United Nations Children’s (Emergency) Fund (UNICEF) and NGOs began to appeal for a document they could turn to that would define IDPs and their 3 entitlements’. […] Although the International Committee of the Red Cross (ICRC) has undertaken important activities on behalf of IDPs where it has been granted access, it was generally felt that the sheer magnitude of internal displacement worldwide not only exceeded its capacity to act, but also required a more comprehensive and particularized response by the international community. Within the UN system, many saw unchecked, large-scale internal displacement as the precursor of large-scale refugee flows in volatile regions, which, in turn, could provoke serious political and security problems. In a similar vein, Secretary General Kofi Annan admonished that if not addressed, such displacement could ‘spill across borders and upset external and regional stability’. […] NGOs, while sensitive to issues of national sovereignty, became increasingly vocal in insisting ‘when governments deny access to populations at risk and deliberately subject them to starvation and other abuses, the international

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community must find ways to provide the needed assistance’. As global awareness of the plight of the internally displaced gradually increased, ‘international discussions increasingly focused on “a right to humanitarian assistance” ’ and, as Roberta Cohen, notes ‘UN agencies and NGOs became far more active in hard diplomatic bargaining to persuade both governments and rebel forces to allow food and supplies to reach displaced persons at risk. In the case of Iraq in 1991, the international community not only demanded access to hundreds of thousands of displaced Kurds but set up a security umbrella to protect 4 them […]’. Responding to these pressures, in 1992 the UN Human Rights Council (UNHRC) passed a resolution calling on the Secretary General to name a representative on IDPs to monitor situations of internal displacement 5 worldwide and to devise ways to better protect and assist them. In particular, the resolution called on the representative to examine the applicability of international human rights and humanitarian law, as well as principles of refugee law, to the protection of IDPs. Shortly thereafter, the Secretary General appointed Francis M Deng, a distinguished former 6 Sudanese diplomat and legal scholar, to that position. Dr Deng was situated at the Brookings Institution in Washington and from that location moved rapidly in assembling a team of legal scholars from Europe and the US to assist him in preparing the study requested by the UNHRC. I should note, parenthetically, that I had the good fortune to chair the legal team established under the joint auspices of the American Society of International Law and the International Human Rights Law Group (now Global Rights) to assist Dr Deng in the preparation of that study. […] Importantly, legal experts from the ICRC and UNHCR also participated in these meetings. The studies prepared by these teams were eventually merged into a single document titled Compilation and Analysis of Legal Norms applicable to the internally displaced that Dr Deng presented to the UNHRC in 1996, which was 7 followed by a supplement in 1998.

METHODOLOGY AND KEY CONCLUSIONS OF THE COMPILATION AND ANALYSIS OF LEGAL NORMS The Compilation and Analysis of Legal Norms adopted a ‘needs-based’, rather than a ‘rights-based’ approach. This required first identifying the basic needs of IDPs and then determining the extent to which international human rights law, international humanitarian law and refugee

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law, by analogy, meet those needs in three recognized situations in international law. These situations, which cover most cases of internal displacement, are: (l) situations of tension and disturbances, or disasters in which human rights law is applicable; (2) situations of noninternational armed conflict governed by the central principles of humanitarian law and by many human rights guarantees; and (3) situations of inter-state armed conflict in which the detailed provisions of humanitarian law become primarily operative and many fundamental human rights norms remain applicable. The study concluded that while existing international law covers, albeit in a dispersed and diffuse manner, many aspects of particular relevance to IDPs, there are many areas in which the law provides insufficient legal protection owing to inexplicit articulation or normative and other kinds of gaps. Specifically, the study identified 17 areas of insufficient protection and eight clear gaps in the law. […] Regarding gaps in the law, the study found numerous instances where the law is silent. For example, no international instrument contains an express right not to be arbitrarily displaced. Other such gaps are the absence of a right to restitution of property lost (or compensation for its loss) as a consequence of displacement during armed conflict situations, a right to have access to protection and assistance during displacement and a right to personal documentation. In such cases, the study indicated that such rights would have to be inferred from other provisions of law. Further gaps occur where a legal norm is not applicable in all circumstances. For example, because human rights law is generally binding only on state agents, the internally displaced lack sufficient protection in situations of internal tensions and disturbances where violations are perpetrated by non-state actors. Another instance of insufficient protection occurs in situations falling below the threshold of application of humanitarian law, in which restriction or even derogation of human rights guarantees might be permissible. Finally, there are ‘ratification’ gaps, which are still numerous. Such gaps can result in a vacuum as regards legal protection for the internally displaced in those states that have not ratified key human rights treaties and/or the Additional Protocols to the 1949 Geneva Conventions. Without stipulating the nature of a future international instrument applicable to the internally displaced, the Compilation and Analysis of Legal Norms did suggest the need to both restate general principles of protection in more specific detail and address the grey areas and gaps identified in the study. In this regard, Dr Deng and his legal team felt that restating and clarifying legal norms in a single coherent document

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could reinforce and strengthen existing protection. Early on, it was deemed wise not to go the treaty route, but instead to elaborate a comprehensive set of guiding principles. There were three principal reasons for this decision. First, there was little support by states for a new binding instrument, largely because of sensitivity over issues of national sovereignty. Second, treaty making is notoriously slow, and there was an immediate and pressing need to comprehensively address the plight of displaced persons. Third, the Compilation and Analysis confirmed that, despite identified gaps and grey areas, a good deal of international law applicable to IDPs already existed. […] Armed with a mandate from the UNHRC and the General Assembly to develop an ‘appropriate’ framework based on the Compilation and Analysis, Francis Deng and his legal team began drafting the Guiding Principles on Internal Displacement over a two-year period. […] The Guiding Principles, which were finalized at an expert consultation in Vienna in January 1998, were submitted by the Representative of the Secretary General to the UNHRC several months later.

THE GUIDING PRINCIPLES ON INTERNAL DISPLACEMENT The Guiding Principles on Internal Displacement consist of 30 principles, which are comprehensive in scope and apply to all phases of displacement. As the Introduction to the Guiding Principles indicates, they ‘address the specific needs of internally displaced persons worldwide’. […] A key precept underlying the Guiding Principles is the concept of national sovereignty as a form of responsibility, which Francis Deng espoused and raised in his dialogues with governments. This concept essentially ‘[…] stipulates that states, as a measure of their sovereignty, have the fundamental responsibility to provide life-supporting protection and assistance for their citizens. If they are unable to do so, they are expected to request and accept outside offers of aid. However, if they refuse or deliberately obstruct access and put large numbers at risk, the international community has a right and even a responsibility to assert its concern. Deng repeatedly has pointed out that no state claiming legitimacy can quarrel with its commitment to protect all of its citizens. Sovereignty must mean accountability to one’s population and also to the international community in the form of compliance with international 8 human rights and humanitarian agreement’. In this connection, Roberta

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Cohen indicates that ‘it is worth noting that no government has ever explicitly challenged the concept of sovereignty as responsibility, no doubt because any government that did so would have to argue that sovereignty would allow a state to deny life-sustaining support to its citizens’. Accordingly, the Guiding Principles provide that national authorities, consistent with their duty to respect international human rights and humanitarian law, are obliged to ‘prevent and avoid conditions that might lead to displacement’ (Principle 5) and where it occurs, ‘have the primary duty and responsibility to provide protection and humanitarian assistance to internally displaced persons within their jurisdiction’ (Principle 3) and to establish the conditions for ending displacement through voluntary return or resettlement’ (Principle 28). The Principles describe, but do not define, who is an IDP. For the purposes of these principles, IDPs are: Persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or manmade disasters, and who have not crossed an internationally recognized 9 State border. As Professor Walter Kalin, the current Representative of the Secretary General on the Human Rights of Internally Displaced Persons, writes ‘this description of an internally displaced person highlights two elements: (1) the coercive or otherwise involuntary character of movement, and (2) the fact that such movement takes place 10 within national borders’. Therefore, the Guiding Principles do not apply to migrants who voluntarily leave their homes for economic, social or cultural reasons. They do, however, apply to persons uprooted by natural or man-made disasters and development projects. […] As stated in the document itself, the Guiding Principles reflect and are consistent with international human rights and international humanitarian laws. Indeed, many of the principles, particularly those relating to protection during displacement in Section III (Principles 10–23), are essentially declaratory of customary law. The principles in this Section first restate applicable human rights law and then specify their relevance for IDPs by specifically spelling out what these guarantees mean in the context of displacement. Many of these principles blend basic international humanitarian law rules and principles with key human rights guarantees, thereby underscoring the shared purpose of both bodies of law, i.e., to safeguard human life and dignity. Others have either been modelled on or are near verbatim transcriptions of provisions in humanitarian law treaties and thus

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apply to situations of conflict induced displacement. […] However, other basic guarantees, such as Principle 12(3) on protection of IDPs from discriminatory arrest and detention resulting from their displacement, Principle 18 on the right to an adequate standard of living, Principle 21 on the protection of property, and Principle 23 on the right to education, also apply to those persons who may have been displaced by situations not entailing armed conflict, such as development projects or disasters. Section IV of the Guiding Principles deals with the important issue of humanitarian assistance. As previously noted, Principle 25 reaffirms the primary duty and responsibility of national authorities to provide humanitarian assistance to their displaced citizens. This principle also provides that international humanitarian organizations and other appropriate actors have the right to offer their services in support of the internally displaced and that such an offer shall not be regarded as an unfriendly act or as interference in a state’s internal affairs. […] However, in accordance with the concept of sovereignty as responsibility and provisions in humanitarian law instruments, such consent cannot be withheld for arbitrary reasons, especially if the government concerned is unable or unwilling to provide the required assistance. […] The last section of the principles deals with the post-displacement phase, addressing return, resettlement and reintegration. These principles were largely inspired by and reflect certain basic tenets of refugee law. However, it should be recalled that since IDPs, unlike refugees, remain in national territory, they should retain and be entitled to exercise the full rights of citizenship. Although refugee law provided useful guidance to the drafters of these particular principles, that body of law is not directly applicable to IDPs who ‘should not be treated like refugees whose treatment is very often assimilated to the lower 11 standards applicable to aliens legally present in the country of refuge’ and who need the substitute international protection afforded by refugee conventions. […] It is important to note that the Guiding Principles do not alter, replace or modify existing international law or rights granted to individuals under domestic law. Rather, they are designed in large measure to provide guidance on how the law should be interpreted and applied during all phases of displacement. By calling on ‘all authorities and international actors’ to respect their obligations under international law, including human rights and humanitarian law, the principles also seek to prevent and avoid conditions that might lead to displacement in the future.

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THE LEGAL CHARACTER OF THE GUIDING PRINCIPLES The Guiding Principles, as elaborated, are not a legally binding document. As the Representative of the Secretary General on the Human Rights of Internally Displaced Persons has pointed out, unlike, treaties, declarations, resolutions or recommendations, ‘they have not been negotiated by States but prepared by a team of experts in close consultation with the concerned agencies and organizations and then submitted to the Human Rights Commission. Thus, they do not even constitute typical soft law, i.e., they do not belong to those recommendations that rest on the consensus of states and thereby assume some authority that may be even taken into account in legal proceedings, but whose breach does not constitute a violation of international law in the 12 strict sense, and thus does not entail State responsibility […]’. As previously stated, many of the principles, especially those relating to the displacement phase, were deduced from more general human rights norms or principles that are already part of customary international law. This is amply documented in the Compilation and Analysis, as well the 13 Annotations to the Guiding Principles prepared by Professor Kalin […] to the extent that UN bodies, regional inter-governmental organizations and states, through domestic laws and judicial decisions, invoke and reiterate the applicability of the Guiding Principles in situations of internal displacement, the normative character of these principles will undergo change and over time many, if not all, of them may crystallize into and become part of customary international law. And, I would submit, that this process is well under way. For example, although the UNHRC and the General Assembly initially only ‘took note’ of the Guiding Principles and the Representative’s stated intention to use them in his work, subsequent resolutions contained much stronger language, suggesting an endorsement of the document. […] For his part, Secretary General Annan strongly supported the Guiding Principles, calling them a ‘notable achievement’ in the humanitarian area and in a report to the Security Council in 1999 requested that body to call on states to observe the principles in situations of mass displacement and recommended that the General Assembly and UN Economic and Social Council (ECOSOC) encourage states to develop national policies and laws ‘consistent with’ the 14 Guiding Principles. In March 2005, the Secretary General in his report in UN reform, ‘In Larger Freedom’, urged states to accept the Guiding Principles as ‘the basic international norm of protection’. Based on this report, the Chairman of the UN General Assembly has circulated a draft Declaration for adoption by the Heads of State and governments in

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September of this year, which contains language that recognizes the Guiding Principles as ‘the minimum international standard for the protection of internally displaced persons’. […] Comparable support for the principles can be found at the regional level. For example, in Europe, the Parliamentary Assembly of the Council of Europe has urged member states to incorporate the Guiding Principles into their domestic law and the Organization for Cooperation and Security in Europe has recognized the Principles as a ‘useful tool’ in fashioning national policies on internal displacement. The African Union (formerly the Organization of African Unity) has formally acknowledged the principles, and the Economic Community of West African States called on its members to disseminate and apply them. In addition, the Intergovernmental Authority on Development in the Horn of Africa called the principles in a ministerial declaration a ‘useful tool’ in the development of national policies on internal displacement. Within the Organization of American States, the Inter-American Commission on Human Rights, the principal organ in the Americas for promoting and protecting human rights, endorsed the Guiding Principles in 1998 and was the first regional human rights body to create that same year a Special Rapporteur on IDPs – a position I have held. The Commission has used the principles as a benchmark in monitoring states’ responses to internal displacement in both Colombia and Peru. […] On the national level, the Guiding Principles have begun to have a practical impact. A small but increasing number of governments have begun to develop policies based on the principles and have also incorporated their 15 provisions into national law. For example, the Colombian government has an inter-ministerial body, which looks to the principles in its work on behalf of IDPs. Furthermore, Colombia’s Constitutional Court has issued two judgments citing the Guiding Principles in support of IDPs’ claims that they were not being provided with timely and sufficient assistance. In 2004, Peru’s congress passed legislation based on the Guiding Principles that provides benefits for the displaced. The Government of Angola has incorporated the principles in a law pertaining to the resettlement of persons displaced by the civil war. Also, in Afghanistan, the principles are informing the provisions of a decree relating to the safe return of IDPs. The Government of Georgia has announced at the UN that it would bring its internal law into line with the principles. In addition, various states, e.g., Burundi, Colombia, the Philippines, Sri Lanka and Uganda, 16 have developed national policies based on the principles. […] The response of humanitarian agencies and NGOs working in the field to the principles has been particularly noteworthy. For example, the Inter-

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Agency Standing Committee, composed of all the heads of the key international humanitarian and development organizations, welcomed the principles and has had their staffs apply them in their work with IDPs. […] Moreover, UNHCR developed various programmes based on the principles for displaced persons in Sri Lanka and other countries. Global and local NGOs, working with lawyers, academics, women’s associations and others, have played an important role in promoting and seeking meaningful implementation of the principles. They have disseminated the principles, translated them into local languages, organized training sessions, and developed Power Point presentations, comic strips, and 17 handbooks to make them relevant to local conditions’. To date, the Guiding Principles have been translated into 35 languages, including Assamese, and are being translated at present into Gujarati, Bodo, Karbi and Meitei. […] The foregoing review indicates that there is ample evidence suggesting that international and regional organizations and an increasing number of states throughout the world have gradually come to accept the authoritative character of the Guiding Principles. […] [These] Principles, from a normative standpoint, have succeeded in filling a major gap in the international protection system for persons involuntarily uprooted from their homes.

THE NEED FOR EFFECTIVE DOMESTIC IMPLEMENTATION OF THE GUIDING PRINCIPLES The Guiding Principles do not have any monitoring or enforcement mechanisms, which can be invoked by IDPs in need of protection and assistance. Moreover, acceptance of the principles by states does not necessarily guarantee their effective implementation. In this regard, Professor Kalin notes that many governments faced with internal displacement, even when disposed to act, ‘lack the necessary capabilities 18 and tools including laws, policies and institutions to do so’. […] For this reason, he announced his intention ‘to assist governments by developing, in broad consultation with relevant actors, a manual which would provide law and policy makers with detailed guidance as to the content, institutional arrangements and procedures necessary to make the 19 Principles operational at the domestic level’. This approach is consistent with the Secretary General’s exhortation to member states that they commit themselves to incorporate the Guiding Principles into their domestic law.

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It is my understanding that the Government of India, while expressing scepticism at the UN about the legal standing of the Guiding Principles, has begun to acknowledge their value as a practical tool for dealing with internally displaced populations. However, rather than continuing to adopt essentially ad hoc responses to internal displacement whose effects might discriminate between different groups of IDPs in different parts of the country, the Indian government might want to contemplate the advantages of enacting a comprehensive national law dealing with the internally displaced patterned on the Guiding Principles. […]

NOTES 1. W Kalin and R Goldman, ‘Legal Framework’ in R Cohen and F Deng, Masses in Flight: The Global Crisis of Internal Displacement, Brookings Institution Press, Washington DC, 1998, pp.74, 92 (hereafter Masses in Flight). 2. Ibid., pp.3, 32. 3. R Cohen, ‘The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting’, Global Governance, Vol. 10, 2004, p.461. 4. R Cohen, ‘Some Reflections on National and International Responsibility in Situations of Internal Disturbances’ in O Mishra, ed, Forced Migration in South Asia: Displacement, Human Rights and Conflict Resolution, Jadavpur University, Kolkata and Manav Prakashan, New Delhi, 2004. 5. UN Commission on Human Rights Res. 1992/73, 5 March 1992. 6. Ibid. 7. UN, Compilation and Analysis of Legal Norms, Report of the Representative of the Secretary General on Internally Displaced Persons, UN Doc. E/CN.4/1996/52/ Add. 2; Part II, Legal Aspects Relating to Protection against Arbitrary Displacement, was completed in 1998 and appears in UN Doc. E/CN.4/1998/53/Add.1, 1998. 8. R Cohen, UN Commission on Human Rights Res. 1992/73, 5 March 1992, p.2. 9. Introduction, para. 2 10. W Kalin, ‘Origin, Content and Legal Character of the Guiding Principles on Internal Displacement’ in R Cohen and W Kalin, eds, The Guiding Principles on Internal Displacement and the Law of the South Caucasus, Georgia, Armenia, Azerbaijan, American Society of International Law, 2003, pp.xv, xxv. 11. W Kalin, Ibid., p.xviii. 12. W Kalin, ‘The Guiding Principles as International Minimum Standard and Protection Tool’, Refugee Survey Quarterly, 2005. 13. W Kalin, Guiding Principles on Internal Displacement: Annotations, American Society of International Law, Washington DC, 2002. 14. UN, Report of the Secretary General to the Security Council, Protection of Civilians in Armed Conflict, UN Doc. S/1999/957, recommendation 7; UN, Report of the Secretary General to the Economic and Social Council, Strengthening the Coordination of Emergency Humanitarian Assistance, UN Doc. E/2003/85, 2003. 15. See R Cohen, supra note 3, p.470.

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16. Ibid. 17. Ibid., p.471. 18. W Kalin, Guiding Principles on Internal Displacement: Annotations, American Society of International Law, Washington DC, 2002, p.5. 19. Ibid., p.10.

THE BOUNDARIES OF BELONGING: Reflections on Migration Policies in the Twenty-First Century †

Alison Crosby

This chapter examines the politics of categorization that defines people who move, as well as the migration containment policies that set and maintain the boundaries of these categories. The paper explains why ‘the problem’ is not migration per se, but rather the way the powerful seek to control and contain the movement of people. […] Indeed, it is one of the most pressing justice issues of our time, and requires the consolidated and coordinated attention of all of us concerned with issues of human rights and social justice. It cannot be ignored.

THE POLITICS OF INDIFFERENCE In July 2001, a photograph by Javier Bauluz caused controversy in 1 Spain, and around the world. It was even published in the New York Times. The photograph, entitled The Indifference of the West, was of two beachgoers in Tarifa, Spain, sitting under an umbrella, while to their right there lay a dead body. The photograph generated much debate about camera angles, and whether the beachgoers actually were indifferent. […] Who was this dead person? The answers to these questions lie in geography, in economy, in sociology, in the politics of movement and the boundaries of belonging, in migration and citizenship policies. And the answers, as well as the questions †

Researcher, Inter Pares, Canada, Refugee Watch, 29 June 2007.

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themselves, implicate us all. Tarifa sits on the edge of Europe, across the Strait of Gibraltar to Morocco and the African continent. Since the 2 implementation of the Schengen Agreement in 1993 and the ensuing Spanish Ley de Extranjería (Law on Aliens) was passed in 2000, which denied the great majority of people from sub-Saharan Africa and Morocco entry visas to Europe, bodies have been washing up on the beaches of Tarifa. The local human rights ombudsman’s office in Andalucía estimated that over the past 14 years 2,000 people have died in the Strait of Gibraltar trying to reach Spain in precarious dinghies. The photograph may have generated controversy about camera angles, but it didn’t stop the bodies. In 2003, a local human rights activist in Tarifa, Nieves García Benito, published an anguished cri du coeur about the deadly situation in the Strait of Gibraltar, and the bodies that continued to wash up on the beaches of Tarifa in front of her 3 home. […] García Benito described the Strait of Gibraltar as a ‘space of indifference’, providing a ‘separation between the living and the dead’. And, she might have added, between citizens and non-citizens. She also identified the reasons for this indifference, the motivation of the powerful for keeping the Strait just as it is: the energy companies laying gas pipelines beneath the waters to fuel the workings of multinational corporations; the oil companies transporting crude oil from its place of origin to the refineries in Europe; the entrepreneurs who benefit from cheap labour supplied by those lucky ones who survive the journey. […] The response to the plight of these vulnerable people on the move has been silence, from the powerful economic elites, from the Spanish and European governments, and from the citizenry. This distressing situation is not unique. In fact, it is all too commonplace, finding echoes in many corners of the world. Every now and again, the British newspapers publish accounts of the deaths of ‘illegal migrants’ in truck and shipping containers – suffocated, as in desperation, they tried to reach the shores of the United Kingdom by any means possible. […] As for the thousands of people who do survive their perilous journey, their stories do not get much better. The countries of the north profit from their illegality, exploiting their labour to do the work that their own citizens are not prepared to do, or at least not for the wages paid. […] Traffickers and smugglers are not the cause of the problem, but rather part of the problem and one of the symptoms. Nor is the problem migration per se. Throughout the ages, in all corners of the globe, people have been on the move, seeking safer and better lives. Socalled settler nations, including Canada, were created through such movement. Indeed, Canada is known as a ‘nation of immigrants’.

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This myth of nationhood is a very particular one. Canadian immigration policies have always been racialized. The Chinese migrants who helped build the Canadian nation by constructing the Canadian Pacific railway were charged a head tax of $500 (equivalent in the day to the price of two houses) and denied citizenship, while at the same time, immigrants from European countries were offered land on the prairies 4 and instant recognition as Canadians. Meanwhile, the ‘nation’ was also being built on the extermination, exclusion and containment of indigenous peoples. […] The paradox of migration is the contradiction between its economic benefits, and the political momentum in the countries of the north against it. While so much of the world’s population on the move remains within the poorest countries of the global south, the citizenry in the countries of the north live in fear of the supposed masses 5 clamouring to get in. The mainstream view of migration is frequently reinforced through water imagery. Migration is described as a flood, an unstoppable torrent, a force of nature bent on destroying those in its path – in other words, a threat to the privileged in their protected places. And this climate of fear has been heightened in the current global context. Some people who move are now seen as a security threat and ‘migrants’ increasingly equated with ‘terrorists’. […]

THE POLITICS OF CATEGORIZATION The Universal Declaration of Human Rights asserts the right of people to leave their country. Indeed, the International Organization for Migration (IOM) estimates that over 175 million people (roughly 3 per cent of the world’s population) currently live outside the countries of their birth. However, as we move further into the twenty-first century, the right to move is becoming increasingly constrained, in particular for those who have been dislocated from their places of belonging because they are fleeing persecution, violence or war, or the destruction of their local economies or ecologies. There is a politics to movement, to mobility; some people can move with impunity, most cannot. For the most vulnerable, the world is divided and delineated by rigid borders, boundaries and categorizations that define who a person is, and what possibilities they can have. The international community has created many categories to contain people who move, depending on what we perceive to be the reason for their movement, and where they may end up: ‘refugees’, ‘asylum seekers’, ‘internally displaced persons’, ‘develop-

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ment displacees’, ‘trafficked persons’, ‘economic migrants’, ‘immigrants’. These categories contain value laden fault lines: illegal/legal, documented/undocumented and political/economic. And, these categories assume, first, that the people within them are all the same, and second, that the categories themselves are distinct. The categorization of migration is inherently racialized, classed and gendered, whereas the privileged who move have other, more fluid, categories: ‘tourists’, ‘travellers’ and ‘ex-pats’. As Laura Agustín has argued, the category of migrant ‘is nearly always used about the working class, not about middle-class professionals and not about people from the first-world, even if they also have left home and moved to another 6 country. Instead, the word rings of a subaltern status’. Because of the way we label, define and categorize people who move, we obscure and make invisible their actual lived experience. In Colombia, for instance, hundreds of people leave their homes everyday, fleeing the war that has ravaged their country for almost four decades. Families are torn apart, their members often facing different futures, all uncertain. Some will become part of the very large internally displaced population. One or two family members will cross the border and become recognized as refugees by the United Nations High Commissioner for Refugees (UNHCR). One person might even make it to Canada. But most will move quietly and covertly in-country and across the border as ‘migrants’ in order to avoid being visible targets in the conflict; under the cloak of invisibility, they are often exploited or murdered, raped, enslaved or ‘disappear’. […] Categorization is a means of control, designed to confine people within rigid boundaries and contain what possibilities they can have. Once a person is a ‘migrant’, their identity is weighted with signifiers – illegal, undocumented and stateless. There is also an implicit hierarchy in the categorization of migration. When someone becomes an ‘immigrant’, they have access to membership within the nation state and the rights of citizenship. A ‘migrant’ on the other hand has no such rights. The category of ‘migrant’ is integrally identified with the status of ‘worker’. ‘Migrants’ are most often ‘migrant workers’, their labour integral to the economy, but the rest of their selves are not deemed integral to society. […] There is also a hierarchy between the categories of ‘refugee’ and ‘migrant’, based upon a forced distinction between ‘political’ and ‘economic’ displacement. This differentiation denotes that ‘refugees’ are forced (politically) to move, fleeing violence and war, while ‘migrants’ choose (economically) to move, in search of a better life.

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The forced/voluntary dichotomy needs to be examined. The widespread implementation of neo-liberal economic policies throughout the globe has resulted in a diminished capacity of national governments to develop economic policies in the interests of the majority of their own citizens. The people García Benito described at the beginning of this paper who died in the Strait of Gibraltar trying to reach Spain did choose to risk their lives, but they also had few other options. […] The agency and actual lived experiences of women on the move are obscured or even removed within the paradigm of categorization. The focus within the international arena is most often on the abuse of women’s bodies, through trafficking and sexual slavery. The dilemma for those of us working in the human rights and social justice sectors is how to highlight and bring an end to the systematic and horrific forms of abuse that women on the move do suffer, without ourselves contributing to their objectification and disempowerment. As Alice Miller argues, we need to avoid ‘the perpetual retelling of the story of the sexually abused victim who needs only rescue rather than a 7 demanding woman who needs rights and social justice as a citizen’. She also emphasizes the importance of a focus on the conditions of economic exploitation and social marginalization that lead people to situations where they are trafficked: Attention to trafficking as primarily a crime of male desire and forced sex operates to shut down careful work about the actual objective and subjective interests of the trafficked people and the sectors in which they are exploited, and blocks interventions into the new realities of urban and rural poverty and irregular labour sectors where most people are searching for their livelihoods and are trafficked. In the popular discourse, then, the harms of trafficking become entirely sexual, sometimes racialized but almost always in a way that reinforces gender stereotypes and protects against reflection of northern 8 economic accountabilities. […] We need to ask ourselves who in particular inhabits the categories created to distinguish between people who move, and who creates the categories? There are clear distinctions made between ‘immigrants’ and ‘refugees’, between ‘refugees’ and ‘migrants’. And there are other distinctions within the categories themselves. […]

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CONTAINMENT POLICIES – STRATEGIES AND TRENDS In understanding the politics of categorization and its significance, it is important to examine the migration policies that create the categories themselves and the boundaries within and between the categories. We refer to migration policies as ‘containment’ policies, because they define and hold people within particular definitional boundaries. One significant trend within migration containment policies is the increasing prevalence of ‘guest worker’ programmes. In Canada, the Temporary Agricultural Workers programme currently brings 18,000 workers to Canada, 10,000 of whom are Mexican. Under the programme, workers are tied to a specific employer, and are not allowed to seek other employment (which has led researcher Tanya Basok, amongst others, to refer to the guest workers programme as 9 ‘unfree labour’). […] The growing guest worker programmes are indicative of northern states’ desire for legal but ‘flexible’ and temporary labour, contained within categories that would not signify any extended relationship within the host nation. As David Bacon argues with reference to the US: US immigration policy doesn’t deter the flow of migrants across the border. Its basic function is defining the status of people once they’re here. Guest worker programmes undermine both workplace and community rights, affecting non-immigrants as well. They inhibit the development of families and culture, denying 10 everyone what newcomers can offer. […] Alongside the guest worker programmes, in December 2005 the US House of Representatives approved the Sesenbrennar bill, which included the proposal to build 1,100 kilometres of new hi-tech fences 11 along the 3,200 kilometre border with Mexico. The fence would further militarize a border policed by thousands of armed border patrol agents with night vision equipment, trained dogs and unmanned 12 aircrafts. The bill also makes undocumented migration a federal crime, where previously it was a civil offence, further consolidating and indeed criminalizing the category of ‘illegal migrant’. […]

THE RIGHT TO ASYLUM Another important trend within current containment policies in the

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north is the increasing erosion of the right to asylum for those fleeing war and persecution, a challenge to the category of ‘refugee’ itself. Beginning in the second half of the twentieth century, the category of forced migration has been protected (albeit to a limited degree) by international humanitarian law. The most comprehensive international instrument for the defence of the rights of forced migrants is the 1951 Geneva Convention Relating to the Status of Refugees (henceforth referred to as the Geneva Convention). 146 states are signatories to the Geneva Convention and/or its accompanying 1967 Protocol, which provides international standards for the treatment of refugees and 13 outlines their rights and obligations, and those of states towards them. The definition of a refugee entitled to protection under the Geneva Convention is any person who, ‘owing to a 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’. Article 33 of the Geneva Convention asserts the principle of non-refoulement, that is, signatory states must not forcibly return a refugee to a country where ‘his life or freedom would be threatened’. The Geneva Convention came into effect in a particular context, post-World War II Europe, when northern countries were dealing with largely European based refugee flows. Today, most countries of the north are actively seeking to undermine, and in fact erase, the right to asylum. Since the early 1990s with the end of the cold war, there has been a shift from policies committed to resettlement as a permanent solution to refugee crises, as outlined in the Geneva Convention, to policies aimed at containing refugee populations in the regions where crises occur – essentially, the ‘not in my backyard’ syndrome. […] Because the Geneva Convention prevents signatory countries from returning asylum seekers to countries where their lives or freedom are in danger, prevention policies adopted by countries of the north are aimed at stopping people from making it to their borders at all. Such prevention policies include visa restrictions, carrier sanctions and interception. Since 1992, northern states have used the concept of the ‘safe country’, by which they can send refugees back to their country of origin if that country guarantees their safety. The debate in Europe on the issue of safe country policies has not focused on the concept itself, but rather which countries to put on a common list. To which war-torn countries is it safe to return people? As Alain Morice asks in his examination of these proposals, ‘What guarantees would a person have

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if sent back to an unstable or poorly controlled country?’ And, who is accountable for their safety? […] These containment policies – ‘safe’ countries, warehousing – make the vulnerable more vulnerable. On the occasion of his retirement, the outgoing head of Switzerland’s Federal Refugee Office described European asylum policy as a ‘competition of misery’, ‘with each country trying to offer harsher conditions for asylum seekers than its neighbour, in order to 14 discourage arrivals’. In implementing their policies, northern governments have both inflamed and exploited racism and xenophobia in their citizenry, highlighting notions of ‘illegality’ and ‘undocumented’, preying on the fear of the Other. The president of Spain’s Refugee Aid Commission has said: ‘It’s painful to say so, but Spain is hostile to refugees because of government policy. The democratic Spain of 2003 has forgotten the Spain of 1939, when hundreds of thousands of its children 15 fled Franco’s repressive regime and settled around the globe’. […]

THE SECURITIZATION OF MIGRATION The trend towards a politics of containment within migration policies in 16 countries of the north has been reinforced by the ‘securitization’ agenda that has emerged in the wake of September 2001. Draconian ‘anti-terrorism’ legislation has been introduced in many countries, including Canada, which undermines democratic freedoms and the rule of law. These include the Patriot Act in the US, the Anti-Terrorism and Security Act (ASTA) in the United Kingdom, and the Anti-Terrorism Act (Bill C-36) and related legislation in Canada. […] The heightened security climate has had particular implications for non-citizens. In Canada, under the new laws, the Minister of Public Safety and Emergency Preparedness Canada (PSEPC) and the Minister of Citizenship and Immigration have the power to issue security certificates to detain non-citizens indefinitely, or deport them (in the prior legislation, this power was held by the Security Intelligence Review Committee). When detained, non-citizens have no right to challenge, or even hear, the evidence against them, or to appeal the decision. In contravention of international law, they may be deported to a country where there is a strong likelihood they will be tortured. As Sharryn Aiken and Andrew Brouwer argue: The right to be free from arbitrary detention, the right to a fair hearing, as well as the absolute prohibition of torture, are pillars of

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democracy and the rule of law. We are gravely concerned that the security-certificate process denies to non-citizens the due-process 17 rights to which they are entitled as equal human beings. […] Some (mostly non-white) non-citizens are increasingly subject to 17 arbitrary detention, including asylum seekers. Article 31 of the Geneva Convention recognizes that refugees may have to use illicit means to enter a safe country, and requires that host countries ‘shall not impose penalties on that account’. However, in the post-11 September climate, one Canadian border guard has been quoted as saying, ‘Before, we 18 were expected to release, now we’re encouraged to detain’. These ‘securitization’ measures have further objectified people on the move, as the Other. They are increasingly being identified as potential terrorists, especially if they come from Islamic countries, despite no public evidence to support such an assertion. Louise Arbour, the current UN High Commissioner for Human Rights, and former head of the International Criminal Court in The Hague, as well as a former justice of the Supreme Court of Canada, sums up what is at stake in this issue of security: When we are asked to decide how much liberty we are willing to abandon for our security, we are asked, in reality, how much of the liberty of others we are willing to sacrifice for our own 19 security. […]

CHALLENGING THE BOUNDARIES OF BELONGING Most people who are forced to leave their homes in search of safer and better lives are not protected by the Geneva Convention, and they are extremely vulnerable to human rights violations. To address this serious lack in international protection frameworks, the United Nations Convention on the Protection of the Rights of All Migrant Workers and their Families (hereafter referred to as the ‘Migrant Workers Convention’) was adopted by the UN General Assembly in 1990, and finally came into force in July 2003 when the requisite number of ratifications had been obtained. However, as of 2006, no northern country had ratified the Convention, and many, including Canada, 20 actively oppose it. […] A key issue in the debate on migration policies is the question of open borders – if capital, goods and knowledge flow freely across

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borders, why not people too? If we are arguing for a common standard of dignity for all, should we not be advocating for open borders? This issue immediately raises the fear of migration ‘floods’ – everyone would want to come in, goes the reasoning. But is this really the case? It is important to emphasize that migration is not indiscriminate. Not everybody moves, despite entrenched situations of violence and impoverishment around the world. Migration flows are structured and intentional. […] Opposition to a notion of open borders is also rooted in fears concerning the erosion of cultural and national identity, which in turn are rooted in myths of nation. For example, in the American context, theorists such as Samuel Huntington see immigration as a threat to the socalled Anglo-Protestant values which underpin the myth of American 21 nationhood. However, the reality of the American nation, its social fabric, belies its myths. The American nation is as much ‘latino’ as it is Anglo-Saxon, and of course is much more. Culture and identity are not rigid and static categories, nations are much more than the sum of their parts. The myths of nation create, maintain and sustain inequality in the US, as well as in Canada and every other country in the world. The historical processes of inclusion and exclusion that have constructed the ‘imagined community’ of the modern nation state, particularly in countries of the north, have led to the definition of who is permitted to belong to, and participate within, the national space. And these processes have always been racialized. This can be seen with the campaigns to prevent Jewish immigration to Britain in the 1880s, the Nativist movement in the US and Canada in the 1920s to restrict immigration to those of British or Western descent, and the ‘White Australia Policy’ designed to exclude people from Asia, which had 22 widespread support in Australia until as recently as 1980. […] Migration is about relationships across borders, it is about the search to belong and create anew what has been lost. When people move, they do not do so in isolation. They follow the paths taken by others before them, and maintain their connections to those they leave behind. As David Bacon states in ‘Communities Without Borders’, ‘the drive for 23 community motivates migration’. […] Acknowledging the transnational communities in migration helps us recognize the fluidity of migration and the category of migrant itself. Becoming and being a migrant should be seen more as ‘a stage of life’ than the definition of everything a person is and can be. As Laura Agustín asks, ‘At what point does a person stop being a “migrant” and 24 become something else?’ And, as Agustín proposes:

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I suggest that we re-confirm the idea of agency for migrants, with the emphasis on the process they are going through. Although some migrants may experience a (sad) feeling of being permanently uprooted, many others do not, and the whole theory of social ‘integration’ of migrants depends on their desires and abilities to adapt, assimilate and lose not their own identities but 25 their identification with migrancy. Boundaries of belonging – ‘us’ and ‘them’, ‘citizens’ and ‘non-citizens’ – construct the Other, and deny personhood. ‘They’ are illegal, undocumented, stateless terrorists. But, people who move are not just bodies on a beach or faces in a photograph. They cannot be reduced to categories. […] They have dreams and aspirations, and contributions to make to home, old and new. Putting people who move into categories – refugees, displaced persons and economic migrants – assumes and in fact creates a singularity of experience and opportunity that obscures people’s actual lived experience. The reasons people move are varied and multifaceted, and belie the categories we have constructed. Categorization fragments, segregates and creates hierarchy. We need to step back and see the wider frameworks, interactions and interconnections that create the context for people who move. […]

NOTES 1. To view the photograph in question, go to [www.paueducation.com/linguapax]. See also [www.javierbauluz.blogspot.com]. 2. The Convention Implementing the Schengen Agreement was signed in 1990, and came into force in September 1993. It established freedom of movement between most European Union member states, while at the same time tightening shared external borders. 3. Nieves García Benito, ‘Nothing is true, nor is it a lie?’, Statewatch, 2001, [www.statewatch.org/news/2003/jul/21spain.html]. 4. The experience of Chinese migration to Canada, and head tax survivors’ search for redress, is movingly documented in In the Shadow of Gold Mountain, a documentary written and directed by Karen Cho, NFB-SPB, 2004, [www.nfb.ca]. 5. As Stephen Castles states, ‘Migration as a whole does not present an economic or social crisis for the North’. He cites UN statistics from 2002, which counted 175 million international migrants: ‘Of this 175 million, 32 percent (56 million) live in Europe; 23.4 percent (41 million) in North America; and 28.5 percent (50 million) in Asia. On average one in 10 people who live in developed countries is a migrant. One in 70 people who live in developing countries is a migrant. Such numbers are significant, but far lower than many people think, and certainly do

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not justify media head-lines on “mass influxes” ’. He also points out the reality of refugee flows: ‘Even at the height of the so-called “asylum crisis” in the early 1990s, refugee populations in the North were tiny compared with those in some Southern countries. For instance, the ratio of refugees to host populations in 1992 was 1 : 10 in Malawi, compared with 1 : 869 in Germany, and 1 : 3,860 in the UK. In short, the crisis of caring for refugees falls overwhelmingly on the poorer countries of Asia and Africa’. Stephen Castles, Confronting the Realities of Forced Migration, Migration Information Source: [www.migrationinformation.org], 2004. 6. Laura M Agustín, ‘Forget Victimization: Granting Agency to Migrants’, Development, Vol. 46, No. 3, 2003, pp.30–6. 7. Alice M Miller, ‘Sexuality, Violence Against Women, and Human Rights: Women Make Demands and Ladies Get Protection’, Health and Human Rights, Vol. 7, No. 2, 2004. 8. Ibid. 9. Tanya Basok, Tortillas and Tomatoes: Transmigrant Mexican Harvesters in Canada. McGill-Queen’s University Press, Montreal and Kingston, 2003. 10. David Bacon, ‘Communities Without Borders’, The Nation, 24 October 2005, [www.thenation.com/doc/20051024/bacon]. 11. AFL-CIO ‘Bush Immigration Plan ‘Creates a Permanent Underclass of Workers,’ declaration issued 7 January 2004 [www.aflcio.org], cited in Pickard 2005 (see Note 16). 12. Increased militarization of the US borders is accompanied by increased control of Mexico’s borders, with support from the US. After September 2001, the Mexican government implemented the Plan Sur (Southern Plan), which further militarized its southern borders to prevent people from passing through Mexico and subsequently to the US. Mexico had hoped that by harmonizing its own security policies with those of the US, the US would agree to regularize the status of Mexicans living ‘illegally’ in the US – ensuring the rights of Mexicans at the expense of other potential migrants. And although Plan Sur no longer officially exists, the southern Mexican border regions continue to be heavily militarized. 13. The Geneva Convention only binds states that have chosen to sign on to it. 14. Alain Morice, ‘Foreigners are seen as a danger and their invasion as out of control: Europe blocks right to asylum’, Le Monde diplomatique, March 2004. 15. Quoted in an article by former UNHCR representative to Canada, Judith Kumin, ‘Can this marriage be saved? National interest and ethics in asylum policy’, In Canadian Issues, March 2004. 16. Stephen Castles, 2004 (see Note 11). 17. Sharryn Aiken and Andrew Brouwer, ‘The Pen is too Mighty’, The Globe and Mail, 14 October 2004. See also the report by the Working Group on Arbitrary Detention of the UN Commission on Human Rights (Note 33), which expressed ‘grave concern at the security certificate process’. The report also recommended that ‘terrorism suspects be detained in the criminal process, with the attached safeguards, and not under immigration law’. 18. The Globe and Mail, 28 November 2002, quoted in In the Shadow of the Law, International Civil Liberties Monitoring Group (ICLMG), 2003. This was a report prepared by the ICLMG in response to the Department of Justice Canada’s first annual report on the application of the Anti-Terrorism Act (Bill C-36).

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19. Louise Arbour, Human Rights and the Politics of Fear, Presentation to the Canadian Club of Toronto, Toronto, 13 June 2005. 20. For the Canadian government position on the Migrant Workers Convention, see the Canadian Submission to the Global Commission on International Migration, [www.gcim.org]. 21. Samuel Huntington, Who Are We: The Challenges to America’s National Identity, Simon and Schuster, New York, 2004. 22. Stephen Castles, 2004 (see Note 11). On the concept of ‘imagined communities’, see Benedict Anderson, Imagined Communities, Verso, London, 1991. 23. David Bacon, 2005. 24. Laura M Agustín, op. cit. 25. Ibid.

LAWS

INTRODUCTION A true understanding of the problematic of rights of the refugees and the displaced demands a genuine understanding of the discourse and practice of a bunch of international humanitarian and human rights laws. Here, we define ‘law’ as a morally inspired system of rules, enforced through a set of institutions. Such a definition approaches ‘law’ from both a normative as well as a causal perspective. Seen from such perspectives, the study of law introduces us to the formal/approved patterns of the refugee regime. Simultaneously, it acts as a moral and practical tool to negotiate with various power formations, of formal or informal nature, both within and without the boundaries of nation states. In the following section, various aspects of this issue have been brilliantly discussed by well-known experts from around the world. Jeevan Thiagarajah and Dinusha Pathiraja, in their thought provoking article, have offered a discursive analysis of Human Rights and Humanitarian Law, with focus on the different types of Internally Displaced Persons (IDPs) in Sri Lanka and have found that ‘Sri Lanka has in many respects failed’ to address this issue. The authors await the completion of The Ending Displacement Act and hope that ‘it will be able to turn the lives of the internally displaced in Sri Lanka towards a better future’. On the other hand, Oishik Sircar, a bright young scholar of legal science, seeks to give the ‘increasingly self-contained discourse’ of international women’s rights movement its missing link: the postcolonial angle. Following the works of the feminist legal scholars like Alice Miller, Ratna Kapur and Jacqueline Bhabha, Sircar proposes more rigorous interrogation ‘where hegemonic appropriation of knowledge and practice threatens subaltern existence at every step’. IDPs occupy a major space in today’s refugee discourse. This issue got its main (proto-legal/moral) impetus from the Guiding Principles on Internal Displacement proposed by Dr Francis Deng in 1998. Roberta Cohen of Brookings Institution has also contributed a lot to the development of the rights of the internally displaced. In a short but

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useful piece, Cohen, once again, stresses the importance of institutionalization of these ‘Principles’ within nations to ensure policies and laws that aid IDPs and intensive monitoring to ensure their implementation. Rada Ivekovic’s article delves deep into the recent, apparently sudden outbursts/riots by the subaltern male in the French suburbia, which the mainstream protectionist discourse, describes as ‘blind and irrational’. The nationalist and xenophobic media and elite seek to construct the unrest as a communal and religious one, and to identify the rioters as only north African or Muslim. Ivekovic links the recent French ‘troubles’ with the current phenomena in the making of a new/conservative Europe through closure and refusal to face its historic, colonial and other responsibilities. Unlike many western nation states, Canada has followed one of the best systems of refugee determination, based on the Canadian Charter of Rights and Freedoms, in which, each refugee claimant enjoys the right to a hearing with full interpretation and the right to counsel. However, observes Francois Crepeau, since the 1990s, immigration was considered more and more as an issue related to criminality, and after the incident of 9/11, immigration had entered the realm of national security. Although the situation is better than the US immigration regime, still, in Canada too, Crepeau finds, going through several legal documents and government policies, the foreigner, even at risk, is perceived as a security threat. Patrick Hoenig examines the Exclusion Clauses under the 1951 Convention on the Protection of Refugees in the context of unprecedented rise in applications for refugee status in 1990s that prompted the European Union (EU) member states to tighten borders to keep out ‘illegal migrants’. Although, the United Nations High Commissioner for Refugees (UNHCR) has consistently argued in favour of a restrictive interpretation of the Exclusion Clauses, but ‘the state practice is’ Hoenig holds, ‘far from homogeneous and a range of problems regarding the interpretation and application of the Exclusion Clauses persist’. However, a discriminatory legal framework against the refugees is ‘not only a breach of human rights law – but also an attack on human dignity’.

HUMAN RIGHTS, HUMANITARIAN LAWS AND THE CONTINUING DISPLACEMENT IN SRI LANKA †

Jeevan Thiagarajah and Dinusha Pathiraja INTRODUCTION th

You can record the 20 century as a story of astonishing technical progress, you can tell it as a rise and fall of powers, or as a painful recovery from modern society’s relapses into barbarism. But if you leave out ideas, you leave out what 1 people were ready to live and die for. The development of principles on displacement as a discourse can be 2 attributed to the development of ideas in the twentieth century. Ideas can change the nature of international public policy discourse while helping governments and other actors to redesign their policies, identities and interests. At the same time, ideas can contribute to formation of new coalitions, political or institutional forces. Once an idea is stated, especially within the diverse global world of the twentieth century, it takes a life course of its own. The development of internal displacement as a discourse derived out of displacement discourse was the result of this cyclical phenomenon. Internal displacement is becoming a crucial factor affecting the course of Sri Lanka in its approach towards development. The main thrust of this paper is to analyse the many facets of displacement existent hitherto within a †

Jeevan Thiagarajah, Executive Director and Dinusha Pathiraja, Programme officer of Human Security Project, Consortium of Humanitarian Agencies, Colombo, Sri Lanka, Refugee Watch, 28 December 2006.

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framework of human rights and humanitarian laws while bringing to the fore selected international developments of internal displacement as a discourse that is relevant to Sri Lanka.

HUMAN RIGHTS AND HUMANITARIAN LAW: A DISCURSIVE ANALYSIS At the outset, it becomes necessary to outline the discursive paradigms of human rights and humanitarian laws. The analyses of these two paradigms require to be approached from both normative and causal perspectives. Normative ideas are general beliefs as to how the world should look like while causal ideas are operational notions concentrating on strategy and outcomes of a certain policy. From a normative perspective, human rights and humanitarian laws are one and the same as both discourses strive to achieve rights and guarantees for every person devoid of any form of discrimination. The conclusions that can be reached through a normative perspective are generic and idealistic. A causal approach provides us with a more detailed and careful analysis of human rights and humanitarian laws. It points out the intrinsic differences between the two discourses; thus focusing on the specifics and enabling in-depth analysis of a subject under study. A causal approach is therefore, best suited to analyse a phenomenon such as displacement owing to the complexities and intricacies that are embedded within this negative social reality. […] The 3 divide between human rights and humanitarian laws is: […] human rights fall within the ambit of politics while humanitarian laws within that of civics. […] Human rights are concentrated upon individuals. The rights of people need guarantees by the state and the people have a set of duties that need to be fulfilled by the state. Human rights in other words, are the rules that regulate the relationship between a state and its people. […] A Constitution of a country denotes the promises that the state makes in guaranteeing the rights of its people. These rights are two-fold – civil, political and economic, social and cultural. Though the Sri Lankan Constitution has included these rights under its state directives, there are no legal provisions, which back up their practice.

SOVEREIGNTY: FOR WHOM? 4

According to ‘The Responsibility to Protect’, sovereignty carries with it primary responsibilities for states to protect persons and property and to

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discharge the functions of government adequately within their territories. (However), sovereignty has been eroded by contemporary economic, cultural and environmental factors. Interference in what would previously have been regarded as internal affairs by other states, the private sector and non-state actors has become routine. However, within a democracy, the sovereignty of the people is vested in a state through elected representatives; the cost of making decisions that have an effect on the lives of people (i.e. the right to life and the right to death) bears heavily on the state. According to Kofi Annan, it is the peoples’ sovereignty rather than the sovereign’s sovereignty that is of supreme value. Humanitarian laws, however, as the title suggests are a set of internationally accepted laws. These laws are concentrated upon caring for larger groups of people, groups and communities. The issues that come within the boundaries of humanitarian laws are, at most times, private concerns of a group of people. Unlike the case of human rights obligations, there is no one single actor within the international sphere that can be held responsible in upholding humanitarian laws. […]

DEVELOPMENT OF UN GUIDING PRINCIPLES ON INTERNAL DISPLACEMENT With the trends of internal conflicts and wars in post-cold war world, the numbers of Internally Displaced Persons (IDPs) have become higher than the numbers of refugees in the world today. UN Guiding Principles on IDPs that were adopted on 17 April 1998 remains the sole document that takes into consideration internal displacement due to various factors and it is also the primary document that provides a definition as to who an IDP is: […] persons or groups of persons who have been forced or obliged to flee/leave their homes as a result of or in order to avoid the effects of armed conflict, violence, violations of human rights or natural or human/man-made disasters, and who have not crossed an internationally recognized State border. The development of UN Guiding Principles on IDPs can be attributed to the commitment of a few individuals within the UN system. In 1992, the Analytical Report of the Secretary-General on Internally Displaced Persons suggested that those charged with helping IDPs needed a compass for human rights of such populations, ‘guidelines which

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could be applied to all internally displaced persons regardless of the cause of their displacement, the country concerned, or the legal, social, political or military situation prevailing therein’. UN Secretary General at the time, Butros Butros Ghali submitted to the UN Commission on Human Rights the first analytical report on IDPs. Following this, a UN Resolution on IDPs was adopted in the same year. In 1993, Francis Deng recommended to the Commission on Human Rights, ‘it would be useful to prepare a compilation of the existing international standards which are most relevant to the protection of the rights of IDPs […] such a compilation would be of great value to governments and international bodies’. The result of this venture was two groundbreaking documents with different approaches to displacement. One was from Austria undertaken by the Ludwig Boltzmann Institute of Human Rights in Vienna headed by Professor Manfred Nowak and his team. […] The second document was done in the US by the International Human Rights Law Group headed by Roberta Cohen. […] In 1993, following a request by Deng, Professor Walter Kalin, a professor at the University of Bern reconciled the differences in the two approaches and incorporated the documents into making the guiding principles. By 1995, the merged document was completed but with one part missing concerning ‘the right of not to be arbitrarily displaced’. Deng wanted this part strongly and it was Stavropoulou who contributed this part later. This document consisted of 100 pages and even Kalin admitted that it was too complicated and in many regards incomplete and therefore needed a document that would restate and reinforce the rights of IDPs ‘in a manner which would facilitate their application’. The fruits of these efforts are what are being utilized today as the UN Guiding Principles on Internal Displacement as guidelines in supporting and caring for IDPs. We recognize the extraordinary contributions made by the Brookings Project succeeded by the Brookings–Bern Project in advancing the cause of promotion and protection of IDPs globally. […]

THE CASE OF SRI LANKA 5

[…] Sri Lanka has a population of 19.043 million out of which according to UNHCR figures of 2005, 27,195 were returned IDPs, 2,700 repatriated refugees, 324,699 conflict affected IDPs, 457,576 tsunami affected IDPs, 124,800 Sri Lankan refugees abroad, and 290 refugee and asylum seekers in Sri Lanka. Without exaggeration, it can be pointed out that these are

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alarmingly high numbers. With the present instability in the country, mass displacement of people especially in the eastern parts of the country has occurred several times quoting figures of 40,000 and 35,000 persons displaced in different locations. At this time, it is difficult to gather the true statistics, but it suffices to say that if peace negotiations are not reached and the offensives are to continue, the numbers of persons being displaced would reach a high proportion within a short span of time. […] Within the post-conflict and post-tsunami contexts, Sri Lanka can be pointed out as a country, which is undergoing certain paradigm changes within sovereignty. Therefore, notions of responsibilities to protect vulnerable people from further shocks and enabling them a life of dignity can no longer be considered the sole responsibility of the state. International assistance through donors and other actors have been channelled to the people who have been affected by the prolonged war situation as well as the by the tsunami disaster.

THE CONFLICT AFFECTED IDPS Since the final quarter of 2005, a shadow war has been waged between the warring factions in the north-east. The cost of this shadow war is marked by the number of deaths of civilians as well as military personnel. The Liberation Tigers of Tamil Eelam (LTTE) is also claimed to have suffered losses; although the true numbers are not yet revealed. The involvement of paramilitary forces has also been suspected in the shadow war; though no such instance has been factually proven. The danger that arises in this situation is graver than an open confrontation. When the enemy becomes faceless, in a deeply divided society like that of Sri Lanka; the daily dangers that are posed to the lives of common people are immense. A faceless enemy also means that lawful means of seeking redress becomes a difficult if not impossible process. Therefore, people who have become victims of violence or violations tend to become disillusioned about the systems that are in place for their protection. Curbing impunity is a challenge that has been posed before the Government of Sri Lanka (GOSL) at present. While this is in no way an easy task, especially in view of the earlier reference to a faceless enemy, it is a necessary task to be fulfilled. The deteriorating conditions in the north and east have greatly hampered the work undertaken by the humanitarian community both in terms of post-conflict recovery as well as tsunami reconstruction. For

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the first time since the start of the shadow war, three international humanitarian agencies came under direct attack in May 2006 and in August 2006, 17 national workers of an international humanitarian agency were killed. The messages that have been passed to the humanitarian community by these attacks are loaded. On the one hand, the invasion into humanitarian space brings into question the true sentiments of the attackers towards the people who are aided by humanitarian activities. On the other hand, humanitarian agencies are made to put their activities on hold in fear for their own lives. […] Any attack within a district leads to people fleeing their homes in fear. Livelihoods of people being affected have in certain instances led to people taking refuge in camps because they are not able to fend for themselves otherwise. Therefore, true figures of displacement are not known in certain areas. Security is usually heightened around areas of possible attacks, people experience a fear psychosis. Since there have been instances of alleged human rights violations by the security forces, the fear felt by the people can be well comprehended. This, however, brings in a dual dilemma. From the point of view of GOSL, the presence of security forces are a compulsory factor, while, the fear psychosis experienced by the common person is also a greater reality for her/himself. […] Since the time of tsunami recovery, an issue that was in discussion within the humanitarian community was that of equal support being provided to the displaced without any discrimination. It can be pointed out to be a failure of the humanitarian community, since issues concerning disparity in supporting the displaced are still heard from the districts. People who are displaced due to war have been in camps for over 20 years without having been offered resettlement options. Therefore, in most cases where there is conflict and tsunami affected IDPs living side by side, the conflict affected persons feel that their needs are lesser addressed than those affected by the tsunami. The negative social impact and greater divisions that are caused amongst these communities will undoubtedly lead to more conflict in the future. Apart from internal displacement, crossing over to Indian shores has recommenced. The figure that has been quoted by UNHCR in this regard is 68,000 persons as of 31 May 2006 and the figure is on the rise. The tragic incident of a boat capsizing and lives being lost was reported from the Manner district in early May 2006. It becomes a grave human security concern if people are willing to risk their lives to cross over to the Indian territory rather than remain in their dwellings due to fear. […]

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The population in Sri Lanka neither desires nor requires a war at present. This sentiment becomes far more vociferous in consideration of the existing conflict affected IDPs. The majority of the present conflict affected IDPs are those who have faced dual or multiple displacements and have been living within IDP camps for over 20 decades. A significant proportion of Sri Lanka’s population of 20 million consists of children. Children under the age of 18 account for about 36 per cent, infants 1.6 per cent and children under four years 7.2 per cent. There are about two generations’ children residing within IDP camps who have not known of a life outside the camp fences. The families are living under extremely poor living conditions and they are being partly supported by either the GOSL or the LTTE (especially considering the rebel held areas) and local and international Non-governmental Organizations (NGOs). […]

THE TSUNAMI AFFECTED IDPs The tsunami of 2005 displaced, damaged and destroyed people and property within a matter of minutes. The enormity of tsunami destruction is still very much present within the coastal areas of the country in the north, south and east. As quoted earlier, UNHCR figures hint at 457,576 persons displaced by the tsunami. The non-availability of disaggregate figures may veil the real picture in this regard, which can be far grimmer. […] The post-tsunami phase needs assessment for the north-east prepared by the Planning and Development Secretariat 6 of the LTTE calculates the total need for the north-east alone as US$ 1.4 billion. Those displaced by the tsunami consist of the orphaned, elderly and disabled. Regrettably, tsunami recovery has been slow, even with large amounts of financial support afforded to Sri Lanka by the international community. […]

POVERTY INDUCED DISPLACEMENT IN SRI LANKA Poverty related displacement is another facet of continued displacement in Sri Lanka. Though economic growth, even during the period of war has been 5 per cent, it has not conferred to development benchmarks. Economic reform initiatives of market liberalization, deregulation and privatization have produced mixed and sub-optimum results in terms of reducing unemployment levels, regional disparities in poverty and

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national debt. Specific facts and figures are not available in this regard though many researches have been done linking the increase of urban poverty with population movement from rural to urban areas in search of greener pastures. […]

CAN SRI LANKA AFFORD IDPs? Poverty reduction strategies in Sri Lanka are focused on yardsticks such as the achievement of Millennium Development Goals (MDGs). The Sri Lanka Millennium Development Goals Country Report 2005 states that though the country has achieved significant progress in non-income 8 poverty alleviation, the same cannot be said about income poverty. It has been estimated that there are around 5 million people living in 9 poverty, though the exact figure is unknown owing to the unavailability of statistics. 7 per cent of the population is estimated to be living with an income of US$ 1 or less per day, while 44 per cent of the population is living on US$ 2 per day. 60 per cent of the latter category is in the rural areas. Added dimensions to the complex poverty dynamics that have been in existence are post-conflict and post-tsunami related poverty challenges. […] It has been estimated that conflict recovery costs has been US$ 4.5 billion over four years in 2002, while post-tsunami recovery has been estimated at US$ 1.8 billion. Public debt has therefore risen up to 100 per cent of Gross Domestic Product (GDP) at present. It has been accounted that US$ 853 has been pledged as post-tsunami recovery support within the non-profit sector. The government has received pledges for US$ 200 million for the immediate relief and rehabilitation of 100,000 people and US$ 1.8 billion for phase two of post-tsunami recovery involving rebuilding and reconstruction of damaged assets for 3–5 years period. […] Debt moratoriums have also been approved in 10 support of the governmental activities. […] It can be pointed out that it is possible to make a differentiation among the different causes of vulnerability in Sri Lanka, as there remains a somewhat clear concentration of vulnerability status in various parts of the country. Though it does not mean that the effects of conflict and tsunami for example were not felt in the regions in which they had no direct impact; there remains blanket vulnerability in the country owing to poverty. Although there is a drop in the overall national figure in poverty headcount, it shows a sector-wise increase especially within the estate sector. The reality that is represented by these figures is the failure of

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development policy that is practised in Sri Lanka in reducing the vulnerabilities of the people in a holistic manner. […] The ‘new’ poverty concepts that are being focused upon by agencies such as the World Bank, Asian Development Bank (ADB) and the UN family, recognize poverty alleviation strategies as more or less focused upon three ground principles as given below: • Pro-poor growth: the creation of labour intensive employment, infrastructure investment in poor regions and environmental sustainability. • Good governance: accountability and transparency policies and actions, legal frameworks, public participation and anti-corruption initiatives. • Social development: promoting human and social capital, ensuring social security for vulnerable groups and addressing forms of inequality, for example gender-based inequalities. Failed experiments with excessive government control of the economy, economic mismanagement and the enormous human and financial burdens of the conflict in the north and east as well as the insurgencies in the south have created an economy without a sound foundation to build. There is deep and persistent poverty throughout the country. Despite economic growth of 4 to 5 per cent for decades, the high levels of unemployment that created the conditions that spawned conflict and social unrest have been largely unchanged since 1960. These factors brought the economy to the brink in 2001, when for the first time since regaining independence there was significant ‘negative economic growth’ and the accumulation of public debt threatened to overcome the long held expectations of achieving prosperity. The vision of ‘Regaining Sri Lanka’ envisages an acceleration of economic growth to 8 to 10 per cent in the longer term and the creation of 2 million new job opportunities. The challenge is daunting but achievable. The strategy constitutes a decisive break from the past in that the private sector is clearly seen as the locomotive for sustained growth and development. The government will strengthen its regulatory role and focus on providing the ‘public goods’, which will promote propoor growth, while ensuring that the poorest of populations are adequately protected. The need for a new development strategy is therefore timely. The government’s new development strategy is focusing on achieving medium term development objectives such as:

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• • • •

An overall growth rate in the range of 6–8 per cent since a growth rate below 5 per cent is inadequate for employment generation and poverty reduction. Ensuring a widespread development in order to reduce growing regional disparities with pro-poor growth strategies. Improve country’s international competitiveness and investment climate to raise investment in excess of 30 per cent of GDP. Strengthen country’s external assets.

CONCLUSION The facts and figures on internal displacement within the national context speak of a siege on human dignity and all the rights an individual is entitled to. Displacement attacks the dignity of the individual and systematically derogates the rights of the individual. The promotion and the protection of the rights of the individual must address this siege. In practical terms, this calls for preventive intervention, intervention in hindsight and the use of humanitarian and human rights work to systematically indict those who lay siege on human rights of entities. The principles and the provisions, which are available should now be used by protection agencies in the furtherance of this end. […] Displacement has manifested itself through direct and indirect forced migration brought about by social inequity and natural causes. On the one hand, the former is less visible and is present in a very sinister manner as the dispossessed comprise of right-less, faceless entities. On the other hand, those displaced due to natural disasters demand the restoration of much of the same rights as those affected. The issues of concern faced by both of these categories include: • Access to assistance: right to request and receive assistance from national authorities/non-state actors. • Non-discrimination: neutrality and impartiality practised in providing assistance. • Protection of women and children: access to special health concerns, sensitive cultural practices, safety of children from military recruitment. • Access to education: in order to minimize the disruption to education. • Loss of documents/property issues: difficulties in accessing health care, education and compensation. All such documents require replacements as soon as possible.

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• Participation: inclusion of IDPs in making decisions that affect their future. • Voluntary return and resettlement: consent, adequate assistance to restart their lives. Unlike in many other South Asian countries, Sri Lanka does not consider persons displaced owing to large development projects. Major irrigational development projects in Sri Lanka such as the Mahaweli Scheme pre-planned resettlements in order to avoid this problem. This can be pointed out as an exemplary condition, which needs to be kept that way. It is obligatory to take into consideration the aspirations of all of these persons in making decisions that have an effect on their lives. The basic and fundamental causes need to be revisited mostly in making out blueprints of resettlement and rebuilding. Poverty induced displacement provides a dichotomous challenge as it demands thinking outside the box in making development decisions that are feasible to both who are living in developed urban areas and under-developed rural areas. The challenge, if not dealt with can create vicious social cleavages among people. It is evident from this analysis that Sri Lanka has in many respects failed the displaced. It would, however, not be a comprehensive picture if a departure is made at this point concerning the Sri Lankan case because at present a strong effort is being made to grapple with the issues of ending displacement. A committee consisting of representatives from the Ministries of Planning and Implementation, Resettlement, Nation Building and Development and Consortium of Humanitarian Agencies as the representative of the humanitarian sector have formulated an Act to establish an authority called the Jathika Saviya Authority: to vest the authority with the power to formulate a national policy and plan, implement, monitor and coordinate the resettlement of the IDPs and refugees and look into other related matters. The Ending Displacement Act is awaiting completion and at present it is looking to areas such as: • Forging partnerships with the displaced in their recovery. • Recognition of the right to receive representation by IDPs and to take some more action on IDPs. • Right to access information related to policy/resources/progress of such enterprises by all agencies of state and others. • Restoration of human rights including cultural values of the displaced. The Act will come into effect at a crucial time such as now and we hope that it will be able to turn the lives of the internally displaced in

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Sri Lanka towards a better future. Displacement has been the most visible impact of the conflict; the end of displacement would be the most visible progression to peace in the country.

NOTES 1. Derived from The Economist as quoted in Thomas G Weiss and David A Korn, Internal Displacement-Conceptualisation and its Consequences, Routledge, London, 2006. 2. The analysis on Ideas has been taken from the analysis given by Thomas G Weiss and David A Korn in Internal Displacement-Conceptualization and its Consequences, Routledge, London, 2006. 3. See further R Samaddar, ‘In Life, In Death: Power and Rights’, responses to questions on ‘Human Rights, Humanitarian Assistance and Conflict Transformation at the WISCOMP workshop on conflict transformation, June 2003. 4. International Development Research Centre, The Responsibility to Protect, Canada, December 2001. For analysis of sections concerning Responsibility to Protect, Poverty Issues, Tsunami Recovery, MDGs, etc see further, Human nd Security Reports of CHA from Final Quarter 2004 to 2 Quarter 2006. 5. [http://wwwpriu.gov.lk/TourCountry/Indextc.html]. 6. Needs Assesment for the North East, Planning and Development Secretariat, dated January 2005. 7. P B Jayasundera, ‘A Framework for Economic Growth and Poverty Reduction – Medium Terms Perspectives’, Paper presented at the Development Forum, Kandy, 2005. 8. See further ‘Millennium Development Goals’, Country Report, 2005. 9. Sri Lanka New Development Strategy: Framework for Economic Growth and Poverty Reduction, Ministry of Finance and Planning, Colombo, Sri Lanka, 2005. 10. S Cooray, ‘Donor Support, Pledges, Commitments and Expenditures: The Process’, Paper presented at the Development Forum, Ministry of External Affairs and Planning.

THE FOREIGNER AND THE RIGHT TO JUSTICE IN THE AFTERMATH OF TH SEPTEMBER 11 †

Francois Crepeau

In January 2003, the Privacy Commissioner of Canada stated in his 1 report for 2001–2, to the Parliament that: The Government is, quite simply, using September 11 as an excuse for new collections and uses of personal information about all of us Canadians that cannot be justified by the requirements of anti-terrorism and that, indeed, have no place in a free and democratic society… Now I am informing Parliament that there is every appearance that governmental disregard for crucially important privacy rights is moving beyond isolated instances and becoming systematic. This puts a fundamental right of every Canadian profoundly at risk. It is a trend that urgently needs to be reversed… Regrettably, this Government has lost its moral compass with regard to the fundamental human right of privacy. These are extremely harsh words, when expressed by an officer of Parliament with a majority government in the House. The †

Professor of International Law, Canada Research Chair in International Migration Law, Scientific Director, Centre for International Studies (CÉRIUM), University of Montreal, Refugee Watch, 29 June 2007.

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Commissioner was referring to various acts or draft legislations of the government, all prepared in the aftermath of 11 September: • Canada Customs and Revenue Agency’s new passenger database; • The unrestricted access by Royal Canadian Mounted Police (RCMP) to all information that airline companies collect on their passengers and its transfer to foreign authorities under the 2 Aeronautics Act; • Dramatically enhanced state powers to monitor our communications, especially international ones; • A possible national ID card with biometric identifiers, as advanced by the Citizenship and Immigration Minister, on the model of that which has already been adopted for permanent residents; and • The government’s support of precedent-setting video surveillance of public streets by the RCMP. Many of these measures would have never been accepted a decade ago. Why are they considered acceptable today? A reason for this may be found in the fear of terrorism, exacerbated by the wars in Afghanistan and Iraq and also, up until recently, by the failure of the Middle East Road Map. There is another element of explanation which is not mentioned in official documents: in our collective mind, the persons who are targeted by anti-terrorist measures are essentially foreigners. […] The classical rhetoric of the distinction between ‘them’ and ‘us’ is operating here. The deterioration of the rights of foreigners in Canada, as in other western countries, originates from the idea that, when security is at stake, a foreigner should not necessarily enjoy the same fundamental rights as a citizen. This breach of the fundamental dignity of the person does not seem to be objected to by a large majority of our population, even if it has devastating consequences for the individuals and their families, as long as these persons are foreigners. In effect, on purely moral grounds, it is somewhat difficult to reconcile the wave of sympathy created by the Maher Arar affair with the almost total indifference, if not hostility, with which most foreigners are sent back to a potentially similar fate. What is at stake here is the fate of foreigners who risk their freedom, their security or their life while returning home, or simply the fact that they may be detained or deported on a very slim basis. […] I shall first illustrate the erosion of foreigners’ rights, during the last decade and especially as it is related to the current security agenda, and then

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underline the fact that foreigners are not considered as persons necessarily deserving of justice and dignity anymore.

THE EROSION OF FOREIGNERS’ RIGHTS IN CANADA During the 1990s, immigration entered what Didier Bigo called the paradigm of internal security. Immigration was considered more and 3 more as an issue related to criminality. After the events of 11 September, the fear of terrorism led to the adoption of many new anti-terrorist measures and a reinforcement of the security related policy apparatus in Canada and elsewhere. Immigration had entered the realm of national security. On 12 October 2001, the minister of Citizenship and Immigration announced immigration measures to be integrated in the new anti4 terrorist strategy. Two months later, the Canadian and US governments issued the Joint Statement on Cooperation and Regional Migration Issues and the 5 30-point Action Plan for Creating a Secure and Smart Border. Under these instruments, Citizenship and Immigration Canada enjoys primary responsibility, on Canada’s part, for ten initiatives, among which are: • Administering the processing of refugees and asylum seekers, including screening for security or criminal risks and sharing information; • Managing claims for refugee status and asylum, including negotiating an agreement to manage the flow at land borders of individuals seeking asylum; • Developing compatible immigration databases, by automating existing exchanges of lookout information and developing parallel immigration databases for regular information exchange. Many of these measures are perfectly understandable improvements on previous practice. They are a necessary tool in the fight against international criminal activities, such as terrorism. However, it is clear that they do not aim at protecting more individuals from persecution in their home country. On the contrary, efficient border management includes making sure that fewer persons will be able to reach the border and ask for protection. No provision is made in these instruments for more full-fledged implementation of the 1951 UN Convention relating to the Status of Refugees or other human rights obligations.

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Indeed, we shall see that they may infringe upon the fundamental rights and freedom of foreigners in ways that we would not deem acceptable if they were applied to ourselves as citizens in Canada or to Canadian citizens abroad by foreign authorities.

Elimination of appeals available to foreigners In Canadian immigration law, since the early 1990s, most forms of 6 appeal previously available to foreigners have been eliminated. Furthermore, one can obtain judicial review only after having obtained leave to apply for it. Judicial review is no longer de jure. The management of immigration files is certainly speedier, maybe more efficient, but human rights protection has been radically diminished. Since 2002, even Canadian sponsors of foreigners found to be inadmissible on grounds of ‘security, violating human or international rights, serious criminality or organized criminality’ have been deprived of any right to appeal.

Reduction of legal aid The Canadian refugee determination system is considered one of the best in the world. Ministers like to say that Canada has ‘the Cadillac’ of the refugee determination systems. Based on the Canadian Charter of Rights and Freedoms, this system is quasi-judicial and each refugee claimant has the right to a hearing with full interpretation and the right to counsel. However, it has never been deemed important, in Canadian law and policy, to provide sufficient legal aid to help refugees prepare their case. Although the refugee determination system is of federal jurisdiction, legal aid in such matters has been left to the provincial legal aid schemes without insuring some equalization. In Ontario, the average legal aid fee for a refugee determination case is still over CAN $1,500. In Quebec, it is CAN $455, which represents three hours of work, if an interpreter is not required. […] The importance of legal aid in criminal cases has been underscored, in order to help accused persons to defend themselves properly and ensure the legitimacy of any subsequent guilty verdict. If the worst mafia boss has a right to legal aid, why is it that, in refugee cases, when the consequences of an erroneous decision can be death, torture or prison, the provision of legal aid is not thought equally important?

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Increased powers of detention Although Canada’s detention practice is not as harsh as what can be seen in other countries such as the US, the detention of undocumented asylum seekers has increased considerably in the past years. This increased detention was a policy objective announced by the minister. For example, the Immigration and Refugee Protection Act has a provision allowing an officer to arrest and detain a foreigner without warrant where he or she ‘has reasonable grounds to suspect that the permanent resident or the foreign national is inadmissible on grounds of security’. […] During the summer of 2003, some 20 persons, most of them Pakistani or Indian citizens studying in Canada, were arrested without a warrant. There was a suggestion that they might have constituted a sleeper cell for Al-Qaeda. This suggestion was based on such information as their being registered in a flying school, or being registered with a now defunct business school, or having two different residential addresses in order to avoid paying higher auto insurance premiums, or having documents measuring the CN tower in Toronto. Most of them have been released on bail. The Immigration and Refugee Board Member who authorized their release noted that the activities deemed suspect were not special or 7 unusual among potential new immigrants.

Easier use of security certificates Security certificates, as an instrument for removing foreigners who pose a threat to the security of Canada, on grounds of security, or on grounds of a violation of human rights or international law, serious criminality or organized criminality, have been available under Canadian immigration legislation since 1991. Foreign nationals who are the subject of a security certificate are automatically detained. If the judge determines that the certificate is unreasonable, the certificate is quashed. If, however, the judge decides that it is reasonable, it is considered conclusive proof that the foreign national named in it is inadmissible. This is the case despite the fact that the foreigner has not had access to most of the evidence. The Immigration and Refugee Protection Act increased the effect of security certificates, by providing for suspension or termination of a claim for protection as refugee upon their issuance, by making broader provision for their issuance in relation to organized crime, by

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eliminating appeals, by preventing any access to Pre-Removal Risk 8 Assessment and by streamlining the removal process. Specific procedures designed to deal with very sensitive information such as security intelligence are essential in any legal system and provisions have been recently added to the Criminal Code that deal with security issues, allowing for example some of the evidence to remain secret if a judge determines that this can be done without 9 jeopardizing justice in the criminal proceedings involved. However, a procedure providing for a person to be sent back to his/her country, eventually to persecution or torture, without knowing on what factual basis such an order is issued, seems completely arbitrary. […] The legitimacy of the whole security certificate system is at stake.

Aggravated sanctions for human smuggling Canada was among the first nations to sign the 2001 UN Convention 10 against Transnational Organized Crime and its two accompanying Protocols, including the Protocol against the Smuggling of Migrants by Land, Sea and Air. Consequently, the new Immigration and Refugee Protection Act, which came into force in June 2002, modified the penalty for migrant smuggling. The Immigration and Refugee Protection Act imposed tougher maximum penalties for organizing an illegal entry into Canada, and very severe penalties for the new offence of human trafficking, but did not distinguish, as did the Protocol, between persons 11 who are motivated by humanitarian concerns and others. Someone who helps a family member flee persecution can be refused a refugee claim hearing or lose permanent residence without the possibility of appeal. Helping ten persons or more to cross the border illegally, without any threat to persons or property, is now an offence punishable by life imprisonment. This is more than the punishment for rape at gunpoint, which carries a maximum sentence of 14 years. It is the same punishment as that imposed for an act of genocide or a crime 12 against humanity. Who can seriously equate a Nazi leader with a small migrant smuggler? What subconscious fear of the foreigner is expressed when the scale of penalties is distorted in such a blatant manner?

Safe third country agreement Canada and the US signed a Safe Third Country Agreement in

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13

December 2002. This agreement will allow each country to send back to the other all the asylum seekers who have reached the territory of the former by way of the territory of the latter. Figures provided by Citizenship and Immigration Canada (CIC) indicate that from 1995 to 2001, approximately one-third of all refugee claims in Canada were made by claimants known to have arrived from or through the US. Of those claiming refugee status at a port of entry (at an airport or border post), where verification of transit countries may be more easily undertaken, 60 per cent to 70 per cent came from or through the US on their way to Canada. […] However, in this case, one may question the basic premise that the US is a ‘safe’ country for all asylum seekers. Non-governmental Organizations (NGOs) and the United Nations High Commissioner for Refugees (UNHCR) expressed concerns about certain US practices, especially in the fields of detention procedures and the expedited removal process. Canada is therefore preventing foreigners in the US to ask for asylum in Canada, in the full knowledge that they will not be treated in a similar way that they could expect to be treated in Canada. By deciding to return asylum seekers to the US, Canada reduces by a third the caseload of the Immigration and Refugee Board (IRB). In doing so, however, Canada deprives these persons of a refugee determination system based on the Canadian Charter of Rights and Freedoms that has no equivalent in the US. It is common knowledge that the American refugee determination system has been downgraded, 14 especially at the level of the US Board of Immigration Appeals. […] It is also predictable that the implementation of such policies is creating a huge market for migrant smugglers to help people cross the border undetected before asking for refugee status inside Canada. This will further degrade the image of asylum seekers, in effect turning them, in the court of public opinion, into the menacing figures of international criminals. Harsher repressive or deterrent measures against them would then be made possible.

Interception measures beyond state borders Canada’s Immigration and Refugee Protection Act has several provisions that make carriers responsible for the removal costs of passengers arriving 15 at Canadian airports with improper documents. Under the Immigration and Refugee Protection Act, the Department of Citizenship and Immigration charges a carrier an administration fee for each traveller

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arriving with improper documents. The department has signed agreements with most airlines flying regular routes into Canada. According to the agreements, carriers with good performance records in deterring these travellers from arriving in Canada pay reduced administration fees. Airlines, in turn, agree that immigration control officers will train their staff and assist them at foreign airports in identifying passengers with 16 improper travel documents. All these measures aim to enhance the efficiency of interception of undocumented foreigners before their arrival at the Canadian border. […] Controlling the actions of Canadian immigration or intelligence services overseas is extremely difficult. Even if thousands of immigration files are processed annually and systematic discrimination is alleged, little can really be done. As in most western countries, Canadian authorities have adopted systematic policies for the interception and interdiction of irregular migrants outside Canadian territory and international 17 cooperation in this field is very active. Canada maintains that it will respect its international obligations towards the protection of refugees and human rights generally, but nothing in the Canadian government’s interception and interdiction policies provides for effective means of allowing the irregular migrants in real need of protection to come to Canada. […]

THE FOREIGNER, EVEN AT RISK, IS PERCEIVED AS A SECURITY THREAT The foreigner is not considered anymore as a person who, as a matter of principle, always deserves justice, and therefore dignity. […] They have no proper political representation. Some say that they are not part of the social compact. They may be feared from the start. Political antipathy towards foreigners can easily be built and all social institutions, courts included, can be influenced by such sentiments. […] In the Canadian Charter of Rights and Freedoms, only sections 3 (right to vote and be elected), 6 (right to enter and remain in the country) and 23 (minority language educational rights) specifically protect citizens. All other rights, including the right to equality and to not be discriminated against on the basis of national origin (Article 15), should equally apply to all human beings under the purview of the Charter, and the Supreme Court has said that this means ‘every person physically present in Canada and by virtue of such presence amenable 18 to Canadian law’.

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Article 1 of the Canadian Charter of Rights and Freedoms prescribes a duty to protect rights and freedoms of everyone, except for limitations foreseen by the law, which are reasonable and justified in a free and democratic society. Until now, this test has been submitted to a strict interpretation in order to provide the largest scope of rights possible. […] The right to equality before the law has often been interpreted as inapplicable to proceedings relating to foreigners in an irregular 19 situation. The reasoning for such an exemption is that such proceedings do not correspond to anything to which a citizen could be subjected. If an effect based interpretation is adopted, as favoured by the Canadian 20 Supreme Court in Andrews for example, there is no reason to distinguish the detention of a foreigner from any other person’s detention since the effect of the detention in either case (i.e. the deprivation of physical liberty) is exactly the same. Deportation proceedings can also be interpreted by reference to their consequences. If the risk posed to an individual by particular proceedings is death, torture, detention, cruel, inhuman or degrading treatment, there is no reason to consider these proceedings of lesser seriousness than those which would subject citizens to similar treatment, such as extradition proceedings. […] The right to a fair trial, for its part, is still understood to apply only to criminal proceedings. The whole of the treatment applied to foreigners in an irregular situation such as detention or deportation, is still regarded as administrative procedure to which fair trial provisions do not apply. This is the case under the Canadian Charter of Rights and Freedoms. This interpretation comes from an era where administrative law was embryonic and therefore human rights instruments did not yet envisage its future development, much less its extreme impact on rights and freedoms. If more modern human rights instruments are considered, one can see that the fair trial provision is being expanded to cover all proceedings under the law, regardless of their criminal or administrative character. The recent Charter of Fundamental Rights of the European 21 Union (the EU Charter) does not make such a distinction. […] Domestic tribunals have not yet all met this challenge. Protecting the rights of foreigners today corresponds, mutatis mutandis, to protecting the rights of workers 100 years ago, the rights of women 50 years ago, the rights of aboriginals 25 years ago or the rights of gays and lesbians nowadays. In their time, all of these categories, which were considered outside the circle of citizenship or legality, were deemed legal minors to be dealt with as objects, not respected as subjects of the law. Courts take time to come to terms with such difficult social issues, but no less time than the whole of society. Courts can be a little ahead of their

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society and help it understand the complex implications of the rights that citizens have come to recognize as essential to their own dignity, to their own sense of self. […] We should continue to defend the modern conception of the law according to which the protection of fundamental rights outweighs the raison d’état, unless it is justified by a national emergency situation. The protection of Canadian citizens cannot be based on the denial of foreigners’ rights. The same rights are at stake: the violation of a foreigner’s rights is a violation of a citizen’s rights. It took us time to understand that the fight against crime could not be legitimately held unless we respected the rights of the accused and accepted that it was more important not to jail an innocent, than to let a criminal escape punishment. Likewise, the fight against terrorism is a primary political and social objective of our states and should be conducted with all the necessary means, which include security intelligence, counter-espionage, police operations, arrests, detentions, etc. Nevertheless, this is not a fight at any cost. The fight against terrorism, in order to be legitimate in the long run, should be subordinated to the protection of the rights of any suspect, including a suspected foreigner. During the last decade, foreigners have progressively obtained most of what criminals got in the nineteenth century, that is, the recognition that their rights will prevail upon the state’s interests. We acknowledged, in 1982, that the protection of the fundamental rights prevailed upon parliamentary sovereignty, that democratically elected persons cannot do anything they want, that the legitimacy of a collective act depends on the respect of everyone’s fundamental rights. […] Our shared humanity is based upon the principle of equality. The Canadian courts have made themselves the champions of this conception of the right to equality and Canada has projected the image of a country preoccupied with human rights, human dignity and the ‘duty to protect’, included in the Human Security Agenda promoted by Canada. Our openness to immigration and our fundamental commitment to respecting human rights are essential elements of the image that Canada projects abroad, an image all Canadians are proud of. Canada’s 22 International Policy Statement, recently released, is full of this rhetoric. We are still considered as a country that cares for and respects human rights for all. But some of our policies towards migrants could start denting that image. […] Lest we reconsider the rights that foreigners are recognized in this country, in relation to those enjoyed by citizens, we risk losing the moral high ground that we have enjoyed in the past decades.

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CONCLUSION In conclusion, I would argue that, today, we should accept that, in the international arena, a state cannot invoke anymore its territorial sovereignty to justify a systemic breach of fundamental human rights, of a foreigner as of a citizen. It is true that international law does not yet recognize the absolute pre-eminence of fundamental rights upon state sovereignty, whereas this is considered to be an essential feature of domestic law in all democracies governed by the Rule of Law. It is also true that the events of 11 September have frightened us to a point that some people may have invoked the opportunity to establish torture 23 certificates, even if the absolute prohibition of torture is one of the most valuable legacies of the generation that lived through the atrocities of World War II and the Shoah. Our current fear should not let us forget that, citizen or foreigner, we are all equally deserving of justice and that the necessary fight against terrorism cannot be made to the detriment of our system of protection of fundamental rights. This system is a common good to us all and an essential attribute of our civilization based, since 1945, on the absolute pre-eminence of human dignity.

NOTES 1. Privacy Commissioner of Canada, News Release, 29 January 2003. 2. Act to amend the Aeronautics Act, SC 2001, Chapter 38 (Bill C-44). Assented 18 December 2001; see: Office of the Privacy Commissioner of Canada, Press Release, 30 November 2001. 3. Didier Bigo, L'Europe des polices et de la sécurité intérieure, Complexe, Paris, 1992. 4. CIC, Strengthened Immigration Measures To Counter Terrorism, 12 October 2001. The funds allocated to anti-terrorist measures between 2001 and 2007 were then estimated at 7.7 billion Canadian dollars: Office of the Auditor General of Canada, Citizenship and Immigration Canada, Control and Enforcement, Report, Chapter 5, April 2003. 5. Canada-US Smart Border Declaration, signed 12 December 2001 by John Manley, Minister of Foreign Affairs and International Trade (Canada) and Tom Ridge, Director of the Office of Homeland Security (US). 6. For example, the new 2002 Immigration and Refugee Protection Act removes all right of appeal and power to review removal orders against any person, even a permanent resident, who is inadmissible on the grounds of security, violating human or international rights, serious criminality and organized criminality. See S. 64 of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27. 7. Canadian Council for Refugees, ‘CCR denounces detention based on suspicion’, Media release, 2 September 2003.

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8. See Immigration and Refugee Protection Act, SS.77, 81, 115; Citizenship & Immigration Canada, Keeping Canada Safe, Factsheet No. 6, 7 July 2002. 9. See: Kent Roach, ‘Canada’s Response to Terrorism’ (soon to be published). 10. United Nations Convention against Transnational Organized Crime, GA res. 55/25, Annex I, 55 U.N. GAOR Supp. No. 49 at 44, U.N. Doc. A/45/49 Vol. I. (2001), entered into force, 29 September 2003. 11. Estibalitz Jimenez and François Crépeau, ‘The Immigration and Refugee Protection Act’, Horizons, Bulletin of Canadian Policy Research Initiative, Vol. 5, No. 2, September 2002. 12. See: Article 272, Criminal Code of Canada, R.S. 1985, Chapter C-46; Articles 4 and 6, Crimes Against Humanity and War Crimes Act, S.C, 2000, Chapter 24. 13. CIC, Canada and U.S. Negotiators Agree to Final Draft Text of Safe Third Country Agreement. 14. US Committee for Refugees, ‘United States Report’, World Refugee Survey, 2003. 15. See S. 148(1)(a) of the Immigration and Refugee Protection Act and S. 279(1) of the Immigration and Refugee Protection Regulations; CIC, Guide For Transporters, 2002. 16. Office of the Auditor General of Canada, Citizenship and Immigration Canada, Control and Enforcement, Report, Chapter 5, April 2003. 17. See Citizenship and Immigration Canada, Report on Plans and Priorities, 2003– 4, February 2003, [http://www.tbs-sct.gc.ca/est-pre/20032004/CI-CI/CICIr34_e.asp]. 18. Singh vs Minister of Employment and Immigration, 1 SCR, 1985, p.177. 19. See Chiarelli vs Canada (Minister of Employment and Immigration), 1 SCR, 1992, p.711; Huynh vs Canada (CA), 2 F.C., 1996, p.976. 20. Andrews vs Law Society of British Columbia, 1 SCR, 1989, p.143. In this case, the requirement of Canadian citizenship in order to become a lawyer has been deemed a discriminatory distinction, as citizenship did not add anything to the qualification or loyalty of the professional who would otherwise satisfy the criteria for becoming a lawyer. 21. Charter of Fundamental Rights of the European Union, O.J.E.C. 2000/C364/01, 18 December 2000. 22. Foreign Affairs Canada, A Role of Pride and Influence in the World, Canada’s International Policy Statement, April 2005. 23. Alan M Dershowitz, ‘Want to torture? Get a warrant’, San Francisco Chronicle, 22 January 2002.

EXCLUSION FROM REFUGEE PROTECTION IN EUROPE: An Attempt at Legal Conceptualization Patrick Hoenig

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BACKGROUND The interpretation and application of the Exclusion Clauses under the 1951 Convention on the Protection of Refugees has been evolving, factoring in historical and political considerations, not all of which proved to be conducive to securing a comprehensive legal framework designed for refugee protection. In the 1990s, Western Europe faced an unprecedented rise in applications for refugee status, prompting the European Union (EU) member states to tighten borders to keep out ‘illegal migrants’, to shorten asylum procedures, to limit the right of appeal and to pass on responsibility to other nations – ‘safe third countries’ – through which asylum seekers travelled en route to Western Europe. […] The application of the Exclusion Clauses under Article 1F of the Convention is a case in point. United Nations High Commissioner for Refugees (UNHCR) has consistently argued in favour of a restrictive interpretation of the Exclusion Clauses, given the legal nature of the provisions as an exception from Article 1A and the potentially serious consequences of exclusion from Convention 1 protection. But state practice is far from homogeneous and a range of problems regarding the interpretation and application of the Exclusion Clauses persist. […] †

Jurist and Visiting Professor, Academy of Third World Studies, Jamia Millia Islamia, Refugee Watch, 29 June 2007.

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At the same time, demographic trends suggest that a comprehensive overhaul of immigration laws and policies is required for Western European countries to avoid a slump in population and a subsequent economic backlash. In several countries, legislation has been adopted or brought underway with a view to pave the way for eligible foreign nationals to be granted citizenship. But as the need for attracting foreigners to Europe is reluctantly being recognized, it seems to become harder and harder for refugees to clear the hurdles for obtaining a legal status that would reflect the legal obligations of states under the 1951 Convention. The process of synchronizing asylum laws and policies, likely to be largely affected by the expansion of the EU to Eastern Europe, has further raised concern that European harmonization policy may generate ‘least common denominator’ dynamics, prompting EU members with more generous asylum policies to cut back on their 2 standards to accommodate their more restrictive neighbours. […] In a climate of social insecurities, alienation with globalization policies and fear of terrorism, the refugee is perceived, not only in Europe, less as an 3 individual deserving of protection but rather an alien raising suspicion. It is now the time for advocacy to ensure that the Exclusion Clauses are applied in a coherent and rights respecting manner rather than used as loopholes to discredit legitimate claims to refugee status.

THE EXCLUSION CLAUSES IN EUROPEAN PRACTICE The grounds of exclusion under Article 1F Article 1F(a)

Article 1F(a) of the 1951 Convention provides that individuals can be excluded from refugee protection on the grounds of a crime against peace, a war crime or a crime against humanity. Whereas crimes against peace do not play a role in exclusion practice, war crimes formed the basis of a number of exclusion decisions. In France, for example, a former soldier of the Russian army was excluded on the grounds of evidence suggesting that he had committed war crimes when he took part in the destruction of villages in Afghanistan in 1985 and the killing of civilians, including children, during an attack on a kindergarten in 4 Chechnya in 1995. The bulk of exclusion decisions under sub-clause (a) of Article 1F, however, is grounded in an alleged crime against humanity. But, what are the elements that constitute a crime against humanity and

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what is the scope of its application? […] Although legal issues in the realm of crimes against humanity abound, there is hope that problems will diminish in future practice as the crime against humanity has attracted considerable research interest following its inclusion in Article 7(1)(i) of the Statute of the International Criminal Court.

Article 1F(b)

The overly broad interpretation of the term ‘serious non-political crime’ in many European countries poses a key problem with respect to the application of Article 1F(b). Decision-making bodies are often found to be lacking due diligence in distinguishing between civil and political criminal offences. Sometimes, criteria for what constitutes a serious nonpolitical crime are missing or drawn up arbitrarily. In this context, it should be noted that in France crimes committed as part of the armed struggle for the independence of the ‘Basque Country’ are prima facie 5 considered to be of non-political nature. Austrian authorities, in particular, have been criticized for a lack of consistency and overly lax interpretation, resulting in the qualification of aggravated fraud and minor drug related offences as serious crimes under Article 1F(b). Nongovernmental Organizations (NGOs) based in Austria have also observed that asylum seekers alleged to be involved in minor criminal activities were rejected on the grounds of a change of conditions in the country of origin when it was clear that no such change had occurred. Applicants from Africa have been reported to face considerably more problems than others to have their applications taken seriously. On the other hand, the Danish Refugee Board is to be commended for going to great lengths to make a proper distinction between civil criminal offences – resulting in the denial of asylum – and political criminal offences – leaving open the possibility of asylum being granted. In a three-step procedure, the Board first determines whether there is a direct and clear connection between the act committed and the political goal pursued; secondly, the seriousness of the act is measured against the treatment to be expected by the asylum seeker if returned to his country of origin; lastly, a proportionality test is applied: the harsher the consequences of the act, the less likely it is considered to be political. The French Refugee Appeal Commission holds that ‘not only the gravity of the crime should be taken into account but also the goals pursued by the perpetrators and the 6 degree of legitimacy of the violence that they carried out’. Similarly, the UK House of Lords, in T vs Secretary of State for the Home Department,

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backed a decision by the Court of Appeal that found it to be ‘inappropriate to characterize indiscriminate bombings which led to the 7 deaths of innocent people as political crimes’. The court held that while not all terrorist acts fell outside the scope of the Convention, an atrocious act that was grossly out of proportion to any genuine political objective, with no sufficient close or direct causal link between it and the alleged political purpose, could not be qualified as political. However, a noticeable shift has occurred in Great Britain with the passing of antiterrorist laws as early as February 2001 and the interpretation of Article 1F(b) is increasingly affected by human rights concerns caving in to national security considerations. […]

Article 1F(c)

Under Article 1F(c) a person will be excluded from the protection under the 1951 Convention if found guilty of acts contrary to the purposes and principles of the UN. From the fact that only states can be members of the UN, it has been concluded that Article 1F(c) applies ‘notably’ to persons in senior government positions, who, by virtue of their responsibilities, ordered, or lent their authority to, actions to be considered at variance with those purposes and principles as well as to members of the 8 security forces personally responsible for such breaches. In some countries, such as Germany, decision-makers emphasized that Articles 1 and 2 of the UN Charter were concerned with international, not individual, relations. Consequently, they held that the Exclusion Clauses did apply only where inter-state peace was affected. […] Broadening the scope of the provision, the French Appeals Board held that actions inconsistent with the goals and principles of the UN could also be committed by persons who, without being part of the bodies in power, participated in the activity of judicial, penal or law enforcement agencies. It thus sanctioned the exclusion under Article 1F(c) of two nationals of the Democratic Republic of the Congo who had admitted their involvement, as informers paid by the former civilian guard, in the arrest 9 and persecution of opponents of deposed president Mobutu. Finally, the French Appeal Court, in the Avetisian case (1997), held Article 1F(c) to be applicable in the case of a Georgian asylum seeker who had participated in an attempted coup against the ‘legitimate and democratic’ 10 government of President Shevarnadze. In this decision, there was no longer any reference to the applicant holding any power bestowed on him by the state or related to him informally by a state agency. This

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development is to be welcomed in principle as neither the UN Charter nor the 1951 Convention can easily be construed as providing that individuals, not acting in their official capacity, are exempt from being excluded, no matter what the motive and impact of their action. But, the case of the two Congolese in particular shows how thin the line has become between rightful exclusion and contempt of the ground realities by decision-making bodies placed in a political and social environment barely comparable. Furthermore, attempts in some jurisdictions, notably the UK, to equate ‘terrorist’ activities with a breach of the purposes and principles of the UN Charter should give rise to concern. In re Youseff, the applicant, an asylum seeker from Egypt, was denied asylum on the grounds that he was considered to be a senior member of the Egyptian 11 Islamic Jihad constituent assembly. The State Secretary concluded that, in light of Article 1F of the 1951 Convention and the UN Declaration on Terrorism, acts, methods and practices of terrorism were contrary to the purposes and principles of the UN. He was satisfied that there were serious reasons for considering that the applicant had been guilty of acts 12 contrary to the purposes and principles of the UN. […]

Exclusion procedure Inclusion before exclusion

As a matter of principle, exclusion procedures should only be entered into when the decision-making bodies have established that the asylum seeker meets the requirements of the refugee definition set out in Article 1A of the 1951 Convention. However, this is not an unanimous position. The Ministry of Justice of the Netherlands categorically claims that 13 exclusion is a case apart and should be examined first. […] In the Netherlands, asylum seekers are subjected, based on a first hearing, to either an Article 1A or an Article 1F enquiry. Lawyers representing asylum seekers warn that there is a real danger for applicants to be found guilty by association as interviews, rather than aiming at depicting a wellrounded portrait of the applicant, focused almost entirely on facts linking 14 the applicant to excludable acts. The procedural problems are compounded by (1) the fact that asylum seekers are generally prepared for interviews by volunteer workers rather than lawyers; (2) the withholding of information from the interviewees concerning the consequences of Article 1F determination procedures; (3) the reliance, on the part of decision-makers, on country reports, which, at times, prove to be

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outdated, incoherent and ill-informed; and (4) a tendency to consider as prima facie excludable those individuals who, for whatever reason, have been linked to an organization with a ‘cruel purpose’. The example of the Netherlands bears out the practical problems stemming from giving priority to exclusion procedures over determining the merits of the case first. It is a sad but undeniable fact that the risk of arbitrary decisions increases by the degree by which state authorities are allowed to deny 15 refugee status without fully considering the merits of the case. […]

Balancing test

On the question as to whether Article 1F provides for a test balancing the seriousness of the crime against the gravity of the exclusion consequences, views have also been at variance. UNHCR has long been known for holding the position that in the framework of Article 1F the fear of persecution on the part of the applicant needs to be measured against the seriousness of the crime. This approach is shared by a Joint Position of the EU Council, which states that ‘[t]he severity of the expected persecution is to be weighed against the nature of the criminal offence of which the person concerned is suspected’. In support of a balancing test, it can be argued that there has been a fundamental change of circumstances since 1951 in terms of human rights law and restrictions on extradition, where persecution is to be feared in its aftermath. Article 1F(b) thus can no longer be deemed 16 absolute with respect to the denial ab initio of refugee status. Critics say that the balancing test proposed by UNHCR in the framework of Article 1F(b) is well meaning, but ill-advised. […] The jurisprudence in European countries is divided over the question of a balancing test. The Danish Refugee Board, in two poignant decisions, applied a balancing test to determine the excludability of asylum seekers. In a case involving an applicant standing to be excluded for his involvement in an Liberation Tigers of Tamil Eelam (LTTE) attack on a farm in Sri Lanka, the Board ruled in favour of the applicant, weighing in the age of the asylum seeker, his low rank in the organization, his inexperience in military operations, and the fact that he had learnt about the civilian nature of the target only shortly before the attack was launched. […] In a similar vein, French courts are generally reported to balance the gravity of 17 the act committed against the severity of the persecution feared. However, there is no explicit support for a balancing test in other jurisdictions. In T vs Secretary of State for Home Department, the UK

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Court of Appeal held that the Convention does not provide for a 18 balancing test in exclusion procedures. In conclusion, building on the position held by UNHCR and taking into account recent developments of international human rights law, a sufficiently compelling case can be made for the examination of all factors pointing to inclusion, including the treatment likely to be meted out to the applicant in case he were to be excluded, before making a decision in respect of any of the sub-clauses in Article 1F.

Serious reasons for considering: persecution v. prosecution

In a number of cases the reasoning of the courts seems to suggest that the prosecution of an asylum seeker in his country of origin provides sufficient evidence for considering him excludable. In re Baljit Singh (1994), a case involving a refugee from Punjab, a UK court held that ‘the status of refugee should not normally be given to someone facing the legitimate processes of law within his own country properly 19 applied’. Accordingly, Baljit Singh was excluded from protection under the 1951 Convention. […] Empirical data suggests, however, that the line between persecution and prosecution is often blurred. […] Decision-makers in exclusion procedures should not easily discard the possibility of the judiciary in a foreign jurisdiction holding mock trials based on motives beyond their jurisdiction. The indictment or conviction by a court in a foreign jurisdiction should give rise to serious reasons for considering an asylum seeker to be excludable only if the decision-making body has satisfied itself that the criminal proceedings leading to the indictment or conviction have been conducted in compliance with international standards of procedural fairness.

Exclusion and refoulement The need for conceptual disentanglement

Within the framework of the 1951 Refugee Convention, the interplay of Exclusion Clauses (Article 1F) and the principle of non-refoulement (Article 33) is complex and multi-layered. It is nevertheless possible to draw a clear line with regard to the purpose of the provisions. Article 1F seeks to ensure the credibility of the asylum system and the accountability of perpetrators of heinous crimes, whereas Article 33 is concerned with

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the security interests of the host community. It follows that neither the scope nor the consequences of Article 1F can be identical to those of Article 33. Rather, Article 1F provides for the exclusion of applicants from refugee status – whereas Article 33(2) applies to those who are recognized as refugees and would benefit from non-refoulement if it was not for national security concerns. In European legislation, the line between exclusion and non-refoulement has sometimes been blurred, to the detriment of refugees. The Austrian Asylum Act (1997), for example, provides that ‘[a]sylum shall be denied if any of the grounds set forth in the exclusion clauses in Article 1, Section F, of the Geneva Convention on Refugees is present. Asylum shall further be denied if aliens for cogent reasons constitute a danger to the security of the Republic or have been convicted, by a final judgment of an Austrian court, of a particularly serious crime and, by reason of such punishable act, represent a danger to the community’. This provision stands out as an example for how the merger of Article 1F and Article 33 of the 1951 Convention into a single provision under the heading ‘disallowance of asylum’ can produce results to be deemed in discord with the rationale underpinning the provisions of the Convention. Under the Convention regime, a refugee coming under the scope of Article 33(2), but barred from deportation, for example under Article 3 of the European Convention of Human Rights 21 (ECHR), enjoys all privileges conferred to him as a Convention refugee, except protection from refoulement for Convention purposes. The denial of asylum to an applicant under Article 13(2) Austrian Asylum Act on the grounds of his posing a threat to national security, however, deprives the refugee of all rights recognized in the 1951 Convention, including protection from refoulement. The Asylum Act thus curtails the rights enjoyed by the refugee in contravention of the regime under the 1951 Convention. Furthermore, the Austrian Aliens Act (1997) provides that decisions on issues pertaining to exclusion and refoulement are to be made by the same authorities. Observers have critically noted that as a consequence the reasoning of exclusion decisions often resembles that of decisions on non-refoulement. While it may be convenient for the authorities to mete out similar-worded decisions on cases to which different provisions of the law apply, such a practice is dubious at best in light of international human rights law and procedural accuracy. […]

State obligations following exclusion

State obligations do not end with the exclusion of an applicant from

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the refugee protection regime under the 1951 Convention. The Legal Advisory Group of the Lawyers Committee for Human Rights (now Human Rights First) stressed the need for a state rejecting an applicant on the grounds of Article 1F to ensure that criminal proceedings will be initiated, while international human rights law continues to apply, regardless of the nature of crime the excludee is suspected of having 22 committed. Post-exclusion scenarios are rife with problems. In the European context, legal predicaments arise in particular with respect to the reconciliation of Article 33(2) 1951 Convention and Article 3 of the ECHR. In Ahmed v. Austria, the European Court for Human Rights held that the applicant, a refugee from Somalia, would face the risk of being subjected to treatment contrary to Article 3 ECHR if returned to his home country. It therefore ruled that the applicant could not be deported. […] In TI vs United Kingdom, the Court reaffirmed its view that Article 3 ECHR imposed an obligation on the contracting states not to expel a person to a country where there were substantial grounds for believing that he would face a real risk of being subjected 23 to torture or to inhuman or degrading treatment. This means that an individual found to be undeserving of the right to asylum will nevertheless be protected from deportation if the situation in his home country does not allow for the authorities in the country of refuge to reasonably expect him to be treated in compliance with basic human rights standards. […] Minimum procedural standards for deportation also need to be met in the realm of post-exclusion. It is often heard that no recourse is to be had to formal extradition procedures where a person has been excluded from protection under Article 1F and can be returned to his country of origin under Article 3 ECHR. But why the excludee should have fewer rights than other groups of people slated for deportation is not clear. […] The 1951 Convention does not override international extradition agreements; it is, in fact, blind to national extradition laws. What is more, the application of national extradition procedures may provide an additional safeguard for human rights protection. Deportation proceedings bring out very prominently tendencies toward criminalizing asylum seekers and leave them vulnerable to human rights abuses. As a case in point, the European Commission on Racism and Intolerance expressed alarm over episodes of excessive violence in Denmark occurring during deportations and ill-treatment of asylum seekers in the course of police 24 operations aimed at clamping down on drug dealing. It is therefore essential that post-exclusion deportations are executed according to the same standards that apply to other deportees.

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Post-exclusion status

International law is silent on the question of status of asylum seekers who have been excluded on the grounds of Article 1F but are barred from deportation under Article 3 ECHR. It is generally being felt to be untenable that exclusion decisions throw the excludee into a legal limbo, but national authorities still have to come up with a sound post-exclusion policy and a comprehensive legal framework. In search of a solution, it has been recommended that countries cut back on providing services and aid to individuals found to be excludable but protected from deportation. The EU Commission proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in member states provides for the possibility of reducing or withdrawing reception conditions, such as housing, food and clothing, if ‘there are serious grounds for believing that the applicant has committed a war crime or a crime against humanity or if, during the examination of the asylum application, there are serious and manifest reasons for considering that grounds of Article 1(F) of the Geneva Convention may apply with respect 25 to the applicant’. Such drastic measures aimed at flushing out undesired asylum seekers are believed to be permissible on the grounds that Article 3 ECHR ‘lacks a positive obligation in that housing, work, 26 services need to be provided’. With all due respect for conservative budget spending policies, such welfare reduction schemes must be deemed incompatible with international economic and social rights. The right to work is recognized in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to an adequate standard of living, including adequate food, clothing and housing, spelt out in Article 11 ICESCR. Those who are eager to lay a legal groundwork for discriminatory measures against refugees, placing them in a position where they are virtually left hovering between life and death, must be aware that they propagate not only a breach of human rights law, but also an attack on human dignity. […]

NOTES 1. See, for example, UNHCR’s comments on Clause 52 of the UK Immigration and Asylum Bill 2005, December 2005. The UNHCR Global Consultations Track Two Expert Roundtable, held in Lisbon in May 2001, specifically dealt with the delicacies of current application of Exclusion and Cessation Clauses under the 1951 Refugee Convention, but discrepancies in their application largely remain.

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2. Jennifer Moore, ‘From Nation State to Failed State’, Columbia Human Rights Journal, Vol. 31, 1999, p.110. Proponents of a unified asylum system, on the other hand, point out that streamlining asylum laws and policies could benefit people in need of international protection in that harmonization may help stem a race to the bottom. 3. Ranabir Samaddar, Refugees and the State: Practices of Asylum and Care in India, Sage Publications, New Delhi, 2003, p.37. 4. Sibylle Kapferer, ‘Exclusion Clauses in Europe’, International Journal of Refugee Law, Special Supplementary Issue on Exclusion, Vol. 12, 2000, p.197. 5. See K Schank and P Galiano, ‘France’ in Carlier et al., eds, Who is a Refugee?, Kluwer Law International, 1997, p.422. 6. Commission des Recours des Refugiés, French case law on the granting of refugee status, 2005, citing the Council of States. 7. 2 All ER 865, [1996] 2 WLR 766, available in LEXIS, Legal: UK: Case Law. 8. EU Joint Position of 4 March 1996, 96/196/JHA. 9. Commission des Recours des Refugiés, French case law on the granting of refugee status, 2005, citing the Council of States. 10. Nicole Michel, The Way in Which France Applies Article 1F(c), in Krieken, ed, The Exclusion Clause, TMC Asser Press, The Hague, 1999, p.296. 11. CO/706/99 (1999), available in LEXIS, Legal: UK: Case Law. 12. It should also be noted that it remains unclear what evidence the ‘security service assessment’ had provided. The use of secret evidence must be deemed in contravention of basic rights of the suspect as no effective legal defence can be devised to challenge or counter it. 13. The Netherlands State Secretary of Justice stated in a Policy Memo (1997) that with respect to the inter-linkage between Article 1A and Article 1F ‘there is nothing in the text of the Convention to indicate that Article 1A must be applied first’. 14. Similarly, in expedited removal procedures in the US, a genuine refugee who admits to a conviction in his country of origin may find himself barred from a credible fear hearing and thus deprived of the opportunity to show that the conviction was an act of persecution. See Kathleen Keller, ‘US (Non) Compliance with its Duty of Non-Refoulement’, Yale Human Rights & Development Law Journal, Vol. 2, 1999, p.204. 15. European Council on Refugees and Exiles, Position on Exclusion, 2004, Para. 8. 16. Geoff Gilbert, ‘Current Issues in the Application of the Exclusion Clauses’, This paper was commissioned by UNHCR, 2001, p.21, invoking Article 62 Vienna Convention on the Law of Treaties. According to Gilbert, the absurd situation would be reached in the following scenario: A person commits a serious nonpolitical crime in country A, Arcadia, and flees to country B, Ruritania. Given the political situation in Arcadia, it is safe to say that, if returned to that country, his life would be threatened. Under the regime of Article 1 F(b), the Ruritanian authorities can deport that person even if the only state to which he can return would be Arcadia. 17. Nicole Michel, ‘The Way in Which France Applies Article 1 F(c)’, in Krieken, ed, The Exclusion Clause, TMC Asser Press, The Hague, 1999, pp.294–9. 18. Court of Appeals, T. v. Secretary of State for Home Department [1995], Imm A.R. 142. Geoff Gilbert, Current Issues in the Application of the Exclusion Clauses (2001), p.20, cites Canada, the UK and the US as examples for jurisdictions

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opposing the application of a balancing test. 19. Vanheule, ‘United Kingdom’ in Carlier et al., eds, Who is a Refugee?, op. cit., 1997, pp.604–6. 20. European Council on Refugees and Exiles, ‘Position on Exclusion’, 2004, Para. 4. 21. Article 3 ECHR stipulates that ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment’. 22. International Journal of Refugee Law, Special Supplementary Issue on Exclusion, Vol. 12, 2000, p.322. 23. Ibid., p.259. 24. European Commission against Racism and Intolerance, Second Report on Denmark, 16 June 2000. 25. Commission of the European Communities, EU Commission proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States, 3 April 2001, 2001/0091 (CNS). 26. Van Krieken, Germany and Article 1F, AWR, Vol. 38, 2000, p.195. In some countries, the deprivation of social benefits is a scheme applied on a broader scale. The Austrian Federal Act on Assistance to Asylum Seekers governs the provision of social assistance granted to asylum seekers under the ‘federal assistance scheme’ during the asylum procedure. Under the scheme, a large number of asylum seekers do reportedly not receive public assistance.

WOMEN’S RIGHTS, ASYLUM JURISPRUDENCE AND THE CRISES OF INTERNATIONAL HUMAN RIGHTS INTERVENTIONS Oishik Sircar

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INTRODUCTION The growth of the international women’s rights movement and its emergence as a field of research and advocacy has led to a valuable but increasingly self-contained discourse, often cut off from developments in postcolonial conditionalities (‘Postcoloniality’), on the one hand, and conceptions of the different legal contexts in which international human rights operate, on the other. Such a trajectory of ‘development’ in human rights standards for women have no doubt had an enormous impact on women’s lives worldwide, but simultaneously it is also culpable of creating the ‘woman-as-victim’ subject, ‘geographically captive’ in the ‘barbaric’ cultures of the ‘Third World’. In this article I will briefly map the developments that led to the integration of gender into the international human rights law discourse and examine how the language of ‘violence’ and ‘respectable victim hood’ (from Vienna 1993 to Beijing 1995) has been privileged leading to the dislocation of ‘discrimination’ as envisaged by the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), as the primary index for measuring women’s human rights violations. […]

†

Human rights lawyer and independent researcher, Refugee Watch, 28 December 2006.

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A critique of the international asylum adjudication system is necessary to do a reality check with regard to what it can exactly offer when it comes to drawing the fundamentals of refugee rights guarantees from the basic principles of international human rights law. While human rights guarantees are understood to be universal and inherent across the world, when it comes to the determination of an asylum seeker as a refugee, to establish ‘well-founded fear’ in an objective fashion, asylum adjudicating officers tend to generate simplistic, even derogatory characteristics of asylum seekers’ countries of origin, as areas of barbarism or lack of 1 civility in order to present a clear-cut picture of persecution. The central guiding principle of this kind a construction of the asylum seeker as the ‘native’, who needs to be ‘civilized’ and rescued out of the clutches of a ‘barbaric’ state might be best described as ‘the worse the better’ – the more oppressive the home state, the greater the chances of gaining asylum. […] Among others, I specifically refer to the works of Alice Miller, Ratna Kapur and Jacqueline Bhaba. These feminist legal scholars and activists employ a discursive mix of human rights theory and practice, postcolonial and subaltern studies and international relations theory to understand the politics behind the articulation of ‘women’s rights as human rights’ and decisively observe how such an articulation operates with regard to geo-political, social and cultural locations of women facing intimate and other forms of violence.

PROTECTING WOMEN AND NOT THEIR RIGHTS? The recognition of violence against women as a human rights issue emerged almost four decades after the Universal Declaration of Human Rights was adopted in 1948. This enormous lapse in time, in spite of the ‘real space’ within which gender-based violence operated is in itself a glaring example of how much importance was given to women’s issues in the UN. Issues of violence and gender were solely part of the bodies 2 of International Humanitarian Law (the ‘Law of War’) and Criminal 3 Law where it was only about political/state-effected forms of violence like rape in times of armed conflict, forced prostitution, etc. The first articulation that could have connections with issues of violence was the CEDAW, adopted in 1979. There was minimal recognition of violence against women in either Mexico (1975) or Copenhagen (1980) World Conferences on Women. It was in 1985 at the Nairobi Conference that violence was named as a concern and thus

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began a process of elaborating strategies to address the problem. With the 1986 UN expert group meeting on violence against women and a 1989 study on violence in the family, there began a shift from seeing women’s experience of violence as simply a family/private problem to perceiving it as a larger problem and understanding such abuse as 4 human rights concern. The articulation of violence against women, thus, came after the drawing up and adoption of CEDAW, which meant that violence, was missing from this instrument. It is remarkable to note how for the framers of CEDAW, a causal connection between discrimination and violence was not evident. However, in 1992 the Convention’s monitoring committee (which periodically adds explanatory, interpretive statements to the document) added General Recommendation 19, which states that violence against women is understood to be a form of gender-based discrimination and that states are to be held accountable for violence against women, including by private persons. Many other developments followed in the 1990s, most importantly a Declaration on the Elimination on Violence against Women (DEVAW) in 1993 and the creation of the post of the Special Rapporteur on Violence against Women, its causes and consequences, who was appointed by the UN in 1994. The governmental Platform for Action arising from the Beijing World Conference on Women in 1995 had a 5 section on violence against women as one of 12 critical areas of concern. The developments noted above have been very significant within the UN human rights system, where women’s rights have been traditionally underfunded and undervalued, to finally elevate it to the status of ‘mainstream’ human rights. However, what began with the CEDAW in 1979 as a process of ending/challenging gender-based discrimination, claiming women’s right to substantive equality, through the developments lost out to gender-based violence as the issue of primary and fundamental concern to the UN and the international women’s 6 movement. […] What marked this shift from discrimination to violence? And what effect did dislocating discrimination have on the larger question of women’s rights in the global arena? It was at the 1985 Nairobi World Conference on Women that violence received an unprecedented articulation. However, such 7 articulation confined it to being understood only as a ‘women’s issue’. Starting with the 1990s, especially the global attention on rape as a war crime (with special regard to Rwanda and former Yugoslavia) DEVAW took centrestage in the theatre of women’s human rights advocacy, and sexual violence was constructed as the most important element of

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DEVAW. The rallying call to states to end VAW received a resounding amplification at the 1993 Vienna World Conference on Human Rights (Vienna Conference). It was here that the adage ‘Women’s Rights are Human Rights’ was coined entirely in the language of ‘violence’. […] VAW and specifically sexual violence has been effective in forwarding the cause of women’s rights advocates because it seemed to provide a means to make the gender-specific content of this violence visible to the key human rights bodies and actors. The result was where 8 ‘women [made] demands and ladies [got] protection’. It is important to understand how historic developments on women’s human rights in the UN have worked both in progressive and regressive ways for women. Where on the one hand it embodied a horror that could no longer be ignored and had to be responded to by states, it also represented the woman purely as a victim subject and reaffirmed her image (especially of women from the South) as without power and in need of protection. If one recollects the victim testimonies presented at the ‘Women’s Rights are Human Rights Tribunal’ (Vienna Tribunal) at the 1993 Vienna Conference, one will realize how clearly they were focused on sexual violence. In a filmed documentation of the proceedings at the tribunal, of the 15 or so testimonies shown, at least ten deal with sexual assault in detention, incest, marital rape, forced prostitution or rape in armed conflict. This narrow frame of sexual harm has reduced women to suffering bodies in need of protection by the law and the state, than as bodies and minds in need not only of protection, but participation 9 and equality. While the hapless suffering bodies of sexually victimized women gained visibility internationally as markers of the only kinds of violence women experienced, this push was also propelled through an understanding where the voices of victimized women had to be made respectable, to lend credibility to the work of women’s and human rights advocates. […] Through the discussion so far, I have attempted to both celebrate the strides made in international human rights law in articulating the need for responses to stop VAW, and at the same time have cautioned about what those responses might entail for women’s human rights in the long run. In spite of the historic developments on women’s rights and state accountability in human rights law, we can still identify the location of the ‘woman-as-victim’ in the trajectory of rights claims: she still remains captive within the constructs of family, home, community and nation. Her captivity is further valorized by human rights standards that invoke culture to create an imaginary geographical hierarchy of locations

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where the ‘woman-as-victim’ should and ought to be. In the next section I take ahead the discussion to understand what still continues to fuel the VAW approach to women’s human rights, and how women victims from the postcolonial worlds are further victimized for their ‘cultural captivity’, invisibilizing all forms of resistance potential that they have.

GENDER, CULTURE AND THE CRISES OF INTERNATIONAL HUMAN RIGHTS INTERVENTIONS The international human rights discourse has been fraught with the accusation of being ‘Eurocentric’ – meaning, that it has emerged out of the experiences of World War II, and was in essence a response to addressing conditions of rights violations in the Euro-Americas. Though over time states have been able to reach a semblance of consensus, through the UN, on the ‘universality’ of ‘inherent’ and ‘indivisible’ human rights norms and standards. But as many scholars have pointed out, the ‘universality’ thesis has its roots in the understanding of ‘European Enlightenment’, and thus is deployed in a cruelly liberal fashion, where peoples in the Southern world are subjected to an ‘othering’ treatment if they refuse to conform with the Western ‘universal’ standards and their attempt of resistance is constructed as ‘fundamen10 talist’. This is evident from the kind of ‘invasions’ that have taken place in recent times in the name of ‘humanitarian intervention’ in Afghanistan and Iraq, and continue in several African and South Asian countries – through governmental, non-governmental and evangelist missions. […] Not surprisingly, most of the responses of International Human Rights Law to protect women from violence have been directed towards the captive ‘Third World’ woman. Expectedly, such a response has attracted the many self-proclaimed guardians of ‘Eastern’ culture to reject the entire body of International Human Rights Law as ‘Eurocentric’, in turn using the argument of ‘Relativism’ to create a culture of impunity for themselves where violence against women can continue through state sanction.

OF CRISES, INTERVENTIONS AND IMAGINED VICTIMS It is an understood fact that only situations of crises invite interventions. Sometimes the crises are real, sometimes constructed and imagined. If we look at the developments in international human rights law to

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accommodate the issue of VAW (as discussed in Section II above), we can deduce that the crises were indeed an outcome of the combination of all the three factors. VAW was a real problem that necessitated a concerted response from the international community; the hypervisibility of sexual harm as the gravest form of VAW was constructed through the language of ‘respectable victimhood’ and a singular focus on harm done to the gendered body; and the women of the Third World are imagined to be the victim subject, without any agency and in need for human rights protection from the violence inflicted upon them by their own cultures. How is this imagined cultural subjectivity of a Third World woman’s experience represented through human rights work and reporting? And what kind of interventions does such representation attract? In her influential essay, ‘The Tragedy of Victimization Rhetoric’, Ratna Kapur observes: […] [R] eliance on the victim subject […] in the context of [VAW] presents a position […] [where] women in the postcolonial world are portrayed as victims of their culture , which reinforces stereotyped and racist representations of that culture and privileges the culture of the West. In the end, the focus on the victim subject reinforces the depiction of women in the postcolonial world as perpetually marginalized and underprivileged, and has serious implications for the strategies subsequently adopted to remedy the harms that women experience. It encourages some feminists [and women’s human rights advocates] to propose strategies which are reminiscent of the imperial interventions in the in the lives of the native subject and which represent the ‘Eastern’ woman as a victim 11 of a ‘backward’ and ‘uncivilized culture. She goes on to further point out the nature of state response a singular focus on the victim subject attracts. [The] victim subject and the focus on violence invite remedies and responses from states that has little to do with promoting women’s rights. Thus, a related concern is that the victim subject position has invited protectionist, even conservative responses from states. The construction of women exclusively through the lens of violence has triggered a spate of domestic and international reforms focused on the criminal law, which are used to justify state 12 restrictions on women’s rights – for the protection of women.

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If one were to look at the numerous reports that international (‘Western’) organizations like Amnesty International (AI) and Human Rights Watch (HRW) have put together on VAW and have used them as campaign material, we would understand the trope that they follow. Consider some of the AI titles: Women in Afghanistan: the Violations Continue; Bangladesh: Institutional Failures Protect Alleged Rapists; India: Amnesty International Campaigns against Rape and Sexual Abuse by Members of the Security Forces in Assam and Manipur; Pakistan: Honor Killings of Girls 13 and Women.. Using the crises-induced-intervention theory that I briefly talked about above, there’s no denying the fact that the events of VAW being documented and reported are indeed real. But the plight has been singularly focused on women from the South. […] The question of representation of gendered-harm and its connection with culture was also evident through the testimonies presented at the 1993 Vienna Tribunal. In the run-up to the Tribunal hundreds of testimonies were gathered by the organizers, the Centre for Women’s Global Leadership, but only a few were presented at the Tribunal. The testimonies were also considerably edited to highlight the goriest of 14 details regarding the kind of violence the victim had faced. […] The constant use of culture as a cause for VAW and the singular focus on bodily harm has three regressive side effects for women’s human rights. First, it essentialisms both gender and culture, invisibilizing plural practices that a culture might have and homogenizing the category of woman – completely disregarding intersectional experiences of existence and potential for resistance. Second, since VAW is constructed as visible bodily harm, state responses are focused only at countering visible violence and not the systems that fuel it. When the violence is not visible any longer, but continues in other insidious forms, the state can absolve itself of all responsibility, in turn subverting the principle of ‘due diligence’. Third, focus on bodily violence is also a process of privileging civil and political rights over economic, social and cultural rights – denying women guarantees to enabling conditions and decision-making authority. When it comes to talking about VAW in the Third World there is an almost purposeful attempt at establishing a connection between culture and violence, however that never happens when VAW in the Western context is referred to. For instance, Uma Narayan has discussed how dowry murders are cast in the First World scholarship as an age-old Indian/Hindu practice, and she contrasts it with research on domestic violence murders in the US, which are not similarly cast as practices of 15 ‘American Culture’ through references to Christianity.

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Like the conflation of dowry murders with Indian/Hindu culture or practice the international activist and academic discourse on VAW is replete with works on Female Genital Mutilation (FGM), honour killings, the imposition of the veil, and all such forms of VAW also have a captive location – the Third World, especially Islamic countries that are touted to be on the other side of ‘civilization’, so much more after 11 September. A political climate where the ‘clash of civilizations’ are primarily being fought on the grounds of cultural supremacy, it is evident why for the Bush administration, the plight of women in Afghanistan was the justification for the illegal invasion. Even Western media propaganda represented un-veiled women after the Taliban were defeated, as the marker of ‘liberation’ that the ‘West’ has finally achieved to effect. In a film titled Women’s Rights are Human Rights, made by AI, the cover states that ‘it is a well-focused and sometimes shocking denunciation of the violence that afflicts women in many countries of the world’. The ‘many countries’ featured in the film are Egypt, Indonesia, Bosnia and Herzegovina, Kosovo, The Gambia, Pakistan, Somalia and Turkey. And, the forms of VAW that the film documents are FGM, honour killings and as a slight digression rape as a war crime. […] Such interventions and representations construct cultural practices to ‘occupy our imaginations in ways that are totalizing of a culture and its treatment of women, and are nearly always overly simplistic or a 16 misrepresentation of the practice’. Be it veiling, honour crimes or FGM – none are universally practised in the Islamic world or in Africa and thus cannot be used as markers to put Islam into a homogenized bundle. […] From here I take the discussion into the domain of international refugee and asylum law as another system of intervention that nothings this critique of human rights law. This body operates on the basis of establishing ‘barbarity’ as the qualification for gaining asylum – meaning, a guarantee for protection ‘outside’ of one’s country when states fail to exercise ‘due diligence’ completely.

GENDER-BASED PERSECUTION AND THE POLITICS OF ASYLUM JURISPRUDENCE Although postcolonial feminist critiques of the liberal discourse of human 17 rights law have exposed the dangers of applying it unproblematicaly to questions of culture in the Third World, international refugee and asylum law, which is a supplemental part of the body of human rights has been

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playing a nobly truant role in continuing the imagined North–South divide of civility–barbarity. The situation gets complicated because of the fact that none of the South Asian countries are party to the 1951 UN Convention on the Status of Refugees (Refugees Convention) and its 1967 Protocol, thus being outside of any international obligation to protect the rights of those fleeing persecution in their own countries. Moreover, the 1951 Convention does not recognize ‘gender’ as a valid ground for being persecuted, expanding manifold the possibility of women’s asylum applications being rejected. One major way to escape gender-based violence, especially of the private nature, when the state is unable or unwilling to provide protection, is to flee – as a refugee seeking surrogate protection from the jurisdiction of another state. Such situations are regulated through the discourse of international refugee law, its standards premised primarily on the Refugees Convention. But even within the refugee law discourse, protection of rights of women fleeing gender-based violence/persecution is measured only through their ‘victim’ status. Responses from states as well as agencies like the United Nations High Commissioner for Refugees (UNHCR) does not consider their special needs and requirements, neither are the responses framed in ways that privilege their ‘voices’. […] It is well documented that the majority of the world’s refugees are women who bear the brunt of the most extreme forms of human rights abuse. In any civilian exodus, women and children normally make up an estimated 75 per cent of a refugee population. Yet, the Refugees Convention does not recognize ‘gender’ as a separate and independent ground for persecution. […] Not a single woman was present amongst the plenipotentiaries when the drafters of the Convention had met in Geneva. The founding ‘fathers’ did not deliberately omit persecution based on gender – it was not even considered. It was the dominant image of a political refugee – someone who is fleeing persecution resulting from his direct involvement in political activity – which informed the minds of the drafters. This understanding does not often correspond with the reality of women’s experiences and the ‘law has developed within a male paradigm which reflects the factual circumstances of male applicants, but which does not respond to 18 the particular protection needs of women’. Even the existing bank of jurisprudence on the meaning of persecution is primarily based on experiences of male claimants where ‘[persecution] 19 is [understood] by the criterion of what men fear will happen to them’. Female-specific experiences such as genital mutilation, bride-burning,

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forced marriages, domestic violence, forced abortion or compulsory sterilization have not been widely understood to qualify as persecution. 20 Rape is the only exception. […]

GENDERED DIMENSIONS OF PERSECUTION Article 1A(2) of the Refugees Convention, as amended by the 1967 Protocol relating to the Status of Refugees, defines a ‘refugee’ as: […] any person who […] owing to a 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/her nationality and is unable or, owing to such fear, is unwilling to avail himself/herself of the protection of that country; or who, not having a nationality and being outside the country of his/her formal residence, is unable or owing to such fear, is unwilling to return to it. (Author’s emphasis) However, there exists no comprehensive definition of concepts of ‘persecution’ and ‘well-founded fear of persecution’ in international law. The drafters of the Refugees Convention framed an open-ended and flexible approach to the concept of persecution in the form of a universal framework. The UNHCR’s Handbook gives direction in this regard: […] it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights – for the same reasons – would also 21 constitute persecution. The Handbook further states: The phrase ‘well-founded fear of being persecuted’ is the key phrase of the definition. It reflects the views of its authors to the main element of refugee character […] Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant’s statements rather than a judgment on the situation prevailing in [her] 22 country of origin.

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Women face special difficulties in obtaining refugee status. Two issues arise here: the ground upon which someone is granted refugee status, and the process of establishing these grounds. To identify the ‘ground’ one has to go with the understanding of ‘persecution’ and to ‘establish the process’ of arriving at the ground; one will have to understand ‘wellfounded fear’. Thus, to gain recognition as a refugee, the asylum applicants must demonstrate that (1) the level of harm they have experienced rises to persecution, (2) their own government cannot or will not protect them from harm, and (3) the persecution is based on one of the protected 23 grounds included in the definition. […] The claim to refugee status by women facing gender-based persecution also presents special difficulties. There are cases which involve women who are victims of domestic violence or who fear harsh or inhuman treatment because of having transgressed social mores that confine them to specific spaces, tasks and responsibilities. Even when they are able to demonstrate that the harm is so great that it constitutes persecution and they have exhausted all efforts to receive protection from their governments, they are still faced with showing that the persecution is based on one of the protected grounds. As is known to us, gender is not one of the 24 bases for persecution in the Refugees Convention definition. As already discussed, the definition of persecution in refugee law contains two elements: first, persecution not only requires that a claimant be at risk of sustaining serious harm and second, that she cannot expect meaningful protection from that harm in her home country. Thus, recognizing that gender-related harm which threatens basic human rights of women constitutes serious harm alone is not sufficient to warrant the label of ‘persecution’, the harm feared must be directly or indirectly attributable to the state and that the individual cannot expect meaningful 25 protection from these state authorities in the country of origin. […] The term ‘gender-based persecution’, refers to asylum applications of women premised on issues pertaining specifically to their gender. These claims can be separated into two general categories. The first focuses on persecution commonly faced by women – such as, rape, genital mutilation, domestic violence and bride burning, among others. The second category includes claims that constitute persecution because of the applicants’ gender, that is, persecution for disobeying repressive gender discriminatory laws or for not conforming with social mores that are offensive to women. This category also includes situations that discriminate against women and strictly prohibit them from engaging in 26 certain activities.

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In other words, gender-based persecution would include: • When a woman is persecuted because of her gender, it addresses the causal relation between gender and persecution, her gender is the reason for which she is persecuted. • When a woman is being persecuted as a woman, it is the form of persecution that is sex/gender-specific. Understanding the ways a woman is persecuted as a woman is critical to naming as persecution things that are done to women and not to men. • When gender can be considered to be a risk factor that makes a woman’s fear of persecution more well-founded than that of a man in similar circumstances. […] Women are less likely to meet the eligibility criteria for refugee status because of non-recognition of gender-based persecution, as well as the social and political context in which their claims are adjudicated. According to Nancy Kelly, the problem is twofold: first, the Refugees Convention’s definition of ‘refugee’ does not specifically identify gender as a base for protection. Second, in applying the refugee definition, adjudicators have traditionally neglected to incorporate gender in their interpretation of the grounds of persecution enumerated in the Refugees 28 Convention. This is especially true of male adjudicators who tend to regard gender-based persecution as a private and personal matter rather than as a socially significant phenomenon. […] This is also due to the general failure of the international refugee and asylum law regime in not recognizing systemic denial of social and economic rights while emphasizing individual targeting and specific deprivation of civil and political rights. Besides, as already discussed human rights law and discourse tend to privilege male dominated public activities over the activities of women, which take place largely 29 in the private sphere. […]

‘GENDER’ AS A SIXTH GROUND? This omission of gender as a separate ground for persecution has had severe implications for many female asylum seekers across the world. As a consequence, debates have focused on whether women’s experiences can and should be interpreted so that they may be included into the already existing grounds or whether it is instead necessary to introduce gender as a sixth ground. […] In an authoritative paper by Roger Haines for the Global Consultations on International protection of the UNHCR it is pointed

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out that adding ‘gender’ as a sixth ground to the Refugees Convention runs the risk of implying that gender need not be treated as intrinsic to all of the five grounds that are named in the convention. […] However, there is a need for scholars, activists and policymakers working on refugee rights to be sceptic of the kind of repercussions inclusion of ‘gender’ as a separate ground for persecution might have. Such an inclusion would definitely be a very significant development, but it would also tend to homogenize the ‘woman’ category by assuming that women’s experiences of persecution everywhere follow the same patterns and trends irrespective of their cultural and geopolitical locations. […]

POLITICS OF SEEKING ASYLUM In the process of determining asylum claims questions of human rights abuse arise, generally, in three circumstances: persecution in the state of origin (the basis of the claim to asylum); rights violations in the course of migration (which may impinge on the substance of the claim); and abusive host state practices at the point of reception (which may relate to procedural questions about where a claim should be lodged or whether the applicant is credible). In one of her influential essays titled ‘Internationalist Gatekeepers?: The Tension Between Asylum Advocacy and Human Rights’, Jacqueline Bhaba points out that refugee movements today are increasingly becoming more torturous and facilitated by commercial intermediaries and false documents. According to her in a situation like this the bona fide of the asylum seeker raises some critical questions: What is the nationality of the applicant? Which state should be responsible for providing protection in cases where the applicant’s flight itinerary has involved various safe ‘third’ states en route to the state where asylum is being sought? Why did the applicant not present her 30 asylum claim at the first opportunity? […] A critique of the international asylum adjudication system is therefore necessary to do a reality check with regard to what it can exactly offer when it comes to drawing the fundamentals of refugee rights guarantees from the basic principles of international human rights law. […] The central guiding principle of this kind is a construction of the asylum seeker as the ‘native’, who needs to be ‘civilized’ and rescued out of the clutches of a ‘barbaric’ state might be best described as ‘the worse the better’ – the more oppressive the home state, the 31 greater the chances of gaining asylum.

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With specific reference to violence against women, absence of regional or national laws have also meant that women facing persecution on grounds of gender can only avail of the recourse of applying for asylum to a Northern country. This, beyond being a practical constraint, is culpable of creating the stereotypical image of the Third World woman as victim subject. […] Moreover, her attempt to flee persecution is constructed as her desire to live in a ‘liberal’ and ‘equal’ society – epitomized by cultures in the West – and renouncing her ‘own’ barbaric culture. The need for a ‘gender asylum regime’ in South Asia is thus necessary for not only advancing asylum jurisprudence in the region, but also challenging and countering the existing constructs of the Eastern, native, disempowered woman, which at best victimizes and at worst infantilizes them.

TOWARDS A MORE RIGOROUS INTERROGATION Having raised more questions than providing answers, requires that I propose directions in which we can take ahead this debate, not to ‘liberate’ the ‘captive subjects’, but to employ lenses that will enable us to look at them differently, not only gaze at them, but also create conditions for us to welcome their gaze back. What I suggest here are not original or ingenious ideas, but ones that have been informed by the works of the scholars I’ve been referring to. They are not meant to sound prescriptive, merely suggestive. They remain open to challenge as more consistent interrogation of imagined ideas must remain the leit motif of all human rights work in times where hegemonic appropriation of knowledge and practice threatens subaltern existence at every step. […] We have to move beyond identifying women merely as victims, and recognize the resistance potential that she as a peripheral subject possesses. For instance, a woman in Iran might wear the veil to offer resistance in more than one way: she wears it to access public spaces which would otherwise be inaccessible to her, and at the same time she wears the veil as a Muslim holding up a symbol to resist the ‘imperial’ gaze that wants to imagine liberation for her. The concept of state accountability must be understood not merely with regard to compensating the violated, constructing her identity as a victim–survivor – but should be extended to ‘due diligence’ that will recognize her as a citizen, to expand its base to not pit freedom against protection and ensure enabling conditions to exercise civil citizenship and guarantee reparation.

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Captivity can be one of the many experiences that mark the existence of women in the South. However, for those of us who deduce that through looking at them from afar, it’s simply a perceived experience. Even if we work to establish its reality, it would still never qualify to be the only one. It is this recognition of a multiple and layered existence, one that does not calibrate pain, but looks at disadvantage through the lenses of intersectionality – which will allow us to resurrect a more emancipatory and resistant politics for claiming women’s human rights.

NOTES 1. J Bhabha, ‘Internationalist Gatekeepers? the Tension between Asylum Advocacy and Human Rights’, Harvard Human Rights Journal, Vol. 15, 2002, p.155 2. International Humanitarian Law is governed by the Geneva Conventions of 1948 and its accompanying protocols. 3. International Criminal Law was applied for adjudication at the International Criminal Tribunals in Rwanda and the Former Yugoslavia and is presently enshrined on the Rome Statute of the International Criminal Court. The demand for reparation by former Japanese ‘Comfort Women’ was made on the basis of International Criminal Law principles. 4. P Sen, ‘Crimes of Honor: Value and Meaning’ in Lynn Welchman and Sara Hossain, eds, Honour: Crimes, Paradigms and Violence against Women, Zubaan, New Delhi, 2006, pp.42–63. 5. Ibid., p.56. 6. A Miller, Sexuality, ‘Violence against Women and Human Rights: Women Make Demands and Ladies Get Protection’, Health and Human Rights, Vol. 7, No. 2, 2004, pp.17, 20. 7. Ibid. 8. A Miller, Sexuality, ‘Violence against Women and Human Rights: Women Make Demands and Ladies Get Protection’, Health and Human Rights, Vol. 7, No. 2, 2004. 9. Ibid. 10. R Kapur, Erotic Justice: Law and the New Politics of Postcolonialism, Permanent Black, New Delhi, 2005; U Baxi, The Future of Human Rights, Oxford University Press, New Delhi, 2006; J Bhabha, ‘Embodied Rights: Gender Persecution, State Sovereignty and Refugees’ in Nira Yuval-Davis and Pnina Werbner, eds, Women, Citizenship and Difference, Zubaan, New Delhi, 2005, pp.178–90; M Mamdani, Good Muslim, Bad Muslim: Islam, the USA and the Global War Against Terror, Permanent Black, New Delhi, 2004. 11. R Kapur, Erotic Justice: Law and the New Politics of Postcolonialism, Permanent Black, New Delhi, 2005, p.99. 12. Ibid., p.100. 13. Cited in K Visweswaran, ‘Gendered States: Rethinking Culture as a Site of South Asian Human Rights Work’, Human Rights Quarterly, Vol. 26, No. 2, 2004, p.484.

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14. These facts were brought to the author’s notice through conversations with Alice Miller. 15. R Kapur, Erotic Justice: Law and the New Politics of Postcolonialism, Permanent Black, New Delhi, 2005, p.109. 16. Ibid., p.107. 17. Ibid.; K Visweswaran, ‘Gendered States: Rethinking Culture as a Site of South Asian Human Rights Work’, Human Rights Quarterly, Vol. 26, No. 2, 2004. 18. C Romany, ‘State Responsibility goes Private’ in Rebecca J Cook, ed, Human Rights of Women: National and International Perspectives, University of Pennsylvania Press, Philadelphia, 1994, p.88. 19. H Charlesworth, ‘What are Women’s International Human Rights’ in Rebecca J Cook, ed, Human Rights of Women: National and International Perspectives, University of Pennsylvania Press, Philadelphia, 1994, p.71. 20. A Macklin, ‘Refugee Women and the Imperative of Categories’, Human Rights Quarterly, Vol. 17, 1995, p.225. 21. UNHCR Handbook on Procedures and Criteria for determining Refugee Status, 1979, para. 51. 22. Ibid., para. 37. 23. S F Martin, Refugee Women, Lexington Books, Oxford, 2004, p.28. 24. Ibid., p.31. 25. E Adjin-Tettey, ‘Failure of State Protection Within the Context of the Convention Refugee Regime with Particular Reference to Gender-related Persecution’, Journal of International Legal Studies, 1997, p.54. 26. A Bahl, ‘Home is Where the Brute Lives: Asylum Law and Gender-based Claims of Persecution’, Vol. 4, Cardozo Women's Law Journal, 1997, p.34. 27. A Lyth, Where are the Women? – A Gender Approach to Refugee Law, LLM Thesis, Lund University, 2001, p.16. 28. N Kelly, ‘Gender Related Persecution: Assessing the Asylum Claims of Women’, Cornell International Law Journal, Vol. 26, 1993, pp.265, 625–71. 29. H Crawley, Refugee and Gender: Law and Process, Jordan, Bristol, 2000. 30. J Bhabha, ‘Internationalist Gatekeepers? the Tension between Asylum Advocacy and Human Rights’, Harvard Human Rights Journal, Vol. 15, 2002, pp.156–7. 31. Ibid.

STRENGTHENING PROTECTION OF THE IDPs Roberta Cohen

†

UN Secretary General Kofi Annan drew attention to ‘the growing problem of internally displaced persons’ (IDPs) in his 2005 report on 1 UN reform, In Larger Freedom. Unlike refugees, IDPs do not cross international borders and thus have no well established system of international assistance or protection. IDPs, Annan wrote, ‘often fall 2 into the cracks between different humanitarian bodies’. Despite this acknowledgement of the predicament of IDPs, nowhere in the 2005 UN World Summit document, adopted by heads of government in September, does it spell out how to improve the UN’s ability to address the plight of the 20 to 25 million people uprooted within their own 3 countries by violence, ethnic strife and civil war. UN reform must encourage greater national and international involvement with IDPs by promoting the Guiding Principles on Internal Displacement, giving the UN High Commissioner for Refugees (UNHCR) a broader role with IDPs, and strengthening institutional and military arrangements to defend the physical safety of IDPs. The millions of people caught in the midst of violent conflict without the basic necessities of life present a political and strategic concern, not to mention a profound humanitarian and human rights problem, requiring international action. Conflict and massive displacement can disrupt stability, turn countries into breeding grounds for lawlessness and terrorism, and undermine regional and international security. […] Unless †

Eminent human rights thinker and attached to Brookings Institution, Brookings– Bern Project on Internal Displacement, Washington D.C., Refugee Watch, 28 December 2006.

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addressed, situations of displacement can create political and economic 4 turmoil in entire regions. The need to design a more predictable and effective international system for ‘internal refugees’ is critical because the overall international humanitarian response system is a thoroughly inequitable one. UNHCR attends to the needs of the world’s 9.2 million refugees, and a dedicated international treaty, the 1951 Convention Relating to the Status of Refugees, sets forth their rights. In contrast, no organization has a global mandate to protect and assist the much larger number of IDPs, who are in far more desperate straits, when their own governments fail to do so. IDPs may be uprooted for the same reasons as refugees, but they receive markedly less international protection or assistance in most emergencies and, in some cases, they receive no help at all. 60 years after the Holocaust, it is time for the UN to act on the ideals upon which it was founded and to stop distancing itself from – or implementing half-hearted responses to situations in which millions of people are forced from their homes by civil wars, deliberate governmental policies of ethnic cleansing, crimes against humanity, or even genocide. In his report on UN reform, Annan aptly affirmed that ‘the responsibility to protect’ must shift to the international community when national authorities fail to provide for the 5 welfare and security of their citizens. […] The World Summit document also adopted the concept of necessary UN protection, though only on a 6 case-by case basis. […]

STRENGTHENING THE LEGAL FRAMEWORK As a first step, the international community must reinforce the legal framework for the protection of IDPs. Eventually that might mean developing a legally binding instrument on the model of the Refugee Convention, but what is more urgently needed is the strengthening of the international usage of the Guiding Principles on Internal Displacement, 7 the first international standard for IDPs. Introduced into the UN Commission on Human Rights in 1998 by Francis M Deng, the Representative of the Secretary General on IDPs, the Principles set forth the rights of IDPs and the obligations of governments, insurgent groups, and other actors to protect and aid them prior to and during displacement as well as during return and reintegration. These Principles comprise a minimum international standard for the treatment of IDPs, and apply to those uprooted by conflict and persecution as well as those displaced by 8 natural disasters.

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The experts who drafted the Principles deliberately chose not to propose a treaty to deal with the IDP issue. First, there was no governmental support for the development of a legally binding treaty on a subject as sensitive as internal displacement. Second, treaty making could take years, perhaps even decades, delaying implementation of urgently needed standards to address the situation of the millions of internally displaced people caught up in ongoing emergencies. Third, sufficient humanitarian and human rights law already existed to make it possible to bring together in one document the provisions dispersed in a large number of instruments and tailor them to the needs of the internally displaced. […] There are a number of governments, including the current US administration, which would like nothing better than to rewrite the Geneva Conventions and other provisions of international law to make them less forceful. Difficulties in the treaty making process have led Walter Kalin, the current Representative of the Secretary General, to advise that until such time as the international community is ready to adopt a binding instrument that ‘accords with the protection level set forth in the Guiding Principles’, the most promising approach 9 remains expanding the usage of the Principles. […] The Principles have proven to be an effective means for aiding IDPs. Over the past eight years, they have gained substantial standing and authority. Resolutions of both the Commission on Human Rights and the General Assembly refer to them as ‘an important tool’ and a ‘standard’ 10 for dealing with situations of internal displacement. The World Summit document recognizes them as ‘an important international framework for the protection of IDPs’, while regional intergovernmental bodies in Europe, the Americas and Africa use them as a monitoring tool for measuring conditions on the ground. UN agencies and Non-governmental Organizations (NGOs) have translated the Principles into more than 40 languages and provide training in them, while local groups 11 around the world use them as an advocacy tool on behalf of IDPs. Most significantly, a growing number of governments are basing laws and policies on the Principles, which make them enforceable at the domestic level. In 2001, the Government of Angola based its law concerning the resettlement of the internally displaced on the provisions in the Guiding Principles; in 2004 the Government of Peru adopted a law based on the Principles that provides material benefits to IDPs. Similarly, in Colombia the government announced more aid to IDPs in response to a Constitutional Court decision based on the Guiding Principles, while the Government of Georgia brought its laws on voting rights into line with them. In Burundi, Liberia, the Philippines, Sri Lanka and Uganda,

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governments have based their national policies on the Principles, with 12 gains reported for IDPs. To strengthen the standing of the Guiding Principles, Kalin is developing a manual for lawmakers to explain how to adapt them to domestic law. Meanwhile, the Secretary General’s reform report supports this initiative by urging member states to promote the 13 adoption of the Guiding Principles ‘through national legislation’. […] Developments at the regional level could also reinforce national action. The African Union is in the process of drafting a legally binding instrument on internal displacement based on the Guiding Principles while the Council of Europe is exploring ways to strengthen the 14 Principles’ implementation. […]

CREATING PREDICTABLE INSTITUTIONAL ARRANGEMENTS Expanding UNHCR’s mandate to take on greater IDP protection obligations would be the most effective next step in improving the institutional arrangements for IDPs. UNHCR’s long experience with refugees makes it an obvious candidate for assuming a leadership role in situations where persecution and conflict also produce IDPs. Even if it does not take on all the millions displaced by natural disasters or development projects, it could assume a leading role in helping those uprooted by conflict and human rights violations. […] Many prominent voices over the years have called for the enlargement of UNHCR’s mandate to include IDPs, but the idea has always triggered strenuous objections from other UN agencies unwilling to yield jurisdiction or resources to the refugee agency. More recently, however, opinion has begun to shift as it has been recognized that the ‘collaborative approach’ is insufficient. Under the current system, many different UN agencies on the ground are supposed to share the responsibility for protecting IDPs. UNHCR, the United Nations Children’s (Emergency) Fund (UNICEF), the World Food Programme (WFP), the World Health Organization, the United Nations Development Programme (UNDP), the Office of the High Commissioner for Human Rights (OHCHR), the International Organization for Migration (IOM), and a myriad of NGOs are expected to work together to meet the assistance, protection, reintegration and development needs of the internally displaced. […] Nearly every UN and independent evaluation has found the 15 collaborative approach deficient when it comes to IDPs. To begin

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with, there is no real locus of responsibility in the field for assisting and protecting IDPs. As former US Ambassador to the UN Richard 16 Holbrooke aptly quipped, ‘Co-heads are no heads’. There is also no predictability of action, as the different agencies are free to pick and choose the situations in which they wish to become involved on the basis of their respective mandates, resources and interests. In every new emergency, no one knows for sure which agency or combination thereof will become involved. Whereas most rushed to South Asia to help those displaced by the tsunami, only limited international engagement is to be found in northern Uganda where tens of thousands of children flee every night to cities and villages to escape abduction and maiming by rebels. […] In response to these widely publicized deficiencies, the Emergency Relief Coordinator’s office in mid 2005 came up with a ‘sectoral’ approach, under which the different agencies would be expected to carve out areas of responsibility based on their expertise and carry them out on a regular basis in emergencies. […] UNHCR agreed to assume the lead for the protection of IDPs, the management of IDP camps, and emergency shelter for IDPs, a substantial enlargement of its role, and more encompassing than that of other agencies assigned to water and sanitation, nutrition and early recovery. Unfortunately, it appears that UNHCR will have to assume its new role with clipped wings. Annan’s reform report makes abundantly clear that the collaborative system will not be replaced; rather the onus of responsibility for IDPs will remain ‘under the global leadership of my 17 Emergency Relief Coordinator’. This will require UNHCR to navigate a cumbersome, collaborative system, reporting to Resident/Humanitarian Coordinators who in turn may have to report to special representatives of the Secretary General. There will also be bureaucratic resistance to overcome. According to a UN Office for the Coordination of Humanitarian Affairs/Brookings study, the ‘majority’ of coordinators in the field are reluctant to support protection activities or ‘to advocate for the rights of 18 the displaced in an effective and assertive manner’. Many of them view protection as ‘political’ and likely to undermine the provision of humanitarian relief or even lead to their expulsion from the country. There will be other hurdles as well. Donors will need to be persuaded to provide increased resources for a greater UNHCR presence in the field. Right now UNHCR is engaged with only 1.1 million of the 12 to 13 million IDPs in Africa, the continent most ravaged by conflict and displacement. UNHCR will also need to bring the ‘refugee movement’ on board. Some staffers joined by outside

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refugee advocates, dubbed ‘the fundamentalists’, have opposed most if not all UNHCR involvement with IDPs, on the grounds that the task would overwhelm the agency and undermine its core mandate of providing asylum for refugees. […] Recently senior staff have begun to speak of a ‘predisposition’ to help IDPs, while High Commissioner Antonio Guterres has clearly affirmed, ‘I don’t believe we at UNHCR 19 can stay away from the problem’. If UNHCR actually begins to assume a lead on the ground with the internally displaced, it will be a welcome first step towards formulating an international response for IDPs, as predictable as the current one for refugees. Although each group of forced migrants has a separate legal regime – one being outside its country of origin and the other inside – operationally ‘it is neither ethical nor practical to distinguish between 20 human beings because of a border they may or may not have crossed’. […] As Kalin has observed, ‘close cooperation between the different 21 agencies and actors will be necessary’ to ensure full protection of IDPs. But UNHCR will also have to assert its leadership role with the other agencies; otherwise, overemphasis on collaboration will lead to delayed and weak decision-making, undermining protection.

OVERCOMING THE PROTECTION GAP Providing food, medicine and shelter to IDPs, while ignoring violent abuse, has led to the tragic description of the victims as the ‘well-fed dead’. The expression may have originated in Bosnia in the 1990s, but it also applies to Darfur where there are more than 11,000 humanitarian workers on the ground, but fewer than 100 with protection 22 responsibilities. What is needed is a comprehensive approach that integrates protection with assistance and includes steps to defend the physical safety and rights of IDPs. This could include setting up early warning systems; insisting upon access to IDPs; deploying staff among threatened communities; developing strategies to protect women and children from rape and abduction; arranging relocations and evacuations; advocating for the protection of the displaced with governments and insurgent groups; and accompanying IDPs home to ensure their safety. Only two international agencies, the International Committee of the Red Cross (ICRC) and UNHCR have the skills and experience to undertake a full range of protection activities for IDPs, and there are limits even to what these two agencies can accomplish. The ICRC does not generally become involved

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in situations of violence below the threshold of armed conflict and usually leaves when the conflict is over, and UNHCR’s involvement with IDPs has been limited by its refugee mandate. Now that UNHCR has agreed to assume a lead role in protecting IDPs, it should expand its partnerships with other agencies. In particular, OHCHR and UNICEF, which largely absent themselves from protection work, should be called upon to play active roles. NGOs should also be encouraged to provide protection by following the example of the International Rescue Committee, Peace Brigades International, and others who have pioneered in this area. The greater engagement of international organization and NGO staff on the ground could create the ‘critical mass’ needed to form protection coalitions and mobile protection teams in addition to creating a protection standby force 23 for emergencies, steps often recommended but not yet implemented. UNHCR leadership will be sorely needed to coordinate this effort. Close collaboration of protection staff with peacekeepers will also be needed because in some situations, protection is only possible through military and police action. Indeed, peacekeepers are increasingly being called upon by the UN Security Council to defend IDPs, facilitate the delivery of relief, create secure humanitarian areas and enable IDPs to return home safely. Many perform well, but are not always given the mandates, troops, or equipment required to do the job. Political will, training, adequate numbers, and resources are all needed for peacekeepers to protect IDPs. This is particularly true in Darfur where lightly armed African Union (AU) troops and police, numbering no more than 7,000, with a weak protection mandate, have been expected to defend close to 2 million IDPs in an area the size of France. Strengthening the protection capability of the AU should prove essential not only for Darfur but for future emergencies in Africa. The slogan ‘African solutions for African problems’, however, should not be allowed to stand in the way of developed countries offering their welltrained, experienced, and more heavily armed troops for protection. At present, less than 10 per cent of peacekeepers come from Western 24 armies. As the Foreign Minister of Senegal pointed out, AU troops alone cannot stop the killing in Darfur; the joint action of the UN Security Council, the European Union (EU), the AU, and the US is 25 needed. While plans by the EU for a standby force for humanitarian emergencies are encouraging, an international capability is needed because Western countries often refuse to become involved when their strategic interests are not at stake. With an absent international protection system, local wars can be expected to go on for decades,

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undermining the stability of countries, while donors spend large sums of money on humanitarian relief. Far more cost effective would be ‘strategic reserves that can be deployed rapidly’ to enhance international military capacity, as called for by the Secretary General in his 26 reform report. Heads of government at the World Summit urged only the ‘further development of proposals’ to create such capacity. They did, however, ask regional organizations to ‘consider the option’ of placing their military capacity under UN standby arrangements and endorsed a standing police capacity, which if formed could prove 27 valuable for protection. […]

CONCLUSION Over the past 15 years, recognition has grown that people in need of humanitarian aid and protection have certain rights and claims on the international community when their governments do not act responsibly or where there is a disintegration of the state. […] The Guiding Principles must be institutionalized within nations to ensure policies and laws that aid IDPs and intensive monitoring to ensure their implementation. As an international body, UNHCR must be given the authority and means to expand its role with IDPs, and international police and military capacity must be strengthened to defend their physical safety. A more reliable and predictable system for those trapped inside borders will require stronger legal, institutional and protection measures from the international community.

NOTES 1. United Nations General Assembly, ‘In larger freedom: toward development, security and human rights for all’, Report of the Secretary-General, UN Doc.A/59/2005, 21 March 2005, Para. 209. 2. Ibid., Para. 210. 3. United Nations General Assembly, World Summit Outcome, Resolution A/RES/60/1, 15 September 2005, Para. 132, [http://www.un.org/Depts/dhl/ resguide/r60.htm]. 4. Kofi Annan, ‘Preface’ in Roberta Cohen and Francis M Deng, Masses in Flight: the Global Crisis of Internal Displacement, Brookings Institution, Washington DC, 1998, p.xix. 5. UN, In Larger Freedom, Para 135. 6. UN, World Summit Outcome, 2005, Para. 139.

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7. UNCHR, The Guiding Principles on Internal Displacement, UN Doc.E/CN.4/1998/ 53/Add.2, 1998. 8. The US government never formally designated the survivors of Hurricane Katrina IDPs, although President Bush at one point did refer to them as ‘displaced Americans’. Nonetheless, the Guiding Principles on Internal Displacement should serve as a framework for them, see Roberta Cohen, Time for the United States to Honor International Standards in Emergencies, Opinion, Brookings Institution, 9 September 2005, and Frederic L Kirgis, ‘Victims of hurricane Katrina are internally displaced persons, not refugees’, ASIL Insight, American Society of International Law, 21 September 2005. 9. See ‘Interview with Walter Kalin’, Forced Migration Review, Vol. 23, May 2005, p.4; and Walter Kalin, ‘How Hard is Soft Law’ in Recent Commentaries about the Nature and Application of the Guiding Principles on Internal Displacement, BrookingsCUNY Project on Internal Displacement, Washington DC, April 2002 10. See UN Commission on Human Rights Resolution 2003/51, 23 April 2003, and General Assembly Resolution 56/154, 19 December 2001. 11. UN, World Summit Outcome, 2005, Para. 132. 12. Roberta Cohen, ‘The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting’, Global Governance, Vol. 10, No. 4, October–December 2004, pp.459–80. 13. UN, In Larger Freedom, Para. 210. 14. Walter Kalin, ‘The Guiding Principles on Internal Displacement as International Minimum Standard and Protection Tool’, Refugee Survey Quarterly, 2005. 15. See Francis M. Deng, Report of the Representative of the Secretary General on Internally Displaced Persons, UNCHR, which reports on the results of four major studies on the collaborative approach, UN Doc. E/CN.4/2004/77, 4 March 2004, paras. 24-33. See also Susan Martin et. al., The Uprooted: Improving Humanitarian Responses to Forced Migration, Lexington Books, New York, 2005, pp.112–20. 16. Richard Holbrooke, ‘A Borderline Difference’, Washington Post, 8 May 2000. 17. UN, In Larger Freedom, Para. 210. 18. Simon Bagshaw and Diane Paul, Protect or Neglect: Towards a More Effective United Nations Approach to the Protection of Internally Displaced Persons, The Brookings-SAIS Project on Internal Displacement and OCHA, November 2004, p.4. 19. Interview with Antonio Guterres, Migration Information Source, MPI, 1 August 2005. 20. Kamel Morjane, former Deputy High Commissioner for Refugees, ICVA Talk Back, Vol. 7, No. 2, Geneva, 30 March 2005. 21. UN, Report of the Representative of the Secretary General on the human rights of internally displaced persons to the General Assembly, A/60/338, Para.7. 22. UN Security Council, Report of the Secretary General on Sudan, S/2005/411, 23 June 2005, Para. 45. 23. S Bagshaw and D Paul, Protect or Neglect: Towards a More Effective United Nations Approach to the Protection of Internally Displaced Persons, The Brookings-SAIS Project on Internal Displacement and Office for the Coordination of Humanitarian Affairs, p.10.

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24. Marc Lacey, ‘U.N. Forces Using Tougher Tactics to Secure Peace’, New York Times, 23 May 2005. 25. Susan E Rice, ‘Why Darfur Can’t Be Left to Africa’, Washington Post, 7 August 2005. 26. UN, In Larger Freedom, Para. 112. 27. UN, World Summit Outcome, 2005, Paras. 92–3, 170.

FRENCH SUBURBIA 2005: The Return of the Political Unrecognized Rada Ivekovic

†

As Alessandro Dal Lago wrote recently (‘Rogo d’Europa’, il manifesto 28-10-2005), ‘it is just the beginning’. It concerns Europe. It is only a warning. Angry desolate French males in the depressing suburbia and some city centres have vandalized public or private property, burnt thousands of cars, scorched schools and kindergartens, terrorized their neighbours, public opinion and the well meaning universalist France de souche. Triggered but not caused by the (not so) accidental death of two boys fleeing the police (as they are constantly confronted with identity checks), the violence is inevitably perceived by the mainstream protectionist discourse, unwilling to catch its political gist, as blind and irrational. Those rioters and their movement are the symptom of a very serious malaise. To one coming from the former Yugoslavia, the French events and situation is reminiscent of unpleasant recent memories, toute proportion gardée. There, like here, since the fatal series of wars (I am leaving aside their history and complex reasons) which, far from being caused by ethnicized identities, had produced them – it has become impossible to claim multiple belongings and crossed identities. […] The ‘unexpected’ appearance of suddenly visible revolted bodies and of their direct, unmediated violent action beyond language cannot at all be received as carrying political claims within the existing public space. It is a wild demand to topple the existing hegemony and replace it with a new, a just one. The riots were neither communal nor ethnic, nor †

Department of Philosophy, University of Saint-Etienne, France, Refugee Watch, 27 June 2006.

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organized by leaders; no political project came from the rioters who have no representatives, and the ruling class, who predictably tried to speak to some imams, can consider themselves lucky so far. But there is a difference between luck and intelligence. We should not be induced to believe that the problem is not political and also class based. Before the debate about what has happened and what should be done ended, while neither the left nor the right have any political solutions to give, the riots died down. If there are no new riots soon, France will forget again its suburbia, and a very strong additional right wing and repressive turn will have been taken having its effects also in Europe. The repressive move is impressive and unmistakable, and it gives excellent chances to the current interior minister Nicolas Sarkozy, who positions himself to the right of Chirac and Villepin, not that the latter had anything better to offer. He emerges winning from this episode with his chances for the presidentials boosted, shifting the whole political scene more to the right and comforting significantly the extreme right, whose policies he is introducing, together with a bitter taste of the return of colonial policy. There is no significant political Left in France, especially not on these issues, which homogenized the French republican nationalist and xenophobic feeling. When the government reactivated the law about the state of emergency, passed during the Algerian war in 1955, the French learnt that colonial legislation had never been abrogated. It is no surprise, since, after what was felt as an amputation (Algerian independence), there has never been a renegotiating of a new social and political project for postcolonial France. There has never been the acknowledgement of a historic defeat of France, maybe because it was not really accompanied by a definitive historical defeat of colonialism in international relations, in spite of the independentist enthusiasm of the 1960s. […] It makes us think that France still needs to be decolonized, and Europe too. All the colonial generals still have their avenues in Paris, and history teachers have recently been asked to stress the ‘positive aspects of colonization’. The emergency law has now been extended for three months although the riots have receded. Even during the Algerian war it had never been applied to metropolitan France; it had really been used only once since, in 1984 in Nouvelle Calédonie, again an ‘extra metropolitan’ French territory. Exceptions are thus being introduced all the more inside the country, as so many new borders. This is where and why the French ‘troubles’ meet the current phenomena in the making of Europe through closure and refusal to face its historic, colonial and other, responsibility: the fires in several cheap hotels and dormitories where undocumented foreigners or simply foreigners from former

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colonies died during the summer of 2005 in France, their subsequent violent expulsion by the police everyone could witness on TV (the AbbéPierre Foundation and others have shown that kicking out the squatters regularly opens excellent business opportunities for real estate dealers), […] the endless refoulements, the invisible detension/retension centres for the undocumented, the racist incidents in the Netherlands, the aggressions against homes for foreign workers or immigrants in Germany over the years, the exportation of European borders into neighbouring candidate countries as buffer zones policing for us, whose price it is for accession to Europe; the now regular and mainstream criminalization of boys, in a grave adolescence crisis, react to? They and their parents have no jobs, their habitat is pitiable, the neighbourhood ugly, the suburban schools are poor if existing, transportation to the city centre is too expensive and in any case bad and insufficient. Besides a supermarket there may be nothing at all in the neighbourhood. Dealers and racketeers are all around, the police are the only aspect of the state they have ever seen, they have no vision of a future, no chance to get integrated. They can tell the difference. Calling it ‘dignity’ and asking less than their due because they have no language that can be heard, those boys are unwittingly actually fighting for the possibility to be listened to politically. They want access to the citizenship promised to them by the universalist horizon of the Constitution and by the Declaration of the rights of man and citizen, but refused to them by the practice of that same universalism. Citizenship (in a full, and thus wider sense) is also the aim of many legal and most clandestine immigrants into Europe, and it is necessary to see the connection between the two, between trespassing the inner and the outer border, both in relation to history. All this makes those boys wild and unfit for properly articulating their claims should they have access to public space (and they don’t have it), and provokes ever more racist reactions. […] But nationalistic public opinion, much of the media and the political class, have been irresponsibly trying all these days to construct the unrest as a communal and religious one, and to identify the rioters as only north African or Muslim, which they are not. Most of them have been French for one or several generations: for how long will they be considered immigrants? […] They are also the occasion, as well as the antiterrorist discourse and the securitarian blueprint, for the legitimating of a rampant and unmistakable general liquidation of public and individual liberties. Civic freedom is indeed generally jeopardized by a ‘war on terrorism’, or, in Bush’s inverted semantics, by a ‘war on terror’, which is also a good occasion for the criminalization of ever new categories of people who thereby are made de facto non-citizens.

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A tendentious policy war has been going on between the French or the British and US models of integration or of treating recent and former immigrants or distinct communities. It is obvious that they all have their very serious limits, all are insufficient for distinct reasons and in the context of different histories, and none can be said to be better: each society and political system produce their own inner and outer exclusions and ‘exceptionalisms’ while pretending not to. It is also this planetary mechanism that should worry us in the not so long run, as well as in the construction of Europe. Such insurrectional episodes are likely to become more frequent everywhere. In France, there is no willingness on the part of the political class, of the Right, but also on the part of the Left or on that of a big chunk of the population, to face these problems. This indifference will last as long as there are banlieues out of sight where the problem can be dumped. […] Let’s have a look at the gender structure of the rioters: only boys, underage or just of age. Very macho boys deprived of any material or language capital, of any material goods or instruments. Very good to confirm that the enemy’s women can be assimilated when they behave nicely, and when it is useful for some other purpose. We should do well to remember that in 2002 the girls of the same French suburbia had also irrupted in public with their own claims. As much as the boys, those girls were a symptom of the same malaise, only to them some public space was given since it could be used for other purposes too by power structures. As a result, the girls could articulate, and were helped, unlike the boys, to articulate their grievances. Some of the girls’ important demands were shared with those of the boy no doubt, but there is also an important additional one – gender justice and the end of bullying by the brothers, fathers, community and by a male culture, the end of violence against women, the end of gang rapes (fairly spread in the suburbia) and constant humiliations. […] Those girls went on a march around France, gained considerable national audience, also quite some sympathy, created the movement Ni putes ni soumises (‘Neither whores, nor submissive’) and were important both symbolically as well as in raising their issues (universal and particular), opening important debates about conditions and culture in the suburbia, about the condition of women. In spite of this, they eventually became established and were recruited by Socialist Republicanism and by the anti-‘communitarian’ Franco-French nationalist discourse both left and right, though mainly at the left (by the socialists). […] This is not so much these girls’ mistake, as it is the perverse functioning of mainstream ideas, securitarian consensus and power. The girls also represented ‘bodies’ irrupted on

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the scene which stunned the public. They were soon to be used in the anti-scarf hysteria of republican laïcité (the result of which is exclusion by law of the supposed victims of veiling including the collateral damage, which came in handy to ‘prove’ the impartiality of law, of some inturbaned Sikhs evicted from school). Ni putes ni soumises was mainly used to segregate the new dangerous classes, to separate the good from the bad grain. They were supported against the newly constructed Muslim fundamentalism, against a no doubt existing terrible and violent macho culture not only in those neighbourhoods; support for the girls against the boys (although the reasons they have, and every women has, to resist macho culture, can only be recognized) was used to depoliticize the problems. A new inner enemy is needed and is under construction. […] The gender question is an instrument in achieving other political aims than redressing gender justice, though there may also be a side effect on the latter. It is not surprising, therefore, that there should be no significant reaction to the recent riots by the movement Ni putes ni soumises. Or not yet. […] The French context of the existing public space should facilitate a debate also between those two expressions of a shared malaise and some other ones too (they are not the only ones here). But that will not happen: associations, Non-governmental Organizations (NGOs) may be doing it in the quartiers, but it will not catch the public eye which prefers a fractured to a compact dangerous class. It needs to be said that the gender fracture is of course very profound and that it really exists, and that the distress and also the courage of the suburbia girls can only be praised. There is no tradition, and also unwillingness with most males, thinking of the gender question as political. Yet it is. It appears as the first partage de la raison which comes ‘naturally’ even before thinking. The gender fracture persists not only in the suburbia, it is everywhere in French society. It is for everyone to see how few women there are in Parliament, in the political class, in leadership or shared responsibilities of any kind, in the governing body of the Centre National Pour La Recherche Scientifique (CNRS), etc. Why are there no postcolonial studies in France? There is research and there are riots. But in between, no public debate so far, yet an imminent and painful one to come certainly. And a necessary one, in order for the country to re-found itself from a new beginning, after selfexamination. Indian historians, to make a comparison, started the critical school of Subaltern Studies called after the series of books they produced in the eighties. For that, an incubation of a few decades after the independence of the forties had been needed. They were helped by

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the already 20 years old second-wave of twentieth century independencies of the 1960s, by feminist movements and studies, by critical Marxism, by the deceptions due to independent governments, by Third Worldism, etc. They dared three critiques: a critical re-reading of colonial and postcolonial history, a re-reading of Marxism (mainly Gramscian and reinterpreted), and a critique of the nationalist liberation movement. These ideas circulated through the English language (and languages that have bridges to it, which excludes French) via US universities, became Postcolonial Studies embedded into Cultural Studies and was globalized thanks to the globalization of English. French is not a global language. For one thing it never received, circulated, and could not appreciate or take note of postcolonial concepts or studies – because, being globalized and diversified, these exceeded the French language and culture. Postcolonial studies spread North–South having received a lot of important input from the South. Whatever one may think of them (with drawbacks or advantages) or of the globalization of and through the English language, this is already a global fact, a fait accompli. […] Postcolonial studies in English speaking universities, but mainly because of the US international agenda, defused and depoliticized colonial historic questions. Nothing of the sort defused that topic for France, whereas the earlier republican concept of laïcité was no instrument for the new (postcolonial) political configuration. The Algerian war was how France managed the direct and first problem of (de)colonization. […] After all, it all finished in a bloodbath as an amputation of the French motherland (or so it was felt by the French nationalists), and there was never a re-foundation on a new basis, a new beginning, or a project of a postcolonial French and European society. The process may not be finished, as we hear that even the soft spoken Aimé Césaire in Martinique refused to talk to Sarkozy. This is what the US and France, and probably the state as such, have in common: a constant and important aspect of colonialism is colonising one’s own people, or parts of it, thus separating portions of the people and depoliticizing massively every wake of life: ‘the Nation’ from ‘the racaille’, ‘Français de souche’ from ‘Arabs’, ‘good society’ from the ‘wild boys of suburbia’. […]

REFERENCES Bartolomé Clavero, Freedom’s Law and Indigenous Rights: From Europe’s Oeconomy to the Constitutionalism of the Americas, Robbins Collection Publications (Studies in Comparative Legal History), University of California at Berkeley, 2005.

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Chantal Mouffe, The Democratic Paradox, Verso, London 2000. —, The Return of the Political, Verso, London, 1987. Dipesh Chakrabarty, Provincializing Europe. Postcolonial Thought and Historical Difference, Princeton University Press, Princeton, 2000. Eqbal Ahmad, Terrorism, Theirs and Ours, Open Media, New York, 2001. Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy. Towards a Radical Democratic Politics, Verso, London, 1984. Etienne Balibar, Nous, citoyens d’Europe, La Découverte, Paris, 2001. —, L’Europe, l’Amérique, la guerre. Réflexions sur la médiation Européenne, La Découverte, Paris, 2003. —, Europe, Constitution, Frontière, Edts. Passant, 2005. Fadela Amara, avec la collaboration de Sylvia Zappi, Ni putes Ni soumises, La Découverte, Paris, 2003. Gayatri Chakravorty Spivak, A Critique of Postcolonial Reason. Towards a History of the Vanishing Present, Harvard University Press, 1999. Jacques Rancière, La mésentente. Politique et philosophie, Galilée, Paris, 1995. Jean-François Lyotard, Le différend, Minuit, Paris, 1983. Olivier Le Cour Grandmaison, Coloniser, exterminer. Sur la guerre et l’Etat colonial, Fayard, Paris, 2005. Olivier Roy, Vers un islam européen, Esprit, Paris, 1999. Rada Ivekovic, La balcanizzazione della ragione, Manifestolibri, Roma, 1995. —, Le sexe de la nation, Léo Scheer, Paris, 2003. —, Dame Nation. Nation et différence des sexes, Longo Editore, Ravenna, 2003. —, Captive Gender. Ethnic Stereotypes & Cultural Boundaries, Kali for Women – Women Unlimited, Delhi, 2005. Ranabir Samaddar, The Politics of Dialogue. Living Under the Geopolitical Histories of War and Peace, Ashgate Aldershot, 2004. Roberto Esposito, Communitas, tr. française: Communitas. Origine et destin de la communauté, précédé de Conloquium de Jean-Luc Nancy, PUF 2000; —, Immunitas. Protezione e negazione della vita, Einaudi, Milano, 2002. —, Bíos. Biopolitica e filosofia, Einaudi, Milano, 2004. Sandro Mezzadra, Diritto di fuga. Migrazioni, cittadinanza, globalizzazione, Ombre corte, Verona, 2001. Sidi Mohamed Barkat, Le corps d’exception. Les artifices du pouvoir colonial et la destruction de la vie, Editions, Amsterdam, 2005. —, ed, Des Français contre la terreur d’Etat (Algérie 1954-1962), Editions Réflexe, Paris, 2002. Stefano Bianchini, Sanjay Chaturvedi, Rada Ivekoviæ and Ranabir Samaddar, Partitions. Reshaping States and Minds, Frank Cass, Ozon (GB), 2005. Transeuropéennes n°19/20, 2000–2001, «Pays divisés, villes séparées/Divided countries». Transeuropéennes n°22, 2002, «Traduire, entre les cultures. Translating, Between Cultures».

SOUTH ASIA

INTRODUCTION ‘South Asia has the fourth largest concentration of refugees in the world’. Thus began the first article of Refugee Watch issued a decade ago. This apparently simple sentence reflects both the clarity of vision and concern of Refugee Watch and of course of South Asia Forum for Human Rights (SAFHR) and Mahanirban Calcutta Research Group (MCRG) – the two organizations, responsible for bringing out Refugee Watch – to the issues of refugees in South Asia. We have selected portions of Anug Phyro’s and Tapan Bose’s apparently dated article, ‘Refugees in South Asia: An Overview’ only to show our readers how from the very first issue Refugee Watch relentlessly engaged itself with such a huge human crisis in this part of the world. However, besides the conventional South Asian Association for Regional Cooperation (SAARC) countries, some articles, included in this section, also narrate the situations in Afghanistan (historically, in case of Afghanistan) and Burma. Another important piece, ‘Internally Displaced Persons in Sri Lanka’, by Joe Williams, is also a dated one, published in Refugee Watch in its second issue. However, notwithstanding the dated nature of data, it is indeed an extensive article on the Internally Displaced Persons (IDPs) in a country that is, for more than two decades, torn in an almost perpetual ghastly strife. Williams analyses the geographical dimension of the problem and concentrates on north-east Sri Lanka, especially on the Jafna peninsula, mostly populated by the Sri Lankan Tamils. He shows that long before the conflicts between the army and the Liberation Tigers of Tamil Eelam (LTTE), Tamils felt threatened in the central and southern areas and came over to the east and north-east. Narayan Katel voices the perilous results of ‘Drukpanisation’ in Bhutan since the 1970s. His account, ‘A Matter of Ethnicity’ focuses on the roots of diverse ethnic groups and the subsequent marginalization of all the minority people, especially the Lhotshampas (‘people [Nepali Hindus] from the south’) by the ruling Drukpas. ‘Drukpanisation’ is a

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programme to bring all the ethnic groups under the hegemonic domination of the ruling yet minority Drukpa culture, in order to foster a unified Bhutanese nationalism. The author also exposes the politics of the West and the United Nations High Commissioner for Refugees (UNHCR) in considering Bhutan as the second seat of Tibetan religion and culture (which gives the eager western people a chance to learn the authentic Mahayana Tantric Buddhism) and choosing to ignore the unbearable conditions of the Lhotshampas. The politics of the Drukpa rulers is further exposed in ‘Scrutinizing the Land Resettlement Scheme in Bhutan’ by Jagat Acharya. In this brief but effective article, Acharya produces the ‘Notices’ of the Royal Bhutan Government, which, in the guise of rehabilitating landless people, is, in fact, distributing hundreds of acres of land, owned by the evicted Bhutanese refugees of Nepalese origin, to the Northern (where the minority Drukpas dominate) people. This is designed to seal the prospect of the hapless refugees of returning to their own land. Also, to deface history and geography, names of districts, blocks and villages of South Bhutan are being changed sounding like the Northern names. This gives the government a rationale to its double-faced programme of rehabilitating the Northern Bhutanese and also of stopping the original owners. We have chosen three important pieces on the Afghan Refugees of the pre and post 9/11 incidents. If 9/11 is a turning point in the recent history of war-torn Afghanistan – the invasion of the Soviet troops that saw an exodus of Afghans to Iran and Pakistan, followed by the subsequent US-backed resistance, withdrawal of the Soviet troops, deadly civil war, formation of the Jamat-e-Islami government and its replacement by the Taliban bigots, in short, the violent developments within a span of more than previous two decades from the 9/11, also must be understood clearly. Arpita Basu Ray attempts such cognitive understanding in her wellwritten article, ‘The Taliban Shelter Seekers or Refugee Warriors?’. The author goes down to the etymological roots of words like hijra, jihad, mujahir, mujahidin and mujahirin to understand the differences between the popular notion of ‘refugees’ (generally taken as hapless persons forced to take shelter in foreign lands) and the Islamic notions like mujahidin and the Afghan term mujahirin, which mean ‘holy warriors of Allah’ and ‘people who leave home in the name of Allah’ respectively. This cognitive background is essential to understand the rise of the Taliban and roots of the civil war and the Afghan refugee problem. The scenario after the 9/11-blasts at New York’s WTC changed dramatically followed by the US and her allies’ war against ‘terrorism’,

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which actually meant war against the Taliban government in Afghanistan, since Afghanistan was supposed to be the hub of Al-Qaeda and its chief Osama Bin Laden. The ‘Refugee Updates’ of Afghanistan (December 2001) revives the memory of the worst of the times, when Afghans, the single largest refugee population of the world, were fleeing from all parts of the country amidst air-strikes by the western forces and the Taliban’s advancement. Salma Malik, on the other hand, in ‘Impact of International Jurisdiction on Afghan Refugee Rights’, deals with the evolution of Pakistan’s role to provide shelter and other humanitarian aids to Afghan refugees. Pakistan had long been treating the Afghan shelter seekers (or, the mujahirins, after the Soviet invasion) with sympathy. However, with the rise of Taliban and its alleged role as the host of the Al-Qaeda members in Afghanistan, Pakistan’s fear also rose, and even before 9/11, as early as November 2000, Pakistan first closed its border to the fleeing Afghans. Since then, owing to security reasons and the western (mainly of the US’s) pressure, Pakistan went on denying refuge to the Afghans. And thereby, the author argues, ‘Pakistan was not only placing the refugees at a risk of being returned to a country where their lives were seriously endangered but also violating its obligation of nonrefoulement’ (i.e. Prohibition of Expulsion or Return). Attaur Rehman Seikh in his brief but informed article, ‘Development Induced Displacement in Pakistan’, repeats the already much discussed problems (also experienced in other parts of South Asia) related to development and displacement, especially displacement owing to building of big dam projects. Citing various examples of displacement of this nature, in past and present, the author argues that the age-old Land Acquisition Act of 1894 is inadequate and strongly demands the drafting of a national resettlement policy to cope with the problem, and also that only ‘such projects should be approved that have minimum effects on human settlement and environment’. We have also included long excerpts from Thierry Falise’s ‘On the Trail of Burma’s Internal Refugees’, originally published in The Irra Waddy, Vol. 9, No. 5, June 2001 (reprinted in Refugee Watch, September 2001), which gives the reader a very sordid account of how a huge population of Karen State, in Burma (Myanmar), are ‘hiding like wild animals’ in the darkness of the forest for a long time. These IDPs are mostly fleeing farmers. They are the targets of the Burmese army since they belong to the Karen National Union, which is fighting for the establishment of an independent Kawthoolei, also called the Karen Country.

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One grim yet not much noticed violation of human rights that takes place in Bangladesh is the systematic plight of the minorities, especially of the Hindus. This process began with the Islamicization of the secular Bangladesh. In recent times, this process accentuated to a level that can only be called as the terrorization of minorities, particularly after the Bangladesh National Party (BNP) came to power defeating the Awami League (AL). The latter is supposed to possess more secular credentials. Meghna Guha Thakurta in her ‘Assault on Minorities in Bangladesh’ clearly pens the pathetic picture of looting and plunder of the properties and abduction and rape of women belonging to the Hindu community, as they are generally the supporters of the AL. The author also notices a dangerous ‘silencing process’ of the civil society. She analyses the process of class formation and power structure to understand the situation. Ruchira Ganguly-Scrase, Gillian Vogl, Roberta Julian, in their ‘Neo liberal Globalisation and Women’s Experiences of Forced Migrations in Asia’, accuse that ‘the language of the UN Convention on Refugees is gender blind’. Analysing the complex links between developed and developing countries with reference to internal and external migration, they also argue that ‘the stereotype of a ‘refugee’ conforms to the cold war image, which is predominantly male. That is, it does not refer to females, nor does it specifically recognize persecution on the grounds of gender’. Here we also reproduce an old piece, ‘Who Went Where and How are They Doing?’ by our late old friend Papiya Ghosh, who lost her life at the hands of an unknown assailant in December 2006. In this article, Ghosh brilliantly narrates diverse activities and experiences of the South Asian diasporic groups in different countries of the West, especially in the context of communalism, in the pre-9/11 times.

REFUGEES IN SOUTH ASIA: An Overview Aung Phyro and Tapan Kumar Bose

†

South Asia has the fourth largest concentration of refugees in the world. A majority of displaced persons who have crossed international borders in this region are not regarded as ‘refugees’ by the host governments. They are usually treated as ‘undesirable aliens’ or ‘illegal immigrants’. There are no national laws, which define or distinguish ‘refugees’ from others who cross the borders. The governments in this region have also not signed or ratified the 1951 UN Convention Concerning the Status of Refugees and its 1967 Protocol, the only available UN mechanism for the protection and rehabilitation of refugees. However, we have to first consider, who is a refugee? Traditionally, any person who has been forced to flee his or her home for fear of life or lack of subsistence is regarded a refugee. However, in international law only those who are denied protection of their home states and as a result have crossed international borders to seek refuge in another country are accepted as refugees. Faced with the problem of a large number of displaced and uprooted persons after World War I, the western nations created international instruments for the protection, return as well as resettlement of these persons in other countries. The so-called Nansen Passport was created to provide these stateless persons with a temporary identity. Between 1922 and 1926 under the auspices of the League of Nations, several treaties created certain obligations on the contracting states, making it necessary to define the term ‘refugee’. †

Aung Phyro, Human Rights Activist, Nepal and Tapan Kumar Bose, SecretaryGeneral, South Asia Forum for Human Rights, Kathmandu, Nepal, Refugee Watch, 1 January 1998.

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The League of Nations treaties initially defined the ‘refugees’ as a category or group of persons who were, (a) outside their country of origin and (b) without the protection of the government of their home state. Later in 1938 the definition was restricted to only such persons who had left their countries of origin for fear of persecution. Those who had left their homeland for ‘purely personal reasons’ were excluded by the 1938 instrument. It was decided to exclude victims of natural disasters, as they were not forcibly expelled by the governments of their home states. World War II generated about 45 million refugees, most of them in Europe. The International Refugee Organization (IRO) was created thereafter to seek an early return of the refugees and the displaced persons to their countries of origin. The new world body, the UN took up the task of rehabilitation of refugees in a serious manner. In 1950, the office of the UN High Commissioner of Refugees (UNHCR) was created by the UN General Assembly, which replaced the IRO. In 1951, the United Nations Convention Relating to the Status of Refugees was adopted. The UN Protocol Relating to the Status of Refugees was adopted by the General Assembly in 1967. In the same year the General Assembly also adopted a Declaration on Territorial Asylum. As we have seen, during the 1920s and the 1930s – the period of mass movement of refugees across Europe – the international community, particularly the League of Nations had taken a ‘category’ or a ‘group’ approach to the definition of refugees. In the cold war period, when there was no mass movement of refugees across Europe, the attitude of the western nations towards refugees changed. It was influenced largely by the politics of cold war. The emphasis shifted from the group to the individual. In consequence, a more individualistic and a narrower definition was adopted by the 1967 UN Protocol. […] Obviously, it was the political dissidents of the Eastern Bloc or the former Soviet Bloc for whom the western states were mainly concerned. This definition is being questioned today by social scientists and human rights activists. The process of decolonization in the 1960s and the 1970s encouraged liberation struggles, revolutions, coups and counter-coups, which displaced millions in the countries of Asia, Africa and South America. Readjustment of old colonial boundaries rekindled old rivalries, unleashed ethnic and religious conflicts causing large-scale movements of populations across borders. Entire communities or groups of people were rejected and disenfranchized by these newly formed states. In these countries, during the last three decades, masses of people were also displaced by man-made environmental disasters,

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natural calamities and by the shortsighted development policies of the governments, which destroyed traditional sources of livelihood of the people of certain regions. For the first time, there began a flow of refugees from South to North, from the poor to the rich countries. What began as a trickle in the 1960s became an exodus by the 1980s and the 1990s. […]

THE MIGRANTS It has been argued that migrants cross international borders attracted by the ‘pull’ of better economic opportunities and that unlike the political refugees they are not ‘pushed’ out by the state through widespread human rights abuses or by racial and communal riots. […] ‘Migration’ is therefore, essentially a voluntary action. As a result, the states argue that the migrants cannot be treated at par with the refugees who are persecuted in their home states for reasons of religion, race or political opinion. However, studies have shown that an overwhelming majority of the displaced persons in the Third World, who are generally classified as ‘migrants’ by host governments and international agencies, belong to the minorities and economically backward sections of society. For example, between 1950 and 1990 about 21 million people were displaced in India by projects like big dams, mines, industries and wildlife reserves. Of these, nearly 40 per cent were tribal/indigenous people who constitute 7.6 per cent of India's population. As these persons did not cross any international border they remained displaced within India. In the mid 1960s, more than a hundred thousand tribal people were displaced by the Kaptai Dam built in the Chittagong Hill Tracts of the then East Pakistan, present Bangladesh. […] About 30,000 persons were displaced from the Mirpur district of Pakistan controlled Kashmir by the Mangla Dam constructed around the same time by the Pakistan government with World Bank assistance. Most of them ended up swelling the ranks of Pakistani immigrants to the UK. Under these circumstances, the validity of the distinction between ‘voluntary’ and ‘involuntary’ migrant remains doubtful. Clearly there is an urgent need to reconceptualize the definition of refugees. It is not being argued that those who have been forced to flee their homelands because of political persecution and threat to their life should be equated with those who have been forced to move by loss of livelihood, man-made disasters and natural calamities. We can no

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longer ignore the fact that certain policies of the governments of the socalled ‘developing’ countries have impoverished vast masses of their peoples, particularly those belonging to the minority communities and economically backward sections. Studies have shown that some of the ‘development’ projects implemented with international support have had an adverse impact on the economy. These projects have deprived many people of their traditional livelihood and at times pushed some of them beyond the borders. They have become ‘rejected peoples and unwanted migrants’. Academics, concerned organizations and activists today prefer to use such terms as ‘environmental refugees’ and ‘refugees of development projects’ to distinguish between certain types of displaced persons and voluntary migrants. The international community needs to apply its mind to the problem of this type of forced displacement. As a recent UN Environment Programme (UNEP) report has predicted, the day is not far when wars would be fought between communities and states over basic resources like water. The existing definition of refugees, displaced persons and migrants is rather narrow and uni dimensional. It also has to be considered if the received distinctions between the forced/willed and the political/ economic regarding the refugee/migration definition hold true today. These need to be reviewed and reformulated in order to accommodate the existing reality. New and effective international instruments and national laws need to be created to protect the rights of these hapless millions who have no legal existence in most countries of the world.

REFUGEES IN SOUTH ASIA: A BRIEF HISTORY There is a close link between state formation and forced population movement. History shows that in their formative days states have forced large number of people to migrate from their traditional habitat. The states have also increased ‘statelessness’ by denying citizenship to whole sections of people.

History of statelessness The communal violence that followed the partition of the Indian subcontinent in the wake of independence of India and Pakistan in 1947, led to 1 million deaths and forcibly displaced about 15 million more. While about 8 million Hindus and Sikhs were forced to leave

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their home in Pakistan and migrate to India, nearly 7 million Muslims were uprooted from their homes in India and forced to migrate to Pakistan. These persons were accepted as citizens and rehabilitated by India and Pakistan. About 500,000 persons of Indian origin who had lived in Burma for generations were uprooted by the programme of Burmanization after Burma’s independence in 1948. Most of them returned to India penniless during the 1950s and 1960s of the current centuries. Sri Lanka after becoming independent created approximately 900,000 stateless persons by refusing to grant them citizenship. These were the Tamil plantation workers who were taken to the island by the British in early nineteenth century. The Government of Sri Lanka wanted India to take them back. After several rounds of bilateral negotiations between 1964 and 1987, India accepted about 3,40,000 repatriated persons of Indian origin from Sri Lanka. The rest are still waiting for citizenship. The Chakma and Hajong tribal refugees from the Chittagong Hill Tracts who were ‘settled’ in the mid 1960s by the Government of India in the former North East Frontier Agency and present-day Arunachal Pradesh are yet to be granted Indian citizenship. They have become the target of a malicious anti-foreigner agitation in Arunachal Pradesh. The Government of Arunachal Pradesh, the local politicians and the youth want to throw them out. The liberation war of Bangladesh in 1970–1 had sent about 10 million refugees to India. Most of them went back to Bangladesh after its liberation. However, the liberation of Bangladesh has left about 300,000 ‘stranded Pakistanis’ in Dhaka. They are mainly Bihari Muslims who migrated to the erstwhile East Pakistan in 1947 from India. Bangladesh does not want to grant them citizenship as they did not support the liberation movement and Pakistan refuses to take them back. During the period 1948–61, according to the reports of the Indian Home Ministry, about 3.1 million persons, mainly Hindus, migrated from erstwhile East Pakistan, present-day Bangladesh to India. Bangladeshi migration is a contentious political issue in India. In the north-east of India in the 1980s, there were widespread political agitations demanding the expulsion of ‘foreigners’, mainly Bangladeshi Muslims. The local political parties and the ethnic elite were afraid that the rising number of Bangladeshis would finally tilt the demographic balance against them. In other words, they would lose their power base. The fear was not totally unfounded as can be seen in the case of one of the north-eastern states, Tripura. Within 30 years after India’s

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independence, Tripura’s tribal/indigenous population was reduced from an overwhelming majority to a minority by Bengali Hindu settlers from East Pakistan/Bangladesh. […] The Muslim migrants from the erstwhile East Pakistan and presentday Bangladesh have become the target of an ‘expulsion campaign’ launched by the radical Hindu nationalist parties of India. They claim that about 20 million Bangladeshis have illegally entered India after 1971. The Indian Home Ministry has, however chosen to remain silent on the figures of Bangladeshi migrants in India (Annual Report of Indian Home Ministry, 1995–6). In 1989, nearly 96,000 Bhutanese of Nepali ethnic origin from southern Bhutan took refuge in Nepal. They were stripped of their citizenship and pushed out of Bhutan by its Royal Government following the implementation of the programme of Bhutanization. Bhutan refuses to take them back while Nepal has refused to rehabilitate them. In short, the postcolonial states in South Asia were born out of displacement and expulsion of a large number of people and the state system, as it stands today in the region, is perched precariously on the creation of minorities, stateless population, and the continuing exodus of victims of various conditions. There are no national laws, which define and regulate the status of refugees in the countries of South Asia. […]

INTERNAL REFUGEES The hope that the end of the cold war would usher in an era of peace was shattered in the killing fields of Bosnia, Chechnya and Rwanda. New notions of security have emerged on the basis of demography, resources and territory. Proxy wars between states and internal wars between rival communities are being fought over scarce resources. […] Under its expanded mandate, the UNHCR has accepted these ‘internally displaced persons’ (IDPs) or ‘persons in refugee like situations’ as the persons of concern. The enormity of the situation is evident from the latest estimates that there are 16 million IDPs in Africa, about 7 million in Asia and another 10 million in Europe and South America (UNHCR/US Committee of Refugees, 1996). In the post-cold war era, with the escalation of local wars and ethnic cleansing almost all Western countries have modified their immigration laws so as to be able to deny entry to most asylum seekers. Severe visa restrictions have been imposed on the citizens of the ‘refugee generating

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countries’ of the world. The western nations argue that the UNHCR should work towards strengthening the ‘right to remain’. The objective is to stop the ‘vulnerable or threatened persons’ from crossing international borders and becoming ‘refugees’ in another country. Through its expanded mandate the UNHCR is becoming more and more active in the countries of origin providing humanitarian aid for the internally displaced. However, as the internally displaced are under the control of their national governments and as their rights are often abused by the law enforcement agencies of their own governments, it is unlikely that the UNHCR will be able to effectively extend its protection mandate to them. Indeed, refugees in South Asia have come to present not a human or social problem; it is an irony of the postcolonial history of the region that they have come to represent a major ‘security’ problem. […]

INTERNALLY DISPLACED PERSONS IN SRI LANKA †

Joe William

INTRODUCTION Throughout the years since 1983 in which military conflict between the Sri Lankan security forces and the Tamil militant groups has been the order of the day, we have witnessed a never-ending saga of a people forced into nomadic existence fleeing the areas of active conflict in search of a more secure and settled existence. Initial displacement of persons was a result of anti-Tamil campaigns in the southern parts of Sri Lanka in 1958, 1977 and 1978, which forced many Tamils to leave their homes in the Sinhala dominated parts of the country and move to the north and in the plantation areas in the late 1970s. Many of these people from the central highlands of Sri Lanka settled in the Vavuniya and Kilinochchi Districts of the Northern Province. Muslim and Sinhalese people living in Tamil majority areas have also been forced to leave due to threats against them. […] The question of Internally Displaced Persons (IDPs) in Sri Lanka is one of the main challenges for the humanitarian and human rights communities.

CATEGORIES OF IDPs IN SRI LANKA The IDPs can at present be categorized under different headings to get †

Sri Lankan Human Rights activist and attached to CIDA, Colombo, Refugee Watch, 2 April 1998

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a clearer understanding of the problem and the extent of resultant suffering, namely: • IDPs living in government controlled areas in the North and the East; • Internally displaced Tamils living in the North and East in territories held by the militants; • Internally displaced Muslims from the North; • IDPs in border areas between the Government and LTTE controlled areas; • Returnees from India.

IDPs living in government controlled areas in the North and the East Jaffna Peninsula The north-east war has escalated to unprecedented heights since April 1995. Although the government promised a quick and decisive victory over the LTTE, events have proven otherwise. The intensified military operation against the LTTE witnessed the government forces capturing the Jaffna town in December 1995 with the claim that their writ now ran over an area considered to be the heart of the separatist movement. It caused the most serious displacement of population from the Jaffna town and its environs – a huge and largely unacknowledged crisis for the northern Tamils. […] Visitors to the peninsula consider it to be an armed encampment with military fortifications with extensive military and police checkpoints. The Jaffna peninsula can be divided into three areas from a military standpoint, namely, security zones, cleared and uncleared areas. Civilian movement into the security zone is prohibited while travel between cleared and uncleared areas is permitted during the day subject to intensive security checks at checkpoints, which are at times located a hundred meters from one another. A daily curfew is imposed between 20:00 hrs to 08:00 hrs the next day. People make their way back from 17:00 hrs to ensure that they make it home before dark and through the several checkpoints. […] Travel in and out of Jaffna is restricted with the need for extensive clearance to arrange travel and severely limited air and ship capacity.

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The East

The strategic and political importance of the east has meant large-scale miniaturization of the area, which in 1990 saw the dislodging of the LTTE from towns and major trunk roads. The East has thus remained a shifting patchwork of ‘cleared’ and ‘uncleared’ areas where the general situation has been very unstable. Contrary to the belief that the LTTE was a weakened force after their loss of control of Jaffna and other areas in the north, they continue to be strong and effective in the east and control most of the territory north of Trincomalee to the south of Batticaloa. The area is so large that the armed forces are stretched to even protect the roads during the day. The LTTE no longer attempts to hold defensive positions. They are free to be an effective guerilla force again. The other specific factor in the East is its ethnic mix. The eastern province, particularly the Batticaloa continues to be extremely volatile, with tensions running high between the LTTE, Tamil civilians and the Muslim community. Civilians continue to suffer from bombing and shelling or are caught in crossfire in the event of direct confrontation. The people in the east are subjected to frequent round-ups and security checks. The military are holed up in virtual prisons every couple of kilometers along the road to Batticaloa. These encampments are situated in the middle of the roads causing all traffic to be diverted around the camps. This offers an excellent opportunity for the military to harass and extort civilians who pass by. The military control the roads by day and remain in the prisons at night and the LTTE roams free in the countryside. […]

Vavuniya - The gateway to the north

The capture of Jaffna and Kilinochchi and the link up to Mannar from Vavuniya, the town of Vavuniya as the gateway to the north, has become a hub of many activities. Civilians leaving LTTE controlled areas of Mallaitivu and Kilinochchi wishing to travel to Jaffna or to other parts of the island have to transit through Vavuniya. More people are leaving the LTTE controlled areas and moving into ‘secured areas’ with Vavuniya playing a key transit point. With the shrinking of areas under LTTE control, and possibly the inability of the militants to continue to ensure basic needs of food, medicines and adequate shelter, the first hurdle to move away from the LTTE held territory is perhaps cleared more easily than it was possible in the past. Coming into

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Vavuniya the IDPs face the second phase of their ordeal to move from the theatre of conflict. Civilian life in the Vavuniya district continues to be hampered by the ongoing war. There has been a permanently displaced population of nearly 55,000 persons since 1990. In addition, thousands of civilians who crossed over from militant held areas to Vavuniya since military operations in 1995–6 have been ‘interned’ in transit camps. They live in these overcrowded camps on a daily dole of US $0.88 per adult and US $0.50 per child under 12. […] [F]our categories of persons are permitted to leave the transit camps they are: • Those seeking medical treatment which cannot be obtained in the Vavuniya Base Hospital; government servants returning to or from Jaffna; those holding documentary evidence for travel abroad for jobs, or a guarantee from an immediate member of family living in the south who can provide a valid reason acceptable to the authorities for the visit; and undergraduates who wish to pursue further studies. • The persons who cannot meet the above criteria are not IDPs in the strict sense of the word. Those who cross over to Vavuniya are not all destitutes but people with their own means of livelihood but everyone is made to suffer many indignities. They want freedom to move to the homes of their relatives in Vavuniya or proceed to places like Colombo. Their fundamental freedom of movement is violated. As Sri Lankans, the only wrong they have done is to have been born Tamils. […]

Internally displaced Tamils living in the north and the east in territories held by the militants In the Vanni and other contested areas in the north and east described by the Sri Lankan military as ‘uncleared areas’ the government maintains a skeleton administration and provides basic services. The LTTE has established a de facto parallel administration, which increasingly organizes and controls civil and economic life. The civilian population in LTTE controlled areas have endured nearly seven years of economic blockade, briefly lifted during the peace talks in late 1994 and early 1995 but reimposed by the present government after the breakdown of talks on 19 April 1995. The lack of regular and efficient transport facilities in these areas coupled with the restriction on fuel, medicine, building materials and other necessary

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amenities of life are a serious impediment to the displaced population. The economic embargo enacted by the government and the lack of electricity have caused serious problems related to education and employment. […] Towns like Vavuniya and Batticaloa are heavily fortified with bunkers, barricades and sentry posts looking more like fortresses but the scenario 10 kilometres away into LTTE held territory is entirely different. In LTTE controlled areas, civilians move freely even late in the night. Farming goes on, despite the ban on fertilizers, with people making maximum use of daylight hours. The recent capture of the land route from Medawachchiya and Vavuniya to Mannar, just prior to what would have been a successful paddy harvest has not only meant financial loss to the farmers who cultivated their fields under very difficult circumstances but also displacement of an estimated 20,000 persons within the LTTE controlled territory in the Vanni.

Internally displaced Muslims from the north The Muslims of the Northern Province have also suffered as a result of the conflict in the region. They were believed to have held a neutral position. The LTTE forced the Muslims living in the north to leave the area within 48 hours in October 1990. Many of them continue to live in welfare centres in the adjoining districts of the north in Puttalam, Anuradhapura and Kurunegala even after over seven years.

IDPs from border villages The rise of Tamil nationalism had its impact on the border areas. The vulnerability of the border areas was one of the reasons why early militancy was concentrated in these areas. Internal displacement affected the Sinhalese as well. Although small in number, the Sinhalese living within or in border villages in the east and north-western provinces claimed by the LTTE as being part of Tamil Eelam fled in fear when some of these villages were attacked and have been victims of ethnic warfare as well. The LTTE massacred civilians including children in several border villages heightening tensions in the nonconflict areas. […]

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Returnees from India The situation in Sri Lanka illustrates the blurred distinction between refugees and the lDPs. The only difference is that the returnees managed to make their way to Tamil Nadu and the former did not have adequate resources to do so. Returnees and lDPs often return to the same village and face similar problems in starting a new life. UNHCR has, therefore, extended its mandate to enable it to assist some lDPs who, in fact, comprise the majority of beneficiaries under the micro project programme which targets the communities where returnees are resettling, rather than individuals themselves. On the reverse, the trickle of refugees making the hazardous nightcrossing to India continues. These include some who were repatriated by the UNHCR on two previous occasions. The current numbers reaching India in the latest period of exodus has touched nearly 10,000 adding to the nearly 60,000 living in India as a result of previous refugee flows. No significant flow of refugees has been reported since the recent drowning of over 100 persons when the overcrowded trawler taking them to India capsized off the coast of Mannar.

VULNERABLE INSTITUTIONS AND GROUPS Basic services and institutions providing food, security, water, medical assistance, employment and education have become progressively vulnerable and subject to collapse. Consequently, the population of particularly the north-east has suffered widespread psychological debility, physical illness and war related injuries. Some specific vulnerable groups are:

Children Children are for the most vulnerable, most powerless and most innocent victims of war. It is not surprising that 50 per cent or more of the victims of conflict in Sri Lanka are children. Bombing and shelling can rarely identify civilians from combatants. Unrestrained attacks on communities provoke huge flights of survivors in search of sanctuary inside and outside the country, the majority of victims often being children. […] Among the displaced, one comes across children, in particular, who for ten years of their lives – a lifetime for many of

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them – have not known a settled existence, a home, family, a village, a community. They feel no sense of belonging anywhere, to no community or group. […]

Women Even though it is difficult to gather any information about the number of women among the displaced, because gender-specific data is not available on an island-wide basis there is no doubt among the IDPs that women are more vulnerable than men. Internally displaced women face serious security risks. Many have suffered from sexual violence and psychological atrocities and have lost close family members. […] Less paddy to harvest, less fish to process, reduction in the already limited economic opportunities, and the deterioration of the social safety net continue to cause extreme hardship to women. The ways in which displacement affects women is multifaceted. In the first instance, the experience of leaving their homes and villages, the familiar environment and the support structures creates a vacuum in their lives, which is hard to replace. In the second instance, the experience of living in very crowded and cramped quarters with hundreds of strangers places them in an unfamiliar and very stressful new environment. The ways in which women have adapted to their new circumstances have had both disturbing and exciting aspects; in some instances, the breakdown of family structures has had a disastrous impact on the lives of women, while in others, women have drawn on their latent resources to transform the most stressful of circumstances into something from which they can derive a feeling of dignity for themselves. In welfare centres, one of the ways in which women have attempted to preserve their sense of themselves and of ‘home’, which is the focal point of their existence as they know it and define it, is to mark off their space within the camp in a clearly recognizable way; inside every welfare centre you visit, you find hundreds of small enclosures, spaces of 10 feet by 6 feet, marked off with bricks, with cardboard boxes, with lengths of cloth, plastic and even jute. One of the consequences of extended life in welfare centres in terms of disastrous impact on women in particular has been the breakdown of traditional and accepted forms and patterns of human and familial relations. The vacuum created by the absence of such patterns and norms has led to situations of conflict and tension affecting the population of the entire camp.

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Men without access to regular employment Two areas of major male dominated economic activities, which have suffered as a result of the armed conflict are farming and fishing. Restrictions placed on fertilizer inputs into LTTE held areas, inaccessibility to farming lands in government-controlled areas have meant that many males have lost their capacity to be gainfully employed. The ban on fishing in the north-east coast, has left thousands of fishermen and their families virtually destitute. A few who ventured to sail beyond the permitted distance from the coast have often paid for it dearly with their lives. Male persons hitherto the income earner if not the sole breadwinner in the family are often denied access to employment and income. This leads to outbursts or irrational and violent behaviour and alcoholism, and a general dehumanization. Men are further victimized because they are the main targets of arrest and harassment by the security forces both inside and outside the camp. This ‘disemboweling’ of men in the context of displacement is a factor that very clearly leads to a deep sense of frustration and tension within them and it is then played out in various manifestations of aggression and violence, primarily towards women and children in their families.

The old and the infirm In the northern coastal belt, as well as in the small islands in the north, and during the military takeover of the Jaffna peninsula a fair section of people, particularly the handicapped, the sick and the elderly stayed behind in areas occupied by the armed forces. They stayed back because they could not join the others due to their inability or they were totally unprepared for such a situation. These people have remained cut-off from their immediate family members. Even though they get assistance from the government in the cleared areas their day-to-day needs are often looked after by church related organizations. The task of looking after this group of persons under the abysmal living conditions in LTTE held areas is more difficult as they have to be moved from place to place along with the fleeing civilians.

The sick IDPs face a number of medical problems during the process of

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displacement and in camps also where health care is limited. One serious consequence of internal displacement is exhaustion and illness. Those among the displaced population most in need of urgent or regular medical care are frequently denied such assistance. Ironically, only the sick and displaced persons falling under the control of a party to the conflict become entitled to medical care. There appears to be a general unwillingness to permit adequate provision for north-eastern medical institutions to deal with injury, disease and sickness in accordance with internationally accepted standards of competence and compassion. This issue should be addressed more from a medical angle than from a security one. […]

A MATTER OF ETHNICITY †

Narayan Katel DIFFERENCES?

Differences in culture, ethnicity and nationality are assets, as well as, hazards in a world becoming technically smaller every day. Most of the feuds and wars of the 1990s, all of them catastrophes to millions of people, resulted in cultural, ethnic or religious tensions. Taking advantage of the situation in Bhutan, beginning from 1991, the propaganda machinery of the Royal Government of Bhutan has been disseminating information that the present crisis in the country is an ethnic conflict fought between the Buddhist Drukpas (supposedly the sons of the soil) and the Hindu Lhotshampas (alleged to be recent migrants). […] To understand the Bhutanese refugee problem, one needs to understand the ethnic background of the refugees and other groups of population in Bhutan. The present refugee population in Nepal and a little in India consists of Lhotshampas who are people of Nepali origin; they had migrated to Bhutan from Nepal, through Sikkim and West Bengal, in the mid nineteenth and early twentieth centuries. They were settled in the southern districts of Samchi, Chukha, Chirang, Dagapela, Gaylegphug and Samdrupjonkhar. Prior to this refugee crisis, foreigners seem not to have known that Bhutan had people of Nepali origin. The tourism booklets depicted Bhutan as the land of the Drukpas. The ruling Ngalungs who are concentrated in the north-west valleys of Haa, Paro and Thimphu †

Executive Director, Society of Human Rights and Education, Nepal, Refugee Watch, 3 July 1998.

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insist that the central Kheng people and eastern Bhutanese (Sharchops) also fall under the nomenclature of Drukpas, as has happened in Nepal, where there exist multiple communities under one nationality. In fact, in Bhutan, communities are sharply divided geographically or territorially, culturally and linguistically. The people in both central and eastern Bhutan are very close to each other both territorially and by language, dress, custom, culture and religious heritage, and fall under the singular fold of Sharchops groups (in Dzangkha, Sharchop means people of the east). The Ngalong are people of Tibetan origin, comprising of not more than 15 per cent of the total population, who follow the Drukpa Kagyupa sect of Tibetan Buddhism, which is recognized as the state religion, The Sharchops belong to Tibeto-Burman group, who comprise around 35 per cent of the total population. They are similar to the people in Khemeng district in Arunachal Pradesh in north-east India. Most of the Sharchops belong to the Nyingmapa sect of Tibetan Buddhism, but the government has banned the practice of this religion and some monks have even been imprisoned.

ASSIMILATION? The Ngalongs claim of total assimilation of Sharchops into the Drukpa fold is opposed by Sharchops. […] The Indo-Mongoloid Sharchops have distinct dialects called Sharchopkha, local custom, dress and food habits. They are the largest among the three major communities, but do not have the clout commensurate with their numerical strength, while marital links and economic opportunities have brought a few Sharchops close to the inner circles of the Drukpa society, most of them still remain outsiders. Besides the Lhotshampas (in Dzonkha Lhotshampa means people of the south) there are some types of minor tribes each in the north and south, like the Tibetans and Brohpas, in the north and northeast and Doyas Totas and Indian origin Adivasis in the south-west. In the past, the Bhutanese government tried to integrate and assimilate the Lhotshampas into one Drukpa culture under its most racial ‘One Nation One People’ policy and its ‘Drukpanisation programmes’ but failed. Under ‘Driglam Namza’ (court etiquette of the Drukpas), compulsory dress codes to all Lhotshampas were introduced overnight with monetary fines and imprisonment for those not wearing the Gho and Kina (Drukpa dress is also the national dress) outside their homes. Government officials publicly burned the Nepali

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textbooks, forcibly cut short the hair of the schoolgirls and forced the Hindu pundits to don the national garb, even while conducting sacred rituals. […] The government resorted to evicting them because it later realized that the Lhotshampas could not be assimilated into the Drukpa fold in view of their distinct territorial ethnicity and ‘Nepaliness’. The Lhotshampas had to face suppression in the name of religion, culture, ethnicity and nationality. Over 100,000 Lhotshampas have been forced to lead the pathetic lives of refugees in India and Nepal, due to no fault of theirs. It is interesting to note that, despite being a member of the UN with due respect for the Universal Declaration of Human Rights enshrined in the UN Charter, the Bhutanese government does not want these people to live in their own country. […] […] The government compelled a large number of the Lhotshampas to flee the country. Even after evicting them from the country there is terrifying news that the Royal Government of Bhutan, in collusion with the United Nations High Commissioner for Refugees (UNHCR), has taken initiatives to divide the refugees on the lines of caste, creed and religion, and repatriate only those who belong to Mongoloid Buddhist religion, leaving the Hindu refugees uncared for.

A MATTER OF NOSES? It is not a crime nor is it a virtue to be born with pointed nose, but the Royal Government of Bhutan perceives a threat from them, especially from the Lhotshampa Bahuns and Chhetris who normally have pointed noses. Since the Bahuns in Nepal are depicted by some westerners as a class of exploiters in relation to the other Nepali sub-groups, the Bhutanese authorities have tried to use the same label for the Lhotshampa Bahuns alleging them of masterminding the political crisis in Bhutan. […]

A SECOND TIBET? For many analysts across the globe, Bhutan serves to be a second Tibet to learn about the Mahayana Tantric Buddhism due to their rising interest in Tibet’s culture and tradition. Despite the rhetoric of human rights, it seems that their sympathy is with the Drukpas. The Bhutanese government’s propaganda of the Lhotshampas being ‘illegal economic

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immigrants’ is unfounded and wrong because all the Nepali settlers and their children, who are presently refugees in Nepal and India, were granted Bhutanese citizenship in 1985. Bhutan’s propaganda in the West that the ethnic Lhotshampa population is marginalizing the Drukpa community to a minority position is wrong. In fact, the Lhotshampas are restricted from settling in north and east Bhutan. This has resulted in territorial ethnicity with each ethnic group living in separate areas practising their own tradition and culture with little interaction among the different ethnic groups in Bhutan. […] The influence and domination of Drukpas in political, economic and cultural life after 1970 monopolized state power and resources. The Sharchops were completely marginalized. Most of the Bhutanese refugees, who were once students and civil servants, recall that at different gatherings very often the Drukpas used to be in one group, Sharchops in another and Lhotshampa in yet another. Even in the country’s only college (Sherubtse College in Kanglung) the Drukpa students used to segregate the Lhotshampa in all activities.

POLARIZATION? The implementation of ‘Drukpanisation programmes’ and other inflammatory utterances by the rulers against the Lhotshampas have further helped to divide and polarize the different communities. Though both the Sharchops and Lhotshampas are suppressed and exploited, there used to be peace and harmony even among the ordinary Ngalongs and other communities since time immemorial. The superficial problem of ethnic conflict is only created by the present rulers in Thimphu. If this scenario continues, and if the ethnic divide is not bridged in the near future, it is apprehended that the ethnic factor would widen the gap between different communities, demanding a separate cultural space, and take revenge on the present Bhutanese State, which has so far betrayed, suppressed and exploited its people who have been loyal to it for so long.

SCRUTINIZING THE LAND RESETTLEMENT SCHEME IN BHUTAN Jagat Acharya

†

The resettlement programme in southern Bhutan on the land belonging to the Bhutanese refugees was started in 1993. The first resettlement programme was carried out in Samdrupjongkhar district in Bhangtar subdivision in Bakuli block with 58 ex-Royal Bhutan Army families. From 1998, the Royal Government of Bhutan has been encouraging massive resettlement programme in six southern districts. The names of the districts, blocks and villages have been changed following the emergence of the refugee crisis, particularly in the south to make them sound more like names in northern Bhutan. Districts Blocks (in southern Bhutan) (under Sarbhang and Samchi districts) Chi rang to Tsirang

Lalai (Sarbhang) to Umling

Sarbhang to Sarpang

Suray (Sarbhang) to Jigrre Choling

Villages (Lalai block/ Sarbhang district) Bistadara to Durreng

The Royal Government of Bhutan, under the guise of rehabilitating landless people, has been closing all possibilities for the return of its evicted citizens by distributing their land while these people are forced to reside in United Nations High Commissioner for Refugees †

Bhutanese Refugee and Activist, South Asia Forum for Human Rights, Kathmandu, Refugee Watch, 9 March 2000.

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(UNHCR) camps in eastern Nepal. It is reported that in implementing this scheme the northerners often have to be coerced into settling on land belonging to the refugees. This is quite apparent from the notices appearing from time to time in the week. The resettlement programme was undertaken in the following areas: S/No.

Districts

Sub-Division

1. 2.

Samdrupjongkhar Bhangtar, Daifam Sarbhang Gaylegphug

3.

Chi rang

Lamidara

4.

Dagana

Dagapela

5.

Samchi

Chengmari

6.

Chhuka

Sibsoo

Blocks Bakuli, Daifam Gaylegphug, Danabari, Lalai, Taklai, Bhur, Suray, Leopani, Sarbhangtar, Toribari Lamidara, Tshokana, Kikorthang, Goshiling, Dunglagang, Shemjong, Phuntenchu Chirangdara, Patalay Emirey,Goshi, Suntola, Tashidin Ghumaunay, Nainatal, Chengmati Sibsoo

During the 76th National Assembly session that was held in August 1998 the Bhutanese government announced that around 1,027 households had been rehabilitated. The so-called people’s representatives asked the government to speed up the resettlement scheme and possibly to spread it to other southern districts. As a result of this, today several hundred acres of landed and housing property in the six districts of southern Bhutan belonging to over 100,000 southern Bhutanese refugees is being distributed to northern Bhutanese families under the resettlement scheme of the Royal Government of Bhutan. The government authorities undertook this scheme asking the ‘landless people’ to apply on an application form to the government for the land. When asked by the media it happily acknowledged that the government was distributing ‘only those lands’ in Sarbhang, which belonged to people who left Bhutan ‘voluntarily’. It may be noted that this scheme in the south is under constant operation, which was not in practice before the exodus. The

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resettlement of the northern Bhutanese population in southern Bhutan is being done on lands belonging to Bhutanese refugees who aspire to eventually return from the refugee camps in eastern Nepal. Here the irony is that while the Bhutanese government tries to convince the international community that it is negotiating with the Nepalese government for the return of the refugees, it is distributing the land of the refugees to people from northern Bhutan. Presently, the resettlement scheme is in full swing in the districts of Chirang, Sarbahang and Samchi. However, similar schemes are also underway in two other districts of Samdrupjongkhar and Chhuka. The blocks from Sarbhang district that were the first to be given away are Lalai, Danabari, Bhur and Gaylegphung. In Lalai block alone more than 300 families from east and central Bhutan are reported to have been resettled. Similarly, large landed and housing properties under Lamidara, Kikortang, Tshokana and Chanuatay blocks under Chirang districts were given away to northern Bhutanese families. Resettlement in Samchi district started from Ghumaunay and then moved on to neighbouring Nainital and Chengmari blocks. More than 200 families have been reportedly resettled so far since January 1999. The royal government has established a Royal Bhutan Army Training Centre in Ghumaunay after the mass exodus of early 1990s. There were reports in 1998, that the northern Bhutanese families who declined to take the government's offer of free land were arrested for non-compliance of the order. The hundreds of acres of agricultural land owned by some 450 families in Danabari block in Sarbhang district, most of whom are now refugees in eastern Nepal, have been officially given away to more than 300 new families from the north beginning in 1998. The new settlers are known to have been hoarded from north central districts viz. Bumthang and Tongsa and eastern districts of Mongar and Tashigang. In order to make this programme attractive and acceptable to the families from the north, the government supplied free building materials and financial assistance. The government reopened most of the basic facilities like schools, health centres and other social infrastructures in these areas that had been closed indefinitely in 1990 owing to the problem in the south. The urban area from where the southern Bhutanese were evicted is now occupied by the bureaucrats and their kin while the land in the rural areas has been distributed to the people from northern Bhutan. The Bhutanese government must stop the resettlement programme that is being undertaken in southern Bhutan and take back all those

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families that have already been resettled on the land of the refugees. The bilateral negotiations between the governments of Nepal and Bhutan cannot yield any result if Bhutan continues with the resettlement programme. If such a situation continues then more Bhutanese families will be evicted from the country through indirect harassment from the northerners. There are reports from the southern Bhutanese that their lives in the villages have become more difficult after the resettlement programme because of the difference in culture, language, religion and the harassment and humiliation that they are facing from the resettled families.

THE TALIBAN SHELTER SEEKERS OR REFUGEE WARRIORS? Arpita Basu Roy

†

The emergence of the Taliban as a phenomenon in Afghan politics is of striking significance both in the context of Islamic tradition as well as refugee behaviour. Migration or hijra (an Islamic religious term for migration) has often led to jihad (struggle) against the so-called enemies of the land and religion. The essential question here is: has this jihad been successful in bringing about peace in this war-torn land or have the people fighting jihad become a catalyst for further precipitation of the civil war? The noun ‘refugee’ has a French origin and was adopted in the English language a century later. It was given a more institutionalized legal meaning by the 1951 UN Convention Relating to the Status of the Refugees and the subsequent 1967 Protocol. But the texts of Islam, especially the Holy Qur’an and the Hadith give a different name to migration of the Muslims. Migration after suffering oppression is hijrah and such a migrant is a mujahir. […] Hence, the universal legal framework of understanding the refugee situation is not significant for the Afghans or the average Muslim people in the neighbouring countries who have given refuge to the Afghan migrants. M Nazif Shahrani says, unlike the widely used term mujahidin for Muslim fighters in the cause of Allah, Afghan resistance fighters are referred to by the companion term mujahirin, ‘those who leave their homes in the cause of Allah, after suffering oppression’, (Qur’an, 16:41) †

Maulana Abul Kalam Azad Institute of Asian Studies, Kolkata, Refugee Watch, 5 and 6 June 1999.

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the appellation of choice for the displaced Afghans, is for the most part ignored by international relief organizations. The use of the term mujahirin among the Afghans was limited to a large body of Muslim Central Asians (Turkistanis) who took refuge in Afghanistan after the establishment of the Bolshevik regime. For the Afghans the term hijrat or mujahir meant specifically Muslim refugee and not simply a displaced person or refugee. Hence the Afghans have deliberately chosen to describe their own flight from the communist People’s Democratic Party of Afganistan (PPDA) rule as a mujahirat and themselves as mujahirin-i-Afghanistan. The Qur’an and the Hadith, which are the principal textual Islamic doctrines, make numerous references to the historic event of the hijrah and contain injunctions making it incumbent on Muslims to migrate when faced with serious adversities. The Qur’an says, ‘Those who believed, and emigrated and fought for the Faith (i.e. the mujahirin), with their property and their person, in the cause of Allah, as well as those who give (them) asylum and aid (i.e. Ansar) these are all friends and protectors, of one another’. […]

THE MUJAHIDEEN AND THE TALIBAN Against this background, the behaviour pattern of the Afghan mujahirin as mujahideen or resistance fighters to drive out Soviet forces from its territory and to put an end to Soviet-backed PDPA regime in Kabul, has to be understood. Most of the Afghans who made the perilous journey into Pakistan viewed their decision both as a political act of resistance and also as a moral act of faith in the sanctity of Islamic principles and their commitment to defend them. […] The recent Taliban phenomenon in Afghanistan, too, can be analysed in this background. […] Migration or hijra was closely related to jihad or struggle and the migrants were bound by their religion to fight back and drive out the enemies of their soil as well as religion. The resistance offered by the mujahideen is a good example of such a jihad. But, when political events took a turn and the Soviets withdrew from Afghanistan in 1989 and the PDPA government fell in 1992 there arose another new as well as unfortunate phenomenon in Afghan politics. The different mujahideen groups started fighting amongst themselves. The factional fighting amongst these groups made chances of peace seem remote in Afghanistan. It was then that the Taliban erupted suddenly and surprisingly onto the Afghan scene.

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There are quite a number of views on the emergence of the Taliban. According to Sarmad Saeedy of the Nation, Taliban can be termed as a ‘new breed of warriors’ or ‘soldiers of God’ first noticed in September 1994. Another Pakistani commentator is of the opinion that the Taliban are militant Afghan religious students from Fazalur Rehman’s Jamiat Ulema-i-Islam (JUI). Kamal Matinuddin, a well-known author, in his new book The Taliban Phenomenon: Afghanistan 1994–97, says that there is a critical distinction between the Talib and the Taliban movement while the latter is of recent vintage, the former has been an integral element of the ‘madrasa educational system’ which played a significant role in the spiritual upliftment of Muslims in the South Asian region for centuries. […] General Zia (of Pakistan) supported these institutions not only to create a belt of religiously oriented students who would assist Afghan mujahideen to evict Soviet forces from Afghanistan but also to satisfy mullahs for his political aims. Under the official patronage of Pakistan, these madrassas sprouted all over Pakistan imparting combat and semimilitary skills to their pupils. And who were these pupils? There is a widely circulated theory that the leadership as well as the students emerged from amongst the disgruntled young Afghan refugees studying in the ‘deeni madarsas’ around Quetta and Peshawar. One observer acknowledges that a considerable number of Taliban were migrants from Afghanistan after 1990. P Stobdan also is of the view that the Taliban movement was created by the Inter-Services Intelligence (ISI) of Pakistan with recruitment drawn from various refugee camps on its territory. Even Benazir Bhutto, the former Prime Minister of Pakistan, in a BBC interview admitted that the Taliban was a network of religious seminaries created for training Pashtun refugees from Afghanistan with military support from Saudi Arabia and the US. […] The Afghan refugee influx was a result of the Afghan civil war, which started in 1979 after the fall of Daoud, and later the early invasion of Soviet troops in the country. […] The need to escape the violence of war created millions of refugees. The UNHCR Refworld mentions people from urban areas who spoke of political persecution, arrests, and the fear of being conscripted into the Soviet supported government forces. Desertion from government forces was another reason for such flight into exile. Iran and Pakistan were the major asylum countries for these Afghan migrants. About 3.3 million Afghans took refuge in Pakistan while 2.9 million took refuge in Iran during the late 1980s and the early 1990s. […] The humanitarian and political dimensions of the Afghan refugee

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situation were mutually reinforcing. ‘The exiled people represented an entire population of women, children and armed rebels, the latter being allowed free operation on Pakistani soil next to the sprawling camps of their dependents’. […] The emergence of Taliban at this juncture in 1994 is marked by their frustration at the factional fighting amongst the different mujahideen groups and their failure to establish peace in war-torn Afghanistan. The Taliban advocated an ‘Islamic Revolution’ in Afghanistan proclaiming that the unity of Afghanistan should be reestablished in the framework of the Sharia (Islamic law) and without the mujahideen. Initially, the Taliban gained considerable support from the civilian population who had been frustrated by the civil and ethnic strife in the country since 1992. But as the Taliban advanced to capture various provinces and districts with artillery, jet-fighters, helicopter gunship and house-to-house fighting, the country further turned into a battleground. There was fierce fighting between government forces and the Taliban, which resulted in a high number of civilian casualties. The city of Kabul, which was relatively peaceful in the earlier stages of the civil war, became a target of indiscriminate bombing.

HUMAN RIGHTS VIOLATION The strict interpretation of the Sharia by the Taliban has resulted in protests by the international peace fraternity. The Taliban’s edicts ban women from working or going outside the home unaccompanied by male relatives, ban girls from going to school, order men to grow beards and pray in the mosque five times a day. They have also banned music, photography, and children’s games like kite-flying. Reports by the press and human rights organizations indicate that the edicts imposed by the Taliban are being arbitrarily enforced to different degrees in different parts of the country. Punishment included severe beating and possible execution. The Special Rapporteur for the UN Commission on Human Rights (UNCHR) also noted that the religious police is empowered to carry out beatings of offenders on the spot and house-to-house searches for forbidden items. […] Amnesty International (AI) has reported that women have been physically restricted and also beaten for not wearing the burqa. The special Rapporteur for UNCHR reported that the Taliban instituted Islamic courts and enforced the application of Islamic punishments, such as public executions and amputations of one hand or one foot.

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In the light of what has been discussed above regarding the Taliban’s activities one wonders at the paradox – the paradox of their motives and actual results. […] [A] sizeable section of the Afghan refugees who had at one time fled their country during the Soviet occupation to save themselves from the civil war situation have actually emerged on the Afghan political situation with arms and ammunitions furthering unrest and civil war, making chances of peace seem remote.

REFUGEE WARRIORS This is a classic example of ‘refugee warriors’, who flee for the sole purpose of fomenting subversion from outside. […] They are like the Cuban exiles who operate from the US. Apart from the Afghans, the Khmer, Eritreans, Namibians and Nicaraguan Contras have also been regarded as ‘refugee warriors’. Thus, from the above discussion about the Taliban movement we can arrive at two major conclusions. First, the Taliban movement is not to be perceived as something sudden and unprecedented. Such a movement is inherent in the Islamic principles of hijra and jihad. And secondly, the Afghan migrants who fled a civil war situation in their country have returned to fight a jihad but in the process have acted as catalysts in aggravating the civil war situation further.

AFGHAN REFUGEES HEAD FOR TAJIKISTAN, HOLED UP IN THE PAMIR MOUNTAINS A Correspondent

†

Up to 150,000 people in northern Afghanistan are said to be fleeing from advancing Taliban forces and making their way to the Tajikistan border. European aid workers in the area say the refugees are in a desperate situation – without food, shelter or medicines. The refugees are sheltering in the Pamir Mountains, a remote and inaccessible area near the international border, which has been closed by the Tajikistan government. […] ‘These people have nowhere to go. There is no food, no shelter, no equipment or medicine’, Afghan affairs expert, Ahmed Rashid, told BBC World Service radio from Lahore, Pakistan. […] Aid workers say they are unable to reach the refugees because of the remoteness of the area. UN officials are now in Kabul trying to persuade the Taliban to allow aid convoys through before snow blocks roads and leaves the refugees stranded. The winter in the Pamir Mountains is only six weeks away and there is an urgent need to get food stocks to the refugees to last them through the winter months. The Taliban, which captured power in 1996, control 90 per cent of the country with just a small bit of territory in the north holding out. They have made several attempts to capture the remaining 10 per cent and extend their rule to the entire country.

†

Refugee Watch, 16 December 2001.

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THE PLIGHT OF AFGHAN REFUGEES INCREASING AS THE WAR CONTINUES The number of Afghan refugees has been increasing every day since the launch of the US led air strikes. The UN refugee agency, United Nations High Commissioner for Refugees (UNHCR), reports that some 50,000 refugees have crossed the border into Pakistan and Iran since 11 September. […] The UNHCR reports that the relief efforts in Afghanistan face increasing obstacles and with Afghanistan’s severe winter approaching, relief agencies are racing against time to bring aid to millions of destitute people. There are about 22 million refugees around the world, of them, the single largest group are Afghans. These numbers are expected to grow as the US led strikes in Afghanistan, now in their third week, drive more and more people towards the border. […] Fred Eckhard, the spokesman for UN Secretary General Kofi Annan, said last week that most families from Kandahar, the stronghold of the Taliban regime, appear to have left for nearby villages and for the border with Pakistan. People are also leaving Jalalabad. Eckhard said its population has been reduced by about 40 per cent. With the Taliban denying relief agencies access to the civilian population, Rudd Lubbers of the UNHCR, said that, the humanitarian situation in Afghanistan is swiftly deteriorating. Earlier the high commissioner warned that refugees and asylum seekers were already the object of considerable mistrust in many countries and that the war on terrorism must not become a war on Afghans or a war on Islam. ‘The Afghan crisis has been a prolonged one. We must remember that many of these people have been in kind of quasi-refugee status for almost 20 years now. And the severity of the Afghan winter has to be experienced to be understood. I’ve been there in the wintertime and I've never felt such bitter cold. And we’re just at the beginning now of the winter season, and unless assistance gets to people in fairly short order, we’re going to see a real humanitarian catastrophe, people freezing to death and people dying of exposure’. […]

IMPACT OF INTERNATIONAL JURISDICTION ON AFGHAN REFUGEE RIGHTS Salma Malik

†

Pakistan in spite of being a developing country has hosted millions of Afghan refugees since the 1970s. Although in the following paragraphs, an attempt has been made to highlight the impediments and shortfalls in Pakistan’s Afghan policy, one must keep in mind that the country itself faced a lot of hard times during the Soviet occupation of neighbouring Afghanistan. With inherent problems of its own and usual dilemma faced by a developing Third World country, there was a time when Pakistan had to single-handedly support a burgeoning refugee population, with no donor aid or help coming from any quarters. Since that time, the Pakistani government has engaged in sporadic efforts to register refugees and to provide some legal protection. In the early 1980s refugee families were issued passbooks. (The issuance of passbooks and identification documents was done according to Article 25 of Chapter 5 dealing with administrative measures in the 1951 Refugee Convention). The passbooks entitled refugees to receive assistance, and they were also used as identity documents. On a sporadic basis for a few years thereafter, the Government of Pakistan issued passbooks to newly arriving refugees for assistance purposes only. The passbooks did not provide identification for the refugees, and as such, provided no legal protection. […]

†

Research Associate, Institute of Strategic Studies, Islamabad, Refugee Watch, 22 August 2004.

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In spite of the fact that it hosts the largest of the world’s refugee population for the past three decades, Pakistan is neither a party to the Refugee Convention, nor its follow-up 1967 protocol. However, many a principle enshrined in the Refugee Convention are also well-established principles of customary international law, thus making it binding on Pakistan. There are more than 150 refugee camps inside Pakistan, the majority of which are located around Peshawar and north along the Afghanistan border in the North-West Frontier Province (NWFP); others are clustered around Quetta in Balochistan province. Refugees arriving during the US led bombing campaign and earlier in 2001 mostly went to New Jalozai camp in NWFP, some 35 km east of Peshawar. Jalozai has long been a destination for Afghan refugees. And the large number (approximately 80,000 refugees) that was already there made it difficult to accommodate the new arrivals. […] More than 20 years after the Soviet invasion, Afghans remain the single largest refugee group in the world. More than 3.5 million refugees reside in Pakistan and Iran alone, according to the UNHCR. The government authorities responsible for promulgating laws and policies affecting refugees in these camps and in urban areas often employ contradictory policies, exacerbating the already hostile environment for refugees. For example, the NWFP government had been openly hostile to the presence of the refugees, while the governor of Balochistan has been somewhat more tolerant and cooperative with the federal government’s policies. Both these local authorities are expected to coordinate their policies with the Ministry of States and Frontier Regions (SAFRON), and other federal government departments, though the coordination between the federal government and the provincial governments is often lacking. […] Pakistan first closed its borders to prevent Afghans from entering in November 2000, citing an inability to absorb the 30,000 refugees who had arrived in the previous two months and the thousands more then expected to arrive. Since then the government has repeatedly stated that it closed its borders to fleeing Afghans because of security concerns. In the light of the fears that members of the al–Qaeda organization or members of the Taliban armed forces might try to cross from Afghanistan into Pakistan. Pakistan’s security concerns were entirely legitimate. However, by closing its borders to Afghan refugees, denying them entry, and returning some refugees to Afghanistan, the Government of Pakistan was not only placing the refugees at a risk of being returned to a country where their lives were

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seriously endangered but also violating its obligation of nonrefoulement. […] […] The Pakistani authorities also refused to allow UNHCR to register new arrivals in new Jalozai camp in order to determine whether they were in need of refugee protection. Without registration, assistance programmes were also stymied, since the registration of refugees establishes accurate numbers and a system of documentation for the distribution of food and non-food items. Pakistan’s desire to cooperate with the international coalition against terrorism was also a factor influencing the border closure policy. In the lead-up to the US led air strikes in Afghanistan, the US requested Pakistan to keep its borders closed. Despite the anticipated need for fleeing Afghans to seek safety in neighbouring countries and the legal standards allowing for separation of armed individuals or those engaged in military activities from civilian refugees, the border closures undermined the right to seek asylum, enshrined in the Universal Declaration of Human Rights and customary international law. […] Pakistan’s federal domestic laws make no specific provision for refugees. In fact, the laws actually undermine the concept of legal protection. The Foreigners Order of October 1951, promulgated pursuant to the Foreigners Act of 1946, gives the power to grant or refuse permission to enter Pakistan to civil authorities at Pakistan’s border. Under this Order, foreigners not in possession of a passport or visa valid for Pakistan, or those who have not been exempted from the possession of a passport or visa, can be refused entry. There are no specific provisions providing for the granting of entry to asylum seekers or refugees. […] In August 2001, there were signs of improvement. The Government of Pakistan was motivated to change its policy towards Afghan refugees because of its desire to move them out of the camps in which they were then living. In particular, the government focused on moving refugees from new Jalozai camp, because of land disputes and negative press accounts describing the squalor there; and to close Nasirbagh camp completely because of a real estate development project planned for its location. The government therefore entered negotiations with UNHCR. The resulting agreement contained both the relocation component and a legal protection component; with the latter aspect to be achieved through screening interviews. Under the agreement, 30 UNHCR and government teams were to interview an estimated 180,000 Afghans in the NWFP, focusing mostly on new Jalozai, Nasirbagh and Shamshatoo camps, to determine which one of three categories the Afghans fell into.

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The first category encompassed all who would be afforded continued international refugee protection in Pakistan. Under the definitions selected for this first category, refugee protection was to be afforded to: Any person who is outside his/her country of origin and who is unwilling or unable to return there or to avail himself/herself of its protection because of (i) a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Or (ii) a threat to life or security as a result of armed conflict and other forms of widespread violence, which seriously disturb the public order. […] These criteria generally adhered to international standards, and in fact represented a potentially marked improvement for the legal protection of Afghan refugees in Pakistan. The criteria mirror the Refugee Convention’s definition of a refugee, and they also reflect elaboration of the refugee definition in regional instruments such as the Organization of African Unity’s 1969 Refugee Convention. The second category included those who did not meet the criteria set out above, but who were considered to be particularly ‘vulnerable’, such as women heads of household, the elderly, unaccompanied children, and others. This second category would be given temporary protection in Pakistan. The third category included all Afghans found not to be in need of refugee protection. This third group would be returned to Afghanistan. Under the relocation aspect of the programme, refugees in need of international protection (category one) and some of those found to be particularly vulnerable (category two) were to be relocated to a new Shamshatoo camp, and to other camps located elsewhere in the NWFP. It was not finally decided what would happen with those vulnerable refugees who would be put further at risk if they were moved to a new camp. The third category would be deported from Pakistan to Afghanistan. […] […] Reports indicated that the returned Afghans included refugees from Jalozai camp and some unaccompanied children. During the ensuing dispute between the government and UNHCR, screening was halted. It started again on 3 September and lasted for eight more days until the 11 September attacks on the US. With the post-11 September inflows of large numbers of Afghans to Pakistan, the full screening programme was not re-instated. Instead, the Government of Pakistan maintained its interest in relocating the refugees, a policy goal that resurfaced in a new initiative in November 2001. Inside Afghanistan, there were fines imposed at checkpoints on people leaving Afghanistan. For those Afghans who could not afford to

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pay, incidents of extortion hampered their ability to reach greater safety in Pakistan. As a result of Pakistan’s increasingly strict border closure policy, and the fines and extortion inside Afghanistan, it became even more dangerous and costly for Afghan refugees to enter Pakistan after 11 September 2001. […] The lack of legal status for Afghan refugees in Pakistan has left them without any protection from harassment, extortion and imprisonment by the Pakistani police. Furthermore, in these camps, women-headed households suffered acutely during these distributions, regardless of the process. A primary problem in all of the refugee camps visited by Human Rights Watch was that there was no female police force on site to ensure the security of female refugees, and from whom such female refugees could seek protection without putting themselves at risk of abuse or abridging cultural norms. This absence of female staff is contrary to Pakistan’s obligations under ExCom Conclusion No. 64, which urges states to ‘increase the representation of appropriately trained female staff across all levels of organizations and entities which work in refugee programmes and ensure direct access of refugee women to such staff’. […] The frequent incidence of violence during distributions made Afghan refugee women, already unaccustomed to appearing in public places, deeply afraid to go to the distributions in order to collect food. Other refugees in urban settings, particularly in Peshawar, reported anecdotally about destitute women and girls resorting to prostitution. One of the few international human rights treaties that Pakistan is party to is the 1989 Convention on the Rights of the Child. Article 22 requires that refugee children should receive appropriate protection and humanitarian assistance in the enjoyment of the rights enumerated in the Convention. Articles 28 and 29 set forth the rights to education that Pakistan should ensure. One pertinent requirement, contained in Article 28 is that states shall ‘make primary education compulsory and available free to all’. Given that many refugee children located in new Jalozai camp were not given access to primary schooling, Pakistan is falling short of its international obligations. […] However, refugee families also often chose not to send their children to school, especially when the only schooling options required paying fees. Families explained how they had to send their male children to work as opposed to school in order to supplement the family’s income. Girl refugee children were usually kept at home with their mothers. In Peshawar, some refugee children living in the Tajarabat area worked as garbage pickers for a few rupees a day. Many refugee children in

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Peshawar were also working in brick factories, in carpet factories and with shoe repair shops.

IMPLICATIONS OF 9/11 AND REFUGEE INFLUX IN PAKISTAN The collapse of the Taliban regime close at the heels of the 11 September terrorist acts and the consequent potential for peace and stability led to a shifting priority for Pakistan and the leading refugee aid agency UNHCR in Pakistan to facilitate and make preparations for a mass return of Afghan refugees from the country. Beginning January last year, the relief efforts focused on relocating refugees from urban Peshawar and Quetta to the new sites near the Afghan border, and by mid February, the infamous Jalozai camp was finally closed. Despite significant changes occurring in Afghanistan, as mentioned before, there were two fresh refugee waves that occurred unexpectedly in the early part of 2002. […] The establishment of the Transitional Islamic State of Afghanistan in June 2002 encouraged closer ties between Pakistan and Afghanistan. Through a series of informal tripartite consultations with UNHCR and the Afghan government, Pakistan came to acknowledge its neighbour’s limited capacity to cope with such a massive rate of repatriation and spoke openly of the need for a more gradual return. Both governments agreed to correlate the pace of voluntary repatriation more closely with Afghanistan’s reconstruction. […] Soon after UNHCR opened voluntary repatriation centres in March and April 2002, hundreds of thousands of refugees came forward to register for assisted return. To accommodate the growing number of requests for assistance, UNHCR opened centres in Islamabad, Karachi, Quetta and Peshawar. Interest in return reached its peak in May and June, with staff processing up to 10,000 persons per day in the weeks ahead of the Loya Jirga. The sheer number of Afghans repatriating – which surpassed 1 million in August 2002 – served to mitigate internal pressures in Pakistan to bring a swift end to the Afghan refugee situation. In stark contrast to early 2001, the government adopted a less restrictive asylum policy despite the growing resentment of local communities towards refugees. […] As mentioned previously, Pakistan is not a signatory to the 1951 Geneva Refugee Convention and has no asylum legislation to ensure the protection of refugees. Though the government cites no reason for its decision to sign the convention or its follow-up protocols, it is more

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than evident that for an over-populated Third World country with so many pressing problems of its own, coming under the obligation of such a treaty could further exacerbate its socio-economic instability. However, the government has nevertheless agreed to pursue a policy of voluntary return and to abstain from mass arrests and deportations. […] With the Soviet pullout from Afghanistan, a time came when Pakistan alone was sustaining and supporting a vast refugee population with no external financial and material help. Though after the inception of the US led bombing campaign on 7 October aid for Afghan refugees and those internally displaced increased, together with the level of international focus on the region, yet this was not enough to convince Pakistan to open its borders or to provide legal protection to greater numbers of refugees. […] This situation was further affected with the attacks on foreigners and foreign interests, which resulted in the withdrawal of four key international implementing partners. Thus once again Pakistan was left entirely on its own to support the ever increasing refugee population. From the very beginning, the local population had problems accepting adjusting and integrating with the newly arriving refugees. Where a fair number of refugees remained confined to their camps, and were issued passbooks to validate their refugee status, a good number spread into big cities, aspiring to Pakistani citizenship, which given the inept bureaucratic system was not too difficult to achieve. Once they acquired citizenship, it was not too difficult for them to purchase land, real estate and set up their own business, which adversely affected local interests. The refugee population also started to seek menial jobs and the local domestic labour market was negatively impacted. The Afghan labourers would work for very minimal wages that were much below the fixed cost of an average labourer, and would work in the most adverse conditions. With the Soviets still occupying Afghan territory, and a constant flow of Afghans entering Pakistan, the law and order situation was hit very badly. There was a dramatic rise in crime rate; coupled with this was the easy availability, and diffusion of small arms and light weapons. These weapons could be traced back to two main sources; the CIA arms pipeline, which leaked profusely, or the illicit weapons arms bazaars that exist in the NWP since the past two centuries. This gave rise to a poor law and order situation; introducing a kalashnikov culture that continues to date, rise in sectarian and ethnic violence, and free flow of weapons, drugs, narco-dollars as well as counterfeit currency. This situation gave rise to a deep-rooted resentment amongst the local

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population that had to share its land, property as well as vocational opportunities with those they perceived as aliens. The ever increasing refugee population also gave rise to many social integrations as well as administrative problems that the government had difficulty coping with. As soon as the situation stabilized in Afghanistan, there was a mass return of refugees from Pakistan. By May 2002, 400,000 Afghan refugees had repatriated, with voluntary repatriation centres processing up to 10,000 people per day. Despite elaborate verification measures, the sheer number of would-be returnees approaching the repatriation centres on any given day made it very difficult for UNHCR to cross-check every application and avoid double registration. Afghan refugees eyeing a second helping of repatriation assistance have hit a blind spot with the arrival of state-of-the-art iris-recognition technology in Pakistan. The UN refugee agency UNHCR introduced an iris-recognition system among Afghan refugees in Peshawar as an additional measure to prevent the ‘recycling’ of individuals seeking the multiple disbursement of its return assistance package. […]

CONCLUSION As mentioned above, in spite of not being a signatory of the Refugee Convention, owing to its domestic constraints, Pakistan not only opened its borders to the Afghan refugees on humanitarian grounds but has also single-handedly hosted millions of these refugees for a quarter of a century. Sustaining such a huge population has not been easy for a country which is severely debt ridden, troubled by socio-economic problems which are very often linked to the Afghan population. Where the international community has been very active in campaigning for refugee rights, they have been lacking on monetary and physical assistance. […] Protecting refugees is a shared responsibility, with states having the primary duty and the NGOs, international organizations, agencies and other political entities sharing this task. The 1951 Convention and the 1967 protocol are global instruments setting out the core principals on which the international protection of refugees is built. Though their legal, political and ethical significance goes well beyond their specific terms, ultimately the full realization of the international protection regime hinges on the ability of the international community to find durable solutions to forced displacement situations, whether these are voluntary repatriation, resettlement in a third country, local integration

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or a combination thereof. The challenge is how to realize solutions for individuals, as well as for refugee groups, which are both lasting and protection based. International responses to the problem of forced displacement have evolved steadily over the last 50 years, and they will continue to evolve. […]

DEVELOPMENT INDUCED DISPLACEMENT IN PAKISTAN †

Atta ur Rehman Sheikh BACKGROUND

Following the independence in 1947, the economic development planning in Pakistan, was based on large-scale industrialization. In less than the period of the first five-year plan, various mega development projects were launched to exploit natural resources. The projects for building large dams at Terbela and Mangla were initiated in the early decades of independence to rise among the industrialized countries of the world. In the later years, Ghazi Brotha and various other medium scale dams were also constructed to regulate water resources. Although these projects played an important role in the economic development of the country, at the same time they caused havoc in terms of depletion of natural resources and particularly the displacement of thousands of people from their ancestral homes and habitats. People living on dam sites for centuries were not only physically displaced but they also lost their livelihood. Consequently, the displaced populations faced various kinds of impoverishment risks like landlessness, joblessness, homelessness, marginalization, food insecurity, loss of common resources, among others. […] With regard to delayed resettlement, Tarbela Dam Project is the most relevant example where a significant number of families are yet to be resettled. The land given in compensation was not as good in terms †

Member of the Editorial Board, Refugee Watch and Human Rights Activist in Pakistan, Refugee Watch, 15 September 2001.

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of quality as was acquired by the government. Either resettlement was delayed or just could not be done. Cash compensation to the affected people was not adequate either. The dislocation of the landless has gone unnoticed in all water related projects. Another pattern that emerges from displacement induced by development projects is the lack of community participation. The uprooted community is seldom consulted in planning or implementing the dam projects. There is no proper mechanism to inform or redress their problems. Even NGOs remain ineffective. The key issue related to development induced displacement is the absence of resettlement policy and laws. The government has been using laws promulgated during the colonial period. The laws, particularly the Land Acquisition Act 1894, have been applied to acquire land and resettle uprooted communities but this does not address the modern day problems and needs emerging during dams’ construction or otherwise. Despite modifications and changes in the existing laws, it still lacks a comprehensive treatment.

MAJOR DEVELOPMENT PROJECTS AND DISPLACEMENTS Following are some cases of projects, which reflect the kind and volume of displacements that took place under certain dam projects. Tarbela, Mangla and Kaptai (constructed in East Pakistan, now Bangladesh) launched in 1960s were major initiatives of the so-called ‘Decade of Development’ by the military ruler President Mohamad Ayub Khan. Following the lapse of more than three decades, their adverse affects can still be felt with reference to the uprooted people of the areas where dams were built. Thousands of people were uprooted and hundreds of villages were submerged. There are a large number of families who are still waiting for fair compensation and proper re-settlements. Mangla Dam and Kaptai Dam belong to the same period. Kaptai Dam was constructed in the Chittagong hill tracts. Nearly 100,000 people were displaced as a result of the construction of the dam. Majority of those displaced belonged to Chakma and Hajong tribes. Nearly 52,000 displaced people crossed over to India. They are still not recognized as refugees by the United Nations High Commissioner for Refugees (UNHCR). Mangla Dam was constructed around the same time, in Mirpur district of Azad Jammu and Kashmir, when Kaptai Dam was started. Mangla Dam is the world’s third largest earth-filled

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dam. This was the first large dam built as part of the Indus Basin Project following the treaty between India and Pakistan over the dispute over the use of water from the Indus River and its tributaries. More than 50,000 people were displaced. The displaced were given very little compensation for the loss of their homes and agricultural land. […] Recently, the government has decided to increase the efficiency of the dam. The dam’s height will be raised by 40 feet at a cost of 53 billion. According to the assessment of Water and Power Development Authority (WAPDA) about 40,000 people of Mirpur city and suburbs will have to be displaced and re-settle. Around 7,000 houses will come under water, which means almost half of the Mirpur city will submerge. […] Moreover, dykes and embankments will be constructed to minimize the project’s effects on human settlements. But, keeping in view the previous bleak track record of the authority with regard to resettlements, people of Mirpur city strongly reacted to the project and a series of protests took place. The pressure was so much that the government had to defer the plan. Tarbela Dam was launched in 1967 with the World Bank assistance. At the outset it was assessed that 80,000 people would be displaced and 100 villages will come under water. But 96,000 people had been dislocated and 120 villages submerged. The main occupation of those displaced was agriculture. An organization by the name of Tarbela Dam Resettlement Organization was set up for acquisition of land, disbursement of compensation, evaluation of affected population and their resettlement. The land was acquired under Land Acquisition Act 1894. A comprehensive resettlement programme was adopted but resettlement is not yet complete. […] Following the initiation of Ghazi Barotha Hydroelectricity Project (GBHP), the issue of Tarbela Dam displaced families again surfaced. In the wake of pressure from civil society organizations the World Bank has indicated that the loan for the Ghazi Barotha Hydel power project is conditioned to the resolution of long awaited settlement of displaced people of Tarbela Dam. […] Chashma Right Bank Canal (CRBC) is a classic example of a water related project. The project of the 274 km long canal began in 1978. Data regarding Stages I and II are not available but at the final stage almost 2,000 villagers will have to dislocate. The project was planned 24 years ago, the government neither informed nor consulted local communities at any stage of the project. Now that the project is about to be completed, neither the government nor the main donor, Asian Development Bank (ADB), have any standard resettlement plan for the affectees. […]

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CONCLUSION The situation regarding the displaced people and resettlement calls for urgent actions on the part of state and non-state institutions. The following issues need immediate attention: There is a need to draft a national resettlement policy, as the existing law and policy do not address the concerned issues comprehensively. The Land Acquisition Act 1894 (Act I of 1894) as amended from time to time has been the general land acquisition law in Pakistan. […] In 2000, the military government announced that a national resettlement policy would be formulated. Although consultations and meetings were held both at governmental and non-governmental levels, they have not been able to come up with any policy so far. […] Like the issue of refugees, the issue of the IDPs has not been given much attention among academia or civil society organizations. This, in spite of the fact that immediately after independence the biggest problem Pakistan has had to handle is resettlement of refugees from India. Afterwards, 3 million plus Afghan refugees crossed over to Pakistan. And lastly the development induced displaced population. The issue of IDPs seems to be quite a new area since nothing significant has been done in this field. […] In the absence of law and policy of resettlement in Pakistan, the donors for dam building projects like World Bank, ADB and other such institutions have tried to solve the issue by establishing project NGOs and providing guidelines for resettlement of uprooted people. […] Donor organizations have to incorporate a strict mode of monitoring the project and conditioned financial assistance to follow the guidelines laid out in the project document. Lastly, such projects should be approved that have minimum effect on human settlement and environment.

ON THE TRAIL OF BURMA’S INTERNAL REFUGEES †

Thierry Falise

Below we give excerpts from a report published in The Irra Waddy, Vol. 9, No. 5, June 2001. The screaming engine is pushing the long-tailed boat against the powerful current and whirlpools of the Salween River. A few miles ahead, a Burmese military post is set on the heights of a grey sand beach. The boat slows down. […] Hardly 48 hours earlier the 39-yearold American had been kissing his wife Suzan and their three children goodbye as he prepared to set off on a long and boring 30 hour journey. Leaving his dental practice and his middle-class house in Mandeville, Louisiana behind, his first of several flights took him to San Francisco, en route to this remote corner of Asia. […] When he arrived at Bangkok’s Don Muang International Airport, intrigued customs officers spent three hours searching his aluminum cases and bags filled with medical equipment. ‘They asked me if I was doing business. I told them it was for a humanitarian mission, so they let me go’, he recalls. What Allison conveniently forgot to mention was that the mission would be organized in Burma after illegally crossing the Thai border. […] The next morning, after a night on the sand on the right bank of the Salween, the expedition including nurses, medics and guerrillas, as well as about 30 porters loaded with medical equipment and medicines entered a labyrinth of paths into the jungle. The objective was to reach Muthraw district in Karen State, where scores of †

Human Rights thinker and scholar, France, Refugee Watch, 15 September 2001.

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refugees, better known around here as Internally Displaced Persons (IDPs), were hiding like scared wild animals. They were farmers – most of them from ethnic minorities (which constitute 30 per cent of Burma’s population) chased from their villages and forced to find shelter in the darkness of a forest for a day, a month, or a year, under the constant threat of attack from Burmese soldiers. […] The Karen National Union (KNU), the political organization that has been fighting for more than half a century to establish an independent Kawthoolei, or Karen Country, regularly sets up mobile medical teams to help the IDPs. This time, Allison’s participation in the two-week expedition meant that extra preparation and security would be necessary. […] Around noon, the expedition comes across a group of about 20 IDPs. They have escaped from Mee Chaung Win, one of the so-called ‘relocation centres’ set up by the Burmese army to house farmers whose villages they have destroyed. ‘We are forced to work for the soldiers, cut bamboo, clean their camps, fetch their water. We even have to build the fences surrounding our prison. We don't have time for our own rice fields and cattle’, says Saw Plaw, an IDP whose only goal now is to reach one of the refugee camps on the Thai border sheltering more than 1,20,000 people. Karen medics quickly go to work examining their new patients. A man with a swollen spleen, a woman unable to nurse her baby, a child suffering from malaria: an endless catalogue of typical refugee diseases. Allison, with his pocket Maglite, examines a man’s rotten tooth. ‘We have to pull it. Otherwise he will keep on suffering for nothing’, he says decisively. Toby Bee, a young Karen medic with two years of experience in extracting teeth, sticks a needle into the man’s gums. The whole procedure is over in five minutes, and as Toby Bee proudly shows the extracted tooth, its former owner looks amazed at having suddenly found himself at the centre of such attention. […] The following days, the column goes deeper into the jungle to the west, crossing a large plain surrounded by limestone cliffs and pristine jungle. As the expedition approaches the Billin River, a natural border between two districts, IDPs begin to flow in. They have already crossed the river and settled in the forest, scattered in small groups like terrified birds in their nests. ‘It’s a simple security measure’, comments the head of one family. ‘The more scattered we are, the less we risk we have of being spotted by the enemy.’ At night, between gusts of wind and a cacophony of screaming monkeys, one can hear the sad and raucous concert of sick refugees coughing and spitting. The next morning, walkie-talkies are sputtering. Rumours first, then a confirmation: A

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column of more than 200 IDPs is expected to reach the Billin River today. Late in the afternoon, they suddenly appear, walking in a compact column on a path hidden by bush and high grass. The men carry heavy rattan baskets filled with rice, cooking pots and tools. Women bow under babies tied in longyis atop loads of clothing and other personal effects. The elderly, too weak to carry anything, even themselves limp on wooden sticks. They all walk in an unusual silence, a screaming fear on their faces. They are on their way to a refugee camp on the Thai border, still five or six days’ journey ahead. Behind them, maybe another day’s walking distance, they left the weakest of their group in the care of Karen guerillas. […] It’s getting dark, so they start to cross the Billin River. A baby screams, breaking the silence. An old man almost slips in the strong current. When they reach the other bank, a relatively safe place, they quickly scatter in the jungle to look for wood, and start to boil water and clear spots for the night […] Saw Baw Htoo, their leader, says that they started to flee their area in March 2000. ‘Burmese troops attacked our villages in Shwegyin Township; he recounts ‘They forced us to work for them, so we did not have time to take care of our own needs’. […] After that, their lives were reduced to a miserable round of wandering between temporary jungle shelters and their home villages, where they only dared to stay briefly when they returned. The situation got worse in November, when Burmese troops destroyed more than 200 villages in the area. ‘On November 3, three farmers who went back to the village trying to recover some rice were beaten to death by Burmese soldiers from Light Infantry Battalion 360’, adds Saw Baw Htoo. Other witnesses report rapes of women and more cases of murder and torture. […] Since November 2000, more than 2,000 people have crossed the Billin River from Shwegyin Township alone. At the same time, in Rangoon, a handlul of Burmese generals were starting secret talks with the democratic opposition. That two-faced attitude worries Karen and other ethnic leaders. Htoo Ler Wah, district secretary of the KNU’s 5th Brigade, sums up a widely shared opinion amongst ethnic leaders: ‘Of course we want peace but we are afraid that the peace the junta wants will be at minorities’ expense’. When you see the fear on the faces of the Billin River IDPs, it’s difficult not to worry.

ASSAULT ON MINORITIES IN BANGLADESH: An Analysis Meghna Guhathakurta

†

The post-election violence in Bangladesh (2001) specifically targeted the Hindu minority population though in a broader frame it also encompassed Awami League (AL) supporters and other progressive forces in the rural areas. The violence has largely been known to be initiated by Bangladesh National Party (BNP) supporters in various localities. The backlash after the elections was systematic and severe. Bangladeshi press has reported that attackers have entered Hindu homes, beaten family members and looted their property. Rape and abduction of women too were reported. Though these attacks were condemned by national as well as international institutions, a silencing process has also been at work both as a result of terrorising policies of the ruling party as well as the self-censoring practices of the liberal civil society. It is the roots of this silencing process, which I wish to highlight in this article, because it unpacks questions of class hegemony in the current Bangladesh state. I therefore locate the question of religious minorities in Bangladesh in the broader frame of the class discourse.

CLASS FORMATION THROUGH EXTORTION: A BACKGROUND In the aftermath of independence, it was thought by some scholars that †

A leading Women’s Rights activist of Bangladesh and Director of Research Initiatives, Dhaka, Refugee Watch, 17 December 2002.

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Bangladesh had a ruling class but it was not a hegemonic one. The reason behind this proposition was that the power base of the then AL who had an absolute majority in parliament, was predominantly petit bourgeois and the rural rich, who did not have enough control over the military– bureaucratic oligarchy traditionally controlling the ‘overdeveloped’ Pakistan state. Rapid private accumulation during this regime therefore took the form of plundering and extortion of nationalized state resources represented by the public sector. During this phase two methods were used to appropriate surplus, one by directly selling the distribution licenses gained through political connections with the regime, and secondly, through siphoning of the margin between ex-factory prices and market clearing prices. […] The military coup d’état which toppled the AL government in 1975 represented to a large extent a section of the military–bureaucratic oligarchy who inherited their power from the Pakistan era and who felt their power threatened by the attempted hegemonic control over the state apparatus by the AL power base. It must be mentioned that the class base of the newly established BNP was the same as the previous regime. The resentment against officers of the Civil Service of Pakistan was made manifest in the issuing of the Presidential Order No. 9 which removed the constitutional protection enjoyed by the Civil Servants of Pakistan (CSP) and subjected civil servants to dismissal without cause or recourse to court review. This was used to purge the bureaucracy of non-Awami leaguers and to replace them by AL loyalists. Bureaucratic infighting prevented any resistance being built up against this onslaught, but those who remained harboured a growing sense of injustice, resentment and alienation towards the AL. […] The change in regime did not witness a change in the basic extortionist tendencies inherent in the previous regime. In many cases it only meant a change of sides by the same ‘beneficiaries’ of the previous regime, viz. businessmen and subcontractors. One of the vivid examples of this volte-face has been described in Nilima Ibrahim’s Ami Birangona Bolchhi, from the perspective of a raped victim of the 1971 war who helplessly witnessed her husband compromising his role as a freedom fighter in order to obtain licenses from the BNP government. But the change also meant additional benefits and privileges to those alienated by the previous regimes. This meant the restoration of the power and privileges of the bureaucracy, expansion of the military, centralization of power in the hands of an elected president. Under Ziaur Rahman, the ‘militarization’ of the bureaucracy took place. […]

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The military coup of March 1982 led to the creation of an authoritarian military bureaucratic state dominated by General Ershad. Following in his predecessor’s footsteps, Ershad created his Jatiyo Party to legitimize himself and even more than the BNP it was held together by generous political patronage. Lacking in an overarching ideology with which to attract popular support and legitimacy he attempted to use religion, making Islam the state religion. This was a mere consolidation of a trend started by his predecessor. Under Ershad, corruption became all-pervasive. It included petty corruption, e.g. taking large commisions for securing large public sector contracts and programmatic corruption, e.g. food scandals. Ershad’s government was not popular among students and the urban middle class. Their discontent culminated in the mass movement of 1990, which created conditions for his forced resignation from office. The end of Ershad’s rule coincided with the collapse of the Soviet Union and the worldwide movement for democracy witnessed the end of direct rule of the military in Bangladesh politics on the one hand and also heralded in a polarization of party politics between the BNP and the AL to a level which even involved public and professional institutions like the university, bar associations and civil society forums. But, it is important to bear in mind that the polarization occurred at a superficial ideological level of Bangali versus Bangladeshi nationalism or as many would like to purport at the level of personalities i.e. a fight between the ‘two ladies’ (i.e. between Sheikh Hasina, daughter of Sheikh Mujibur Rahaman and Begum Khaleda Zia, widow of Gen. Ziaur Rahman). The polarization, therefore did not occur at the level of class. Conflicts therefore, between AL and BNP were more about power sharing than anything else […] share in jobs, acquired property, business licenses, tenders as has been nakedly demonstrated in open disputes between the two students branches of the mainstream parties in various university campuses. […] That is why the takeover of power (whether by AL or BNP) resembles the politics of char dokhol (occupation of charlands), which is more typical of a thriving peasantry than a burgeoning bourgeois democracy!! But the above history of class formation in Bangladesh through processes of extortion and plundering should serve as a powerful reminder to us that this is not a new phenomenon. Before we bring in the issue of minorities into this class discourse, there are two dimensions of class formation in Bangladesh, which draws our attention. The first is the element of kinship and the other the increasing integration of Bangladesh into the world capitalist system.

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KINSHIP AND POWER STRUCTURE Kinship as an integral element of the power relations has been well researched in the context of Bangladesh village studies in the early 1970s. What has not been so closely researched, however, is how kinship also relates to the more elitist power configurations at the core of national politics in Bangladesh. Since most of the political leadership in Bangladesh come from the expanding middle class, it is not uncommon to find blood relatives among political personalities belonging to even diverse ideological camps. Thus, although on one hand, competition at party level can become very violent and intolerant, the kinship factor exists almost as a buffer zone where extreme views or positions are often negotiated. This has been a clever entry point used by Islamist parties who wanted to gain credibility in society. For example in the case of Rajshahi University, members of Jamaat e Islami have been encouraged to marry into families in university administration and therefore enhance their status within the campus. […] The kinship factor also brings into play a particular pattern of gendered politics, which is often invisibilized at the level of a political system. Since family and kinship ties are important in power configurations women often form the means through which dominant power configurations may be made manifest. Hence, abductions, forced marriages, rape of women belonging to marginalized groups, such as minorities or opposition party cadres are often resorted to in the politics of domination. […] It is also this kinship factor, which serves to exclude to a large extent religious and ethnic minorities from the centres of power.

INTERNATIONAL CAPITAL AND BANGLADESH Whereas the kinship factor demonstrates the continuing trends in class politics in Bangladesh, the gradual incorporation of Bangladesh into the world capitalist system is a phenomenon closely linked to changing class formations in Bangladesh. Ever since Bangladesh opened its doors to the forces of privatization and the market, a certain class of indentors and subcontractors have gained windfall benefit from it. This has created a process of inducting new recruits into the layers of a wealthy middle class, often resented by older members of the class who had to gain entry through the more competitive system of gaining college education and entering the professional stream. In fact, one of the most common

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utterances to be heard in the streets of Dhaka by the educated middle class, are ‘who are these “uncouth” and “uncultured” people who can be seen riding cars and using mobile phones?’ But despite this intra-class rivalry, the wealth of this emerging middle class in Bangladesh is intricately dependent on their rather tenous links with the fate and future of international capital, whatever form that ‘capital’ may take, i.e. whether it emerges in the form of a newly emerging Islamic power in the oil rich Middle East or in the liberal democratic garb of the West. […] Globalization is also a process whereby the construction of national interests can no longer remain isolated from what goes on in the external world. This has been the case from the late 1970s with the Iranian revolution and the Gulf War registering some of the peaks whereby political sentiments rose high in the Bangladeshi political scene. Needless th to say, the 11 September incidents as well as the consequent US attack on Afghanistan made people much more antagonistic towards the West than they normally would have been. Since the October 2001 elections took place in Bangladesh the anti-US sentiment throughout the Muslim world has also struck a chord in the hearts of Bengalis left, right and centre. But, whereas for the common man on the street this fervour took the form of a hero worship with pictures of Osama Bin Laden stuck up on shops and walls (as were the pictures of Saddam Hussein of Iraq some years ago), for the educated middle class it was accompanied with a deepseated anxiety and fear of exclusion. Their tenuous links with global capital and the privileges accompanying it would be threatened by the growing anti-Muslim feelings in the western world. […]

RELIGIOUS MINORITIES AND POLITICS IN BANGLADESH The participation of religious minorities in mainstream politics has been largely marginalized with the establishment of a pro-Islamic ideology. because of the specific historical connection of the AL with secularist ideas the minorities have been traditionally identified as a substantive vote bank of the AL. However, the existence of many structural discriminatory practices such as the Vested Property Act that had been responsible for a systematic and pervasive eviction of Hindus from their homesteads and a resultant exodus into India. […] The centralization of power within the party structure has been paralleled by a geographic centralization in the capital. Thus, a large number of MPs who win seats in parliament are ocassional visitors in

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their constituencies and normally reside only within the limits of the capital city. Hence, much of their political controls over their constituencies are handed over to their local henchmen. […] When the time comes to distribute the booty of an electoral victory, there are obviously more candidates to satisfy than there are resources and hence leaders often turn a blind eye to consequent processes of extortions which goes on in the localities. […] The issue of the assault on minorities is therefore enmeshed in a complex hub of power relations, which characterizes the current nature of politics in Bangladesh. Many say it is a careful plan to reduce the number of Hindu voters and create a separate electorate for them so that they no longer become a vote bank for the AL. Others mention that this is due to the machinations of a powerful circle allied to the ruling party whose own petty interests often override the concerns of a national government. Whatever the roots of this violence, it is simply not enough to bellow out words such as ‘citizenship’ or ‘democratic values’ or even ‘good governance’ in the face of such criminalization and communalization of politics. […]

NEOLIBERAL GLOBALIZATION AND WOMEN’S EXPERIENCES OF FORCED MIGRATIONS IN ASIA Ruchira Ganguly-Scrase, Gillian Vogl and † Roberta Julian INTRODUCTION The world is now characterized by extensive and rapid movements of people. An increasingly important issue for industrialized countries, such as Australia, is the rising number of people who are becoming displaced within their homelands as a result of a multitude of interconnected factors. The majority of displaced persons and refugees in our region are women and children. Yet, they are severely underrepresented in refugee determination processes, claims for asylum and settlement. This paper will examine women’s experiences of forced migration and the neoliberal global context in which they occur. Over the past two decades the implementation of neoliberal policies in both the north and south have not only resulted in colossal displacements, but have simultaneously given rise to exclusionary politics. While globalization conjures up a vision of a borderless world, as a result of free flow of goods, this paper will show that increasingly nation states have closed their borders to the displaced, emphasizing the distinction between ‘economic’ migrants and political refugees. †

Ruchira Ganguly-Scrase, Department of Asia Pacific Studies & Sociology, University of Wollongong; Gillian Vogl, Department of Education, University of Wollongong; Roberta Julian, Department of Law Enforcement Studies, University of Tasmania, Australia, Refugee Watch, 28 December 2006.

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[…] The persistent dichotomy of internal and external displacement, and the failure to classify as refugees those who have not crossed an international border, despite the escalation of their numbers in developing countries in the Asian region exemplifies the Eurocentric nature of refugee discourse. The complex processes of decolonization and increased integration of the world economy have set in motion large-scale population movements that render meaningless distinct categories of dislocations. Therefore, we emphasize that the boundaries of poverty induced internal migration and forced international displacements often intersect and are blurred. There is an urgent need to explore women’s shared experiences as refugees and economic migrants, and also to show how these experiences connect with globalization and neoliberalism. […]

GLOBALIZATION Forced migration is a fundamental part of globalization and thus cannot be studied in isolation. Refugee situations are not a string of disconnected humanitarian emergencies and are connected to a wider 1 social, political and economic context . Castles states that by considering the broader structural causes of forced migration, one can generate explanations both for why forced migration has risen in the south and for why northern countries have responded similarly to the plight of refugees and asylum seekers. As Castles states, the terminology north and south refers to a social rather than a geographical divide. Within this paper, the south refers to ‘less developed’ countries in Asia and the north refers to ‘developed countries’, particularly the US, and the institutions which it dominates such as the World Bank, which have the power to impose neoliberal policies on countries in Asia. Women’s experiences need to be explained in the context of the characteristics, which depict globalization at present. Globalization is characterized by elements, which are both neoliberal and neo2 conservative. […] Mitropoulos shows that while globalization conjures up a vision of a borderless world, as a result of the free flow of goods, globalization is in fact about borders, which are both permeable and exclusionary. Global elites in the north present globalization as if it were the answer 3 to economic growth and prosperity for all. Yet, in reality it has increasingly resulted in wealth and power being concentrated in the 4 hands of very few. Structural adjustment programmes introduced by elites in the north into the south have resulted in a reduction of public

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spending and employment, which has led to massive gendered displacement. […]

RIGID CATEGORIZATION AND CONSEQUENCES FOR DISPLACED WOMEN Historically, the conceptualization of the displaced person can be traced to the inception of the UN Convention of 1951 within the context of post-war reconstruction. Here, the definition of a refugee was characterized as a person who, ‘owing to a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwillingly to avail himself of the protection of that country’. […] This definition is both antiquated and 5 insufficient in the twenty-first century. With its focus on individual persecution and sovereignty, this notion is Eurocentric and reductionist. ‘Economic migrants’ are not recognized as bona fide refugees because they are assumed not to suffer from ‘persecution’, but are said to have an element of choice in their movements. The global community eschews responsibility for the internally displaced, under the guise of observing state sovereignty. Forced displacement has only recently been perceived as a human rights problem. Although the internally displaced suffer the same material deprivations as the externally 6 displaced, they are largely denied access to international assistance. […] These aforementioned mass persecutions and displacements exemplify the limitations of conventional refugee discourses that are predicated on individual persecution. Arguably, the refugee paradigm also excludes the experiences of women in forced internal and 7 international migrations. Jaggar shows that since women make up the majority of the world’s poor, neoliberal policies have been particularly detrimental to women, with a reduction in social programmes being the most visibly gendered aspect of these policies. Reductions in health services have led to higher maternal mortality. The unpaid labour done by women has increased as it is women who have had to take up the work done previously by particular social programmes since ideologically both in the north and the south, it is women who are seen to be responsible for the care of children and other family members. This increase in unpaid work in the south has resulted in girls being taken out of school to help their families. The introduction of school fees has further led to education becoming inaccessible to girls. These changes

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have both increased the impoverishment of women and made it difficult for them to find work. Furthermore, neoliberal prescriptions have been often accompanied by aggressive border protection policies. In postcolonial states the resultant impact has affected women even more adversely than men. […] Women and forced migration: Similarities and differences exist between refugee women and poverty induced displaced women. 80 per cent of refugees and internationally displaced people are women and 8 children. Women experience gendered forms of violence, such as rape, the fear of rape, body searches, enforced pregnancy, slavery, sexual trafficking, enforced sterilization, and infection with sexually transmitted diseases and AIDS, as well social stigmatization once they have 9,10 been sexually assaulted. […] Children’s survival often depend on a woman’s ability to adapt to impoverishment. A woman fleeing from hardship, violence and war faces the threat of rape by the border guards, is encumbered with the task of childcare, cleaning, cooking, collecting fuel and water. The collection of 11 fuel and water often leads to further violations of her body and soul. […] Samaddar’s findings on South Asia shows that women are the most abused refugees and the most unwanted migrants. The sexual victimization faced by women is the most gender specific human rights violation of forced migration. These abuses violate both women’s rights to their own bodies and to their physical and psychological well-being. Women do the most low skilled, least paid, most abused and dishonourable jobs. In displacement, the loss of property and work, physical injury, separation from family, and issues of protection and security are all the more serious for women. […] There are close similarities between female refugees and poverty-induced displaced women. Our research in south Asia affirms this. In women’s narratives of displacement the boundaries of the economic migrant and the political refugee became blurred. For example, the sentiments of Hindu women refugees fleeing persecution from Muslim Bangladesh were typified by comments such as: […] Then after the trouble, we came here because of persecution by the miyas (Muslims) It is because of poverty that we had to leave […] It is because of persecution and poverty that we had to leave, I mean if we could not gather grains, then how can we bring up our children? (40-year-old married woman from Bangladesh, living as an illegal migrant in India).

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This may be contrasted with routine experiences of poverty induced internally displaced women in India who unambiguously explained that poor economic circumstances compelled them to migrate from villages seeking better employment opportunities in the city: In the village there was no rain, there was drought and poverty. So we came to Kolkata (Calcutta). (40-year-old, deserted woman, migrated from a village in West Bengal). We need to keep in mind that both groups of women are located in a region where at the stroke of the midnight hour in 1947, an artificial international boundary was created. Subsequently, while displacement within the national boundary has become acceptable, the movement of people across the border is rendered illegal. Yet, both groups continue to suffer from economic deprivation and policies that systematically exclude women from outside assistance. […] Similarities between female refugees and poverty induced displaced women are also evident when examining the way in which aid organizations liaise with male figureheads who are often unaware of specific female requirements. Similarly, in both forms of displacement, which usually entails scarcity, women are generally given fewer resources, such as food. In displacement caused by development projects, cash compensation is given to men and women who are doubly disadvantaged in that they lack economic capital in addition to land and 12 skills they had developed particular to that locality.

WOMEN: THE INVISIBLE REFUGEES The stereotype of a ‘refugee’ conforms to the cold war image, which is predominantly male. The language of the UN Convention on Refugees is gender blind. That is, it does not refer to females, nor does it specifically recognize persecution on the grounds of gender. Although, for example, rape has been recognized as a war crime, the Refugee Convention does not identify rape as sufficient ground for refugee status. However, 13 Haines argues that: The failure of decision-makers to recognize and respond appropriately to the experiences of women stems not from the fact that the 1951 Convention does not refer specifically to persecution on the basis of sex or gender, but rather because it has often been approached from a partial perspective and interpreted through a framework of male experience.

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In 1985, the Executive Committee of the UNHCR (EXCOMM) recognized women refugees and asylum seekers as a ‘particular social group’ under the terms of the Refugee Convention, but this is not always followed by either member or non-member countries. Women have often been relegated to the periphery in mainstream refugee debates. Arguably, women have been excluded from both the internal and external displacement debates due to the very definition of what it means to be a refugee. […] It has been contended that the UNHCR definition of the ‘refugee’ is simultaneously individualistic and presumptuous in its intimation that violations must be specifically 14 committed by the state. Boyd suggests that this definition privileges the public side of the public/private divide by focusing on the actions of the state. This definition ‘fails to acknowledge forms of persecution that occur in 15 private settings’. As women are more likely to be persecuted in the private sphere, they are less likely to be officially seen as refugees. It has been argued that refugee law is intrinsically gendered and subsequently 16 needs to be altered. […] Similarly, gender inequity and stratification can be reproduced in places of relocation, where women generally possess less education and fewer skills than their male counterparts, and hence lack bargaining 17 power in the community. Another important aspect of this analysis is the way in which women’s bodies often become sites of contestation in relocated communities. The degree to which women are controlled is often a symbol of reconstructed patriarchal authority in many displaced 18 communities. Gender prejudice is endemic to some UN practices. Many officials and field workers dismiss rape in UN-run camps as 19 ‘regrettable but unavoidable’. […] Within refugee and displacement camps, women are the ‘invisible’ refugees who are not consulted in the planning and designing of programmes which impact on them. Women represent 80 per cent of health care workers in refugee camps, yet they have little say in the construction of national and international policies. Women often do not get a fair share of food, water and shelter allocations, with resources 20,21 often being given to male heads of households. […] 22 According to Mckay changes in 2001 to the Migration Legislation Amendment Act (MLAA) in Australia discriminate against women. Changes to this act under the Howard government have meant that individuals who are denied status as refugees are unable to make further claims individually or as a group. This means that women and their dependent children may be prevented from making claims. Any family

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who arrives in Australia must put in an application for a Permanent Protection Visa (PPV). Each family member is then recorded as a dependent on the form of the person, who is usually the male head of the household. Each member can then make his/her claim separately by filling in a section in the application under the family unit section. While gender guidelines given to officers at the Department of Immigration and Multicultural and Indigenous Affairs (DIMA) highlight the social and cultural barriers which may prevent women from putting in their own applications or having their experiences put down on applications, these are often ignored. […] In New Zealand, all family members are interviewed with women being interviewed individually by a female and with a female interpreter, if they wish. By taking this approach all family members are given the 23 opportunity to speak about their experiences. 24 Asha Hans, the well-known South Asia Refugee Rights activist and researcher on humanitarian protection, states that ‘gender consideration was never an important component of India’s refugee policy’. Despite the fact that displacement and asylum are gendered experiences, women are 25 seen as ‘objects not subjects of humanitarian planning’. Subsequently, as 26 Das has highlighted, the ‘South Asian attitude to women has been guided by “mystified notions of chastity” ’, which leads to the notion that women in South Asia belong to their own communities. He argues that when women are displaced in large numbers the focus shifts ‘from the 27 individual woman to their communities’. 28 Banerjee asserts that guidelines for the protection of women are often left to individual governments to put into practice and that, where governments are gender blind, these guidelines are not put into practice. Organizations such as the UNHCR often disenfranchise women by relegating them to the status of victim, by giving them little say in how camps are organized or run, by denying agency to women in work, or access in and out of camps, and by making decisions regarding relocation without giving women a choice or the opportunity for some 29 input into such decisions.

FORCED MIGRATION AND EXCLUSION: NATION STATES AND BORDER CONTROL POLICIES Evidently, forced and economic migrations are closely related and often 30 interchangeable expressions of global inequality and societal crisis. It is through the deconstruction of various bureaucratic categories that both

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the diversity and similarity of people experiences can be exposed. 31 According to Sivanandan the distinction between political refugee and economic migrant is a false one and is vulnerable to differing interpretations depending on the interests of who such categories serve. It is the interests of the powerful that have resulted in the blurring of these categories. Even when experts have examined transnational migration 32 with a gender lens and note the increasing ‘feminization’ their attention on the productive sphere and the social production of gender have left out the complexities of different and gendered experiences of migration in an overall theoretical frame. Neoliberalism with its focus on structural adjustment programmes resulted in reduced social spending, leading to the impoverishment and eradication of social, welfare and educational provisions to people in developing nations. […] 33 According to Castles discussions, which focus on forced migration are essentially linked to the concerns that nation states have with their national security and border control. […] Our examination of Australia’s relationship with Indonesian authorities in terms of border control has two purposes. First, it highlights the complexity and interrelatedness of the factors, which lead to displacement, thus emphasizing the need to deconstruct the bureaucratic categories, which are now used to characterize refugees. Secondly, it provides evidence for the increasing importance that Australia has placed on border control and national security policies. Australian Prime Minister John Howard has developed a very firm connection between sovereignty and exclusion in present asylum policies. As has been demonstrated above, these policies have had an even more adverse impact on women than men. With the exclusion of those who have become displaced as a result of the tsunami, which is conservatively claimed to be around 500,000, Indonesia has more than 1.3 million Internally Displaced Persons (IDPs). Similarly, there are estimates that nearly 260,000 East Timorese fled or were forcibly removed to West Timor following the 1999 vote for independence. Several factors such as democratization and governmental reform, including decentralization, whereby extensive authorities have been formally devolved to local governments, the separation of the Indonesian Military from the police, continuing separatist movements and civil conflict, transmigration policy, and more recently several natural diasters, have all contributed to the ongoing situation of these displaced people. […] The Indonesian government also has an Immigration office as part of the Justice Ministry and there have been recent developments in 2004

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whereby Indonesian customs and immigration have been given specialized intelligence functions in order to help track individuals involved in transnational crimes, such as terrorism and trafficking in drugs and people. Similarly, in Australia, it is DIMA that has a lead role in dealing with illegal immigration. However, it is the Australian Federal Police (AFP) whose responsibility it is for the investigation of organized crime involvement in people smuggling. This role is a relatively new development that was initiated in late 1999, following amendments to the Migration Act and an increase in undetected illegal immigrants arriving in Australia. A media release from the minister for Justice and Customs in February 2002 stated that over 3,000 potential arrivals to Australia had been intercepted and arrested by Indonesian authorities since February 2000 when cooperative arrangements between Indonesian authorities and the AFP were established. Indonesia is an important focus of DIMA’s efforts in relation to people smuggling and irregular immigration and, as such, DIMA is assisting Indonesia to develop and strengthen Indonesian border control systems. […] Australia’s anxiety over asylum seekers is, according to Devetak, consistent with Australia’s past fear of otherness. […] The White Australia policy allowed governments to create a powerful and lasting discourse in Australia which has both been exclusionary of foreigners and established 34 a myth of Australia as being encircled by threatening races.

CONCLUSION As neoliberal policies become systematically implemented and insecurities increase in the region, Australia is bound to confront problems associated with displacement. […] By analysing the complex links between developed and developing countries with reference to internal and external migration, our research has attempted to provide an enhanced understanding of the region in which Australia is placed. 35 According to Samaddar, a question of rights that ignores the gender dimension of forced migration is woefully inadequate. Our research on diverse group of displaced women shows that the conventional demarcations between economic migrant and political refugee are inadequate to explain their experiences. In order to bring about positive social change, a holistic understanding of forced migration needs to be developed. […]

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NOTES 1. S Castles, ‘Towards a sociology of forced migration and social transformation’, Sociology, Vol. 37, No. 1, 2003, pp.13–34. 2. A Mitropoulos, ‘Habeas Corpus’, Arena magazine, Vol. 55, October 2001, pp.52–4. 3. M B Steger, ‘Ideologies of globalisation’, Journal of Political Ideologies, Vol. 10, No. 1, 2005. 4. P A Taran, ‘Human Rights of Migrants: Challenges of the new decade’, International Migration, Vol. 38, No. 6, 2000, pp.7–45. 5. A Suhrke, and K Newland, ‘UNHCR: Uphill into the future’, The International Migration Review, Vol. 35, No. 1, 2001, pp.284–302. 6. M J Toole, and N Begikhani, ‘Refuge for the selected few’, The Lancet, Vol. 357, Issue 9266, 2001, pp.1426–7. 7. A Jaggar, ‘A feminist critique of the alleged Southern debt’, (Highlights from the th 9 Symposium of the IAPH), Hypatia, Vol. 17, No. 4, 2002, p.119. 8. B Rodriguez, Refugees and internally displaced, WHR net (Women’s human rights net) retrieved 25 August from [http://www.whrnet.org/docs/issue-refugees.html], 2003. 9. D Rajasingham-Senanayake, ‘Between reality and representation: Women’s agency in war and post conflict Sri Lanka’, Cultural Dynamics, Vol. 16, Nos. 2–3, pp.141–68 Refugees International (2004) Indonesia Humanitarian Situation retrieved 23 April 2005 from [http://www.refugeesinternational.org/content/ country/detail/289, 2004]. 10. B Rodriguez, op. cit. 11. R Samaddar, The Marginal Nation: Transborder Migration from Bangladesh to West Bengal, Sage Publications, New Delhi, 1999. 12. D Arora, ‘Structural adjustment program and gender concerns in India’, Journal of Contemporary Asia, Vol. 29, No. 3, 1999, pp.328–61. 13. R Haines, ‘Gender-related persecution in F Nicholson’, T Volker and E Teller eds, Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, Cambridge University Press, Cambridge, 2003, pp.319–52. 14. M Boyd, ‘Gender, Refugee status and permanent settlement’, Gender Issues, Vol. 17, No. 1, 1999, pp.5–25. 15. Ibid. 16. A Macklin, ‘Refugee Women and the Imperative of Categories’, Human Rights Quarterly, Vol. 17, No. 2, 1995, pp.213–77. 17. M Boyd, op. cit. 18. R Ganguly-Scrase, and R Julian, ‘The Gendering of Identity: Minority Women in a Comparative Perspective’, Asian and Pacific Migration Journal, Vol. 6, Nos. 3– 4, 1997, pp.415–38. 19. R Cohen, ‘What’s So Terrible about Rape?’ and ‘Other Attitudes at the United Nations’, SAIS Review, Vol. 20, No. 2, 2000, pp.73–7. 20. R Samaddar, op. cit. 21. B Rodriguez, op. cit. 22. L Mckay, ‘Women asylum seekers in Australia: discrimination and the Migration Legislation Amendment Act (No 6) 2001 (Cth)’, Melbourne Journal of International Law, Vol. 4, No. 2, 2003, p.439. 23. Ibid.

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24. A Hans, ‘Refugee Women and Children: Need for Protection and Care’ in R Samaddar ed., Refugees and the State: practices of asylum and care in India 1947– 2000, Sage Publications, New Delhi, 2003. 25. Ibid. 26. P Banerjee, ‘Aliens in a Colonial World’ in R Samaddar, ed, Refugees and the State: practices of asylum and care in India 1947–2000, Sage Publications, New Delhi, 2003, pp.69–105. 27. Ibid. 28. Ibid. 29. Ibid. 30. S Castles, op. cit. 31. A Sivanandan, ‘UK: Refugees from Globalism’, Race and Class, Vol. 42, No. 3, 2001, pp.87–100. 32. J A Tyner, ‘The web-based recruitment of female foreign domestic workers in Asia’, Singapore Journal of Tropical Geography, Vol. 20, 1999, pp.193–209. 33. S Castles, op. cit. 34. R Devetak, ‘In Fear of Refugees: The Politics of Border Protection in Australia’, International Journal of Human Rights, Vol. 8, No. 1, 2004, pp.101–09. 35. R Samaddar, op. cit.

WHO WENT WHERE AND HOW ARE THEY DOING? PAKISTANIS AND INDIANS OUTSIDE SOUTH ASIA Papiya Ghosh

†

THE BEGINNING In the space of a few months during the partition of India in 1947, 20 million people were displaced, 1 million died, 75,000 women were said to have been abducted, raped and families were divided, properties lost, 1 homes destroyed and countries (India and Pakistan) exchanged. Excluding the internally displaced, today South Asia has the fourth 2 largest concentration of refugees in the world. Going back to the 3 1940s, partition’s refugees/migrants during the last five decades have had a long and complex history in the course of reaching respective homelands, some of them more than once (in the 1940s–1960s and then from the 1970s onwards) and some of them found themselves disowned by it in 1971 when Bangladesh came into being. […] By December 1951, 6,597,000 refugees had moved from India to West Pakistan, and 7,94,127 refugees moved to what was then East 4 Pakistan. Of the Indian Muslims headed for Pakistan during 1947–8, 95.9 per cent of the migrants from Assam, West Bengal and Bihar 5 moved to East Pakistan and 3.2 per cent to Karachi. According to the 1951 census, 66.69 per cent of the migrants in East Pakistan came from West Bengal, 14.50 per cent from Bihar, 11.84 per cent from Assam and †

Late Papiya Ghosh was a historian and a faculty member in the Department of History, Patna University, Refugee Watch, 12 December 2000. Reproduced in Refugee Watch, 29 June 2007.

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6.97 per cent from other places in India. A passport and visa scheme was introduced only on 15 October 1952. But travel documents were not even required until 1953–4, several years after India and Pakistan became two separate countries. Several government employees opted for Pakistan, although some changed their minds later and returned to 7 India. Following riots in Khulna and Calcutta in January 1964 and as a reaction, in Jamshedpur and Rourkela in March 1964, there was yet another spell of migrations in both directions. After the December 1971 India–Pakistan war, Pakistan was no longer a migrant destination. Meanwhile, the Middle East had emerged as an alternative. When the autonomy movement picked up in the 1960s, some ‘Bihiuis’ openly sided with the Pakistan regime. By December 1970, attacks on non-Bengali shops and properties by Bengali mobs were quite common in Dhaka and Chittagong. Many were killed at Chittagong, Jessore, Khulna, Rangpur, Saidpur and Mymensingh in early March 1971, even 8 before the military action. Subsequently, the Bangladesh government declared them to be Pakistanis who should be returned to their home country. Of the 534,792 Biharis who applied for repatriation, only 9 118,866 were accepted by the Pakistan government. […]

ACROSS THE SHORES It may be mentioned that the earliest group of immigrants from South Asia to the US were Punjabi men who settled mainly in California’s agricultural valleys in the 1910s and 1920s and constructed a ‘Hindu’ ethnic identity, which in those days simply meant ‘from Hindustan or India’, even though 90 per cent of the men were Sikhs and 8 per cent were Muslims. […] On the east coast, in 1951, the New York based Pakistan League of America intervened against the deportation of ‘illegal’ Pakistanis working as agricultural, factory, hotel and restaurant workers in New York, New Jersey, Michigan and California, and worked for a separate country quota for Pakistanis in the context of 10 ‘millions’ having been rendered homeless and refugees by partition. Across the Atlantic, in Southall, London, the fallout of partition was found to be ‘as intense’ as on the subcontinent and had tangible consequences in the public sphere. Thus, Pakistani Southallians were only entitled to associate membership in the powerful Indian Workers’ Association. Muslims set up their separate community organizations, either inclusively Muslim or specifically Pakistani or 11 Bangladeshi. […] Despite the increasing public privileging of an

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Islamic identity, diaspora Pakistanis continue to valorize their 12 national roots. The Stranded Pakistani General Repatriation Committee (SPGRC), formed in 1977, links the Bihari muhajirs in the 66 refugee camps and has had representatives in London, Chicago and Paris. Its overseas support network comes from the Bihari Muslim, rather than just the muhajir diaspora. The focus has been on working out the funding of their repatriation as a ‘humanitarian’, rather than a ‘political’ project. The SPGRC has during its career authored several simultaneous recasting of the muhajirs as ‘refugees’ threatening to do a Vietnamese, by moving from coast to coast to get across their statelessness to an unmoved UN, which slots them instead as ‘displaced persons’, as ‘Muslim Refugees’ to get the support of the Mecca based Rabita al Alam al Islam and trilingually, as Stranded/Mehsoor/Aatkay Pora Pakistanis to address their case more widely in English, Urdu and Bengali. While it shares the Muttahida Qaumi Movement’s (MQM) perspective that it was migrants from undivided India’s Muslim minority provinces who created Pakistan, there is a significant difference. It squarely blames the politics of the Muslim League for the uprooting of the Biharis and their being sacrificed three times over: in 1946, 1947 and 1971, and retrospectively idealizes Bihar, the pre-1947 homeland. In the 1980s reconstruction of the Pakistan movement, it is emphasized that the bulk of the railway employees opted for East Pakistan only in response to 13 Jinnah’s call to get Pakistan going.

THE NEW NATION ABROAD According to Tariq Meer, an organizer of the MQM in Europe, following the army crackdown in Sindh in 1992, in the space of a couple of months ‘thousands’ had gone underground to escape death and torture, ‘hundreds’ claimed refugee status in Britain alone, and ‘hundreds’ more had gone to the US and Germany. […] Many also 14 escaped to Afghanistan to look for ways out from there. About a year later the MQM protested to the British Home office, the French and German Interior Ministries, that the refusal to consider the political asylum applications of the MQM cadres was in serious conflict with the UN conventions of 1951 that dealt with the rights of the refugees. The British Home office, on its part, had turned down the applications because the MQM had become a coalition partner of the government in 1997. The MQM then argued that the army had launched its

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operation against its cadres in 1992, despite it being a coalition partner 15 of the Nawaz Sharif government. […] The hardening of ethnic boundaries in Pakistan has over the years tightened the definition of muhajir, to produce ‘a revised category’ which incorporates Urdu speaking Pakistanis above all, to the exclusion of other ethnic groups who were similarly uprooted at independence. Thus, migrants from East Punjab gradually came to be labelled primarily as ‘Punjabi’ rather than muhajir, a description which was reserved more and more for refugees coming from northern 16 India. […] Around 1984 when the Muhajir Qaumi Mahaz was formed, it cut into the Jamat-e-Islami’s support among the migrants in Sindh. More recently, the MQM has been described as ‘an excellent example of a movement that is diasporic, transnational and anti-state’, 17 with a leadership in exile in London, since the army operations began in 1992. According to the MQM leader Altaf Hussain, guiding the movement from its international secretariat is expensive but adequately funded by 18 supporters the world over. His outreach inside and outside Pakistan is maintained with a combination of telephonic speeches and video addresses, with titles like Hum Door Nahi (I Am Not That Far Away). In 1996 the Overseas MQM had 19 branches in the US (started in 1988 and afresh in 1991) and two in Canada. In its estimate, about 15 per cent and 10 per cent of the Pakistani diaspora in Chicago and New 19 York are muhajirs, and some 10 per cent of this strand is post-1992. The introductory comments of the 1994 Chicago annual banquet edition of MQM Vision, described diasporic muhajirs as its ‘natural constituency’, who could provide ‘decisive’ support in restoring human 20 rights in Pakistan. […] The focus of the overseas MQM has been on making a human rights case of happenings in Sindh. In addition to its website updates, its twin videos, Extra Judicial Execution and The Genocide include close-ups of reports of Amnesty International (AI), Asia Watch World Organization Against Torture and excerpts from US State Department reports. Also, scenes of tanks rolling on the streets of Karachi, morgue sequences, bereaved families and crowds at the funeral of Altaf Hussain's brother and nephew. In 1996 the MQM published A Catalogue of the Victims (The Mohajir Nation) of State Crime, a 134 page account detailing state action against MQM supporters, its leaders and rank and file during 1995. […] However, several of the human rights groups invoked by the MQM have also expressed their concern about its own human rights abuses, all of which is deflected as ‘concocted’ preludes to legitimizing state

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repression. More recently the MQM organized protests in London, the US (New York, Washington and Chicago), Canada, Germany, South Africa, Australia, Belgium and a couple of other countries to ‘internationalize’ government atrocities against muhajirs, ‘16,000’ of whom had been killed since 1992, in a terrain that it compares with Bosnia and Kosovo. Altaf Hussain added that he was only emulating the Pakistani government trying to internationalize the Kashmir issue through its 21 action in Kargil. The MQM tracks muhajirs as being crushed by the state right from the assassination of Liaquat Ali Khan, but is more 22 focused against the post-1992 operations. A major demand made by the MQM in 1987 was that muhajirs be recognized as the fifth nationality (panchvi qaum), along with the Punjabis, Pathans, Balochs and Sindhis and that non-Sindhis and non23 muhajirs should not be allowed to buy property in Sindh. Today its position is that if ‘national integration’ is to be forged it is ‘imperative to recognize and accept the constitutional rights of Sindhi, Punjabi, Pakhtoon, Mohajir, Baloch, Saraiki, Brohi, Makrani and all other 24 nationalities, fraternities, lingual, cultural and religious units’. […] Altaf Hussain stated that if Sindh continued to be ‘ruled from Punjab’ then there would be no choice left but to demand the right to self determination, as written into the 1940 Lahore resolution. […] A point often made by the MQM leader, Altaf Hussain, not too long ago was that when the muhajirs had a country they sought freedom; now that they have freedom they are seeking a country. (‘Watan thaa to azadi 25 dhoondta thaa; Ab azad hoon to watan dhoondta hoon’). The WSC’s stand regarding the repatriation of Biharis from Bangladesh has been that of opposing it stiffly. […] But, very recently and perhaps significantly, the chairman of the WSC, Dr Safdar Sarki noted, that it was a positive sign that Altaf Hussain had for the first time ‘explicitly and resolutely expressed his views on the injustice and wickedness inflicted upon Sindh and Sindhis after the creation of Pakistan’ by Punjabis (see above). In response, he added that the Sindhis had never trampled the rights of the Urdu speaking population, nor had they shut their doors on ‘the new settlers’ in 1947. […] However, was it not time that the Urdu-speakers called themselves Sind his, 50 years after migration and when all of them were born in Sindh? […] Thus, for Sarki the possibility of retrieving the legacies of Shah Latif and G M Syed towards resolving partition’s migrant history 26 is to be sought in the pedagogy of diasporic formations.

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FOREFATHERS Compared to overseas communities of other origins, the total number of people of South Asian descent who are living outside South Asia is quite small. Exact figures are difficult to come by because of major national differences in census taking. But a decade ago the total number of South Asians living outside Pakistan, India, Bangladesh, Nepal and Sri Lanka was about 8.6 million, i.e. fewer than 1 per cent of the 27 combined populations of these South Asian countries. […] According to one estimate, South Asian Muslims in the US add up to between 250,000 and 450,000, with about 160,000 Indians, 80,000 Pakistanis and 10,000 Bangladeshis. Quite the reverse of the US, where Muslims from the Middle East are in a majority, it is South Asians who predominate in Canada, as they do in Britain. Early South Asian Muslim immigrants were mostly farm labourers from Punjab and moved to the US from western Canada, settling in California, Oregon and Washington. In the 1920s and the 1930s, sailors, small traders and factory workers from Bengal in particular Sylhet, settled in New York, New Jersey and Connecticut, with a few moving to industrial centres like Boston and Detroit. Several students who enrolled in American universities in the 1950s and 1960s just stayed on. The largest and most homogeneous group of Indian Muslims belong to Hyderabad. Numerically, Gujaratis and Maharashtrians come next followed by Muslims from Assam, Bengal and Bihar. Though widely dispersed in the US, there are large concentrations in California, Illinois, New York, New Jersey, Connecticut and more recently in Texas, Florida and Georgia.

THE AMERICAS Within this formation the emergence of the American Federation of Muslims From India (AFMI) in 1989 was equally a statement on the tokenism faced in the Indian community at large and the non-Indian preoccupations of the umma, despite the fact that Indians add up to 12.5–13 per cent of the community. Based in Detroit, it has regional presidents in California, Illinois, Massachusetts, Nebraska, Texas, Washington DC and Canada and an international liaison committee covering the US, Germany, Australia, Saudi Arabia, Kuwait and the UK. Its intervention against the Hindutva project is summed up in its statement submitted to the Indian Prime Minister Narasimha Rao in 1993 in which it summed up that India stood torn between ‘those who

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want to turn the 46 years old republic into a, Hindu state [...] and those who are keen to establish secularism’. […] In 1994, it forged an alliance with the International Dalit Sena, led by Ram Vilas Paswan of the Janata Dal. It has simultaneously been taking on the Hindutva ensemble in the US through its newsletters and advertisements in Indian American newspapers ‘to counter the myths and lies propagated by Hindu extremists’. Alerted by some Indian Leftists it ran a successful campaign against the phone company, AT&T in 1994, for being party to the Vishwa Hindu Parishad (VHP) fund-raising, by pointing out that this would ‘only lead to the unleashing of more terror and death on minorities in India’. […] The Canadian Council of South Asian Christians, established in 1991, includes Christians from Bangladesh, India, Pakistan and Sri Lanka, and has been working on overcoming their exclusion and discriminatory treatment both within the South Asian and wider Canadian community. It aims at dialogue with non-Christian South Asian organizations ‘to create a better understanding between the communities’. A representative mention may be made of one of its community service awards in 1996. The recipient was Shadab Khakhar of the International Christian Awaz, for his five-year long campaign against religious persecution in Pakistan under the blasphemy law. Through his initiative protest rallies were launched in Toronto and Ottawa in 1991 and 1993. […] The elite Indian American organizations include the Association of Indians in America, the Federation of Indian Associations (which split into the Federation of Hindu Association (FHA) and the FHA-Indian Origin between 1994–7) and the National Federation of Indian American Associations. They are known to have made efforts to win greater US government support for India (and less favour to Pakistan), an effort that has occasionally made the Indian community support right wing politicians. In general, the leadership of the Indian immigrant community is conservative. It has not sought to form alliances with other ethnic groups. […] In contrast, many South Asian immigrants in both Canada and Britain have chosen an alternative 28 strategy, identifying themselves as ‘black’. It has been argued that the Indian immigrant bourgeoisie remembers the history of the Indian community in the US largely in terms of its own history since the mid twentieth century. This selective memory that deletes the pre-World War I subaltern immigrants (the farmers, railroad builders, workers and political refugees) from its narrative, is seen to flaw from its model minority self-image, one that seriously limits its understanding of racism and its response to other communities. […]

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THE RIGHT During the past two decades the Hindu right has been doing intensive propaganda among the Indian immigrants in the US, UK and Canada. It is against this backdrop that we documented the intervention of some Indian American Muslims and will, later in this section consider that of some, Leftist groups. But first, let us take a look at the Vishwa Hindu Parishad of America (VHPA). It is registered in 13 states, mostly on the East Coast and has a membership of around 2000. At the local level it has ‘contacts’ with about 10,000 families. Much of its work focuses on children’s educational programmes and youth camps. It publishes literature on the ‘Hindu way of life’ and runs its social service projects mostly in India. But its influence extends well beyond its enrolment. According to one summing up, in the US religious identity becomes a way of evading racial marginality. Moreover, support for a strong nationalist state at home is seen to promise a better status in the terrain migrated to. Unsurprisingly, contemporary Hindu nationalism articulates ‘a genteel multi-cultura29 list presence in the US with militant supremacism in India’. At the ‘First Dharma Sansad in the Western Hemisphere’ organized by the VHPA in Pennsylvania in August 1998 the achievements catalogued included the setting up of the Hindu University of America in Orlando and the expansion of the Hindu Students Council (HSC) to ‘almost 50 campuses’. It was added that, ‘it is because of the brilliant work of some of the very bright people of the HSC, (that) the Hindu Dharma has a major presence on the Internet and the World Wide Web’. […] It sees the ‘most recent’, i.e. the second half of the twentieth century one as likely to bring about ‘more far reaching effects than any other Diaspora’. […] ‘Youth Ready to Induct Time Tested Hindu Values in Modern Society’, reads the title of a report on a youth conference in Boston in June 1998. The Hindu Heritage Day in Houston that May spent ‘some serious moments at the mention of the more then 40 Kashmiri Hindus’ killed around that time, ‘just for being Hindus’. The same issue of Hindu Vishwa carries an e-mail reminding readers that ‘there may be so many Hindus from Afghanistan, in the US and Europe who are waiting for some help from us’ and that the Taliban had imposed jizya on Hindus. […] Significantly, over the last few years in universities and community centres in Britain, the VHP has been targeting Hindu Asian youth with the slogan, ‘Better to be a Hindu Asian than a British Asian’ and projecting Hindutva as the

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answer to the Muslim fundamentalism sweeping the college 30 campuses.

THE LEFT In response to the spread of the Hindutva movement in North America, the Forum of Indian Leftists (FOIL) was formed in 1995 as an organization of overseas Indians to intervene ‘in the crisis generated by neo-liberal economics and communalism – crises that find expression in the diasporic Indian community and in the Indian nation’. It collaborates with other progressive individuals and groups active on similar issues in Europe, North America and the South Asian subcontinent. The focus on India was explained by drawing attention to the fact that ‘there are certain issues that are bound by the nation-state and its products overseas, which are not identical with those of South Asia as such’. […] It envisages summer school internships to link second-generation students with radical Non-Governmental Organizations (NGOs) and Leftists in India. In 1997 it organized a Youth Solidarity Summer programme in Atlanta, on the occasion of 50 years of Indian independence and Pakistani nationhood, to offer progressive perspectives on South Asian history, identity and politics. […] A few days after the destruction of the Babri Masjid, the Coalition Against Communalism (CAC) was formed in the Bay Area in 1992. According to one of its members, the right-wingers in the South Asian community are among the most effective organizers. ‘At the drop of a hat they can get 40 people into a room to sit writing letters expressing outrage about something or the other. So the idea was to form something to counter that. And to say that there is an alternative point of view’. The group has Indians and Bangladeshis and some Pakistanis. But its focus was mainly on India, ‘because Indian communalism was, at 31 that point’ the problem that bothered them ‘the most’. […] Based in the US, South Asian Magazine for Action and Reflection (SAMAR) is published twice a year. The term ‘South Asian’, it elaborates, is chosen ‘to bring attention to the fact that South Asians are a group of people with a shared history and that this history provides a common basis for understanding of our place in the contemporary world’. Its statement goes on to add that ‘whereas most other South Asian, magazines are based on differences of region, religion and nationality within South Asia’, it has chosen to base itself ‘on a South Asian collectivity that is now spread out across the globe’ (emphasis added). […]

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TAXI DRIVERS AND OTHERS The Lease Drivers Coalition (LDC), a community based organization of the Committee Against Anti-Asian Violence (CAAAV, 1986), which grew out of feminist and Leftist Asian American politics, was formed in 1992 and organizes South Asians who form 50 per cent of the New 32 York's 30,000 yellow cab drivers. Subsequently called the New York Taxi Workers Alliance (NYTWA), the focus is on negotiating the racialized police force, the exploitative garage owners, the Taxi and Limousine Commission (TLC) inspectors and courts. Most drivers work about 84 hours a week in 12-hour shifts. […] The LDC profiled itself as being different from other unions and driver organizations in that it had ‘equal respect for Bangladeshi, Indians and Pakistanis’. This solidarity making is conceptualized as a prelude to linking up with drivers of ‘all other communities’, such as African Americans, Latinos, Europeans and non-coloured Americans. The Canadian counterpart of the South Asian movement is said to have ‘a somewhat older history’ than the American one. Thus for example, the proliferation of South Asian materials emanating from Canada (films, music, cultural events, journals, anthologies) has yet to be matched in the US. This has been attributed to two factors. The significantly larger concentrations of South Asian populations are in large Canadian metropolitan centres such as Toronto, Vancouver and Montreal. And the unconscious promotion of ethnic identities through 33 Canada’s declared ‘mosaic’ policy in multicultural affairs. In Toronto, the post-1960s South Asian diaspora has recently expanded with the arrival of 100,000 Tamils, many of them asylum seekers. […] The South Asia Solidarity Group (SASG) supports people’s struggles against exploitation and oppression in South Asia and strengthens the links between these struggles and those of Asian communities in Britain. In Britain its activities have included supporting Asian women workers demanding basic rights, organizing against racist attacks and opposing racism in health and education policies, as well as fighting repressive immigration and asylum laws. It also produces and distributes written material. One of the events in its campaign of saying no war and fascism in India and Pakistan included distribution of leaflets on mass scale and collecting signatures at the World Cup final at Lord's cricket ground two years ago. Its quarterly, Inquilab, carries articles takes on debates among the Left in South Asia and Britain. Its conference on ‘Globalization, Identity and Resistance’ in October 1997, to mark 50 years of the end of British rule in South Asia drew nearly 200

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participants, both activists and academics from South Asia, Britain and Canada. […] A random look at the letters to the editorial columns of newspapers in the Gulf and a couple of interviews indicate that ethnic and communal politics flowing from the partition experience and the nation states defined by it, avidly engage the South Asian community and 34 explain fund-raising initiatives and political affilitations. What became sharply evident, since the early 1990s in particular, at several levels and in different ways, both in the subcontinent and the South Asian diaspora is that the denominational nation making projects of the 1920s–1940s are still around. […] Thus for example, the South Asia Citizens Web has emerged as an ‘independent space on the net to promote dialogue and information exchange between and about South Asian citizens’ initiatives [located in Bangladesh, India, Pakistan, Sri Lanka and in their diasporic communities]’ 35 (emphasis added). […] Likewise, the website of the Bombay based journal Communalism Combat notes that its subscribers include anti36 communal Indian groups in the US, Canada and UK. Similarly, more and more NGOs in South Asia are beginning to forge regional networks to tackle issues like mass movements of refugees and cross-border migration. In 1994, the South Asian Human Rights community acquired a profile to work on discrimination against minorities, 37 women’s rights, torture and extra judicial killings. It should be added that one of the resolutions of the six year old Pakistan–India Peoples’ Forum for Peace and Democracy (PIPFPD) at its 1995 session in New Delhi decided that ‘in the future such people to people meetings should include Indian and Pakistani diaspora’. The PIPFPD is an attempt at making the constituency for a subcontinental peace movement visible. It is ranged against state sponsored ideologies of demonizing the other that inform the ‘national security’ agendas of the post-partition nation states. Its five joint conferences in Delhi, Lahore, Calcutta, Peshawar and Bangalore between 1995–2000 attended by representatives of trade unions and mass organizations, academics, artists and activists got support from members of the Pakistan–Indian diaspora. Regarding Kashmir, it aims at getting past the assumption that postcolonial nation state boundaries are sacred and that it is just a territorial dispute. This is seen as basic to reducing communal and ethnic tension in the subcontinent and scaling down defence expenditure and militarism. […] The forum is therefore, working for the granting of visas with greater ease, the reduction of costs of telecommunications and postal exchange and facilitating the free

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exchange of journals and information. It also proposes the joint preparation of resource books, pamphlets, literature alternate people-topeople television channels, joint cultural productions and securing the rights of cross-border migrant labour. Given the connections that are made between the ‘border question’ and the ‘communal question’ this is going to be uphill. Significant headway has, however, been made in linking up the women’s movements in Pakistan and India. This will expand to include drawing up a charter of women’s rights. The expectation is that Muslim women in Pakistan, Bangladesh and Sri Lanka supporting this charter will support Muslim women in India and women in Pakistan will get support in their demand for women’s rights beyond the present focus on marriage, divorce and personal laws.

NOTES 1. Urvashi Butalia, The Other Side of Silence: Voices from the Partition of India, Viking, New Delhi, 1998, p.3. 2. Tapan K Bose, ‘The Changing Nature of Refugee Crisis’ in Tapan K Bose and Rita Manchanda, eds, States, Citizens and Outsiders: The Uprooted Peoples of South Asia’, South Asia Forum for Human Rights, Kathmandu, 1997, p.56. He mentions 75,000 southern Bhutanese of Nepali origin in Nepal; 1million people of Bangladeshi origin in Karachi; 3 million Afghan refugees in Pakistan; 238,000 ‘stateless’ Biharis in Bangladesh; 47,000 Rohingya-Burmese in Bangladesh; and 51,000 Chakma, 56,000 Sri Lankan and thousands of Tibetan, Bhutanese and Burmese refugees in India. 3. See Papiya Ghosh, ‘The 1946 Riot and the Exodus of Bihari Muslims to Dhaka’ in Sharifuddin Ahmed, ed, Dhaka: Past Present Future, Asiatic Society of Bangladesh, Dhaka, 1991 and ‘Partition's Biharis’ in Mushirul Hasan, ed, Islam, Communities and the Nation: Muslim Identities in South Asia and Beyond, Manohar, New Delhi, 1998, pp.234–5, for an account of Bihar’s pre-partition refugees. 4. ‘Restricted Security Information’, 24 March 1952, American Embassy, Karachi to Department of State, Washington, Box 4145, File 790 D. 00/4 – 1652, National Archives and Records Administration (hereafter NARA). 5. Omar Khalidi, ‘From Torrent to Trickle: Indian Muslim Migration to Pakistan, 1947-97’, Henry Martyn Institute of Islamic Studies Bulletin, Table 1, Vol. 16, Nos. 1 & 2, January–June 1997, p.37. 6. Enclosure with American Consul, Dhaka to Department of State, ‘Memorandum: Refugees in East Pakistan’, prepared by Shams ul Alam Khan, a local employee in the Economic Section, 5 June 1959. 7. Mushirul Hasan, Legacy of a Divided Nation: India’s Muslims since Independence, Oxford University Press, Delhi, 1997, pp.177–8. Also see Papiya Ghosh, ‘Reinvoking the Pakistan of the 1940s: Bihar’s “Stranded Pakistanis”’, Studies in Humanities and Social Sciences, Vol. 2, No. 1, Shimla, 1995, p.135 for the Stranded Pakistanis’ General Repatriation Committee’s version that 50,000 railway

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employees from Bihar had been absorbed in East Pakistan and that ‘99 per cent’ of those stranded in Bangladesh today are these optees. 8. Memo for Me George Bundy from Philips Talbot, 16 January 1964, Box 2287, File Pol 15 – 1 India; American Embassy, New Delhi to Department of State, 17 January 1964 and American Embassy, New Delhi to Department of State, 26 March 1964, Box 2281, File Pol 2 – 1 India, NARA. 9. Taj ul-Islam Hashmi, ‘The “Bihari” Minorities in Bangladesh: Victims of Nationalisms’ in Mushirul Hasan, ed, Islam, Communities and the Nation: Muslim Identities in South Asia and Beyond, Manohar, New Delhi, 1998, pp.392–4. 10. Karen Leonard, ‘Mixing It Up in California: A Century of Punjab i-Mexican Experience’, Samar: South Asian Magazine for Action and Reflection (hereafter Samar, New York), summer 1995, No. 5, pp.10 and 13. 11. Dr Mubarak Ali Khan, Welfare Chairman, Pakistan League of America to President Harry S Truman, 18 August 1951, US State Department Box 5549, File 890D.1891/17-1952, NARA. 12. Dhoolekha Sarhadi Raj, ‘Partition and Diaspora: Memories and Identities of Punjabi Hindus in London’, International Journal of Punjab Studies, Vol. 4, No. 1, 1997, pp.101–27. 13. Pnina Werbner, ‘Fun Spaces: On Identity and Social Empowerment Among British Pakistanis’, Theory, Culture & Society, Vol. 13, No. 4, 1996, pp.53–79. However, there is a distancing form the broader ‘Asian’ identification and a rejection of a Leftist-activist ‘black’ self-representation. Also, in contrast with the creation of fun spaces by women and youth, rooted in pan-South Asian aesthetics, nationalism is situated in the domain of male elders. 14. See ‘Reinvoking the Pakistan of the 1940s’ for details. 15. India Abroad, 11 October 1996. 16. Interview with Mohammed Younus (Overseas MQM), Chicago, 22 October 1996. 17. Interviews in Baltimore, New Jersey, Toronto, Atlanta, Miami, Houston and California between September 1996 and April 1997; telephonic interview with Asiya Jalil, daughter of Nasreen Jalil of the MOM, 15 Janurary 1997 (London, Canada): she got her visa on ‘humanitarian grounds’ on the basis of newspaper clippings. Dawn, 27 March 1999 mentions that Pakistanis [no political breakdowns specified] form only 4 per cent of the total asylum seekers who take refuge in Britain every year. Also see, Anita Bocker and Tetty Havinga, ‘Asylum Applications in the European Union: Patterns and Trends and the Effects of Policy Measures’, Journal of Refugee Studies, Vol. 11, No. 3, 1998, pp.250–1: ‘In 1985 and 1986, a large proportion of the applicants seeking asylum in the European Union came from South and East Asia (30 per cent and particularly from Sri Lanka, India and Pakistan). Since 1987, the Asian share has ranged between 13 per cent and 17 per cent; the number of Asian applicants again peaked in the early 1990s, but the peak in the European numbers was considerably higher’. 18. Sarah Ansari, ‘Partition, Migration and Refugees: Responses to the Arrival of Muhajirs in Sind During 1947-48’ in D A Low and Brasted, eds, Freedom, Trauma, Continuities: Northern India and Independence, Sage Publications, New Delhi, 1998, p.91. 19. Arjun Appadurai, Modernity At Large: Cultural Dimensions of Globalization, University of Minnesota Press, Minneapolis, 1996, p.152.

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20. Dawn, 18 April 1997; 3 February 1997 mentions that the Gulf has always been a source of funding for the Pakistani political parties, including the MQM. 21. Interview, 10 February 1997, New York; also see The Asian Age, 9 April 1995. 22. I am thankful to Mohammed Younus for the videos and publications, all of them brought out by the MQM International Secretariat, London. 23. Dawn, 21 July 1999; Pakistan Link and The Times of India, 22 July 1999. 24. See ‘Constitutional & Social Reforms’ Proposed by MQM to General Pervez Musharraf, Chief Executive and National Security Council of Pakistan, 13 November 1999’ (hereafter ‘A “New Pakistan Order” In The New Millennium’), [http://www.mqm.org/EnglishNews, p.21/26]. 25. The Times of India, 29 July 1999. 26. ‘World Sindhi Congress Organizes an International Conference on Sindh in London – Proceedings and Resolutions’, [http://members.unlimited.net]; For the ‘Bihari Namanzoor’ [Biharis are Unacceptable] movement launched by the Sindhi Ittehad led by Rasool Bux Palejo, soon after the repatriation figured in the MQM– PML pact in early 1997 see Dawn, 23 February 1997. For a dated lesson on the ‘responsibilities of territorial sovereignty’ noted in the ‘international law framework’, see Sumit Sen, ‘Stateless in South Asia’, Seminar, No. 463, March 1998, pp.49–55. Sen argues ‘the genuine link of Biharis with Pakistan provides a legal solution to their protracted refugeehood’. 27. ‘Response Letter to Mr Altaf Hussain, Leader MQM’, 4 February 2000, WSC website. 28. Dale F Eickelman and James Piscatori, Muslim Politics, Princeton University Press, Princeton, 1996, p.154. of the roughly 1.5 million Muslims in Britain, slightly more than half are of South Asian origin. 29. What follows is based on AFMI newsletters and annual convention reports (1993–7) and interviews with its co-founders, Dr A S Nakadar and M Qamruzzaman, 17 and 18 January 1997, Detroit, and Rashid Naim, chairman of the AFMI Political Education Committee, 15 February 1997, Atlanta. 30. Radiance, 10–16 December 1989 and The Pioneer, 29 January 1998. 31. WSC website, proceedings and resolutions of International Conference in London on 29th August 1999. 32. Vol. 25, No. 3, August–September 1998, pp.3, 6–8, 14–15. 33. Amrit Wilson, ‘Family Values’ (a review of the film Hum Aapke Hain Kaun), Inquilab, SASG, Vol. 3, No. 3, winter 1995, p.24. 34. India Today, 11 April 1998, p.31. The BJW was put together by a research associate and co-director at the Institute on Race and Poverty, University of Minnesota, Minneapolis 35. Ravi Sundaram, ‘Technofutures’, Seminar, No. 453, May 1997, p.43; Letter to the editor, The Times of India, 25 February 1998, against the postings on the BJP website, Prabir Purkayashta and Co; also see Amit S Rai, ‘India On-line: Electronic Bulletin Boards and the Construction of a Diasporic Hindu Identity’, Diaspora, Vol. 4, No. 1, pp.31–57. 36. Summer/Fall 1998, p.63. 37. What follows is based on interviews with the LDC (now NYTWA) activists, Bhairavi Desai and Biju Mathew, 6 and 7 February 1997, New York; CAAAV and LDC fliers; The CAAA V Voice, spring 1995, pp.1, 4; summer 1996, p.9; Peela Paiya: A Powerful Voice For South Asian Taxi Drivers, summer 1995 (a shortived LDC

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magazine with articles in Bengali, Urdu and English) and the LDC website (1997); Outlook, 21 September 1998, pp.78–9; Samar, Summer/Fall 1998, p.63; India Abroad, 5 June 1998, p.36 mentions that the TLC adoped 15 of the 17 rules proposed by the mayor. Also see Biju Mathew, ‘Deploying History/ Subverting Nationalism: Notes on South Asian Politics in the Metropolis’, Anniversary Conference on South Asia, Centre for South Asia, University of Wisconsin, Madison, 17–20 October 1996, p.85.

INDIA

INTRODUCTION India is generally considered as a generous host to the refugees compared to her neighbouring states. But, there is hardly any place for complacence. In recent years, government policies have become more stringent and discouraging. This is evident in the case of Sri Lankan Tamils (particularly after the assassination of former Prime Minister Rajiv Gandhi) and also in the case of Bhutanese refugees of Nepalese origin, who had been detained and then sent back to Nepal. It is time to review the situation of the external shelter seekers in India. But equal, if not more attention must be devoted to the alarmingly increasing number of Internally Displaced Persons (IDPs) in India, who have lost their homes on various accounts. Samir Das and Sabyasachi Basu Ray Chaudhury in a very useful article seek to fill this gap, at least conceptually. In ‘Population Displacement in India: A Critical Overview’, they propose a very important ‘Typology of Internal Displacement’, which is immensely helpful, especially for beginners: both academics and activists. The authors classify this phenomenon into five broad categories and hold insightfully: ‘The fact that some communities are perpetually vulnerable to displacement than some others speaks of a deep – yet undeclared divide within the Indian society between the so-called “nationalist mainstream” and the outside’. Tapan Bose’s ‘A Kargil War Refugee Camp’ focuses on the media ignored issue of the plight of civilian people during the Indo-Pak border clashes in the Kargil area of Kashmir in 1999. The Kargil war, which saw the rise of (media hyped) jingo nationalism in India, had also, like all wars, its innocent victims, who lost their near and dear ones and also shelters, leading the life of refugees in their own land. The author visited a makeshift refugee camp near Gagan Geer village (85 km from Srinagar) in June 1999, at the height of the war to find unhygienic accommodation and poor state of relief. ‘Without belittling the tremendous sacrifice’ of Indian soldiers, Bose also mediates a sad

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experience of the refugees, who told him that at the beginning of the war, an army Major had rather rudely asked the villagers either to evacuate their homes for the war or go over to the Pakistan side. Long before the Kargil war, real (internal) miseries of the Kashmiris began (1989), which continues to be the major (if not only) source of tension in Indo-Pak relations, affecting peace and order in South Asia. Rita Manchanda in her in-depth study, ‘Barricaded Kashmiri Pandits’, narrates the age-old tradition of Kashmiriyat, based on a common and tolerant cultural heritage of both the Hindus and Muslims; she gets to the root of tension since Kashmir’s accession to India in 1947; points to the privileged position of the ‘educated’ but minority Kashmiri Pandits (i.e. Hindus) and the rooted and backward state of the Muslims, leading to a steady process of their alienation from the Pandits and the Indian state (seen largely as a state run by the Hindus); and describes the sudden process of Islamicization of the Kashmiri Muslims that entirely changed the gamut of the old Kashmiriyat. Against this background of a changed – communalized and terrorized Kashmir (by the militants and the army as well), the hope of return of the panicky Pandits to their deserted homes seems almost impossible – despite stray instances of protection of Hindus by Muslim women. However, Anuradha Bhasin Jamwal tells us the other side of the story of displaced ‘Kashmiris’, in her ‘Homeless and Divided in Jammu and Kashmir’. She points at the biased official policy, which differentiates the homeless Kashmiris on a communal basis, especially when it comes to giving government dole and shelter and holds that this differentiation worsens the already worse communal situation in the state. The author shows how the victims of terrorism (mainly Pandits) are getting preferential treatment over those who lost their homes owing to the IndoPak border clashes. The latter, particularly the similarly affected people living near the Line of Control (LOC) are facing trouble in getting minimum official help. The irony is that the second category of homeless people (mainly Muslims) are favourably treated across the LOC. Subir Bhowmik’s ‘Internal Displacement in North East India’ is a tale of ethnic displacements in the most volatile region of the north-east. Bhowmik argues that with the granting of statehood to the Nagas in the 1960s, Nehru literally opened the proverbial ‘Pandora’s box’ that ignited the aspiration of numerous tribes/ethnic groups to claim statehood or autonomous councils, even independence in order to get away from a pan-Assamese (and in many cases, pan-Indian) identity. But the problem does not end with the creation of further newer, smaller states. Even within these states, various ethnic minorities feel

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threatened by dominant groups – leading the former to demand for further divisions or at least autonomous districts, resulting in an endless politics of fragmentation. The author is also critical of the central and state governments and of the role of the army, which complicates and confounds the situation further. Monirul Hussain also echoes Bhowmik’s fear. His article, ‘The North East Today: Displacing Identities, Displaced Identities’ is mainly concerned with the displacements in Assam in the postcolonial period, in which the non-Assamese (Bengali) Muslims, Bengali Hindus and ‘teatribes’ (mainly Santhals, brought in this region as coolies in the tea gardens by the colonial planters) were/are targeted mainly by Assamese nativists and now the Bodos. These intolerant movements that are responsible for so many mass massacres, abductions, extortions, seem to forget the age-old tradition of pluralism, laments Hussain. The state has almost failed to protect the victims. ‘If the present situation continues without any effective intervention’, warns Hussain, ‘Assam is likely to experience more conflict-induced displacement…’ Comparatively, the conditions of the ‘real’ (technically speaking) refugees, i.e. the Tibetans seem to be better than the hapless IDPs in Kashmir or in north-east India. Although, the Tibetans, who fled from their country in the 1960s along with the Dalai Lama, after the Chinese occupancy, had to suffer immensely while crossing the long and risky mountain passes, they got warm hearted hospitality from the then Prime Minister Nehru and other political parties. As a result of this, and owing to internationalization of this matter, the Tibetan settlement in different places of ‘cool’ regions, mainly in Himalayas, and other places in the south, particularly in Karnataka, had to face lesser problems leading to a more or less smooth, and even ‘affluent’ life. However, Rajesh S Kharat, in his ‘Tibetan Refugees in India’, shows that this apparent affluence is the cause of feuds between the indigenous population and the Tibetans, especially in the Indian state of Himachal Pradesh, where the Dalai Lama has set up his capital at Dharamshala. Sujata D Hazarika’s ‘Unrest and Displacement: Rajbanshis in North Bengal’ is another sad account of displacement of a large, yet to some extent divided, ethnic community of Rajbanshis in their own ancestral land, in north Bengal. Rajbanshis and their ethnic cousins like the Kochs of Tibeto-Burman origin, have a glorious past of heroism and autonomy. This Hinduized and mostly agricultural community, which unsuccessfully sought to climb the ladder of the Hindu caste hierarchy through sanskritization and by its claim as Kshatriyas (the warriors/ kings), had lost a vast land, since the beginning of the tea plantation

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industry during the colonial rule. This process took both a new quantitative and qualitative dimension, after the partition, when a great bulk of comparatively rich and modern, educated Bengalis (mostly Hindus) settled in this region, dislodging (willingly or unwillingly) Rajbanshis from their land; the Marwari tradesmen also followed suit. The deprived (both culturally and economically) Rajbanshis now demand their own Kamtapur state, based on their old Kamtapuri dialect. Some of them also sought to organize an unsuccessful armed insurrection. Of late, the Kochs are also demanding a ‘Greater Kochbehar’. But, both of these movements failed to gain in the recent electoral politics. On the other hand, speaking of the IDPs in India, Kuntala Dutta Lahiri holds, in a very theoretically rich case study based article, ‘Adivasis in coal Mining’ that ‘[…] displacement of adivasis [the Indian aborigines] attract comparatively less attention from scholars than big dam projects or even the forest question’. The chief reasons for such negligence are ‘the remoteness of mineral bearing tracts, their largest segment of inhabitants being from various indigenous groups, and the project-to-project nature of mines’. The author focuses on three local based movements in the eastern Indian collieries that achieved a certain amount of success, and argues that ‘resistance in coal mining regions take multifarious forms, which may not fit into received definitions of how protest should be carried out in both form and content’.

POPULATION DISPLACEMENT IN INDIA: A Critical Review Samir Das and Sabyasachi Ray Chaudhury

†

Although forced migration in India is usually divided into two broad types – internal and external, depending on the territorial expanse within which it occurs, we propose to concentrate more on the first type for reasons not beyond our comprehension. First, while the problem of immigration from across the international borders has been a topic of frequent discussion and responsible for sparking off many a nativist outburst in different parts of India, the issue of internal displacement has assumed alarming proportions especially in recent years, but has hardly received any attention worth its name in popular circles. There is no denying the fact that the issue of internal displacement is yet to acquire the kind of legal standing – whether national or international, that is usually accorded to the external one – particularly of the refugees. Secondly, whereas India’s role as a refugee receiving country has been widely acclaimed both within the country as well as abroad, her role in generating refugees has been of marginal significance compared to that of some of her next-door neighbours. This, however, does not leave any room for complacence, and the pressures on the state to adopt certain pre-emptive and corrective measures are now formidable. […] Thirdly, it is difficult, if not impossible in some cases, to make a watertight distinction between

†

Samir Kumar Das, Department of Political Science, Calcutta University and Senior Researcher of Calcutta Research Group; Sabyasachi Basu Ray Chaudhury, Department of Political Science, Rabindra Bharati University and Senior Researcher of Calcutta Research Group, Refugee Watch, 4 December 1998.

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these two types for much of what we call, internal displacement is externally induced and has international spillovers at least in the neighbouring regions. Thus, the ‘foreigners’ of ‘Bangladeshi’ origin who got themselves haphazardly settled in such public places such as reserve forests, railway tracks, coalfields, etc. in Assam were subjected to another round of displacement as soon as the government decided to clear these areas and restore them as public facilities. Contrary to this, many of the Nepalese people living in various parts of north-eastern India for generations together were suddenly sought to be branded as ‘foreigners’ and subject to inhuman torture, harassment and then death in some cases […]. The point is that the issue of external migration cannot be properly understood independently of its internal dimension.

EXTERNAL IMMIGRANTS Immigrants from across the international borders may broadly be classified into three categories: we may, first of all, refer to those who are forced to come to India as a result of some sudden changes (like, natural catastrophes, civil wars, etc.) that take place in their respective home countries. They usually come in numbers. Since their migration is too evident to be brushed aside, it is possible on India’s part to keep a tab on them and closely monitor their activities and movements. The waves of immigration that followed the outbreak of civil war in erstwhile East Pakistan back in 1971 may serve as a case in point. They were not only forced to leave their homes but left with virtually no viable alternative means of livelihood in the country of destination. They had to depend entirely on the support extended to them by the host country as well as the international refugee protection regimes and were granted refugee status. The second category consists of those who come to India over an extraordinarily prolonged span of time – almost incessantly, but obviously in trickles. They know very well that their life is no longer safe in their home countries and wait for the next opportunity for locating themselves. This variety of external immigration takes place within a fairly well established social network that endows the immigrants with an amount of what in contemporary social theory is called, ‘social capital’. It is the social capital that enables them to adjust themselves to the new environment and effectively negotiate such problems such as, acute mental strain, social disorganization and economic dislocation with greater ease by way of associating them with the people of their ilk – long

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settled in an alien environment and hence, obviously possessing greater amounts of competence in dealing with them. In between them, we may conceive of a category, which includes those immigrants who come to India in order to explore the opportunity of settling in other parts of the world. They look upon India – not as a place of final destination but as a point of transit. Their stay is of temporary nature.

A TYPOLOGY OF INTERNAL DISPLACEMENT The phenomenon of internal displacement represents a case where the place of displacement and that of relocation are situated within the same country and in some cases, within the same region. It may be helpful for our purpose to classify this phenomenon into five broad categories: 1. Development Related Displacement: More often than not, installation and commissioning of development projects lead to a direct displacement of people inhabiting the very sites for several generations. A conservative estimate made by the Tata Institute of Social Sciences keeps the figure at 21,300,000 in India between 1951 and 1991, as a result of installation and commissioning of such projects as dams, industries, wildlife and others of whom only 5,370,000 could be rehabilitated. This report does not draw our attention to the quality of rehabilitation. Moreover, the functioning of these projects requires consumption of natural and environmental resources at a level that it invariably cuts into their traditional means of wherewithal and sustenance. Their tragedy is compounded by the fact that they cannot be accommodated into these newly installed projects. 2. Ethnicity Related Displacement: On the one hand, we know of such cases in which an ethnic community lays its exclusive claim to what it defines as its ‘homeland’ or the ground that it is ‘native’ to the land and by the same token stages a campaign for deporting those who according to it, are outsiders and, therefore, have no right to settle there. Both the Shiv Sena movement in Maharashtra during the 1960s and the Assam movement at the turn of the 1970s illustrate the point. On the other hand, and very unlike these cases, we may refer to a second type in which displacement does not take place in such a planned and organized manner and besides, the probability of return on the part of the displaced to their places of origin is very high.

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3. Border Related Displacement: Sometimes, the disputes over borders between two (or more) states within the Indian Union are so pronounced that they often turn into major border skirmishes and the bordering villages are immediately evacuated at the instance of the contending states. At the same time, conflicts over the border between two nation states (like India and Pakistan) at times metamorphosed into full-scale wars, have been responsible for major population displacements in such sectors as Poonch, Rajouri, etc. in the west. 4. Externally Induced Displacement: As the external immigrants pour in, they put pressures on land, cause unemployment, create environmental hazards and foment inter-ethnic tensions by way of disturbing the existing demographic balance and thereby posing a grave threat to the language and culture of the native people. As a consequence, they fall prey to the explosive nativist outbursts and become a soft target of torture, repression, deportation and even death. 5. The Potentially Displaced Persons: It is necessary to make for a separate category of the potentially displaced persons in order to refer to those who are invalid or infirm, or people suffering from terminal illnesses, orphaned children or widows who are too weak to migrate from one place to another and a significant segment of people who are left behind for they are too poor to meet the minimum costs of migration. They are displaced at homes and are forced to continue to live in their places of origin even when it is not safe for them to do so.

EMERGING TRENDS The fact that some communities are perpetually vulnerable to displacement than some others speaks of a deep – yet undeclared divide within the Indian society between the so-called ‘nationalist mainstream’ and its outside. Thus, it is no surprise that 40 per cent of the IDPs consist of tribals who constitute only 7.6 per cent of the total Indian population. Moreover, their displacement seems to take place in a series in the sense that very unlike the European case, there appears to be no final destination for them in India. While many sedentary communities are forced to lead nomadic lives, official circles show an eagerness to classify them as ‘nomadic’ in their papers and dossiers.

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Ethnicity related displacement in such bordering regions as Jammu and Kashmir and the north-east has led to the creation of a number of small, ethnically homogeneous islands with little or virtually no social and cultural interaction among them. It has brought in what may be called, a new enclosure syndrome. Most of the surveys conducted on the IDPs in India conclude that the phenomenon has been coupled with a considerable depletion of social capital. Thus, a study on the Sardar Sarovar oustees points out that people from the same village have been rehabilitated in two altogether different states and this implies a complete breakdown of the social network. Established political parties and interest groups seldom promote their interests for fear of hurting the sentiments of the ‘nationalist mainstream’. Similarly, it has also been noticed that internal displacement has always been coupled with growing landlessness. The government’s inability to provide them compensation in the form of land and the meagre cash they receive as compensation are the primary factors, which explain their growing landlessness. Unless coordinated efforts are made, contemporary India is surely moving towards an inevitable human disaster.

REPORTING FROM GAGAN GEER: A Kargil War Refugee Camp Tapan K Bose

†

In war, all attention focuses on war news. The soldiers are the main concern of the media. This is natural. However, this one-sided coverage often ignores the plight of the civilian population who are affected by the war. Non-combatant civilians get killed, maimed and dispossessed. […] There is enough evidence to show that during war the border population gets pushed around by the very army, which is supposed to protect it. The media also tends to ignore or play down the plight of the war refugees, as these stories are perceived as less important. It has been reported that the ongoing war in Kargil has created about 35,000 refugees. I was told by an official of the Jammu and Kashmir government that the heavy shelling by Pakistani forces in Akhnoor sector of Jammu has forced about 70,000 persons to leave their homes and take refuge in refugee camps set up in school buildings and tents. While the government claimed that all arrangements were made for proper relief of the refugees in Kargil and Jammu sectors, there were newspaper reports that the government had failed to provide even the basic necessities to the refugees. […] A few newspapers had reported that in the Kargil sector civilians were forced to work as porters for the army without any pay while others claimed that the people of the Kargil region were willingly carrying loads for the army. Gagan Geer, a village on the way to Sonmarg: I visited Gagan Geer a village of Guliars, the nomadic pastoral tribe of Kashmir on 21 June †

Secretary-General, South Asia Forum for Human Rights, Kathmandu, Refugee Watch, 7 September 1999.

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1999. Gagan Geer is situated at the base of the lofty mountain range that rises to about 20,000 feet in height, about 6 km south-west of Sonmarg the summer tourist resort, on the Srinagar–Leh road. Gagan Geer is the home of about 60 Guliar and 20 Kashmiri families. Each summer the Guliars take their goats and sheep up the mountain trails to pastures in the upper regions of the mountains for grazing. Most of the Kashmiris are engaged in farming, while a few are in the government service. About 85 km from Srinagar, on the road to Leh, just outside the village of Gagan Geer, next to the Forest Department’s Check Post is a makeshift refugee camp. It consists of four tin roofed storage sheds of the Public Works Department of the Jammu and Kashmir government. On 2 June 1999 about 400 Kargil war refugees from the area between Matayan and Drass were brought to this camp. Since then, each of these tin sheds measuring about 1,800 sq. feet has become the home of about 20 families. Approximately 200 persons, including women and children were packed inside each of these dark cold sheds, when the night temperature still went down to about 5 degree Celsius. The Refugees of Pandrass: All the refugees living in this camp belong to the village of Pandrass. This village is situated at a height of about 8,000 feet above sea level, across the Zoji-La pass, between Matayan and Drass where the Indian soldiers have been engaged in a fierce battle against the ‘intruders’ and Pakistani soldiers since early May. […] All the residents of Pandrass are Shia Muslims. The main occupation of the people is animal husbandry. They rear goats and sheep for wool, milk and meat. They also grow a variety of high altitude millet for local consumption. Unhygienic accommodation and poor relief: I found the refugees in rather poor conditions. Having heard on the radio and television that the Jammu and Kashmir administration had made more than adequate arrangements for the Kargil war refugees, I was a bit surprised to see that the refugees in Gagan Geer had very little bedding and virtually no extra clothing. When I asked about the lack of cooking utensils, clothing and bedding, the refugees informed me that they were not allowed to bring these essential materials due to paucity of space on the small trucks which brought them to Sonmarg on the evening of 2 June 1999. Whatever food they had stored in their homes and all their animals, their entire wealth in this world, had to be abandoned. They were assured that they would be provided with all essential materials at the relief camp. However, on arrival at Sonmarg [a famous tourist resort] they found that no arrangements had been made. […] The Deputy Commissioner told the refugees that they could not stay in

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Sonmarg. […] He told them to proceed to Gagan Geer where arrangements were made for their stay. No official of the Jammu and Kashmir administration was present at Gagan Geer refugee camp on the morning of 21 June 1999. The camp had no electricity. There was only one water tap, which provided water for about four hours a day for the entire population of 400 refugees. There were no bathrooms and toilets. The refugees and the local people of the area told me that several Kashmiri politicians, including ministers of the Jammu and Kashmir government had visited the camp. The refugees were assured that they would soon get electricity and tents would be set up to ease congestion in the tin sheds. Unfortunately, nothing has happened till date. On their arrival, the refugees were given 5 kg of rice per head and 4 litres of cooking oil per family. They had no money to buy fuel wood or vegetables, leave aside meat, which was a part of their staple diet. Several women, old persons and children were suffering from cold, dysentery and influenza. They had to go the local Public Health Centre (PHC) at Gagan Geer. The PHC at Gagan Geer was unable to cope with this sudden influx of 400 refugees as it was designed for the small resident population of the village. […] It seemed as if the refugees at Gagan Geer camp had been dumped. Evacuated for military reasons: The refugees claimed that Pandrass was a safe place. Situated between Matayan and Drass, it was protected from the shelling by the intruders and Pakistani soldiers by the high mountains on both sides. According to these mountain shepherds, while it was possible for the intruders from Pakistan side to sneak into Matayan on the west and Drass on the east, there were no trails leading into Pandrass from the Pakistan side. […] On 14 May 1999, an Indian army Major and some soldiers had first visited their village. The Major had indicated that the army might need to evacuate the village as they were planning to set up heavy artillery guns in the village. The residents of Pandrass had apparently welcomed the Indian soldiers and offered to help them. They pleaded that instead of forcing them to leave, the army should use their services for logistics supply and information gathering. They pointed out that during the 1947–8 war in the Kargil sector, their village was not evacuated and the villagers had helped the Indian army in many ways during the war with the intruders from Pakistan. According to the refugees, the Indian army Major was not convinced. In fact he was rather rude and told them in no uncertain terms that either they should agree to be evacuated to Sonmarg, or they should go over to Pakistan side.

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Later in the day, all the villagers of Pandrass were ordered to go down to the road for issue of new identity cards. A resident of Pandrass, Mr Abdul Gafur (not real name) aged about 28 told me that the issue of identity card was a ruse; the actual objective of the army was different. As the villagers assembled at a place below their village on the Leh road, all the able bodied males of Pandrass were separated from the elderly persons, women and the children. About 45 men, between the ages 18 to 30 years, were forced into army trucks and taken away. They were driven to a place called Bhimbet. Forced Labour: At Bhimbet, the villagers were divided into three groups of 15 persons each. They were told that they had to help the army in carrying guns, ammunition and other supplies to a high mountain post called Shaduri. […] [T]he climb from Bhimbet to Shaduri was extremely difficult. The mountain was covered with snow. There were large patches of exposed old ice as last year this region had received less snow. As there was no cover and the intruders and Pakistani soldiers at the heights were regularly shelling the area, the shepherds were forced to climb only during the night. Each of them loaded with about 30 kilos of military equipment scaled the sheer snow covered steep slope for about six hours to reach Shaduri post during the night. If they were unable to climb down under the cover of darkness they had to spend the day in Shaduri hiding in the snow. As there was no food for them in Shaduri, they went without food. They did not have proper clothing and shoes. […] Abdul Gafur and six others were taken to Kargil hospital for treatment of frostbite. He claimed that while his injuries were not that severe, the condition of six others from Pandrass was critical. These persons were still under treatment in Kargil hospital. Their names are: 1. Nazir Shah s/o Mohammad Shoban 2. Ahsan Ali s/o Jan Mohamad 3. Mohammad Husain s/o Ashlam Jafar 4. Salajuddin s/o Mohammad Ramzan 5. Ghulam Mohammad s/o Ghulam Ahmed 6. Faiyaz Ahmed s/o Shamim Abdul Gafur said that after being treated in Kargil hospital for about ten days he was able to walk. In Kargil he learnt from a bus driver that his entire village had been evacuated on 2 June and that they were now living in a refugee camp in Gagan Geer. He said that he got a lift in a local truck to Sonmarg and finally reached the camp on 7 June 1999. It was obvious that the condition of the inmates of Gagan Geer refugee camp was very poor. They had virtually exhausted the meagre supply of

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ration of rice and oil that was given to them on arrival. Lack of electricity, water and proper sanitation had created a serious health problem, particularly for the aged and the children. The local people, who were kind to the refugees and helped them with fuel wood and other supplies, were not in a position to support them for much longer. Immediate arrangements needed to be made for improving the living conditions at the camp and supply of food, clothing, bedding and medicines. The Jammu and Kashmir administration was not unaware of the condition at the camp. Mian Altaf, a minister of Jammu and Kashmir and Mehbooba Sayeed the leader of the opposition in Jammu and Kashmir Legislative Assembly had visited the camp. Several promises were made, but none kept. […] By the middle of August, Zoji-La pass got snow bound. It was closed after September making it impossible for the villagers to carry back adequate quantities of food and fuel to Pandrass after the onset of winter to survive the severe winter of Kargil. They had also lost most of their animals, the main source of their livelihood. […] Without belittling the tremendous sacrifice being made by the soldiers, it is necessary to point out that the lives of non-combatant civilians are as important. War takes a heavy toll on the lives of soldiers and civilians. The countries that go to war suffer huge losses due to war expenditure. What is not computed is the loss of production, destruction of civilian assets and the disruption of civilian life. Governments who do not seriously address the ‘other face of war’ – the civilian side, do so at their peril. The humanitarian disaster created by the Pakistani army in erstwhile East Pakistan was the reason for India's armed intervention, which led to the emergence of independent Bangladesh. More recently, the human suffering of the Albanians in Kosovo at the hands of Serbs created an opportunity for the western powers to go to war against the Millosovic regime in Yugoslavia. The Kargil war in its seventh week had already created 200,000 refugees in Pakistan and India. Gagan Geer is just one example of a growing humanitarian disaster in the making. Thousands of farmers have lost their crops and livestock.

BARRICADED KASHMIRI PANDITS LETTING GO THE RIGHT TO RETURN? Rita Manchanda

†

In the ten years of insurgency in the Kashmir valley and the border hill districts girdling the epicentre of conflict, more than half a million people have been displaced on both sides of the Line of Control (LOC). The exodus includes, 200,000 Kashmiri Pandits, 70,000 Kashmiri Muslims to India and 120,000 to Pakistan. From Kargil and the border districts some 35,000 people have been displaced in Pakistan and 100,000 in India. As the guns fall silent along the LOC, after the Kargil war, the people of the border districts will return to bury their animals, rebuild their homes and replant their crops till the artillery duels across the LOC erupt again. But for the thousands of displaced Kashmiri Pandits, can there be a return home? Can there be a return to the ‘homeland’, a return to a remembered society imbued in the ethos of Kashmiriyat i.e. a common Muslim–Pandit identity constructed around a shared history, language and culture? The mass exodus of Pandits from the valley in 1990 played into the hands of the propagandists on both sides and people who had grown up in a culture of social and economic interdependence have been communalized. The poison of communal politics has constructed negative images of the Pandit as abandoning his Muslim brethren to the guns of the Indian state and the Muslim as waiting to grab the property of his Pandit neighbour. †

South Asia Forum for Human Rights, Refugee Watch, 7 September 1999.

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Also, these ten years have seen a hardening of the Islamicization core of the struggle and an Islamicization of a reconstructed Kashmiri identity. Symbolic of the new Islamicized Kashmir is the fact that many more women are wearing burqua. The measure of the change in the ethos of Kashmir can be gauged by the relatively contained public outrage at the burning down of Charar-i-Sharif, the mausoleum of Nund Rishi, the most revered Sufi Pir of Kashmir. But, the political, human rights and humanitarian discourse remains locked in the presumption of return to an ‘original homeland’. The recommendations of the Regional Autonomy Council for Jammu and Kashmir on the ‘Return of the Migrants’ has proposed the creation of a Protector General of Migrant Properties, the setting up of transit settlements and the promotion of a social dialogue between the migrants and the majority community. The presumption is that Pandits can and must return, irrespective of the transformation of the ‘homeland’. For ten years Kashmiri Pandits have been living as materially and psychologically displaced, as poignantly evoked in Khema Kaul’s elegiac My Diary. The possibility of return remains blocked, not only because of the series of communal massacres by the militants but because of the communalized mindset that has become entrenched in these ten years. The April 1999 recommendations of the controversial Regional Autonomy Council for Jammu and Kashmir insidiously seek to formalize the communalization of the state in its territorial recasting of Jammu and Kashmir Divisions. […] Where is the Pandit’s voice to weep over the suffering of the people of Kashmir trapped between two guns? ‘They brought it on themselves’, retorts Dr Shakti Bhan, a founder member of Daughters of Vitasta, the women’s wing of Panun Kashmir. In 1993, at the National Conference of Kashmiri Pandits a resolution was passed expressing solidarity with Kashmiri women. But Dr Bhan clarified, ‘my heart goes to the innocent women of Kashmir, not to the Dukhtarane Millat’. The problem is that in these ten years, on both sides the moderate voices have been silenced by fundamentalist ones. […] However, the structure of the governmental and human rights and humanitarian agencies’ discourse, remains tied to the logic of return and thus oriented towards relief and not the reconstruction of lives. Is it time, then, to advocate a move away from the damaging attachment to an ‘original homeland’ transformed beyond recognition, and cope with reconstructing home, identity and even an ‘imagined community’? […] In these ten years, a generation has grown up in the valley and camps, which has no memory beyond the bitterness of the Pandit–

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Muslim divide. Schoolchildren have learnt to view the Hindu as ‘the other’. ‘Hindus; drink urine!’, a student of the elite Burn Hall school said to me. In Poonch, a group of young schoolgirls I stopped to chat with, wanted first of all to know, ‘What is your religion?’ The living tradition of Kashmiriyat, where foster mothers of Kashmiri Pandits were commonly Muslims and vice versa, has become a memory of the time of their grandmothers. There were common rituals at the time of birth, marriage and death. Language, food, dress and names were the same reflecting a common ancestor. […] The cultural ethos of Kashmiriyat was common to both Pandits and Muslims. Kashmiriyat, which epitomises the liberal cultural ethos of tolerance in Kashmir, was based on a historical narrative of Islam coming to Kashmir in the twelfth century not as a religion of conquest but through itinerant Sufi mystics who brought it as a message of love. It knitted well with the older Kashmiri tradition of Hindu Shaivite rishis (saints). The Sufi–Islam Pirs too came to be styled rishis and revered by both communities. But, relations between the Kashmiri Muslims and Hindus were based on a peculiar love–hate syndrome. The Pandit minority, traditionally, had used their literacy skills to become clerks of the ruling classes, while the Muslims depended on agriculture and handicrafts. The Kashmiri Pandits, who were clerks and revenue officials of the government, were the visible human face of the exploitative rule of the Dogra (Hindu) rajas. Held back by the maulvis, the Muslims took to English education much later. But, educated Muslim youths like Sheikh Abdullah, found them discriminated against. After 1947, with thousands of children getting modern education, the competition for jobs became acute and bitter. While the Kashmiri Pandit took up jobs all over India, Kashmiri Muslim youth felt insecure about moving out of J&K. For them employment in the state government was the only option. […] In the ‘Quit Kashmir’ movement against Dogra rule, a few leading Pandits like P N Bazaz did identify with the National Conference which had emerged as a ‘secular’ alternative to the Muslim Conference. After accession to India, the peculiar unfinished status of J&K as a disputed territory fostered contradictory allegiances in Pandits and Muslims which hinged on Kashmir’s ultimate historic destiny, i.e. i) union with Pakistan, ii) integration within India and iii) independence. When the popular movement for freedom surged in 1989–90, the language was resonant with Islamic revivalism, as echoed in the slogans raised by thousands of marching demonstrators. The diktat of the militant group Allah Tigers and the fundamentalist women’s organization Dukhtarae Millat on purdah, sought to visibly reinforce markers of the

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Pandit–Muslim divide. At the time the dominant militant group the Jammu and Kashmir Liberation Front (JKLF) wanted an independent J&K for all Kashmiris, Muslims and Pandits. But the attacks on government functionaries and the targeting of ‘informers’ – many of whom were Pandits, fuelled fear and terror about a programme against Hindus. Rumours spread like wildfire that Kashmiri Muslims were getting ready to rape Kashmiri Pandit women. The killing of Sarla Butt, a Kashmiri Pandit nurse working at the Soura Medical hospital was used by the community elders to raise panic about the fate that would befall Kashmiri Pandit women if they remained. Sarla Butt was raped and killed by the JKLF in 1990, apparently because she had passed on information about wounded militants in the hospital. She reportedly had JKLF scratched in blood on her naked torso, according to Kashmiri Pandit sources. On the night of 19–20 January 1990, thousands of Kashmiri Pandits fled in an exodus, which is believed to have been engineered by Governor Jagmohan who had just taken over the state. It irretrievably communalized the situation. Dr Shakti Bhan a former gynaecologist at Lal Oed hospital, Srinagar was one of the Pandits who fled. On 20 January, at 4 a.m, she left her home with the daily army convoy to Jammu. […] For Dr Bhan there could be no choice other than Kashmir as an integral part of India. ‘I was identified with India. An independent Kashmir: yes. But there could be no question of Pakistan for me. And what did they mean by aazadi except Pakistan’, she said. […] Dr Bhan, now works at Delhi’s Apollo hospital. The bitterness runs deep in Dr Bhan, souring old friendships. When the husband of her former colleague Dr Mehbooba Oar, died she wrote a letter of condolence. ‘But there is no friendship left, no trust’, she said. Her mirror image was Mariam Nizam, a schoolteacher in Srinagar. ‘They never told us they were leaving. Only 10 per cent now are left. They took everything and then filed false claims. They have made money’, she said. […] Yet, in the midst of this communalization there are those who have resisted like Neeraj Mattoo, a highly respected former teacher of the Women’s College in Srinagar. Despite the fact that her husband, then Conservator of Forests, escaped an abduction attempt, the Mattoos have stayed on in Srinagar. Unlike many of her co-religious brethren living in an essentially Muslim neighbourhood, she did not have to hide her Pandit identity and give up wearing a saree. At the Women’s College in Srinagar, Pandit and Sikh teachers who stayed on all through the ten years, spoke of how their neighbours and

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colleagues had protected them and urged them to stay on. Veena Kaur, the sole woman lawyer in Baramulla, said that as a Sikh, she had never felt she was under risk. It was the security forces that reinforced communal tension when they stop a public bus and single out the Muslims, she said.

SOME MOTHER’S SON All through the history of these ten years, there are stories of women privileging their identity as ‘some mother’s son’ and rushing out to save a boy from the neighbourhood being taken away. Mehjooba Bidar, the wife of a former militant recalled how in 1993 in Baramulla, when BSF jawans billeted at the Sheerwani College were taking away a young boy, all the neighbourhood women came out to protect him. ‘A Kashmiri Panditain and a Sardarni also came out. All of us, mothers came out. The boy was some mother’s son’, she said. Nayema Ahmed Majoor, an executive with Radio Kashmir, described how in Srinagar in 1991, when militants were dragging away a local Hindu Pandit boy, first, one woman and then dozens more from the locality rushed out and fell upon him to prevent him from being taken away. The men remained inside, inhibited by political considerations or their greater political vulnerability, but the women spontaneously rushed out. […]

HOMELESS AND DIVIDED IN JAMMU AND KASHMIR †

Anuradha Bhasin Jamwal

When it comes to the internally displaced in Jammu and Kashmir, the state’s response in the face of a lack of policy to deal with the problems of the displaced community is much like a leaf from George Orwell’s Animal Farm. All are equal but some are more equal than others. The differential treatment that the different kinds of displaced get in terms of relief and attention eventually prevents them from finding a common cause with each other or talking about a common ground. There are hierarchies and hierarchies within hierarchies among different groups of people displaced at different times, ever since the Kashmir dispute began in 1947. In the absence of any state policy or international law on the internally displaced, there are different ways of treating the displaced, as per the whims or the political needs, or often the greed, of those in power. While this has benefited some politicians, it has kept the internally displaced in Jammu and Kashmir, roughly numbering 7 to 8 lakhs, divided. […] There are several kinds of people displaced due to the conflict – those uprooted by the partition of Jammu and Kashmir in 1947–8, and thereafter by some territorial alterations in subsequent wars in 1965 and 1971, those who have been forced to flee, in the last couple of decades, from the Indian side of Kashmir to the Pakistani side, those displaced due to recent India–Pakistan border confrontation after the Kargil War and subsequently Operation Parakaram, those displaced due to

†

Editor, Kashmir Times, Refugee Watch, 23 December 2004.

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violence in militancy hit areas and those displaced from one militancy infested area to a slightly lesser one. There are three major reasons why the different kinds of displaced people remain divided. First, is the level of education among the affected and their accessibility to corridors of power and the media. Second, is the state players who see their plight as a means of fulfilling their own agenda. Third, is the non-state actors who vitiate the atmosphere with communally or regionally provocative discourse. While those displaced in 1947 from what is now Pakistan occupied Kashmir (POK) got a pittance, partly because the status of Jammu and Kashmir is disputed and they could not be treated as refugees, their plight became a tool in the hands of vested interests to contextualise their agony with communal colour. This was done to strengthen their vote banks. Interestingly, this benefited both sides and these displaced people continue to pay a price for this politicking. There are no exact estimates of the number of displaced since those uprooted in the three India–Pakistan wars came in different batches and were neither accorded refugee status nor the citizenship rights of Jammu and Kashmir. But even as of today, while some of these displaced from West Pakistan managed to clandestinely get the permanent residentship of Jammu and Kashmir, there are 4 lakh voters in the state who vote only for the parliamentary elections. […] Interestingly, even those uprooted from what is now Azad Kashmir or POK were denied relief and compensation for several years after 1947. In the 1960s the people from rural areas were given land to till and one time cash doles of Rs 1,000 while the urban displaced got plots for constructing houses and cash doles of Rs 2,500 per family [but] the displaced got no proprietary rights over the land given because this according to the law of Jammu and Kashmir is evacuee property. Similar was the plight of the people who migrated from this side to POK, though those who migrated to various parts of Pakistan were better off. The biggest migration after 1947 across the divide took place in 1971 during the Indo-Pak war when the entire Chhamb area in Jammu division come under Pakistan. As the area could not be re-captured, the displaced families had to be kept in tented camps at Manwal, about 60 kilometres from Jammu. […] The question is not just of displacements but also of identity crisis. A set of people, for whom ethnic identity alone is constant, goes through an ordeal of identity crisis because they have not been given the right to choose their national identity. Similarly, while Hindus from the POK were forced to flee to the Indian side, the Muslims have been displaced to the other side in 1947, 1965, 1971 and ever since militancy began in 1989 due to threat of security forces.

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Much sharper divides were seen in the 1990s when a major chunk of Kashmiri Pandits in the Valley fled and found safer refuge in Jammu, Udhampur or outside the state. People displaced from other areas of the state at the same time, forced out due to similar reasons, were strangely not accorded the same status as the Kashmiri migrants. The Doda migrants had to face a prolonged litigation to get the same benefits and only those who approached the courts got the rations and doles at par with the Kashmiri Pandits. […] While most of the migrants from the Valley were Hindus, those from Doda were a mixed population of Hindus and Muslims. The state actors re-inforced these myths, often through media, that it was only the Kashmiri Pandit at the receiving end. The media, in turn, has happily played to the tune in the name of a constructed and created nationalist interest. By singularly projecting Kashmiri Pandits as the victims, there was a deliberate design to demonise the ‘Muslim terrorist’ and more specifically the ‘Kashmiri Muslim terrorist’. […] Interestingly, the Pakistani response towards the people displaced from this side has been a similar one. The displaced, most of whom are seeking refuge due to atrocities at the hands of security forces, often fall prey to the machinations of vested interests, including state actors across the Line of Control (LOC), who want to project the ‘poor tortured Muslims’ seeking refuge from the ‘Hindu kafirs’. […] Similarly, among the displaced from the hill areas of Jammu region, those who migrated to Jammu had a greater voice than their counterparts who shifted from the more militancy entrenched remote areas to the nearby towns, which were less militarily entrenched. Though the displacements in the latter case are often temporary – there is no system of any relief, rehabilitation, shelter or any kind of health care in place at all. Since these are not easily accessible areas, these people become totally marginalized and voiceless. Much like the Gautemala experience, it is the women staying behind to look after houses and fields, who run the greater risk of displacement. The men who take flight maintain that there is no threat to the women. A doctor in Surnakote town, a tehsil in Poonch border district infested with militancy, confirms how women from neighbouring villages, from where men have mostly fled, secretly come to the towns for medical termination of pregnancies. […] The more the borders and the LOC are fenced or militarized by increasing presence of troops, ironically the greater is the insecurity and war threats, causing frightening displacements internally or across the dividing line. In recent cases of displacements, large sections of populations were uprooted in the wake of the Kargil war and later

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during Operation Parakram, one of the greatest mobilizations of Indian and Pakistani troops along the border. When the Kargil war began, people in thousands were uprooted from the borders of Kargil, forced to a life of deprivation in the already backward cold desert. […] The fresh exodus began in December 2002 when Operation Parakram began and over 1 lakh families were uprooted along the International Border (IB) and the LOC. The areas in a mad frenzy were being forcibly evacuated, though shelling and heavy mortar firing had forced several people in these villages to flee. What added to the woes was the largest ever mine laying operation along the IB and the LOC. […] De-mining operations are in full swing along the IB and 98 per cent work is claimed over, though 20 per cent minefields are said to be giving problems. But no de-mining operations have been carried out along the LOC, barring the Akhnoor region where too it is going on at snail’s pace. The army maintains that since 1947, both Indian and Pakistani armies have heavily mined their respective territories along the LOC permanently. There is no effort to de-mine these areas. They, however, claim that the civilian areas are not mined on the LOC and the civilians are not affected. Facts and figures dispute the claim. Heavily mined agricultural fields in Akhnoor where the LOC begins further up north dot the entire landscape from Hamirpur to Chaprayal in Pallanwala and Chammb sectors. Approximately 150 acres of agricultural land was affected by the mining operation since Operation Parakram. […] In the camps, the situation is a pitiable sight. Some of the camps that were set up in crowded school buildings have been wound up. The existing ones are tented accommodations – one tent per family, whatever the family size and some of them are shabby. The camps lack drinking water and health care facilities. The scene under a banyan tree at Devipur camp near Akhnoor epitomizes the irony of lack of space aptly. […] Interestingly, the media that paid more attention to the border migrants affected by Operation Parakram as compared to the Kargil war depicted the plight of the border migrants only to demonise the ‘enemy’ on the other side. Within the border migrants, there is yet another set of hierarchy – those who reside on the IB, those who live on the LOC northwards and those who straddle the divide between the LOC and the IB. The farther you move up north towards the LOC, the remoter become the chances of the displaced people to be heard or noticed. The reasons for the differential treatment that displaced people get in just the single state of Jammu and Kashmir with a meagre population of 9 million are varied ranging from indifference and complacency to vote

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banks politics. This has sometimes dangerously communal and regional overtones. Yet another reason is the level of accessibility the affected people have to the higher up authorities, media or rest of the world. Their remote habitats and their illiteracy also hampers their prospects. Unfortunately, while this politics of division and differential treatment may have suited the political interests of some, it has not suited any of the displaced community – not even the Kashmiri Pandits who are better placed, at least in terms of relief or media coverage. The prejudiced notions have not put their problems in the right perspective and as a Kashmiri Pandit teacher and activist says, ‘it is not just relief, it is also dignity for us’. Such regional and communal divides have isolated the displaced people and isolated one set of displaced from another. The worst dis-service perhaps would be the recent announcement of giving 9,000 Pandit families, who though were living in misery in the Valley during all these years of turmoil, the ‘migrant status’ to ameliorate their plight. Such mindless decisions of distributing the ‘displaced status’ labels singularly to one community are not going to help the already communally polarized situation.

INTERNAL DISPLACEMENT IN NORTH-EAST INDIA: Challenges Ahead Subir Bhaumik

†

Internal displacement in north-east India is a relatively new phenomenon. Until the 1970s, the north-east received huge inflows of refugees and economic migrants from neighbouring Bangladesh (erstwhile East Pakistan) and Nepal, and to a lesser extent from Burma. As a result, the demographic character of some states in the region underwent a sea change. Tripura became a Bengali majority state, leaving its indigenous tribes feeling marginalized. In Assam, Bengali Hindus and Muslims probably outnumber the ethnic Assamese now, though some doubt has been expressed about that contention. The first wave of the refugee influx, following the partition, displaced the indigenous populations from their ancestral lands. And when the indigenous groups – and militias raised by their younger people began vent their resentment through armed action against the settlers, the north-east began to wake up to large-scale internal displacement. But the local media and administration continued to describe even the internally displaced as ‘refugees’, in spite of the fact that they did not cross over to another country. The states in India’s federal polity may not enjoy as much power as the states in the US – but because Indian states or regions are so rooted in tradition and enjoy such a distinct sense of identity that they often behave like nations would, with each other. […] The internalization of the displacement, in the sense that it happened within the boundaries of the Indian nation state, has, therefore, not always resulted in an easy solution to the problems of †

Bureau Chief, BBC World Service, (Eastern India), Refugee Watch, 9 March 2000.

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displacement. Certainly not in north-east India, where a resurgence of tribal identities since the beginning of the Naga rebellion in 1956 – and Delhi’s response to it by making Nagaland a full-fledged state have led to dozens of statehood demands or for creating autonomous district councils or regional councils. […] The Bodos, who number around 2 million, want a separate state because the Nagas, who are half their number, have one. The Kukis want a separate state in Manipur (but the demand encompasses even Kuki inhabited areas of Burma and Bangladesh) because their ethnic cousins, the Mizos have a state to themselves. Many smaller tribes or ethnic groups also want separate territorial identities in the form of autonomous councils or states because they are uncomfortable with the generic identity they were evolving into or which was imposed on them. So, the Bodos, the Lalungs, the Rabhas and the Mishings, who were the swordarms of Assam’s anti foreigner agitation in the 1980s, all want separate states now. They are uncomfortable being clubbed into an Assamese identity that does not recognize their distinct origins. Unless the Assamese nationality formation process is reinvigorated to accommodate the dual identity of the tribe and the nationality, many other tribes already assimilated into the Asomiya (or Assamese) identity, may start asking for separate homelands. That would be disastrous for the political stability and the economy of the north-east.

TYPES OF DISPLACEMENT IN NORTH-EAST INDIA North-east India has witnessed displacement both for development induced reasons and also as a result of ethno-religious strife. If development related displacement was caused by state policy, conflict related displacement was caused by battling ethnicities, which saw ethnic cleansing as part of their strategy to justify the creation of a separate administrative entity. On most occasions, the displaced population crossed into another neighbouring state, where the local population was more friendly and the government more welcoming, at least initially. […] The states have often used displacement issues to score political points against each other. The Centre has not been far behind. When thousands of Reang tribal refugees crossed into Tripura, the state’s Left government blamed Mizoram’s Congress government for failing to check ‘Mizo parochial elements’. India’s Hindu nationalist Bharatiya Janata Party led government promptly denounced the Mizoram government for backing ‘missionaries who were trying to forcibly convert the Hindu Reangs’. […]

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Upset with the Centre’s attitude, Mizoram former Chief Minister Lalthanhawla warned Delhi – ‘I want the new government to maintain the secular character of the Constitution, but if they want to destabilise a small state like ours, it is upto them, but they will pay a heavy price’. The Congress government in 1987 went to the extent of arming the Bodos to destabilize the Assam government. In 1993, the Bodos were finally granted an autonomous council, but an agreement could not be reached with the Assam government on its boundaries and the number of villages it was supposed to get. Seven years later, the Bodoland Autonomous Council still has had no elections, the moderates in the Bodo movement have been totally marginalized and the hardliners have taken over. In the pre-1993 phase of the Bodo movement, no community was specifically targeted. Symbols of Assam government, like the police and the transport network were attacked. But after 1993, the Bodos have systematically targeted the non-Bodo communities in the four districts they see as forming the core of their separate homeland. […] The northeast Indian states have seen five types of displacement – (a) displacement caused by development projects, like the Dumbur hydel project uprooted and displaced at least 5,000 tribal families in Tripura; (b) displacement caused by government design, like the massive relocation of the Mizo population during the regrouping of villages by the Indian army to tackle the insurrection unleashed by the Mizo National Front; (c) displacement caused by natural calamities like floods and earthquakes; (d) displacement caused by takeover of land by migrating communities; (e) last but not the least, displacement caused by ethnic or religious strife, belatedly marked by systematic ethnic cleansing. The quantification of displacement caused by development induced projects or by natural calamities is incomplete, except in certain telling cases like the Dumbur hydel project, to which there was substantial tribal resistance in Tripura but to which the erstwhile Congress government of the state paid no heed. […] I have long argued that, for the sake of long-term ethnic reconciliation, the Dumbur hydel project, which now produces only 7–8 MW of electricity but which submerges an area where almost the whole of Tripura’s tribal landless population can be gainfully resettled, should be dismantled and the state should look to its considerable reserves of natural gas to set up new power plants. The United Liberation Front of Asom (ULFA) is most popular in areas where displacement and impoverishment due to natural calamities like floods are heaviest and where the government relief efforts are poor and slow to reach. The ULFA has, for instance, tried to mobilize peasants who have lost their lands to oil exploration projects through fronts. No

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wonder, its strongest popular base is in areas, where the ravages of the annual floods are at its worst or where oil companies and tea plantations have thrived, but with little direct benefit to the local population. Land alienation is considered to be one of the major causes of ethnic unrest and tribal resentment in the north-east. […] Khasi tribespeople in Meghalaya’s Domiosiat region successfully resisted uranium mining by India’s Atomic Minerals Division in the 1990s, when they discovered it could bring to their area untold misery through disease, death and environmental degradation like in Jadugoda, India’s only uranium mining area located in the state of Bihar. Sustained agitation by the Hmar tribe and by some other ethnic groups forced the governments of Manipur and Mizoram to resist the 1500 MW Tipaimukh hydel project. Only after the Assam government and Delhi gave definite commitments to bear the cost of rehabilitation did Manipur and Mizoram agree to allow the project to take off. As far as relocation of populations, as part of counter-insurgency strategy go, what happened in Mizoram during 1966–9, affecting at least 150,000 peasants, is not going to be possible now. Even the army admits it will be far too difficult for them to move populations; what with so much human rights activity all around. The presence of the National Human Rights Commission (which has intervened in at least two situations capable of creating internal displacement, like in the case of the Chakmas and Hajongs in Arunachal Pradesh and the Reangs who fled from Mizoram into Tripura) is also going to deter state governments or the army from undertaking such preposterous steps.

RETRIBALIZATION, NEW STATES AND ETHNIC CLEANSING The worst cases of internal displacement in north-east India have been those caused by ethnic strife since the 1960s. The first cases of such displacement were reported from Assam, when thousands of Bengalis fled the Brahmaputra valley during the ‘Bongal Kheda’ (drive away the Bengalis) agitation in the early 1960s. According to one estimate, nearly half a million Bengalis fled from Assam’s Brahmaputra valley into neighbouring West Bengal and Tripura or to Assam’s Bengali dominant Barak valley. But the anti-Bengali riots of 1960 were somewhat disorganized. Since the 1980s, ethnic cleansing had become much more systematic in the north-east and that had been the major cause of largescale internal displacement. When the north-east was reorganized in

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1972 and new tribal states like Meghalaya were created, Delhi did not realize it was opening the proverbial Pandora’s box. India’s first Prime Minister Jawaharlal Nehru had kept the north-east outside the purview of the country’s state reorganization process on linguistic lines, mindful of its enormous diversities. But a year before his death, Nehru, smarting under the debacle of the war with China, gave full-fledged statehood to Nagaland. Like Kashmir, Nagaland also got special protected status. That led to more, though not always violent, demands for statehoods and homelands. […] Nehru’s daughter Indira Gandhi rounded off a successful military campaign in East Pakistan (that at least momentarily denied a major foreign sanctuary to the north-east Indian rebels) by creating more full-fledged states like Meghalaya. Indira’s son Rajiv Gandhi sealed the process by granting full statehood to Mizoram and Arunachal Pradesh. Each of these new states grew around one, two or, in some cases, three dominant tribes. These dominant tribes, who had agitated against the socalled Assamese domination now sought to extend very similar domination over other smaller tribes. That, in turn, created more demands for new states or autonomous councils. But the new tribal states were much more intolerant in dealing with minority issues than had been the case in Assam. In states like Meghalaya, the first targets for eviction were the Bengalis, who controlled the jobs, the businesses and the urban properties in Shillong. The Khasis, the dominant tribe, saw control over Shillong as crucial to its control over the new tribal state. So, Khasi youth organizations unleashed systematic violence, targeting the Bengalis, who started fleeing to Assam on the way to West Bengal. That process continues. Bengalis, who were key figures in Meghalaya’s administration, politics services and business, are involved in a silent pull-out from the state, unable to bear the collective pressure of youth violence and a state policy that seeks to deny jobs or educational opportunities to their children. Open the pages of the Shillong Times or the Meghalaya Guardian newspapers any morning and you will find Bengalis offering their properties for sale at throwaway rates. Those left behind have to face attacks, particularly during their leading festival, the Durga Puja. In the 1980s, other non-tribal minorities in Meghalaya, like the Nepalis and the Biharis, also faced similar attacks. In Tripura also, the Bengalis, first the Hindus but now also the Muslims, have come under attack. […] But unlike in Meghalaya, where there was hardly any instance of Bengali retaliation, in Tripura, the Bengalis have retaliated. Sporadic retaliation have been reported from rural areas – after every tribal rebel attack, angry

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Bengalis have set fire to tribal villages or lynched tribals. In August, a Bengali militant group, the United Bengali Liberation Force (UBLF) was formed. […] The UBLF has since attacked tribals travelling in public transport and even killed tribal officials. […] The tribals living in Agartala and other urban locations of the state dominated by the Bengalis are feeling insecure – and what began as a one-way exodus might well become a both-way exodus, with Bengalis fleeing the hills and outlying villages and the tribals fleeing the towns. The Bengalis, Hindus and Muslims, who control prime agricultural land (that they cleared and worked on) and the retail businesses, are also the prime targets of ethnic cleansing in the Bodo areas of Assam. But in the Bodo areas, the Santhals, Mundas and Oraons, popularly called ‘tea tribes’ because they were brought to work in Assam’s tea plantations, have come under increasing attacks by the Bodos. […] There have been four distinct waves of violence against the nonBodos. In June–July 1993, Bengali Muslims were the prime targets of Bodo attacks in the districts of Kokrajhar and Bongaigaon. 18,000 to 20,000 people belonging to nearly 2,200 families were affected in nearly 30 villages. Nearly 13,000 of those displaced still remain in ten camps (eight in Kokrajhar and two in Bongaigaon), though Assam government officials told me during a recent visit to the area that these camps will be closed within 15 days ‘as normalcy has returned’. The second wave of Bodo violence was in July 1994. Again Bengali Muslims, but some Bengali Hindus as well, were the prime targets. Nearly 65,000 people belonging to just over 6,000 families were affected. 62 camps were set up, but they have all been closed down and the Assam government claims all the inmates have been rehabilitated. Whether they have retained their ancestral lands remains to be ascertained. At least one case of alternate relocation of the victims of Bodo violence was reported in May 1998, when the Assam government tried to resettle 4,000 Bengali families in Chakerbasti area of Lumding reserve forest in central Assam – a move that was opposed by local Bengalis. The third and fourth wave of violence against non-Bodos occurred in May 1996 and May 1998. This time, the tea tribes (Santhals, Oraons and Mundas) whose origins are in Central India, were the prime targets. In May 1996, 61 camps were opened in Kokrajhar district, as nearly 115,000 tea tribals fled their villages. […] But the Bodo attacks in May 1998 did provoke substantial retaliation. Some militant outfits like the Cobra Force had been formed by the ‘tea tribes’ by then. Nearly 300 people died – but this time, at least one-fifth of those killed, and also those displaced, were said to be Bodos. 231,989 tea tribals and Bodos

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fled into 67 camps of Kokrajhar and 15,238 to eight camps in Dhubri district. At least half of them still remain in these camps. […] Unlike in Assam or Tripura, in Manipur, two former headhunting tribes, the Nagas and the Kukis, have become involved in a fierce feud, in which more than 800 people have died and nearly 75,000 rendered homeless, since 1992. The majority Meiteis, who formed the ruling clans of Manipur before the British conquest, have largely been unaffected by the bloodletting, that peaked in 1993 with the beheading of 87 Kukis by armed Nagas in Zopui village. The Kukis have also fought a bloody feud with the Paites, earlier believed to be their sub-tribe, since June 1997. In ten months, 214 Kukis and Paites were killed and 5,000 houses were destroyed as rebel militias fought each other. The Kukis were also involved in two phases of rioting with the Tamil settlers in Moreh in 1995–6 in which more than 30 people were killed. At the root of the fight between the Kukis and these other groups was the desire to retain control over the lucrative contraband trade through the border town of Moreh on the frontier of Burma. In fact, the Naga–Kuki feud began with the National Socialist Council of Nagaland (NSCN) imposing ‘taxes’ on traders in Moreh. Since the Kukis had controlled the trade through Moreh in view of their numerical superiority in the area, they hit back at Nagas. […] The NSCN alleges that the Kuki National Army (KNA) was backed by the Indian security forces. Initially, the KNA did accompany Indian army columns in raids on NSCN hideouts, acting as guides. But once the army began to adopt a relatively neutral attitude, the KNA started attacking Indian security forces, primarily for snatching weapons. With Nagas fighting Kukis, Kukis fighting Paites and Tamils, and the majority of Meiteis resenting the frequent NSCN sponsored highway blockades that sent prices of essential commodities skyrocketing, Manipur in the mid 1990s looked like becoming India’s Lebanon or Bosnia, with the entire society divided on ethnic lines. […] But by the beginning of 1997, Delhi had started negotiations with the NSCN, which, now, could not carry weapons under the terms of the ceasefire. So, the NSCN had to look for ways to avoid armed conflict, because that would affect the ceasefire with Indian forces. The KNA also needed, like the NSCN and Um Guards, a breathing spell. Ceasefires were reached between the warring sides – and in the case of Kukis and Paites, community leaders even signed an accord, watched by rebel leaders of either side. So far so good, but with the real issues behind the disputes – conflicting homeland claims, control over land, trade routes and state power still simmering, the conflicts could erupt again.

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THE SILENT PUSH OUTS Unlike the fierce bloodletting in Manipur that occasionally spilled over to neighbouring states with some Naga and Kuki population the Chakmas and Hajongs in Arunachal Pradesh and the Reangs in Mizoram were evicted through some demonstrative violence. The Chakmas and Hajongs, who are also tribals who migrated to India in two phases: immediately after the partition and then after the installation of the Kaptai Dam in Chittagong Hill Tracts (Bangladesh) in 1964. They settled in Tripura and Mizoram, but about 30,000 of them were settled in the North-East Frontier Agency (NEFA), which subsequently became Arunachal Pradesh. The locals never accepted them and have always argued they were meant to live in their state for only 20 years. Arunachal Pradesh is the largest state in the north-east with a population of barely half a million. As the Chakmas–Hajong grew in numbers (believed to be 65,000 now), the principal tribes, Adis and Nishis, began to feel threatened. In a few years, they reckoned the Chakmas would become the single largest tribe in Arunachal Pradesh and if they became Indian citizens, they would become the major power holder group. There is absolute consensus amongst the tribes and political parties in Arunachal Pradesh that the Chakmas and the Hajongs will have to leave. In 1994–5, the state government started pressurising the Chakmas and the Hajongs to leave. Assam’s Chief Minister Hiteswar Saikia ordered curfew along the border with Arunachal Pradesh to prevent the Chakmas and the Hajongs from crossing over to Assam. But Chakma groups estimate that nearly 3,000 Chakmas and some Hajongs fled from Arunachal Pradesh and settled down in Assam to escape frequent violence – or threats of erupting violence. These groups, like the World Chakma Organization, say a ‘silent exodus’ is still on and Chakmas and Hajongs are leaving Arunachal Pradesh in small numbers every year. India’s failure to grant them citizenship has aggravated their sense of insecurity – and the fierce local reaction to any such suggestion has unnerved the Chakmas and Hajongs. […]. But unlike the Chakmas, the Reangs in Mizoram started fleeing to Tripura in large groups, several thousands at a time after armed Mizos attacked their settlements in parts of western Mizoram in October 1997. […] Hundreds died in makeshift camps where medicine, food and even shelter were scarce. Several rounds of meetings were held between Tripura and Mizoram officials, even the Home Ministers of the two states met several times. The Reang leaders demanded protection by Central paramilitary forces, adequate rehabilitation on return, a guarantee against future attacks by Mizos and

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an end of attempted conversion from Hinduism or animism to Christianity. A Reang rebel group, the Bru National Liberation Front, started demanding creation of an autonomous council for the Reangs. […] An attempt by the Mizo National Front government to abolish the Chakma district council in 1986 was stalled when Delhi intervened. On the day he made Mizoram a full-fledged Indian state, Prime Minister Rajiv Gandhi told a rally in the state’s capital Aizawl that ‘much as Mizos expect magnamity as a small ethnic group in a vast country like India, they should be prepared to extend similar treatment to still smaller minorities like the Chakmas’. But Mizoram’s ruling governments have used their administrative machinery to disenfranchise thousands of Chakmas and Reangs – even a former state assembly member, Satyapriyo Chakma, found his name deleted from the electoral rolls in 1995. So, the north-east has witnessed at least seven major cases of strifeinduced internal displacement in the 50 years of the Indian Republic. They are as follows: (a) the displacement of Bengalis from Assam (particularly Bodo areas) and Meghalaya; (b) the displacement of Bengalis from Tripura; (c) the displacement of ‘tea tribes’ in western Assam; (d) the displacement of Reangs from Mizoram; (e) the displacement of Nagas, Kukis and Paites in Manipur; (f) the displacement of Chakmas from Arunachal Pradesh and Mizoram. Except in Manipur, the displacement has spilled over to other states – and at least twice to neighbouring countries (when some Paites fled into Burma’s Tamu township in 1997 and when some Bengalis fled into Bangladesh the same year to avoid tribal violence in Khowai). But, in most of the six cases listed above, the government has been rarely successful in its efforts to either restore law and order or ethnic harmony or maintain adequate levels of relief supplies and ensure rehabilitation. […]

THE OUTLOOK FOR THE FUTURE The Bengali angst is already resulting in, perhaps for the first time in north-east, the formation of resistance/militant groups like the United Bengali Liberation Force in Tripura and the Bengali Tiger Force in Western Assam. […] The ‘tea tribes’ have already set up their own militant groups like the Cobra Force, which has begun to resort to kidnaps and extortion, ambushes and raids on Bodo villages on the pattern of the Bodo rebels. The Reangs have their Bru National Liberation Front (BNLF) that has received weapons from ethnic kinsmen in Bangladesh. The Chakmas do not have an armed group in

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India, but remnants of the Shanti Bahini are still left over in India, though most of them returned to the Chittagong Hill Tracts after the December 1997 peace accord. […] But the federal government in India has so far discouraged foreign NGOs or multilateral organizations like the UNHCR from intervening even in standard refugee situations, let alone on internal displacement issues. […] [It] was not allowed anywhere near the camps in Tripura because (a) India believed in a bilateral solution of the refugee problem with Bangladesh (b) the UNHCR intervention was seen as capable of internationalizing the whole Chittagong Hill Tracts issue and would have adversely reflected on India’s not-so-well-known backing of the PCJSS and its armed wing, the Shanti Bahini (c) Delhi was uncomfortable in letting UN organizations into the north-east […] The level of deaths due to malnutrition and disease has been quite high in Chakma refugee camps in Tripura. Deaths from similar causes are quite high in Reang refugee camps in Tripura or the Santhal-Munda-Oraon or Bengali refugee camps in western Assam. So, here’s a region with a strong case for UN humanitarian assistance for the Internally Displaced Persons (IDPs). There is no doubt about it. Belatedly, some state governments, who resent receiving heavy IDP flows, have welcomed foreign NGOs and might be welcoming UNHCR and other UN bodies. The case of the Tripura government, for the first time, allowing a foreign NGO like the Medicines Sans Frontiers (MSF) to conduct an exploratory study for providing medical relief to the Reang camps is a case in point. Since I did the spadework for the MSF’s entry into Tripura and negotiated access for their exploratory team to visit Reang refugee camps in north Tripura’s Kanchanpur subdivision, I am aware of the reasons why the state’s Marxist led government, which had so steadfastly opposed the UNHCR’s entry to Chakma camps, has been so welcoming to the MSF. […] The presence of the MSF is seen as welcome because it would put heavy pressure on the Mizoram government to take back the Reangs or suffer embarrassing levels of adverse publicity. It would bring much needed medical relief to the camps where the state government’s health facilities have almost collapsed because of the flight of Bengali doctors after the Tripura rebels kidnapped at least two government doctors in 1998. One of the two doctors was my brotherin-law. While my brother-in-law came back home safely within 12 days with no ransom paid, because I knew the rebel leaders, the other doctor remains untraced. Medical relief of international standard, that the MSF can bring, may save the state government bad publicity caused by largescale deaths due to disease and malnutrition. […]

THE NORTH-EAST TODAY: Displacing Identities, Displaced Identities †

Monirul Hussain

North-east India has been experiencing severe internal displacement since it entered into the postcolonial phase over the past five decades. It also received a steady flow of refugees from neighbouring East Pakistan/Bangladesh, Tibet and Myanmar, fleeing political, social, economic, ideological and environmental persecution. In recent years, however, another problem that has been engaging the attention of social scientists and policy analysts is that of internal displacement. […] For us: ‘Internally displaced persons are persons or groups of persons who have been forced or obliged to flee or leave their homes or place of habitual residence, in particular, as a result of, or in order to avoid the effects of armed conflict, situations of generalised violence, violation of human rights or natural or human-made disasters, and who have not crossed an internationally recognised state border’. […] Society in Assam has historically been multi-racial, multi-religious, multi-ethnic, multi-caste, multi-class and multi-lingual in composition wherein the Asamiyas have constituted the majority national group. Sociologically speaking, Assam’s society has been extraordinarily plural in its composition and highly uneven in structure. Here, we conceptualize the north-east/Assam as a periphery within a larger periphery (India) in the global context. Its peripheral location and its resultant underdevelopment and distorted political response to

†

Professor, Department of Political Science, Gauhati University, Refugee Watch, 13 March 2001.

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underdevelopments have made the society in Assam perpetually vulnerable to various kinds of violence, conflict and displacement.

COMMUNALISM AND DISPLACEMENT In spite of its record of communal harmony (Hindu–Muslim relationship has been far better than that of the neighbouring colonial Bengal and northern India) Assam experienced communal riots in the wake of the partition of India in 1947, causing displacement of more than 100,000 Muslims living in lower Assam. All these displaced people involuntarily migrated to East Pakistan in the wake of the riots. However, following the Nehru–Liaquat Ali Pact of 1950 involving India and Pakistan, which assured them a safe return as well as rehabilitation, many returned home about two years later. In the early 1960s, particularly after the India–China War of 1962, there were demands to detect and deport the so-called ‘Pakistani infiltrators’ from Assam; this demand was made in the state legislature and the Asamiya bourgeois press backed it with extraordinary zeal. As a result, the government of Assam introduced the Prevention of Infiltration from Pakistan (PIP) scheme to detect and deport such infiltrators. The operation of the PIP scheme terrorized the virtually unorganized and defenceless rural Muslim peasantry – particularly the Na-Assamiya Muslims throughout the Brahmaputra Valley. During 1961–7, the Assam police deported 56,917 ‘infiltrators’ from Nagaon district alone. […]

THE POSTCOLONIAL IDENTITY MOVEMENTS The Naga movement for a distinct identity in Assam’s then Naga hill district turned openly secessionist soon after India entered into the postcolonial phase. Similarly, in the late 1960s, the secessionist movement in the Mizo hills directly challenged the Indian state. As a result of deliberate state policy, the Indian army regrouped hundreds of Naga and Mizo villages in order to isolate the ‘insurgents’ from the people. This so-called regrouping of tribal villages, uprooted and displaced several thousand tribal people in their historical homeland. Apart from communal violence in the wake of partition of India in lower Assam, the entire Brahmaputra Valley plunged into violence and its’ resultant terror in the wake of two important movements based on the nationality, linguistic and cultural identity of the Asamiyas in 1960s

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and 1972. In 1960, the movement was aimed at making ‘Asamiya’ the official language of Assam. […] In 1972, the All Assam Students Union (AASU) launched a movement to make the Asamiya language the medium of instruction up to graduate level in addition to the existing English language. By and large, it once again generated violence and terror against Hindu Bengalis living in the Brahmaputra Valley. In both movements a few Asamiyas also died and they were elevated to the status of ‘martyrs’. However, violence and its consequent displacement of Bengali Hindus were ignored silently.

Assam Movement Again, since the beginning of the Assam movement ostensibly against the foreign nationals living in Assam illegally, a large segment of the population who stood outside the constituency of the movement experienced violence and terror for a relatively longer period (1979– 85). Notwithstanding its popular character, the leadership of the movement failed to contain the anti-democratic, non-secular and violent tendencies generated by the movement itself particularly against the Hindu Bengalis, Na-Asamiya Muslims and in some cases the Nepalis living in the Brahmaputra Valley. […] This displaced a large number of people belonging to the religious and linguistic minorities. On 12 February 1983, over 1,200 persons, mostly women and children were butchered to death at Nellie, 70 km east of Guwahati, the present capital of Assam. An eminent Asamiya journalist estimated the death toll at 3,000. All the victims were Na-Asamiya Muslims. Undoubtedly, the Nellie massacre is one of the single largest and severest pogroms that the post-World War II history has witnessed. Nellie was not the end; it was followed by the massacre at Choulkhowa Chapori in Darrang district […], [a]nother massacre took place at Silapathar in Lakhimpur district, where most of the victims were Bengali Hindus, i.e. ex-refugees/displaced persons from East Pakistan. At Gohpur in Darrang district several persons died and many were displaced in attacks and counter attacks. Here, the victims were the Bodos and the Asamiyas.

Bodo Movement Our understanding will remain incomplete if we do not look into

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violence and terror perpetrated in the Bodo dominated areas particularly on the northern side of the River Brahmaputra in lower Assam. Relatively speaking, the Bodos are more advanced than other tribal groups of Assam but they lag far behind the Asamiya high castes. […] Since the early 1960s particularly, they have been trying to revive their culture and distinct identity on the plank of ethnicity. During the Assom Gana Parishad (AGP) rule between 1986–90, the Bodo movement under the leadership of All Bodo Students’ Union (ABSU), demanded creation of Bodoland as a separate state from Assam for the ethnic Bodos by dividing Assam by what they called ‘50– 50’. Ultimately, the leadership gave up the demand for a separate state and agreed to have ‘autonomy’ instead under the provision of the Bodo Accord 1993. As a result of the Accord and pending elections, an interim Bodoland Autonomous Council (BAC) was formed without a clear-cut boundary and with a non-Bodo population. […] In a large part of the BAC area, the Bodos do not constitute a simple majority. And, therefore, in order to create a majority for the Bodos, the ethnic cleansing process started. And, very intelligently, the largely oppressed and marginalized and very importantly ex-displaced groups were made the target of such a cleansing process.

MASSACRES BY BODO MILITANTS In July 1994, the northern parts of the Barpeta district in lower Assam witnessed the massacre of Na-Asamiya Muslim peasants by a group of militants. It has been estimated that about 1,000 persons mostly women and children, were killed, thousands injured and about 60 villages burnt down to ashes. A few months prior to the Barpeta massacre, the Bodo militants organized a very systematic massacre of Muslim peasants in the Kokrajhar and Bongaigaon district. Besides the Na-Asamiya Muslims, the Bodo militants killed many Hindu Bengalis, Nepali government and police personnel. A recent example is the massacre of the Santhals (the unfortuunate descendants of the Santhal tribe whom the British rulers forcibly ejected from Santhal Parganas to Assam) living in Bongagaon and Kokrajhar districts which took place in May–June 1996 in which about 1,000 persons were killed and more than 250,000 persons displaced. […]. [T]he Bodo militants in May 1998 again attacked and displaced 25,000 people – mostly Santhals, and a few thousand Nepalis living in Assam for

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generations. Further, more than 7,000 mostly Santhals were displaced in Assam’s westernmost district Dhubri in June 1999. However, now among the Santhals, militant organizations like the Birsa Munda Force, Cobra Force, etc, have emerged to counter the attacks of the Bodo militants. […] It would be grossly partial to say that the Bodo militants have used violence against the marginalized non-Bodo groups or against the government officials or the police personnel alone; they have also used violence against Bodos themselves. Their violence has virtually wiped out many prominent Bodo leaders of the older generation.

STATUS OF THE DISPLACED PEOPLE It has been reported that there are more than 200,000 displaced persons who are currently living in 78 relief camps located in Kokrajhar and Bongaigaon districts (Amar Assam, 5 April 2000). Most of the displaced persons of the Barpeta massacre in 1994 returned to their villagers a few weeks after the massacre. However, there are more than 20,000 Muslim inmates in 18 relief camps located in Kokrajhar and Bongaigaon districts since 1993. It was pointed out in the state legislature on 4 April 2000 that all these displaced persons are leading a dehumanized life in makeshift unhygienic relief camps. The state government provides them food only for five days a month (Amar Assam, 5 April 2000). Today, the Santhals constitute the bulk of the displaced persons in Assam. Besides, there are a few thousand Bodos, Rabhas and Indian Nepalis also living in relief camps. A simple calculation will show that every fourth person in the Kokrajhar district is a conflict induced displaced person. The conditions of the relief camps are pathetic and inmates do not get adequate food. The displaced children are deprived of education for years together. There is no privacy for inmates. There is no safe drinking water at all. […] There are no provisions for medical aid and no immunization to protect displaced persons and their children from epidemics. Significantly many displaced persons, particularly children, died from simple diseases and epidemics. Many died because of starvation and malnutrition. Many parents have sold off their children out of poverty and helplessness. Many girls from the displaced families have been forced to accept prostitution along the national highway. […] The government of Assam granted Rs 10,000 (roughly $ 250) each to some families. Besides, the Government of Assam allotted houses to

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1,758 Bodo and Santhal families under the central government sponsored scheme called ‘Indira Awas Yojana’ (Indira Gandhi Housing Scheme). As a result 5,000 inmates have left the relief camps recently (Amar Assam, 15 March 2000). This is not even 6 per cent of the total displaced persons awaiting rehabilitation. There are more than 200,000 inmates living in relief camps out of which 70,000 are children (Amar Assam, 15 March 2000). They cannot go back to their abandoned villages; ‘others’ have occupied their lands. They have lost their cattle. Those who were displaced from the ‘reserved forests’ cannot go back because of a judicial bar against the settlement inside the reserved forest now. Even those who were displaced from the ‘revenue village’ cannot go back because of threat to their lives. The state cannot provide them security in their villages. Needless to say, Assam is among the very badly governed states in India. For the state, it is easier to provide them security when they live together collectively as a community of displaced persons in relief camps!

CONCLUSIONS It seems that the postcolonial identity movements in Assam based on ‘exclusivist’ national/ethnic plank ignored the hard historical reality of pluralism and. were oblivious to the right of the ‘others’. The postcolonial Indian state too failed miserably to resolve the issues raised by the identity movements. The state has virtually abdicated its responsibility towards the victims of these movements. If the present situation continues without any effective intervention, Assam is likely to experience more conflict induced internal displacement of population, particularly the marginalized groups in the near future.

TIBETAN REFUGEES IN INDIA: Survival in Exile Rajesh S Kharat

†

BACKGROUND It is a well-known fact that in 1949, as soon as Communist China came into existence, it declared its policy to liberate Tibet and to do so the Chinese army marched into Tibet and defeated the small and ill equipped Tibetan army in 1950. As a result, the nationwide resistance by Tibetans culminated in the Tibetan National Uprising in Lhasa on 10 March 1959, demanding total withdrawal of China from Tibet. The Tibetan National Uprising of 1959 made the Chinese furious and it sent its army once again into Tibet. This time, the Chinese army crushed the uprising with ruthlessness. About 87,000 Tibetans were killed in the Lhasa region alone, monks and the nuns were prime targets. As a result, on 17 March 1959, His Holiness the Dalai Lama along with his 13,000 followers escaped f-rom Lhasa and sought political asylum in India. On 31 March 1959, he arrived at Chuthangmo, an Indian checkpost in the border and from there he went to Tezpur. The Indian Prime Minister Nehru strongly supported the Tibetan cause on humanitarian grounds. […] In this complicated situation, most of the political leaders from almost all parties, reacted sharply and asked Government of India to extend its helping hand towards Tibetans. As a result, the Government of India allowed another batch of mass exodus of Tibetan refugees, especially women and Children at Bombdilla on 20 †

Senior Lecturer, Department of Civics and Politics, Mumbai University, Refugee Watch, 17 December 2002.

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May 1959. […] In the next few months, another batch of about 80,000 Tibetan refugees took shelter in India and its neighbouring countries, Bhutan and Nepal.

EXILE IN INDIA AND IMMEDIATE ASSISTANCE To accommodate and help the Tibetan refugees, initially, the Government of India had set up various transit camps at Missamari (Assam) and Buxa (West Bengal). In these camps they were given free ration, clothings and cooking utensils including medical facilities. Despite this assistance, many Tibetan refugees died in the camp due to a sudden change in the climate and arduous journey across the Himalayas. Hence, to overcome this critical condition, His Holiness the Dalai Lama […] made a request to the Government of India to resettle these people to cooler places where they might be temporarily employed. In its immediate response the Government of India agreed to send these refugees to various places of India like Himachal Pradesh, Jammu and Kashmir, Kalimpong, Darjeeling, Arunachal Pradesh, Sikkim, Dehradun and Mussoorie, especially in the hilly areas where most of them were employed as road labourers. However, working as road labourers did not serve the purpose of source of livelihood of Tibetan refugees as roadwork was irregular […] So Pandit Nehru (on request from the Dalai Lama) wrote to the chief ministers of state governments asking them if there was land available in their territories for the resettlement of the Tibetan refugees and received a positive reply from the Mysore government. As a result, an area of over 3,000 acres of land, situated at Bylakuppe in Karnataka was leased to the Tibetan refugees by the Mysore government. Thus, to rehabilitate the mass exodus of Tibetan refugees, in December 1960, the first group of Tibetan refugees was sent to Mysore and adjacent areas of Karnataka. […] The same method was adopted by the Government of India in other parts of the country to rehabilitate these refugees. […]

REHABILITATION Since the majority of Tibetan refugees were farmers and nomads, agriculture seemed to be the most suitable occupation for them to follow in exile. They were provided with accommodation and given

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cultivable land together with bullocks, agricultural implements, seeds and fertilizers. Facilities had been provided to these refugees to enable to supplement their income by raising poultry, piggery and dairy. Pursuant to the survival in exile, Tibetans worked very hard on these several hectares of virgin and barren land and converted them into cultivable land (particularly in Karnataka). […] However, the scarcity of enough land for agriculture, particularly in northern India and lack of aptitude in agriculture among the young Tibetans, led the Government of India and the representatives of His Holiness the Dalai Lama to accommodate the rest of the Tibetan refugees in other sectors like agro-based industries. Hence, the Government of India started eight industrial projects for them and to coordinate these projects, the Tibetan Industrial Rehabilitation Society was set up in 1965. […] Unfortunately, some of these industries failed largely due to lack of technical knowledge, poor management and limited funding. Nevertheless, over the years, the situation had changed gradually and refugees are now adjusting themselves to the needs of industrial and business management community. […] As a part of rehabilitation programmes, apart from the agriculture and the agro-based industries, the third sector, carpet weaving and handicraft are also being earmarked in which maximum Tibetan refugees are rehabilitated. This proved to be the most successful industrial enterprise in comparison to the other two sectors. Carpet weaving is a centuries old profession among the Tibetans and many of the settlements still concentrate on the production of carpets and handicrafts and prosper economically. […] This not only enriches the Tibetans but earns much needed foreign currency for India. As of now, in this sector, more than 10 per cent of the workforce is involved. It consists of women and children who do not pursue higher education. The significance of this industry to the Tibetans is that it keeps traditional Tibetan crafts alive and creates greater awareness among the rest of the world about Tibet and its people. […] Tibetan herbals and medicine, is another vital and inherent aspect of Tibetan society that has significantly contributed its medical knowledge to the host country as well as to the world. The Tibetan Medical and Astro Institute located in Lower McLeod Ganj, is an autonomous body normally visited by many foreigners to cure their diseases and to carry on their medical research in the same field. […] […] Education has been on the top priority of the rehabilitation agenda, therefore, almost each and every settlement of Tibetan refugees have education facilities for Tibetan children. The Department of

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Education, since its inception in 1960 is the apex body responsible for providing support for the educational and welfare needs of nearly 28,000 students in 71 schools in India. Comprising of both residential and day schools, they range from the pre-primary to the senior secondary level. These schools emphasize the integration of Tibetan language, values and culture into the curriculum and extra-curricular activities. […] In addition to this, Tibetan society also takes utmost care of infants and kids in baby nursing homes or crèches, while their parents work. At the same time, it does not overlook and isolate the elderly Tibetans in exile as ‘today they were pioneers and who first organized the settlements and the structure of the Central Tibetan Administration (CTA). It is they who remember Tibet before the invasion and brought with them the Tibetan culture, language and the spirit of independence’. […]

ROLE OF CENTRAL TIBETAN RELIEF COMMITTEE The Central Tibetan Relief Committee (CTRC) earlier known as Central Relief Committee (CRC) was started in l959, by some prominent Indians to coordinate the relief assistance between the Government of India and the representatives of His Holiness Dalai Lama for the rehabilitation of Tibetan refugees. The Committee’s work included organizing medical programmes in the Tibetan settlements and camps. The grants-in-aid were given to CRC by the Government of India and it was entrusted with the responsibility of coordinating and distributing the relief assistance received from foreign agencies. […] It initiated the Handicraft Projects aiming at generating employment for the under-privileged section of the community, the unsettled refugees and school dropouts. It is also trying to diversify and encourage the production of varied crafts, and activities like tailoring, knitting, embroidery and wood-carving, organize the training programmes to increase employment prospects. In this way, CTRC plays a very dominant role in rehabilitating and taking care of the interests of the welfare of the Tibetan refugees in exile all over South Asia. It works as a heart and soul of the development programmes planned for the Tibetan refugees.

RE-CONSTRUCTION OF TIBET IN EXILE For the Tibetans, mere physical and economic survival in exile is not the only desirable end of their life. They are equally conscious about

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protecting and preserving their tradition, religion and especially culture, which is unique in itself. Religious traditions and rituals are an inherent part of Tibetan society, as is important in the day-to-day life of every Tibetan. We can discern the Tibetans’ dedication to their religion when we find that at least one member of each family is sent to monkhood. […] To enable themselves to be identified as a Tibetan Buddhist better known as ‘nangpa’ Tibetans in exile, particularly, the elite of religious figures, artists, writers, performers, academicians, musicians are at the forefront for promotion and protection of the distinct culture and traditions of Tibet. For instance, in Dharamshala, of Upper McLeod Ganj as well as in Lower McLeod Ganj, the buildings of Tibetan Parliament in exile, library of Tibetan works and Archives are marked with detailed paintings of Tibetan art and architectural features. […] The CTA has established a separate Department of Religion and Culture, which seeks to protect, preserve and promote Tibet’s spiritual and cultural heritage. Since the last four decades, the Tibetan refugees in exile have established 181 monasteries and eight nunneries with enrolments of 17,000 monks and 600 nuns respectively. In addition to this, there are cultural centres for the study of both spiritual and secular traditions of Tibet. Thus, the true Tibetan culture is protected and preserved not in Tibet but in India. It is also safer in India as culturally Tibet and India have a century-old relationship.

TIBETAN GOVERNMENT IN EXILE As soon as His Holiness the Dalai Lama sought political asylum in India, within a month, on 29 April 1959, he re-established the Tibetan Government in exile at Mussoorie, named as the CTA of His Holiness the Dalai Lama. Basically, it is the continuation of the government of independent Tibet. In May 1960, the exile government was moved to Dharamshala. […] On 2 September 1960, the Tibetan Parliament in exile came into existence, later on renamed as Assembly of Tibetan People’s Deputies. In 1990, His Holiness the Dalai Lama announced further democratization by which the composition of the Assembly was increased to 46 members. The Assembly was empowered to elect the Tibetan Kashag or the Council of Ministers, which was made answerable to it. The democratization of the Tibetan Government in exile has touched the milestone of one of its attributes of free democratic government when on 29 July 2001, Tibetans in exile across the world, polled to vote

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directly for the first time to choose their chief Kalon or Head of Government in Exile, who would only be second to His Holiness the Dalai Lama in popularity and reverence. Professor Samdhang Rinpoche, former director of the Central Institute of Higher Tibetan Studies at Sarnath, has been elected as the Head of the Tibetan cabinet and first Prime Minister of the Tibetan government in exile. […] Thus, the political reforms initiated by His Holiness the Dalai Lama, especially the democratic set-up of the exile administration and government created a good and positive impression of successful adaptation of Tibetans in India and its democratic system of government and led to its sympathy along with the western world. It would also help to get greater amount of sponsorships from various foreign funding agencies and individual donors for the purpose of a variety of programmes and keep Tibetan culture and separate identity alive.

SURVIVAL AT STAKE One should not be surprised to know that the survival of the Tibetan community is at stake not only in the Chinese controlled Tibet, but also in the host country, they are in exile. In India, where more than 90 per cent of the total Tibetan exilic community, live in exile, life of Tibetan refugees is not so smooth as it looks from outside. In reality, most of these Tibetan settlements and un-scattered camps are suffering from many problems, particularly, the rapid growth of population among Tibetans and also the problem of socio-economic adaptation.

Rapid growth of population and continuous flow of Tibetans in India First, apart from Chinese persecution, the destruction of Tibetan Buddhist monasteries in China, compelled many young Tibetan monks to come to India for the religious education, to study Buddhism, Tibetan scriptures and cultural ethics, which is denied in China. Second, despite increasingly number of births in exilic Tibetan community there is a constant flow of new Tibetan refugees from China since 1980, when travel restrictions from Tibet became more relaxed. Moreover, the free environment, freedom to practice democratic rights, education and medical facilities attract Tibetans to escape to India. […] Third, India provides the basic needs of Tibetans, mainly shelter and

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opportunity to economic livelihood. Hence, maximum numbers of Tibetan refugees living in India have been accommodated in various settlements with different rehabilitation sectors. As a result of the abovementioned factors, every month almost a few hundreds of new Tibetan refugees sought asylum in India. The actual population number might be double than this, as many Tibetans who escape from Tibet do not register themselves with the reception centre and prefer to live in unscattered camps or independently.

Problems of socio-economic adaptation The elderly Tibetan refugees do not face this peculiar problem of socioeconomic adaptation as since the beginning of their childhood and young age they have lived in India. They have started the settlements, worked on settlements and lived in settlements. So they do not find any difficulty in surviving in India as refugees whereas the younger generation and fresh arrivals from Tibet are literally in a dilemma regarding their survival. […] With a limited source of income, they find it difficult to adjust and understand the critical situation of Tibetan refugees in a host country. Majority of them are either children or young people under the age of 25. It has been observed that in recent years, due to an unemployment problem in settlements, Tibetans preferred to live in un-scattered camps as employment prospects are better than the settlements. […] This temporary economic prosperity and the funding and regular grants from foreign agencies the economic status of Tibetans automatically becomes higher in comparison to the local villagers. This economic disparity between Tibetans and local population sometimes leads to frictions and conflicts over even small and irrelevant issues. Certain incidents cited below prove this point. In 1997–8, there were continuous conflicts between the Tibetans and local Indian communities particularly Gaddi and Gujjar in Himachal Pradesh. These conflicts were mainly due to the sharing of economic opportunities of livelihood in business, taxi-driving and shop-keeping. Most of the times, local Indians came in mobs and ransacked Tibetan property, whereas in retaliation, Tibetans use violent methods and sometimes even killed the responsible individuals. In 1999, in Manali two murders took place due to the conflict between the local people and Tibetans. The reason is unknown. However, sometimes, the western style of living of Tibetans who are

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often seen riding new motorcycles in their own area causes envy among the local youngsters. In comparison to the rest of the states, Himachal Pradesh is more sensitive in this matter as maximum Tibetans are living in both settled and scattered camps. It has also been observed that in Himachal Pradesh, where the Tibetan refugee settlement exists the local population often harbours feelings of social isolation within their own territory due to the ambitious presence of foreigners. […] That is why even His Holiness the Dalai Lama many times announced that he would like to shift his headquarters from Dharamshala to Karnataka or anywhere in India.

CONCLUSION From Kashmir to deep in South Karnataka and Tamil Nadu, one can find the Tibetans, who are selling woollen clothes and sweaters on streets and involved in seasonal trading. However, the amalgamation process of Tibetans in various un-scattered camps is much more easier than the Tibetans in settlement camps. […] Hence, many Tibetans do speak difficult languages like Tamil, Kannada and Marathi in the southern and western part of India. Despite, dry and hot weather and plain topography, Tibetans could somehow achieve remarkable progress in work development in the same area where the locals were unable to do it, because of many undesirable reasons. To cite a good example of socio-economic adaptation of Tibetan refugees in India, the Tibetan community settled in Sikkim, Darjeeling and Kalimpong hills is the best of it. In these areas, apart from cold and chilly weather and high mountains similar to Tibet, even the local population of Nepalese and Lepchas accommodated them to such an extent that Tibetans do not feel that they are refugees. Many marriages have taken place in this area. […] It has just become a home away from home. Therefore, one can observe that although due to seasonal business and in search of economic livelihood, Tibetans move all over India, many finally return to Darjeeling and Kalimpong, their home during off seasons. However, the situation in overall Himachal Pradesh is quite disturbing particularly at Dharamshala, Kullu, Manali and to some extent in Arunachal Pradesh. The resentment of the local peasantry community like Gujjar and Gaddi developed some reservations about Tibetan refugees, locally known as lamas. The major grievance is regarding their economic prosperity, which has been achieved by Tibetans not only due to their hardwork and business skill but also the generous funding

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from the Government of India, foreign agencies and individual donations. This makes local Indians inferior in economic status, to most of the Tibetan refugees. […] Thus, somehow, in one corner of the mind, local Indians fear that Tibetans will not go back and will settle here, permanently and one day they will demand a separate homeland for themselves, outnumbering the locals. […]

UNREST AND DISPLACEMENT: Rajbanshis in North Bengal Sujata D Hazarika

†

Since independence, India has followed a development policy based on large-scale creation of infrastructure and industries, all of which required acquisition of land. As it happens, a large part of our natural resources lie in the hilly and forest areas, mostly inhabited by tribals and backward castes – some of the most disadvantaged sections of the population. Following past colonial practice, land has been acquired in exercise of the principle of ‘eminent domain’, which confers upon the government the power to take over private property for public purpose. Thus, involuntary resettlement has been the unintended companion of development. […] Displacement for marginal communities is a catastrophe: it disrupts an entire way of life. It involves a trauma, which can never be fully compensated in economic terms. This realization, along with the fact that they did not share in the fruits of the sacrifices they were called to make in the name of the nation, increase the sense of alienation of these marginalized victims of land dispossession giving rise to protest movements, holding up the development process, causing destruction to life and property and generally imposing an efficiency cost on the system. This chapter traces the genesis of one such mass movement in the districts of North Bengal, led by the Kamtapuri People’s Party (KPP) demanding a separate state of Kamtapur. The Kamtapuri movement, which has seen a recent upsurge in the Jalpaiguri, Dhupguri, Cooch †

Department of Humanities and Social Sciences, Institute of Technology Guwahati, Refugee Watch, 17 December 2002.

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Bihar, Naxalbari, Fasidewa and other neighbouring districts of North Bengal, is an ultimate outcome of the struggle for power and the associated privileges between the indigenous communities (particularly the Koch/Rajbanshi’s) and the Bengali and Marwari immigrants. It exemplifies the efforts of an indigenous community in putting up a resistance to their gradual economic marginalization and erosion of cultural and linguistic identity in the guise of a development process, which was primarily derived through land acquisition. After independence, with rapid industrialization and the mushrooming of the tea gardens in north Bengal there was a gradual growth of land mafia in this region trying to monopolize the only large-scale agro-based industry of the region. Most of the land, which was earlier owned by the local scheduled caste communities of Koch and Rajbanshis, was thus bought over by the affluent Hindu refugees from Bangladesh and the Marwari’s from Rajasthan. The marginalization and pauperization of the indigenous Rajbanshis has given rise to a general feeling of alienation and unrest among them which is further aggravated by the apathy shown by the mainstream society primarily composed of the upwardly mobile Bengali and Marwari community. Alienated from their land and traditional occupation, eroded of their cultural and linguistic identity they find themselves at the receiving end of a degrading ecosystem and an alien social structure which is indifferent to their traditional identity. This has led to a feeling of deprivation and disillusionment among the Rajbanshis who are now growing more and more identity conscious, in terms of their history, language, traditional social structure, occupation and land rights. All these along with the indifferent attitude of the government for an all round development of north Bengal have led to the creation of the sentiment of the KPP for the formation of a separate Kamtapur state. In fact, it was from 1940 onwards that the Rajbanshi’s of north Bengal began to claim for a separate state of Kamtapur. A few intellectuals of the community came forward to write their history and establish a link between the present and its glorious past. Sanskrit scriptures were widely quoted, legends interpreted, folk songs and ballads rewritten. The objective was to build a concrete history of these people and bring to light the bright tradition of this community. […] The Rajbanshi elites maintained a distance with the rest of the Bengali caste society who they referred to as Vinnajati, and made it a slogan to dissociate themselves in their social behaviour and interaction. […] These sentiments of alienation, which is today part of the Rajbanshi community, can be historically traced back into their earlier

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efforts of social and cultural assimilation, and the resultant apathy shown by mainstream society.

HISTORICAL BACKGROUND The beginning of the twentieth century was definitely a turning point for the history of the Rajbanshis of north Bengal. In colonial literature, the Rajbanshis were generally regarded as a purified group of the Koch (a semi-aboriginal tribe) who had adopted Hindu manners and customs by abandoning some of their traditional cultural practices. Herbert Risley, in his book, The Tribes and Castes of Bengal, (Vol. I) appeared to be sanguine of the singular character of the Koch and Rajbanshi and prescribed the latter term as a Hinduized synonym of the former. […] However, it was Shri Panchanan Burman of the ‘Kshatriya Sabha’, the first intellectual of this community, who suggested a historical link of the present Rajbanshi community with Bhaskar Varman, king of Kamrupa (Present Assam) in the seventh century AD. It is said that after the exit of the Palas of Kamarupa in the twelfth century AD, their capital Kamarupanagara might have grown into Kamatanagara during the reign of the khens or shens in the fifteenth century. Husain Shah ousted these khens and assumed the title ‘Conquerer of Kamata’. It was in the beginning of the sixteenth century that the Koch chieftain Visvasimha drove away the Muslim intruders and established the Narayani dynasty with his capital at Kamatanagari. In 1562, a Koch army under the leadership of NarNarayana the son of Visvasimha marched to the Ahom capital Garhgaon and annexed it. But soon the kingdom was split into two, Koch Behar and Koch Hajo. Koch Hajo was better known as Kamarupa, a part of modern Assam. […] We are here concerned with the region in western Kamarupa, which came to be known as Kamata Koch kingdom, or Cooch Bihar. The Kamata Koch kingdom continued to exist through the vicissitudes of fortunes, through the Anglo-Koch treaty of 1773 down to its merger with the Indian union in 1949–50. […] The Koch–Rajbanshis belong to the Tibeto-Burman group of the Mongoloid race who had always been kept out of the Brahmanical fold of Hinduism, in spite of their innumerable efforts to merge with the mainstream Hindu society. Popularly known as the Nomoshudras, this community has always been in the periphery of the Hindu caste hierarchy. In fact, in 1496 AD when Visvasimha the Koch chieftain rose to power, he did so by converting to Hinduism and adopting Hindu

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practices through Sanskritization. The Brahmins who were brought in from as far as Kanauj, Mithila and Srihatta legitimized his political power by bringing him into the Brahmanical fold through Hindu rites and rituals. They also traced the descent of his lineage and tribesmen as Kshatriyas, who had thrown away their sacred thread when fleeing from the wrath of Parashurama. […] In spite of these efforts, the Hinduized, poor and illiterate Rajbanshis could not really enter the Hindu fold successfully due to the resistance offered by the high caste Hindus, and in fact fell easy prey to the insatiable greed of the Brahmins. […] The Rajbanshis also faced humiliation and objectionable identification by the caste Hindus. Few such instances of racial misinterpretation and social suppression are: Nagendranath Basu in the early twentieth century while writing his Vishwakosh (World Encyclopedia) mentioned the Rajbanshis as barbarians or (Mlechha) and Bankim Chandra Chattopadhyay in Bongo Darshan moots that the Koch identity cannot be synonymous with Bengali Hindu identity. The Ranjbanshis were even denied entry into the temple of Jagannath Puri by an Act of the government in the year 1911. […] Sanskritization, or the assimilation of tribal people into the Hindu fold was not smooth. […] While in 1891 the Rajbanshi’s described themselves as Vratya Kshatriya, from 1911 they began to claim pure Kshatriya status legitimized by priests, genealogists and pundits. In order to gratify their ritual rank aspiration they began to imitate the values, practices and cultural styles of ‘twice born’ castes that formed a part of Hindu Great tradition. Since 1912, a number of mass thread wearing ceremonies (Milan Kshetra) were organized in different districts by the ‘Kshatriya Samiti’ where lakhs of Rajbanshi’s donned the sacred thread as a mark of Kshatriya status. […] The Kshatriya samiti also had some other objectives to fulfill. It intended first, to separate the Koch and the Rajbanshi identity emphasizing the superior status of the latter; second, to legitimize the demand to include the Rajbanshis within the Kshatriya caste; third, to inculcate brahmanical values and practices among the Rajbanshis. The positive aspect of the social upliftment movement organized by the Rangpur Kshatriya Samiti was the creation of the apparent caste solidarity among the Rajbanshis in general and an identity consciousness among the educated and well-to-do sections of the community in particular. Both these efforts, one in the early stage of the establishment of the Koch Kingdom and the other in the early nineteenth century was an attempt to eliminate the alienation of the community and emphasize the identity of the Rajbanshi’s within the Hindu caste fold. […]

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[However], mere introduction to a higher Varna category did not serve the Rajbanshis to elevate their status in social hierarchy at the local level because there were enormous hindrances to implement their ideas of social upliftment and the acid test was experienced when the general Hindu community showed their attitude to this effect. The Hindu opinion was in general against any upliftment of the Rajbanshis in terms of social hierarchy. For example, the Hindu zamindars and professionals protested strongly against the demand placed by the Rangpur Vratya Kshatriya Jatir Unnati Vidhayani Sabha to write Vratya Kshatriya as the caste before the Rajbanshis. […] This may also be the background for a deliberate attempt to establish separate student hostels to board and lodge the Rajbanshi students who were even victims of humiliation and social discrimination from their Hindu contemporaries. At the same time, donning of sacred thread, the symbolic justification of Kshatriya caste group, did not help them to be at par with the Brahmins who were to serve the upper caste Hindus. Thus, social emulation only increased their distance from the social groups with whom they cohabited or lived for centuries.

TRADITIONAL LAND RIGHTS AND THE KAMTAPURI MOVEMENT The Koch–Rajbanshi community during every state of its history has thus shown strong tendencies of acculturation and assimilation only to be thwarted off by mainstream society. […] The tribal kings began to import bureaucracy and statecraft from the Hindu world. Important offices of the kingdom such as the prime minister and clerical jobs began to be filled by people from the Bengal plain. This process of Hinduization of the state mechanism had the potential to not only undermine tribal polity but also their traditional economy. Moreover, the dynamics of the Rajbanshi society show that since the early part of the twentieth century the ‘Jotedars’ and ‘Izaradar’s’ of this community gradually lost their economic dominance over others because of considerable alteration in the traditional land ownership structure. The changes in the land holding pattern led to the emergence of a new class of landed society. This was the result of three things: first, owing to confusion arising out of the introduction and subsequent abolition of new systems of land reforms like the Izaradari system; secondly, because of the gradual influx of the Bengalis and the Marwari merchants; thirdly, due to the growth of economic indebtedness among the common people

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or cultivators. In the year 1986, environmental degradation in the coffee plantations of Brazil led to a fall in its demand in the international market, but at the same time the demand for tea grew at an alarming rate. The north-eastern part of India, being climatically suitable for the growth of tea, lunged at this golden opportunity. North Bengal was not far behind. The process of land dispossession among the local Rajbanshis had already begun, the growth of tea plantation only aggravated the situation. Their traditional mode of cultivation, lackadaisical lifestyle, and poverty made them a poor competitor to the innovative, hardworking and shrewd designs of the immigrant Bengali. Lacking the essential expertise for cultivation, land for them has never been a means of capital accumulation and economic mobility. In fact, very often they have used land merely as a ‘commodity’ for its exchange value, and more often than not ended up with money less than the [real] value of the land. For example, very often, due to their impoverished state the Rajbanshis have sold their land either to get a daughter married or to perform the last rites of parents and sometimes even to pay the land revenue, which they could not afford. Now, with urbanization and industrialization their situation worsened. Finding no special concessions and facilities for agricultural holding from the government, these poor Rajbanshis slowly started to sell their land to the upwardly mobile tea cultivator. In cases when they did not sell the land, paddy fields were transformed into small tea gardens, which were more economically viable. The gradual encroachment of the agricultural economy by tea and other cash crops gave rise to an impoverished local economy, and led to drainage of local capital into national and international markets. In order to safeguard the land rights of local Rajbanshis from land mafias and illegal acquisition of paddy lands, the West Bengal government had formulated a well-defined policy for land acquisition. According to it: • Tea gardens cannot be grown on paddy lowlands. • No tea gardens can be started on the Teesta irrigation project land. • No Rajbanshi land can be acquired for tea cultivation. • ‘Patta’ or ‘Barga’ land cannot be used for tea cultivation. But more often than not, most of these guidelines were violated, resulting in a situation where a land mafia of businessman–politician nexus monopolized tea cultivation. […] This illegal land acquisition had an impact not only on their economy, but also on their health and social structure. Replacement of food crop economy by cash crop economy and indiscriminate use of chemical fertilizers and pesticides reduced the productivity of agricultural holdings. It also adversely affected ‘fishing’

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which had been so far an important mode of subsistence for them. Left with very little choice Rajbanshis were forced to migrate into the nearby urban areas only to be absorbed into the marginalized sections of the wider society. They formed the bulk of the proletariats: rickshaw pullers, construction workers and domestic servants whose survival depended upon the selling of their labour power. […] There have been earlier attempts to regenerate this community through Sanskritization led by the Kshatriyas Samiti. Very soon, however, it was realized that merely Kshatriyas mobility could not be a device to raise their social status and authority in the society. So the only and ultimate choice left to them was to achieve economic rights and social status through political power. […] This time it was directed at creating an ‘identity’ based on ‘sons of the soil’ concept emphasizing their differences with the mainstream society and claiming their share of economic and political power on the basis of this identity. The movement today is popularly known as the Kamtapuri movement led by a political party named Kamtapuri or Uttarakhand dal. The present stir is not only for a Kamtapur state but also recognition of the Kamtapuri language.

THE MOVEMENT FOR KAMTAPUR The cleavage created between the Rajbanshis and the immigrant community took a new turn after independence. It led to a social crisis, which was further aggravated by widespread tension all over north Bengal. These sections of aggrieved people have now taken the line of action for the establishment of a separate state. […] The primary reason behind this ethnic upsurge and the transition of the movement from reformatory stage to transformative stage can be seen in a series of vital developments. To begin with, this is a peasant community which has been dislocated over the years from its primary source of sustenance i.e. land by ‘outsiders’. Land dispossession has meant a loss of their cultural and historical identity. In fact, to be more specific language, which is an important indicator of one cultural identity has been totally eroded in the case of Rajbanshi. It should be pointed out that even the most underdeveloped form of dialect may in course of time grow and flourish into modern language under the patronage and encouragement from the state. In case of Rajbanshis, we have to remember that this is a language, which is one of the oldest and numerically largest speaking languages in north

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Bengal and north-eastern region. The Koch and Ahom rulers contributed a lot towards the development of this language. The neglect and downfall of the language can be seen when the British imperialists imposed and popularized the Bengali language in this region. […] The economic dislocation and cultural distortion has damaged the prospect of the community as an independent nation-building force along with other ethno-communities around them, and planted the seeds of permanent conflict in the area. Moreover, due to the feudalistic system of landholding, the society anyway had very little scope for capital formation and commodity production. Historically speaking, neither the Koch kings nor the British ever managed to create indigenous capital formation and accumulation, nor did trade and commerce grow fast enough to bring the heterogenous tribal ethnic communities together absorbing them in a common market. This led to a general underdevelopment of the region, and people, who were anyway far behind competition with the affluent community of new settlers. […] The feeling of betrayal was aggravated with the imbalance in development policies, which aimed at elevating the economic status of the ‘already’ affluent, all the time asking for sacrifices from the ‘already’ dispossessed. For example, in recent years due to the inclination of government interest towards cash crop cultivation like tea, jute and pineapple in north Bengal, a number of illegal tea gardens have come up in the Doars and Terai region. In Phasidewa and Islampur this has become a great concern for the peasants. Since most of the tea is grown in the tribal or barga land it reduces the production of food crops in this region. […] The Kamtapuri movement is today trying to create just that, i.e an identity based on language, which can justify their claim of a geographically demarcated land so that they can appropriate the resources of this region for their own development. From the year 1996, a few educated and progressive Rajbanshis like Shri Atul Roy from Shivmandir area, Sri Srinibas Das of Kumargram Duar and Nikhil Roy started a movement for the formation of Kamtapuri state with Cooch Behar, Jalpaiguri, Darjeeling, South and North Dinajpur and Malda districts on the basis of a common linguistic identity. In recent years, however, it is being observed that the movement has not been able to gain as much momentum as it should have. This is primarily because a demand for a separate state merely on the basis of a language is a narrow alibi for creation of a separate identity. As a result, the majority of population among the Rajbanshis who are poor, ignorant and deprived have not really been able to identify with the cause of the

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movement. The movement has also not been able to mobilize the support and participation of its already weak section of the middle-class intellectual community, which has again created a vacuum in its demand for legitimacy. The movement needs to address the more immediate issue of concern for the Rajbanshis, i.e. underdevelopment. Instead of mobilizing an identity consciousness on the basis of language it needs to concern itself with development and how far that eliminated the backwardness of this region. It is imperative that the movement address issues of poverty, unemployment, economic disparities and political marginalization of the Rajbanshi community.

CONCLUSION Recent years have seen many upsurges of social movements in the economically backward regions of the country, which are mainly, inhabited by tribals and backwards classes. The creation of the states of Jharkhand, Uttaranchal and Chattisgarh bring out clearly that not every community has equally participated and gained from the last few decades of Nehruvian development politics. North Bengal with its indigenous caste–tribe communities has not been an exception. The creation of internal refugees by the influx of immigrants, the impoverishment of the displaced and the incapacity of the state to respond to their deprivation and thereby avoid making them the sacrificial lambs of the development process, have all led to sentiments of separation among the Rajbanshis. Rajbanshis through the Kamtapuri movement are aiming for an identification based on differences with the migrant settlers or ‘outsiders’. The movement instead of emphasizing on identification based on class unity, among the Rajbanshi, is shifting its focus within the framework of common historical and linguistic identity. If we analyse the historical root of the movement we will see that inspite of making earlier attempts to improve their position through social movements like the Kshatriya movement the Rajbanshis have by and large not been successful. History has proved that it was not possible to elevate the social status of Rajbanshis simply through caste mobility as attempted by the Kshatriya Samiti. In today’s context, whether it is possible to sustain the sentiments of a movement merely on the basis of a linguistic identity, as attempted by the Kamtapuri Party only time will tell.

ADIVASIS IN THE COAL MINING TRACTS OF EASTERN INDIA †

Kuntala Lahiri-Dutt

INTRODUCTION: NO ALTERNATIVE? A 1984 quote of Indira Gandhi in her letter to Baba Amte:

1

I am most unhappy that development projects displace tribal people from their habitats, especially as project authorities do not always take care to properly rehabilitate the affected population. But sometimes there is no alternative and we have to go ahead in the larger interest […] Displacement, forcible eviction and dispossession are undeniable realities of life in the coal mining regions of India. Large-scale acquisition of land is the most important driver of this displacement; the Indian constitution, courts and government justify themselves in the name of ‘public good’, as evident in the following statement of the Supreme Court: The power to acquire private property for public use is an attribute of sovereignty and is essential to the existence of a government. The power of eminent domain was recognized on the principle that the sovereign state can always acquire the property †

Fellow, Resource Management in Asia Pacific Program Research School of Pacific and Asian Studies, The Australian National University, Refugee Watch, 24–6 October 2005.

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of a citizen for public good, without the owner’s consent. […] The right to acquire an interest in land compulsorily has assumed increasing importance as a result of requirement of such land more and more everyday, for different public purposes and to implement the promises made by the framers of the Constitution to the people of India. The ‘eminent domain’ concept that the Indian Constitution follows gives ‘the highest and most exact idea of property remaining in the govern2 ment, or in the aggregate body of the people in their sovereign capacity’. This is the concept that operates behind the infamous Land Acquisition Law that enables the state to dislodge indigenous communities from their homes. Physical removal from the original place of residence is primary dislocation and has complex outcomes, but often displacement from natural resource based cultural/traditional occupations take place imperceptibly over a longer duration of time leading to a complete destruction of livelihood bases. […] The process has operated through inmigration, through the erosion of local environmental resources, through dereliction of the lands that have traditionally provided subsistence resources, through poor implementation of national safeguards and the neglect of international guidelines of care, and through stripping communities of rights over their own natural resources many of which were not formalized in law. In this paper, I have used three cases from eastern Indian collieries to problematize both this victimization by modern coal mining development and the agency that is emerging through small, place based movements. The cases are from my involvement with some of these local groups and individuals since 1994 when I began a series of research projects examining the impacts of large-scale coal mining on local communities that included an Oral Testimony collection from mining displaced individuals and informal/unauthorized coal mining in the areas. State controlled coal mining and displacement of Adivasis attract 3 comparatively less attention from scholars than big dam projects. […] Unlike large dam projects; mining projects have short gestation periods and scattered locations in remote and rural areas. Consequently, there is no data available yet on exactly how many people have so far been displaced by coal mining. Complex land transfers of the kind described 4 by Rothermund and Wadhwa in their landmark research on Jharia– Raniganj altered the social fabric but as long as collieries did not have surface rights, the process of displacement remained slow. […] The huge bureaucracy and technocracy supported by mining is insensitive

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to the plight of local communities (an example of this lack of sensitivity 5 is found in the brick-sized book, Mining and Environment, which fails to devote any attention whatsoever to the post-mining social and economic conditions). Coal mining is the epitome of ‘modern India’ that began its journey during the colonial period; coal powered electricity drives the engine of urban–industrial growth, forms the bases of comforts and generates large amounts of revenue that proves to be attractive to those who plan India’s economy. The collieries are seen to be equivalent to nation-building, particularly because about 67 per cent of India’s electric power comes from coal (330 Mt/y supporting 70,000 MW of electricity). […] As a manager of Coal India Limited (CIL) told me during one of my visits: Tell me what can we do if these adivasis do not want to move? We need the coal for national development. In the next ten years, India will need 650 million tons of coal per year to meet its target power generation of 250,000 MW. Demands for coal are increasing, unproductive mines are being closed. What can we do? We are under pressure from our head office. These people will have to move out for the welfare of the country. Other attitudes to Adivasis include a paternalistic view among many officials involved in mine design, planning and implementation processes. This attitude gets expressed in statements such as this one, from a responsible officer in CMPDIL, during our post-testimony Ranchi Roundtable, July 2002: These people have been living in poverty so far. They are backward. Their lives will have to be modernized. Coal mining will bring them awareness and motivate them to work for their development. What coal mining and related development gives rise to with regard to Adivasi rights are fundamental issues that question the nature of this development. This is true of the older colliery regions of Raniganj and 6 Jharia, especially of Jharkhand, where Adivasis have customarily 7,8 enjoyed the use of a variety of natural resources forming a subsistence life based on the availability of local resources, which have not been bountiful, but with care and limited use, were adequate in spite of the advancing industrial–urban society and the influx of outsiders or dikus encroaching upon tribal land. The unwritten rights over land, forests and

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water were not incorporated with the laws of mainstream society, and have thus remained traditional, customary and belonging to families and communities rather than to individuals. Land usually belongs to the family rather than an individual, and often some uses of the land are not 9 written down specifically in khatiyani documents that are prepared by local munshis (record keepers) and babus. Although laws have been enacted to prevent land expropriation and sales to outsiders, only individual and statutory titles are accepted and the customary rights of the communities are not recognized. Customary use of local natural resources by indigenous communities means a de facto ownership, such as the natural springs mentioned in one of the cases. In case of deedless 10 or gair majurwa land, their ownership through use over generations too puts forth a strong case, because they have been ploughed traditionally by villagers whose land lay adjacent to it. Not only are they uncompensated, the complexity arises from the coexistence of other laws as well. For example, the ‘non-transferable’ and hence inalienable tribal land is overruled to make way for coal mining through the use of legal tools such as Coal Bearing Areas Act (CBAA) as well as police force that override the rights of indigenous people. […]

THREE THEORETICAL POSITIONS Three broad theoretical positions have emerged in the last two decades on Adivasi development interface. The mainstream development practitioner groups working at international levels acknowledge dispossession as a matter of concern, but understand the extent of the problem from the perspective of bringing a human face to the existing developmental model. The World Bank, for example, in its institution 11 wide review (1994) noted that: When people are forcibly moved, production systems may be dismantled, long-established residential settlements are disorganized, and kinship groups are scattered. […] Informal social networks that are part of daily sustenance systems – providing mutual help in childcare, food security, revenue transfers, labour exchange and other basic sources of socio-economic support – collapse because of territorial dispersion. Health care tends to deteriorate. Links between producers and their consumers are often severed, and local labour markets are disrupted. […] The cumulative effect is that the social fabric and economy are torn apart.

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Policies adopted by the World Bank, therefore, allow for the retention of tribal autonomy and cultural choice: Such a policy of self-determination emphasizes the choice of tribal groups to their own way of life and seeks, therefore, to minimize the imposition of different social or economic systems […] national governments and international organizations must support rights to land used or occupied by tribal people, to their ethnic identity, and to cultural autonomy and that national governments or nontribal neighbours should not compete with the tribal society on its own lands for its resources. The roots of this position lies in increasing recognition of human rights by different international agencies pursuant to The UN Universal Declaration of Human Rights and the 1986 Declaration on the Right to Development which provides that every person is entitled to ‘participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized’. Consequently, World Bank has been engaged in a ‘third generation’ of environmental reforms […] The other perspective is that of metropolis based Non-governmental Organizations (NGOs) operating primarily at national but also often at the international level. These groups have been effective in a way in drawing greater attention to the questions of tribal rights over local natural resources, tracing the range of disruptions in the lives of displaced people, and developing a structural critique of the process of 12,13 development itself. […] The third view has emerged through the work of researchers, 14 primarily social scientists. The problematization of indigeneity itself as against seeing the indigenous people either as ‘unspoiled children of nature’ forming the ‘other’ of the caste Hindu society or as groups to be patronized for their ‘special knowledges’ that eventually can be 15 16 appropriated. Robinson’s work put the question of development and displacement of indigenous peoples in the domain of migration, follow17 ing some previous approaches on environmental refugees. Colchester raised questions of implications of indigenous people’s rights in the context of sustainable resource use. He noted that tensions between local claims to own and control land and a national development policy which marginalizes indigenous peoples from the process has reached a rather high level: ‘the three central claims are: the right to ownership and control of their territories, the right of self-determination, and the

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right to represent themselves through their own institutions’. Political 18 scientists such as Ivison et al describe the political theory of rights; the local community must have rights over local natural resources, and this is the principle of ‘primacy of rights’. A ‘right’ gives the holder authorization to use resources from a particular source and includes the particular social privileges and obligations associated with that right. The legitimacy of right holders’ claims is linked to social relations of authority and power. […] The expansion of coal mining has given rise to three main overlapping questions related to tribal resource ownership. First, the mineral resources often occur on indigenously owned land or on village commons, over which customary rights of possession have been held, giving rise to questions of acceptance of customary rights. Secondly, the overall legal structure used to define resource rights are of colonial vintage, and thus raises the question of the laws being inappropriate to contemporary needs. These laws were put in place by the British during the colonial rule and have continued till today. Thirdly, the rampant corruption and informal nature of economic transactions cast a shadow over the mine planning, compensation, resettlement and rehabilitation processes. […]

RESISTANCE TO MINING The Adivasis have responded to the dispossession caused by coal mining in various ways. In this paper I narrate three local based movements, which have had varying degrees of success. […] 19 The first is a story told by Shanti, a resident of Agaria Tola village in Jharkhand that no longer exists but where approximately a hundred families belonging to Agarias and Bhuiyas lived. Shanti’s story focuses on how an entire village put up a strong opposition to protect a natural spring in face of advancing mines and the mining company’s use of force to destroy it. The spring was bulldozed, but the resistance was not. The second is a case filed in the Supreme Court of India by a local community group against the deterioration of the environment in the Raniganj colliery area in West Bengal. The Court gave its judgment ordering the coalmines to follow the Environmental Management Plans or the closure of those without such plans. Here, the group used the country’s judiciary at the centre and the Apex court of India, to get a sense of justice for people living on the margins. The third is the example of how a local organization, Chotanagpur Adivasi Seva Samiti with the help of another group, Prerana Resource

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Centre based in Hazaribagh in Jharkhand put up a complaint at the international level. In this case, the complaints were based on the World Bank’s own system of checks and balances (Operational Directives) to protest against the mismanagement of its funds by the borrower country – India’s CIL and Bank Management from the Inspection Panel.

SHANTI’S STORY OF AGARIA TOLA We women from our Agaria Tola and neighbouring hamlets would all come to this spring – the spring was precious to us, so we affectionately 20 called it naihar. We met there in the spring, morning and evening. It was a place where we gathered everyday to bathe our children and ourselves. There were several snakes there in the spring, and we treated them as our own. For us, the spring was not just a place to collect fresh water, but also a place to meet. One morning, the company bulldozed that spring, and with it the large asan tree next to it. The company wanted the coal in order to meet targets of production, but we had to suffer as a result. I can still see the 21 spring and the asan tree next to it, if I close my eyes. I ask, did the sarkari (government) officers know about the spring and what it meant to us, local villagers? Did they include its value in the cost of their mining? If they counted its value, it would be many thousand times more valuable than the all the coal they will mine from there. That spring has been with us, like our mother’s place, for many, many years. The company saw the coal only, not the need of ordinary people like us for water of the spring. Tell me, can we go and cut off the water of the company? If we destroy the water supply of the company colony, there would be criminal charges against us. So if the company destroys our naihar, how is that something different? The spring was on the edge of the mine lease, so our leaders proposed that some area be marked off to preserve the spring. They also proposed that some area be left as its suitable catchment area. The officers did not pay heed to our demands. So we decided to put up resistance to the company. Every time they came, we shooed them away. In the summer of 2000, the company started blasting very close to the spring and next to the boundary wall of the village. All of us villagers went into the mine several times and even stood in front of the machines to stop their work. Each time we protested, the company called in security officers and police. Eventually, we became helpless bystanders and watched as the spring was bulldozed by the company.

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We appealed to Central Coalfields Limited (CCL) to give us drinking water, but they paid little attention to us. We took out protest groups twice to CCL offices but even then the officers did not relent. Consequently, during the summer of 2002 we women went into the mine and stood in front of the machines, and stopped the mining work. We felt that it was a big achievement for us, to be able to stop the machines that killed our spring. Still, we could not stop the mining altogether. I ask, are we also not citizens of this free country? Are we too not to live in human dignity? Must we live like animals in our own village? Why is it so that the only language the mining company understands is that of protest? Why does the mining company threaten us with police action for holding up coal production? I ask, if holding up coal production is criminal, how is a company destroying a village’s water supply, not also a criminal act? Tell me, how shall we get our naihar back?

PUBLIC INTEREST LITIGATION IN RANIGANJ: INSPECTION PANEL’S REPORT In 1996, CIL entered into a loan package worth nearly US$ 600 million from the World Bank to expand the collieries mines and to improve their environmental performance. This loan was one of the largest received by India in recent years from the World Bank. However, one of the mines concerned, the Parej East project displaced over 250 families. Frustrated with the way resettlement and rehabilitation was being handled by CIL in apparent non-compliance with the World Bank’s guidelines, a small NGO mobilized its meagre resources to take up the issue with the Bank’s Inspection Panel. World Bank’s Inspection Panel is a measure to investigate its own functioning in different country projects, the supervision of Parej East colliery’s resettlement and rehabilitation in this case. Being a bank funded project, Parej East comes under ‘stringent’ guidelines and criteria – World Bank’s ‘Operational Directives’ (ODs) – that provide a framework within which its project implementation must take place. With regard to income restoration, the Bank’s policy statement (OD.30 para 24) says that ‘displaced persons are assisted to improve, or at least restore, their former living standards, income earning capacity, and production levels’, a statement echoed in CIL’s R&R policy in that ‘affected people improve, or at least regain their former standard of living and earning 22 capacity after a reasonable transition period’. The main issue raised by the petitioners to the IP was the question of income restoration or

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economic rehabilitation. This is a critically important factor that has to be taken into consideration especially while dealing with people little skills or assets. On this issue of income restoration, the IP Report (p.478) squarely holds the management responsible: ‘A major continuing problem is the failure of income restoration. […] Because of the inadequacy of the income restoration programmes, some of them have been forced to spend whatever remains of their compensation simply to survive. This is an extremely urgent matter. It should not happen in a Bank financed project. Steps should be taken to ensure compensation of these PAPs, not only because they have spent their original compensation for their assets on survival, but also for the losses and harm suffered due to delays in restoring their income potential’. The IP found many other flaws in the planning and implementation and the Report pointed to the need of important lessons to be learnt, particularly to the need of high level policy changes with regard to resource projects and the rights of indigenous populations besides 23 raising questions about bank procedures within individual countries. Although CIL has failed to react to the IP Report, this victory itself is cause enough for celebration as one case of David against Goliath. The case provides an excellent example of how the overseas connections can be built up and utilized by a rather small Adivasi movement to reach across and bring to book the errant mining company.

INTO AGENTS OF CHANGE? These cases narrated above attempt show the agency of Adivasis by recounting various kinds of resistances put up by them. This agency is of course placed in the backdrop of those ‘micro-movements’ described 24 25 by Kapoor or peasant movements described by Singha Roy, yet not quite expressed or manifested in a similar fashion. The current emphasis is not to see Adivasis as ‘victims’, ignoring their inputs, but to look at their agency and ingenuities in surviving oppression. Consequently, empirically grounded, context specific studies have examined their roles in protests and agency, but there continues to remain a strong inclination to look at the apparent and at the evident, without emphasizing the uniqueness of experiences even within the specific contexts. Scholars examining indigenous lives usually identify the familiar, rejecting as unimportant or irrelevant hitherto un-encountered aspects. This results in a neglect of the unknown, and brings forth the

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question of subjective positioning of the researcher as much as that of the researched. This is particularly true when experts look at Adivasi struggles, resistances and movements, bringing into focus issues of power relations and social change, identifying collective resistances or ‘movements’ as the main catalyst. From this perspective, can these instances be seen as resistances at all? As evident, none of these resistances involved the use of muscle power or large-scale mobilization 26 of resources. They did not use overt techniques of flaunting the legal ordering system or challenge the existing exploitative system that coal mining has put in place for them. None of these involved charismatic leaders creating a long queue of followers, or composing national coalitions or alliances. Above all, whilst some of these groups are indeed connected to each other through informal networks working on similar issues, they occupy distinctly different political spaces and histories. However, they do have certain defining characteristics of which the most significant is that they are concerned with a range of issues, operating in small villages that are rapidly changing, and are usually organized beyond a single ethnic group. I mention this since it 27,28 has been suggested that while talking about resistance, researchers must examine a broad array of protests and particularly examine the notions of ‘movement’ to challenge en masse ‘new social movement’ 29 perspectives that have come to prevail. […] Examining these resistances put up by Adivasis themselves enabled me to develop a greater understanding of why such forms of protests take place and to contemplate upon this contested space of the politics of resource rights in India. […]

NOTES 1. Cited in Edward Goldsmith and Nicholas Hildyard, eds, The Social and Environmental Effects of Large Dams, Vol. 2, p.245. 2. Black’s Law Dictionary, sixth edn., 1990, p.523. 3. See Ganguly-Thukral’s 1992 report or Baviskar’s 2002 follow-up of displacement due to large river valley project. E Ganguly-Thukral, Big Dams and Displaced People: Rivers of Sorrow, Rivers of Change, Sage Publications, New Delhi, 1992. 4. D Rothermund and D C Wadhwa, Zamindars, Mines and Peasants, Manohar Publications, New Delhi, 1978. 5. B B Dhar and Thakur, Mining Environment, Oxford and IBH, New Delhi, 1995. 6. This relatively new state formed in 2000 out of the southern part of Bihar has a large Adivasi population (28 per cent of total as compared to 17 per cent Indian average) and a large low-caste population (12 per cent against Indian average of

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8). Its statehood is significant in establishing its indigenous identity. 7. L P Vidyarthi, and B K Rai, The Tribal Culture of India, Concept Publishing Company, New Delhi, 1976, second edn., 1985. 8. Nadeem Hasnain, Tribal India, Palaka Prakashan, New Delhi, 1991, second edn., 2001. 9. A ‘khatiyan’ is a legal document of land record taken for revenue purposes. Many land records in India are in need of updating, and often do not give the de facto ownership of village commons. 10. Somar Soren, one of our participants said this about gair majurwa land: They say that the survey and settlement was done during my grandfather’s time. The people in those times settled for 12 or 13 acres according to their capacity. Those people worked hard and made these lands fit for agriculture. Then the mines came and the management said that it was gair majurwa land. Then I ask, how does it become gair majurwa land? During the British times, it was written that the farmers could settle in any vacant land. We have the Chotanagpur Tenancy Act to save the Adivasis’ land. But the mine officers are corrupt and the middlemen too are so, so they say it is gair majurwa land. The Adivasis are living here since the survey and settlement, and all the land belongs to them. 11. World Bank, ‘Resettlement and Development, The Bankwide Review of Projects Involving Involuntary Displacement, 1986–1993’, Environment Department, 8 April 1994, pp.iii–iv. 12. Bineet Mundu, ‘Challenges to the traditional customary rights of the adivasis: the Jharkhand experience’, Paper submitted at Indigenous Rights in the Commonwealth Project, South and South East Asia Regional Meeting, Indian Confederation of Indigenous and Tribal Peoples, India International Centre, New Delhi, 11–13 March 2002. 13. Smitu Kothari, ‘Whose nation? The displaced as victims of development’, Economic and Political Weekly, 15 June 1996, pp.1476–85. 14. M M Cernea, ed, ‘Involuntary resettlement: Social research, policy and planning’, in Putting People First: Sociological Variables in Rural Development, Oxford University Press, New York, 1991, p.195. 15. Nandini Sundar, (2003) ‘The construction and destruction of ‘indigenous’ knowledge in India’s joint forest management program’, in Maja Van der Velden, ‘From communities of practice to communities of resistance: Civil society and cognitive justice’, Development, Vol. 47, No. 1, 2004, pp.73–80. 16. J Robinson, ed, Development and Displacement, Oxford University Press, Oxford, 2002. 17. M Colchester, ‘Indigenous people’s rights and sustainable resource use in south and Southeast Asia’, in R H Barnes, A Gray, B Kingsbury, eds, Indigenous Peoples of Asia, Association for Asian Studies, Monograph and Occasional Paper Series, No. 48, Michigan, 1995. 18. D Ivison, P Patton, W Sanders, Political Theory and the Rights of Indigenous Peoples, Cambridge University Press, Cambridge, 2000. 19. Kuntala Lahiri-Dutt, Tony Herbert and Bina Stanis, ‘Local and customary water rights in Indian collieries: Lessons from Shanti’s story from Agaria Tola’, Paper presented in the Annual Conference of the Association of Australian Geographers, Adelaide, 3–6 April 2004. 20. Naihar means ‘mother’s home’. This is the place a woman goes to on certain

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occasions – for example to give birth to her first baby, or to seek peace when she is under tension with her family, or if she just needs a break from her duties in her marital home. 21. Asan trees are a local shade-giving species that often house the Santhal deity, the sarna. 22. CIR&R: Coal India Resettlement and Rehabilitation Policy, edn. no. 7, 1994. 23. Kuntala Lahiri-Dutt, and Tony Herbert, ‘Coal sector loans and displacement of indigenous populations; lessons from Jharkhand’, Economic and Political Weekly, Vol. 29, No. 23, 5-11 June 2004, pp.2403–09. 24. Rakesh Kapoor, ‘Civil society in India: A background paper’, Prepared for the Centre for the Study of Developing Societies, Civil Society Building in India, Mimeo, CSDS, New Delhi, 2002. 25. Debal SinghaRoy, Peasant Movements in Post-colonial India: Dynamics of Mobilization and Identity, Sage Publications, New Delhi, 2004. 26. Not all social movements are necessarily massive, and this fact has been indeed recognized by scholars such as Sheth (2004) who looked at the discourses produced by the grass-roots movements. 27. Kersty Hobson, ‘ “Say no to the ATO”: The cultural politics of protest against the Australian Tax Office’, Social Movement Studies, Vol. 3, No. 1, April 2004, pp. 51–71. 28. M Diani and R Eyerman, eds, Studying Collective Action, Sage Publications, Newbury Park, CA, 1992. 29. Jasper suggests: ‘[…] protest activities […] give us an opportunity to plumb our moral sensibilities and convictions, and to articulate and elaborate them. […] Much like artists, they are at the cutting edge of society’s understandings of itself as it changes’ in J M Jasper, The Art of Moral Protest, Chicago University Press, Chicago, 1997, pp. 5, 11.

GENDER

INTRODUCTION The more refugees suffer, the more women suffer. Women and their dependent children constitute over 80 per cent of the world’s refugee population. This sheer quantity makes the refugee issue largely and qualitatively a gender issue. In this section, a host of writers and activists pen the pains and agony of hapless women whose sufferings as ‘refugees’ reflect the general condition of their servitude to existing social conditions of oppression even during the so-called merrier times. But, this victimhood is only one part of the tale; the other part is the story of the rising of women as agents of resistance and change, and thereby of politics. Not only in the present times of so-called ‘empowerment’ of women, but in all the ages, they stood up to do so, employing the available means of their times. So do the refugee women of today’s world: they suffer and struggle. However, in the post-partition (1947) Indian subcontinent scenario, women suffered doubly when an attempt was made by the consensual decision of the prime ministers of India and Pakistan, to repatriate the ‘persons’ (mainly raped women), abducted during the outbreak of the worst ever communal riot on the eve of partition, on both sides. A law was duly passed by Indian Parliament on this issue. Paula Banerjee unfolds the politics of such an impracticable and insensitive approach towards women (because they constituted the highest number among these ‘persons’ and, secondly, although they were citizens, age wise, in the eyes of the law, but had no voice over the one-sided decision) by the androcentric newborn states. In her ‘Refugee Repatriation: A Politics of Gender’, Banerjee compares these marginalized women with ‘the Jews in Germany in the [19]30s who were first feminized by the Nazi propaganda machinery and then effaced’. In another article, ‘Dislocating Women & Making the Nation’, Banerjee again brings to the fore questions of state formation in India and Pakistan and that of the abducted women. But, dislocation and marginalization of women as political subjects is not a case for India and Pakistan alone. The whole of South Asia, including

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Myanmar, where decolonization was followed by the formation of postcolonial nation states, has ‘refused to create a South Asian refugee regime, leading to castigation of non-conforming women to the status of political non-subjects’. Further, in ‘Women, Trafficking and Statelessness in South Asia’, Banerjee finds that ‘in a situation of statelessness, sexual abuse and human trafficking go hand in hand’. Taking cue from Etienne Balibar, she argues, ‘one-way of marginalising women from body politic is done by targeting them and displacing them’. In Meghna Guhathakurta’s bag: ‘Families, Displacement, Partition’, we find family reminiscences of fear and sorrow at the times of partition of 1947, on both sides of Bengal, that led to a diaspora of families. For Guhathakurta, families are the sites where ‘memories of individuals and generations are constructed and negotiated’. It is here, where identities of gender, class, community and nation are formed, conformed to or contested. The author wanders down the memory lanes of two dislocated families of West Bengal and the then East Pakistan to discover how with the winds of change (brought by partition) families changed themselves and thereby changed social reality. This section also includes Shubhoranjan Dasgupta’s sensitively chronicled interviews (‘Widows of Brindaban: Memories of Partition’) of four very elderly Bengali widows, who bore the trauma of partition, crossed the border and now live in Brindaban, the most sacred place of the Vaishnavites, situated in Uttar Pradesh, nearly 1,500 km from Calcutta. Traditionally, Brindaban is an ancient refuge for the hapless and truly dispossessed Bengali widows, discarded by their families. They survive on meagre alms by chanting ‘Hare Krishna’ at different dharmashalas (pilgrim-homes). Our respondents now live at Amar Bari (My Home), being taken care of by the able matron Anashuya Roy, who informs Dasgupta that despite apparent tranquillity, one of them (aged 86 at the time of interview) ‘weeps softly at night’. However, Jagat Acharya’s account of the ‘Refugee Women of Bhutan’ is, in no sense, about ‘weeping softly at night’. Rather it is a very dark tale of human sufferings of the refugees of Nepalese origin in Bhutan, where non-stop rape (of Nepalese women by the Bhutanese army) is another name of the night. Acharya pens different forms of barbarism on the Bhutanese refugees of Nepalese origin – torture, rape and forceful eviction from land. He also tells us about the brave and active role of the refugee women in the peace march (participated in by 10,000 women) and other demonstrations for the Right to Return. The gendered nature of refugee sufferings is not confined to the manmade disaster like ethnic cleansing or eviction in the name of security

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and development. Even the effects of natural disasters like earthquakes or the recent tsunami can also be different (greater) in case of the women. Since, Ammu Joseph reminds us, ‘natural disasters are not socially neutral in their impact’. Her article, ‘Gender, Media and the Tsunami’ unfolds the way the media chose to ignore important stories concerning women by generally focusing on ‘the fishermen, their boats, nets and so on’. Joseph cites the instances of policy discrimination for the affected poor women both in terms of financial/material help and health care. She exhorts the media to act with responsibility in this regard without sensationalizing the issue. The need, therefore, is ‘listening’ to the refugee women – their daily experiences of suffering, under the discriminatory norms of patriarchy. Maria Ahlquist examines these norms in her writing, ‘Why should We Listen to Her?’ She finds the ‘dual nature’ of patriarchal norms of gendered/sexual violence in a) desecrating women’s honour to demoralize the enemy and b) to protect the honour of the nation, and of its men. The author reviews many previous writings on this issue and concludes that a gender-sensitive approach must acknowledge the diversity of experiences (of women belonging to the favourable and unfavourable sides of globalization) and understand that women are not a homogeneous entity. Marginalized women, as heterogeneous entity, also include women of ‘disrepute’: the bar dancers of Mumbai fit the bill. The commercial capital of India, i.e. Mumbai rocked, in 2004, around the discourse/ practice of banning the ‘dance-bars’ and thereby jeopardizing the life of thousands of hapless women, the infamous bar dancers, living on the edge. In a very thought provoking ‘The Bar Dancer and The Trafficked Migrant: Globalisation and Subaltern Existence’, Flavia Agnes, a leading jurist of Mumbai, introduces us to the moral dilemma of those who supported these struggling women: should they take the side of the bar dancers, most of whom came from the trafficked migrant women (mostly from Bangladesh) because supporting them would also mean the continuation of the vulgar and obscene display of the female body for the pleasure of drunken male customers. The politicians and a large chunk of the civil society supported the ban. Yet, leading the legal battle of bar dancers, from the front, Agnes realizes: ‘The combination of sexual conservatism and the construction of a woman as the symbol of national and cultural authenticity are seen to lead to the stigmatism and ostracism of a migrant woman who is portrayed as an aberrant female’.

REFUGEE REPATRIATION: A Politics of Gender †

Paula Banerjee

The Hindustan–Pakistan plan of 3 June 1947 and the subsequent partition, which resulted in the movement of over 15 million people across the borders of Bengal and Punjab, generated a national memory of rape, abduction and unprecedented brutalization of women. Yet, partition is often interpreted as being beyond gender politics. A corrective entails a new interpretative study of this fracture with a focus on women, which will move beyond women’s experiences to metaphoric uses of gender in state politics in a time of crisis. Our questions then are: Was there a politics of gender in the politics of partition? Has that thrown up an alternative meaning of women's identity? Did this emergent feminine identity result in objectification and exclusion of women? These questions assume greater importance if we consider that women’s experiences of migration and destitution during partition and the state’s response to it is a pointer to the relationship between the women’s position as marginal participants in a highly insecure environment and the politics of gender subordination as perpetrated by the state. […]

ABDUCTION AND SOME ISSUES A large number of abducted women have been missing during the †

Department of South and South East Asian Studies, Calcutta University and Senior Researcher in Calcutta Research group, Refugee Watch, 1 January 1998.

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trans-border movement. On the basis of individual complaints received it seems that the number was well over 50,000. Some incidents relating to these abducted women/persons exemplify the politics of gender during partition. They were: 1. As early as September 1947 the prime ministers of India and Pakistan met in Lahore and decided that these women ‘must be restored to their families’. Even when the two countries could decide on little else, they resolved the fate of abducted women without much delay. 2. Problems arose over the process and progress of recovery. An Abducted Persons Bill was brought in the Indian Parliament. Boys below the age of 16 and women of all ages came under the jurisdiction of this bill. The bill gave police officers unlimited power in matters regarding the abducted person. ‘He’ was empowered to ‘enter and search the place and take into custody any person found therein who, in his opinion, is an abducted person…’ 3. Notwithstanding what was contained in the law, the detention of the abducted persons (to be read as women) could not be called into question in any court. No officer of the state could be prosecuted for ‘any act, which is in good faith done in pursuance of this act’. 4. There were a number of criticisms against the bill with 70 amendments proposed in the House. But the bill was passed unchanged on 19 December 1949. The bill, which promised ‘liberty’ to abducted women, in actuality denied them even the writ of habeas corpus. 5. According to Rameshwari Nehru, the advisor to the Government of India, Ministry of Rehabilitation, many abducted women showed extreme unwillingness to leave their ‘captors’. 6. Those who were forcibly repatriated were often refused rehabilitation by their families. Senior Congress leaders such as Jawaharlal Nehru on numerous occasions requested the nation to take back these women into their homes since they were pure in intent if not in body. 7. The government itself could be of little help. Many forcibly repatriated women living in government shelter in 1952 were discharged from these homes without any accommodation. They were offered rented accommodation, which they could not afford.

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A COMMUNITY OF INTEREST How did India and Pakistan achieve such commonality of interest regarding abducted women? The answer lay in the character of state that grew out of partition. In any country where political control is the direct generator of social and economic control and the controllers are men, they take other men as prototypes for all humans. Male issues remain the active issues, which are contested. Non-male issues can be dismissed. Thus, for India and Pakistan, where ‘women’ figured only in micro-levels, an easy solution to the question of abducted women was a reflection of that attitude of the state, which remained based on male values, concerns and reasonings.

THREATENED IDENTITIES A lot of the sexist bias is evident when one looks at the Abducted Persons Bill. Those who were abducted were not considered as legal entities with constitutional rights. They were denied judicial and moral prerogatives. All choices were denied to them because of their gender and the decision-making power rested with their guardians who were defined by the male pronoun ‘he’. By objectifying the woman the state tried to silence her voice. It is crucial to note that between 1947 and 1949 there were many women who refused to leave their ‘subjugators’ and their new homes. Rameshwari Nehru articulated their opposition to this forcible repatriation. She advised the government to suspend the operations, which the government refused to do. She resigned from the Ministry of Rehabilitation in July 1949 and perhaps not coincidentally the same year the Abducted Persons Bill was passed […] Problems arose when both countries made claims of moral superiority over the other based on their ability to protect/control the female body. This control was essential for the self-definition of the male identity, which was in a state of crisis due to partition. Their inability to take charge of their ‘possession’ caused a degree of psychological emasculation. […] Abducted women symbolized the dangerous nature of female sexuality which had to be regulated, or else, it could lead to their dishonour which meant the dishonour of men who were the custodians. Numerous debates in the Indian Parliament centred around questions of preservation of the purity of female sexuality. To highlight the urgency of the situation, fears of rape and aggression were invoked. Women who exercised agency on their own

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behalf and refused to be repatriated challenged the self-identity and virility of the patriarchy. This challenge could not be tolerated and so under the guise of protecting their person, the patriarchy (represented by the state) depersonalized the women. By insisting that the abducted women could not represent themselves and had to be represented, the state marginalized them from the decision-making process and made them non-participants. Since it was their sexuality that supposedly threatened their security and the honour of the men and nation, their vulnerability was focused on their body. This made all women potentially susceptible to such threats and so had to be protected/controlled. By denying agency to the abducted women the state made it conceivable to deny agency to all women. How honest were statist concerns regarding the abducted women is borne out by the fate of the repatriated women in government shelters. Very little was done to rehabilitate them. Women getting free rations were not entitled to any stipends. They were thus unable to acquire any practical training or skills and had to depend on public charities. […] The condition of women in Delhi Homes was slightly better as they were given free maintenance and training. But in July 1952, 38 displaced unattached women living in Rajpura Homes were discharged from their shelter. By the 1950s, the Government of India had clearly lost interest in issues of rehabilitation of these women. This is hardly surprising as the government had made abducted women an issue only because control of their person was essential to the identity of the men. Even after 50 years, state politics in South Asia regarding women in general and refugee women in particular remains remarkably similar to the partition days.

FAMILIES, DISPLACEMENT, PARTITION Meghna Guhathakurta

†

FEAR, MEMORY AND THE CONTEXT There has been a tendency to focus on the communal and violent nature of partition and the mass exodus accompanying it. This has been more the case of the Punjab frontier where forced migration took place on a large scale. Along the Bengal border things were different. For some families it was a matter of conscious choice. For example, this was a choice for families whose members were in government service and who were given an option to take equivalent work on the other side. It is mentioned by some families, however that often one had to decide in a very short period of time, so that people who took the option also had to reach a hurried decision and later regretted it. For others, the decision to migrate was taken almost overnight, especially if the family was directly or indirectly hit by a communal carnage that succeeded the partition. But for most families the decision to migrate was deliberated slowly and in waves within the circles of the family a process that continues even today. This created a curious effect on the social makeup of the region resulting in a diaspora of families. Hindus, Muslims, Biharis, Chakmas, Garos, etc, separated and divided, living on either side of the lines chalked out by the Radcliffe Award, each part engrossed in its own struggle for survival or achievement and yet still connected to each other by ties, emotional, imaginary and real. […] †

A leading Women’s Rights activist of Bangladesh and Director of Research Initiatives, Dhaka, Refugee Watch, 7 September 1999.

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People across the border both for trading as well as other social reasons defied these restrictions persistently so much so that a whole network of underground operators who helped people cross borders without visa or passport grew steadily, a method often colourfully termed in the local language as gola-dhakka passage (taking you by the scruff of your neck and pushing you across). This is not to say that the Bengal partition occurred without violence or was not stricken by communal forces. Violence is not always to be measured by external acts of murder, loot or abduction. Violence typifies a state where a sense of fear is generated and perpetrated in such a way as to make it systemic, pervasive and inevitable. Thus, during the nine months occupation of Dhaka by the Pakistani army in 1971, in what General Yahya Khan called ‘normal and peaceful’ situation, people went about their daily chores in dread and fear, not knowing when a tap on the door could mean death or for women, rape. Thus also, in the many communal riots that preceded as well as followed the partition, it was the fear of being persecuted, the fear of being dispossessed, and the fear of not belonging rather than actual incidents of violence that caused many to flee. […] The situation in Bengal is different also because the two Bengals enjoyed open borders for a long period of time. It was not until 1953 that passports were introduced and only after the 1965 Indo-Pakistan War were visas required. Rail communication stopped after the 1965 war as also by air, and restrictive overland communication was maintained. But people across the border both for trading as well as other social reasons defied these restrictions persistently, so much so that a whole network of underground operators who helped people cross borders without visa or passport grew steadily, a method often colourfully termed in the local language as gola–dhakka passage (taking you by the scruff of your neck and pushing you across). In the fiction and autobiographical writings that have dominated the partition discourse, the voices from Hindu migrants from East Bengal had been more prominent than Muslim migrants from West Bengal. The reason for this is of course an open question that awaits study. But one important distinction between the two ‘migrant’ groups has been created by the political conditions of the country where they migrated. For Hindus, the experience has been mostly of dispossession and their nostalgia for their ‘homesteads’ (bhitabari) has been very pronounced and glorified in their writings. For many Muslims of a particular generation the journey to Pakistan was like a journey to a ‘promised

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land’ an image that later became tarnished as Pakistan entered its most repressive stage. […] There is, therefore a reticence, even now, among Bengali Muslims to talk of their ‘desh’ (ancestral home as it is referred to in Bengali), publicly, if it happens to be in India. In recording family histories, however, one succeeds to a certain extent in overcoming this barrier, for nostalgic memories of childhood, growing up, family ties and accompanying emotions find a space where one can talk about them freely without the direct intervention of nationalist politics. There is yet another phenomenon that distinguishes East Bengali reminiscences of the partition from those in West Bengal. This is the Bangladesh Liberation War of 1971. Memories of 1947 or partition has often been superseded by memories of 1971, or of movements that led to 1971, because in the quest for a Bengali identity many Bengali Muslims have had to rethink their positions. Thus, sometimes when memories of the partition are revived, they are often coloured by memories of 1971. Many Muslims came to the East from West Bengal and Bihar in the hope of finding their own land, and not all of them necessarily believed in the Muslim League ideology. Many progressive cultural activists and professionals came from Calcutta, not spontaneously, but nevertheless with the ambition of constructing a new nation that would give shape and colour to their dreams. But for most, this dream was short-lived. The repression of a Bengali identity and the imposition of a new cultural identity of Pakistan, and the imposition of Martial Law brought about spontaneous resistance from the people whether in the form of the Language Movement of 1952, or the anti-Ayub demonstrations of 1969, culminating in independent Bangladesh. But whereas, in the nationalist writing of history these events appear in a linear schema, the personal histories of those involved in or affected by these movements were far from linear. Writings on the 1947 partition of the subcontinent present it as a product of the colonial state as well as a landmark in the progressive march towards achieving modern nationhood. In subsequent years, this nationhood had come to determine questions of citizenship and social exchange and to define personal identities for the people occupying the newly defined territories of India and Pakistan. In that context, family experiences of people who migrated or stayed back bring out the social history of a people who had been suddenly dispossessed of any power to control the events and then sought to retain an element of control in their attempts to adapt to the new situation. Family histories provide us with insights with which such processes can be better understood. partition thus represents a significant moment in the temporal scale of

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generations since family histories are about inter-generation exchanges. To focus on the family, as an important intermediary site therefore is to see how memories of individuals and generations are constructed and negotiated and how personal identities of gender, class or nation are formed, conformed to or contested and confronted. Feminist scholarship helps us to comprehend families as a site where identities of gender, community, class and religion intertwine with each other to generate a politics that is gendered whether along class, religion or national lines. Feminist rethinking of the family has important implications for the study of partition because it anticipates important questions. It challenges the myth of the monolithic family with a breadwinner husband as the only legitimate form of family–organization. It shows how the family is decomposed into underlying structures of sex, gender and generation. Also, it shows that because families are structured around gender and age, women, men, boys and girls do not experience their families in the same way. Family accounts in the times of partition show the illusory nature of the isolation of the nuclear family, since there are close connections between the internal life of the families and the organization of the economy, the state and other institutions. They challenge dichotomies of the private/public or family/ society. For example families which affected by the partition became divided or separated, also at the same time maintained kinship ties, which proved important survival strategies or coping mechanisms to overcome or circumvent the crisis situation and form new patterns of lived experiences. Writings on the 1947 Partition of the subcontinent present it as a product of the colonial state as well as a landmark in the progressive march towards achieving modern nationhood. In subsequent years this nationhood had come to determine questions of citizenship and social exchange and to define personal identities for the people occupying the newly defined territories of India and Pakistan.

HISTORIES I place here cases of two families: one a Muslim family from Barasat, West Bengal and the other a Hindu family from Barisal, East Bengal. It may be mentioned that in the latter case it is my own family. However, I am not the prime narrator here, but my aunt who is a witness to

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partition. In both cases, the interviewees are both men and women who have crossed the borders whether in 1947 or afterwards but as a result of partition. However, only one wing of each family was selected as my interviewee, i.e. the interviewees are brothers and sisters from each family, not cousins. There is not enough space here to go into the cases in detail. I shall outline some of the more interesting findings, which family histories have unearthed. But before anything else a comparison of the two families studied should set the scene. The structures of the two families are different. The family from Barasat was land centred, and hence matrilineal and location specific, and the profession came in at a much later stage. The family from Banaripara on the other hand was not dependent on land, but rather capitalized on education and the service sector. […] In the first instance almost everyone married into the same district or at least neighbouring ones, whether they happened to be settled in West or East Bengal. The residences of the family were hence both location specific and patrilineal. Apart from the families who migrated to Bangladesh and one member of the Barasat family who settled in another village in West Bengal, most of the family still lives in the natal village though they have separate households. In the second instance, marriages took place with families in other districts, but located essentially within East Bengal. However, because the members of the family were not directly dependent on land, and the ancestral home existed mostly at a symbolical level, even from the previous generation, the residence pattern was scattered. But a general pattern emerged where the tendency was to move towards the urban centres: Mymensingh, Dhaka, but mostly Calcutta. Though this was due to the dependence on white collar jobs, the gravitation towards the metropolis was not always through patrilineal connections, but often using connections through marriage. Thus, many cousins in the Hindu family grew up in their mama-bari or maternal uncle’s house. All this was a prepartition syndrome. When the partition occurred, this was the context in which each of the members of the family took their own decisions. Calcutta was the mega city and metropolis of British India, and hence the focal point of the migration scene. Urban migration has been increasing in the 1940s, especially during and after the famine of 1943. Dhaka and Mymensingh in the eastern parts also had their attractions. The family from Barasat though land-centred was also living in the vicinity of Calcutta. This determined their mindset when the decision to move or not was thrown open to them. Both concerns of property and living in the vicinity of Calcutta with educational and employment

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opportunities for their children became important considerations to affect their attitude, that East Bengal or Pakistan was the more ‘backward’ place. […] The Hindu service worker had, however started his/her migratory trend towards Calcutta long before everyone else, both in relation to education and employment. As the second case shows, this was true for them as well. But Dhaka and Mymensingh were also important urban centres. This pre-partition migration like any other urban migratory trend used family connections and contacts to establish a ‘chain’, enabling other members of the family to follow. But when the partition came, this ‘chain’ was stretched to its limits and often broke down. At this juncture, migrants became refugees. […]

GENDERED MEANINGS As mentioned above, my particular methodological intervention was aimed to reveal the gendered narratives in family histories. Since in both the families I interviewed, I found women who during the partition were unmarried and as a consequence was forced to migrate for reasons of physical security, this task was made a lot easier for me. Arjoo, Minhaj’s sister was barely 12 when she was forced to leave her mother for the security of East Pakistan where her elder brother lived. About community relations she speaks: I have fond memories of my school at Kazipara. I still maintain contact with some of my friends. I had mostly Hindu friends. I do not remember any sign of discrimination but there were differences. For example I remember we had a crazy teacher called Ganesh. Hindu girls used to say anggev (corrupted form of angga, in English obedience, in answer to roll call) and Muslim girls used to say ji (address of respect). Once my Hindu friend said ji and immediately Ganesh sir reacted, You are a Hindu, why should you say ji? Arjoo’s perception of nation or homeland was mediated through kinship and marital relations: Arjoo got married to someone whose ancestral home was in Jessore. It meant double dislocation for her. Not only did she feel herself to be an outsider in East Pakistan or Bangladesh, she was also an outsider in her in-law’s house. […] She said there was a difference in their dialect and hers. Her in-laws used to tease

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her and called her khuni (murderer) because she spoke in her local dialect jabokhuni kabhokhuni instead of jaboney khaboney. […] Arjoo feels proud of her natal village in Barasat. She visits it often but sometimes she even has to fight with her husband for that right. When her husband tells her why she goes there so often that there is no need now to go since she is married here, she replies that as long as she has strength she will go. ‘Once I lose my strength I will automatically stop.’ She visits with her children, a boy and two girls. Once when she took her boy there he was surprised when he got down at Barasat and remarked Mom! But we have only come to Jessore! Tapati on the other hand was more insecure in her perceptions of family, community and homeland/nation. […] In 1957 she married and started to live in a joint family, which soon broke up. […] Most tragic of all was when in 1980 her husband died of a heart attack leaving her to fend for herself and two unmarried daughters. It is incidents like this that make her equate home with homeland in terms of it being a source of constant insecurity. […] Tapati has no nostalgia about her homeland, some memories perhaps, but she never glorifies them. Her life has been too unsettling and she still relives the trauma in her everyday life. She is afraid whenever she reads in the papers about the Tenancy Act being revoked, withdrawing the rights of the tenant, she quakes with fear that the house she is living in might suddenly collapse because it is built on uncertain foundations. […] Indeed, family histories of the partition therefore make a strong statement about social transformation. They reiterate that families are open to the winds of change, changing themselves and thereby changing social reality. Times of transition are trying times when such changes maybe brought about quite suddenly creating havoc and upheaval that haunts one into the next century. […]

WIDOWS OF BRINDABAN: Memories of Partition Subhoranjan Dasgupta

†

At present, 2910 Bengali widows are struggling to survive in Brindaban. A number of them had come to Brindaban during the partition of India. Even now, 29 years after the creation of Bangladesh, Brindaban exerts a pull on the hapless and the helpless spending uneasy days and nights in Khulna or Chittagong. These women live in abject poverty, chanting ‘Radheshyam’ for their livelihood. Given below are interviews with some of these women. The interviews were taken by Subhoranjan Dasgupta who sensitively chronicled their agonizing memories of violence.

ILA BANDYOPADHYAY An 86-year-old who came to Brindaban straight from Brandipara in Jessore district in 1947. ‘I came to live in Brandipara after my marriage. My in-laws were well placed and influential. My husband was an MBBS doctor. I had three sons – the oldest was in Class X, the next in Class V and the youngest in Class IV. They went to the market and did not return, not one. No trace of them could be found. After that our house was attacked and our dispensary was burnt down at that point my husband decided, “We are going to leave today.” ’ In the dead of the night we left and entered Bongaon. There he said, ‘We have had enough of samsar, let us go to Brindaban straight. We †

Noted writer, journalist and senior researcher in Institute of Development Studies, Kolkata, Refugee Watch, 10 and 11 July 2000.

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shall die there. Since then we have been living in Brindaban. My husband who died ten years ago used to pray at Paglababa’s ashram and I used to chant Hari’s name in a dharmasala. We have had no ties with the outside world – no one has come to visit us, we know nothing. From 1947 to 2000, I have chanted the name of God only. Well, a little peace I have won here. Till I die I shall chant Hari’s name, I do not want to go anywhere. I cling to my Gopal.’ Anusuya Roy, the caring matron of ‘Amar Bari’ told me, ‘She weeps softly at night.’

GOPIKA SAHA A 68-year-old who left East Bengal in the early 1960s and came to Brindaban in 1995. ‘When riots broke out in 1960 we crossed over to Belonia in Tripura – my husband, my two sons, a few Gossains and I. It was no longer possible to survive in East Pakistan. From Agartala we came to Calcutta. My age then was 30–1, my two sons were seven and eight years old and my husband used to work in the village grocery shop. We tried to settle at Jadavpur. I worked as a cook in middle-class homes and my husband found a job at the local ration shop. […] My husband died ten to 12 years ago and since then I did not find peace in Calcutta. My son was not well placed and I did not want to be a burden on him and his wife. I decided to leave. First, I went to Nabadwip and then for the last five years I am here at Brindaban. My life at Brindaban began at a dharmasala where I used to sing Radheshyam. From there I have come to ‘Amar Bari’ and I shall stay here till I die. My life is dedicated to Gobinda and Radharani. I have encountered and suffered a lot – loot, plunder, arson on the other side and a desperate struggle for survival on this side. […] I do not want to recall Noakhali and my life there. Now that I have lost everything my only refuge is Radharani and Gobinda. I chant the whole day. My son and daughter-in-law do not know that I am in Brindaban.’

SHUSHILA DE An 80-year-old who crossed over in 1947 and came to Brindaban in 1960. ‘I was given in marriage when I was 12 years old. I lost my husband when I was 16 years old. I had a daughter. I used to live with my parents after I became a widow in Ubata village in Habiganj

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subdivision. My in-laws left some land for me, which my parents took away. I could not protest because I could not speak. When riots broke out in 1947, my parents left me with my aunt and crossed over to Assam. Then my aunt’s brother put my daughter and me in a packed train – everyone was fleeing. We went to our parents in Badarpur, from there we were sent to a relief camp in Silchar. There were many like me in that camp. Everyone shouted and screamed when food was distributed. We had to fight for our food and during one such fight I also tried to make sounds desperately. Suddenly, at that point, my tongue got loose and I began to talk. We were taught to weave in the camp. I spent 14 years there. When the camp closed down, I went back to my parents who promptly sent me to Brindaban. […] My first shelter in Brindaban was Gotkunja. I used to sing ‘Radheshyam’ and earn money. For a single room I paid a rent of Rs 5 per month. In 1999 I came to ‘Amar Bari’. I simply have no one in this world. Where shall I go? No one looked for me in the last 40 years. I shall continue to live and die in Brindaban. Radharani will care for me.

CHAPALASUNDARI DHAR A 90-year-old, she crossed over when riots broke out in the 1960s. She came from Noakhali district, village Dakshinbaria. ‘I was married at the age of 11 and became a widow when I was 14. My husband was killed by his own relatives who eyed his property. When riots broke out in 1960, we came to this side – my one brother and four sisters. My brother and three sisters live in Tripura, they are well placed. Another sister lives in Delhi, she is also well placed and has repeatedly asked me to stay with her there. They communicate with me, from time to time. But I shall not leave Brindaban. You see, my brothers and sisters are good people but their lifestyle is different. They eat onions and garlic I do not touch them. Here I live in peace, I pray to Radheshyam, chant bhajans, take part in household chores’. Yes, why did we leave? Riots had just begun and my brother said, ‘No, we cannot live here any longer. Women will be dishonoured. We left everything behind – house, land and crossed over empty-handed. We paid for our escape so we did not face any problem on the road. Luckily, my father had already bought some land in Tripura and my brother began to work on it. I came to Brindaban willingly. Even before settling here, I had come here twice. You see, I am a child-widow; I have never had my own

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home, so I do not even know what it is like. Hence I have no craving, no feeling of loss. I am devoted to my Radharani and I spend my days in peace’. While answering questions, Chapalasundari (she was strikingly beautiful in the past) laughed. She has one wish – to get the young matron Anusuya married to a worthy ‘boy’. However, with one condition attached – Anusuya and her husband should continue to live in ‘Amar Bari’ because Anusuya is irreplaceable!

AGONY CONTINUES: Refugee Women of Bhutan Jagat Acharya

†

Bhutan became a party to the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on 31 August 1981. But the situation of Bhutanese refugee women is appalling. Among the 100,000 Bhutanese refugees, around 50 per cent of the population in the refugee camps are women, most of these women are illiterate and they participate less in social activities. In the cultural sphere, the southern Bhutanese women had to bear the brunt of the government’s cultural policy. The Bhutanese government forgetting its responsibility towards improving the status of women has deliberately attacked them in this campaign of ethnic cleansing. […] Southern Bhutanese women were deprived of their right to wear their dress; their ceremonial marriage necklaces were stripped off; they were made to cut their hair short. Instead, they were forced to adopt the dress and culture of the northern Bhutanese. The women have always been the worst hit by government repression. In most cases, their husbands were imprisoned or had to flee the country for fear of persecution. The security forces plundered their homes, tortured, intimidated and raped these helpless women. There are 156 rape victims in Bhutanese refugee camps as per the records of CVICT Nepal. According to Shangri-La Without Human Rights eight women were raped to death. The following testimonies exemplify the

†

Bhutanese Refugee and Activist, South Asia Forum for Human Rights, Kathmandu, Refugee Watch, 10 and 11 July 2000.

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extent to which women’s rights have been violated by the Bhutanese government.

DEMAND FOR GIRLS TO BE SUPPLIED TO THE ARMY My father was born in Bhutan and his age is 63. Every day the office bearers used to come and threaten me to leave the village. They not only intimidated me, but the Bhutanese army one day suddenly came and burnt all the 27 houses of the village. They accused me of being a Nepali citizen and asked me to hand over our girls and wives to serve them. They demanded that 15–20 ladies be handed over. In these circumstances we left our village. Our relatives are still there and we have our registered land there. A statement by Mr A (Voices of Pain/The Bhutan tragedy when will it end, Report of the SAARC Jurist Mission on Bhutan, May 1992)

RAPE AND TORTURE BY SECURITY PERSONNEL A 23-year-old woman from Phibsoo, Sarbhang district, gave the following account of her and her husband’s arrest and treatment in detention at an army camp in Sarbhang in November 1990. My husband and I had heard that the armies were coming to confiscate our goods, so we both went to take our valuables to my parents’ house. On the way back, we were arrested on the banks of the Thulopinkwa River by about ten army personnel. The soldiers started beating us asking us if we had gone to see the party people and where the leaders were. They asked us about the campsites of our party people. We said we did not know. The soldiers tied our hands behind our backs and dragged us along. We were beaten all the time. We were taken to Sarbhang, about 30 km away and kept in a school that had been turned into an army barrack for about a month. I was locked inside a room and my husband was tied to a pillar in the compound. I could see him through the window. He was beaten until he vomited blood. He was also made to sit on the ground and was kicked. He was refused food for one week. Every night two or three soldiers came and raped me. This happened every night for a whole month. I was given food every night at

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about midnight. If I asked for water, I was beaten with chains that the soldiers used to tie on their guns. When I was released […] I stayed for one month until I realised I was pregnant. I was so ashamed that I could not face the other villagers so I left Bhutan in early January 1991. I left my children with my mother in-law in Bhutan. I went to jungle hoping I would die there. Then I went to Kachugoan in Kokrajhar, Assam where I stayed with some relatives. My sister and a male relative came to Kachugoan by chance and I bumped into them there. They paid for me to come to Maidhar. As a result of rape I had twins, one of whom died and one survived. I do not know if I will see my husband again. From Amnesty International Report, December 1992

FORCEFUL EVICTION From Shangrila without Human Rights, AHURA, Bhutan, Ms. Bachala Maya Acharya narrates her story. One day in January 1992, Mr Uday Bhattrai, a local court official, came to my house accompanied by 12 army personnel, asked me to list my property and ordered me to leave the country within four days. The next day army personnel came and took me to the village headman (Gup). They harassed and threatened me by telling me of the dire consequences I’d have to face if I did not leave the country. They made me wait at the Gup office till midnight. Two days later, the Gup took me to Dungkhag Court at Damphu, Chirang Bhutan, and handed me to the ‘Thrimpon’ (Chief district court official). The ‘Thrimpon’ ordered me to leave the country within four days, saying that it was an order from the king and the royal bodyguards. I refused to leave my motherland and told him that I was a bona fide citizen of Bhutan who had landed property since generations. Moreover, I told him that my son Mr Narayan Sharma had been arrested by the government and was imprisoned in Chemgang central prison because of his involvement in the human rights movement. When I repeatedly refused to comply with his order to leave the country, he took me to a courtroom and kept me in solitary confinement for the rest of the day. At dusk, he ordered me to return home in Lamidara, which is about 35 km from Damphu, I went home on foot, reaching there at midnight. After three days, army personal once again came to my home. They threatened me and looted all my movable household belongings. When the complaint of the Civil Administrators’ excesses reached Thimphu, a

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high level delegation led by Home Minister Dago Tshering reached Chirang on 13 January 1992 for investigations. (Vide below: report in Kuensel, dated 25 January 1992) We were informed that we could express our grievances to the visiting minister. Accordingly, I wrote a petition, met the minister and submitted the same. The minister assured me that I could stay in Bhutan. However, as soon as he left for Thimphu, army personnel entered my house and ordered me to leave the country. I steadfastly refused to do so. However, as they continued to threaten me I ultimately told them that if it was the command of the king to evict me from the country and ‘if I were to be penalized for refusing to do so, then I would appeal to the royal government to release my son from the Thimphu central jail, where he had since been transferred from Chemgang, and was undergoing rigorous imprisonment since a peaceful demonstration in September 1990’. The Court official told me that my son would be released only on the condition that I leave the country. After a few days, my son was released. The very day that he came home, at midnight, army personnel came to my house, threatened my family, then threw us out of our home which they proceeded to lock up. At midnight, I along with the helpless members of my family left my beloved homeland. After a difficult four-day trek, we reached the Indian border town, along with my son, my daughter-in-law and my 17-monthold grandson. We were joined by other forcibly evicted Bhutanese nationals who helped us reach a refugee camp in Jhapa, eastern Nepal.

REFUGEE WOMEN EXERCISE THE RIGHT TO RETURN The Bhutanese refugees under the aegis of Appeal Movement Coordinating Council demanded their right to return. The Bhutanes refugee women played a very active role in the peace march both as peace marchers and organizers. There were female representations from all the camps in the Appeal Movement. Exercising the right to return and the right to peaceful assembly and association as enshrined in articles 13 and 20 respectively of the UN Universal Declaration of Human Rights, altogether around 1,333 refugee women, in 16 batches undertook the peace march to Bhutan from the vicinity of the refugee camps and from different places in India. There were tens of thousands of other refugee women who were involved in the demonstration, mass meetings and other activities. But the

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peace marchers were intercepted, arrested and imprisoned by the Indian authorities as they entered the Indian soil after crossing over the IndoNepal border. The Indian authorities promulgated prohibitory orders although the refugees were peacefully traversing the land route through which they were driven to Nepal following forcible eviction from Bhutan. After a prolonged detention in Indian jails of Siliguri, Jalpaiguri and Baharampur in West Bengal, Bhutanese refugees entered Bhutan, but the Bhutanese security forces deported them back to India and from there they were sent back to Nepal by the Indian police.

WOMEN IN BHUTAN With schools and health services remaining closed for the last ten years in south Bhutan, women and children have no access to these facilities. The harassment in south and eastern Bhutan continues. Amnesty International’s report on Bhutan in 1998, states that, ‘Ms. Kinzang Chozam, who was pregnant, was among those arrested and was not allowed to see her children. Other women were arrested, apparently in an attempt to force their husband to give themselves up to the authorities’. The most serious problems that the women in Bhutan are facing is the risk of rape, sexual humiliation, imprisonment and eviction from the country. Women of all ages have been the targets of the police, army and even civilian repressions.

WOMEN IN THE CAMPS Women in the camps continue to be subjected to various forms of torture and suppression. Many women have become victims of local toughs and the authorities working in the camps. The harassment of women within the family is no less inside the camps. But women have become active in the awareness programmes within and outside the camps. The role of women in running camp life is often greater than men; their activities start from early morning until late night. Now many women in the camps with the help of OXFAM (UK) know how to read and write. They write poems and short stories, and many of them who did not earlier know how to read and write are teachers and social activists. They now say that if they had known reading and writing before, they would have never left the country, and would have rather fought back to remain within their country Bhutan.

DISLOCATING WOMEN AND MAKING THE NATION †

Paula Banerjee

More than 80 per cent of the world’s refugee population comprises of women and their dependent children. An overwhelming majority of these women come from the developing world. South Asia is the fourth largest refugee producing region in the world, a majority of whom are women. ‘Refugee women and children form 76 per cent of the total refugee population in Pakistan, 79 per cent in India, 73 per cent in 1 Bangladesh and 87 per cent in Nepal’. The sheer number of women among the refugee population portrays that it is a gender issue. On the basis of examples taken from different refugee experiences in South Asia, this chapter argues that both displacement and asylum are gendered experiences. At least in the context of South Asia it results from and is related to the marginalization of women by the South Asian states. These states at best patronize women and at worse infantilize, disenfranchise and de-politicize them. It is in the person of a refugee that women’s marginality reaches its climactic height. By refusing to create a South Asian refugee regime, states in South Asia continue their castigation of non-conforming women to the status of political non-subjects.

STATE FORMATION AND THE QUESTION OF ABDUCTED WOMEN The Partition of the Indian subcontinent in 1947 witnessed probably †

Department of South and South East Asian Studies, Calcutta University and Senior Researcher in Calcutta Research Group, Refugee Watch, 17 December 2002.

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the largest refugee movement in modern history. About 8 million Hindus and Sikhs left Pakistan to resettle in India while about 6–7 million Muslims went to Pakistan. Such transfer of population was accompanied by horrific violence. Some 50,000 Muslim women in India and 33,000 non-Muslim women in Pakistan were abducted, abandoned or separated from their families. Women’s experiences of migration, abduction and destitution during Partition and the state’s responses to it is a pointer to the relationship between women’s position as marginal participants in state politics and gender subordination as perpetrated by the state. In this context, the experiences of abducted women and their often forcible repatriation by the state assumes enormous importance today when thousands of South Asian women are either refugees, migrants or stateless within the subcontinent. The two states of India and Pakistan embarked on a massive Central Recovery Project during which some 30,000 women were recovered by their respective states. Some incidents relating to these abducted women exemplify the politics of gender during partition. Even when the two countries could decide on little else they decided that the abducted women must be restored to their families. Problems arose over the process and progress of recovery. An Abducted Persons bill was brought in the Indian Parliament. Boys below the age of 16 and women of all ages were brought under this bill, which gave unlimited power to police officers regarding abducted persons. If a police officer detained women under this bill they could not be questioned in any court of law. Although numerous amendments were proposed in the House the bill passed unchanged on 19 December 1949. Abducted women were not considered as legal entities with political and constitutional rights. All choices were denied to them and while the state patronized them verbally by portraying their ‘need’ for protection it also infantilized them by giving decision-making power to their guardians who were defined by the male pronoun ‘he’. By insisting that the abducted women could not represent themselves and had to be represented, the state marginalized them from the decisionmaking process and made them non-participants. Even today refugee women do not represent themselves. For the abducted it was their sexuality that threatened their security and the honour of the nation. Thus, their vulnerability was focused on their body. This made all women susceptible to such threats and so had to be protected/ controlled. By denying agency to the abducted women the state made it conceivable to deny agency to all women.

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A FAILED NATIONALIZING PROJECT: SRI LANKAN WOMEN Ethnic tensions between the Tamil minority and Sinhala majority leading to armed conflict since the 1980s have led to several waves of refugees from Sri Lanka. They are victims of a failed nationalizing project. By 1989 there were about 160,000 refugees from Sri Lanka to India, again largely women with their dependants. Initially, the state government provided these refugees with shelter and rations, but still many of them preferred to live outside the camps. After the second wave of refugees from East Pakistan/Bangladesh India stressed that the Sri Lankan refugee would have to go ‘home’. However, unlike the refugees from the East the Sri Lankans were called ‘refugees’ rather than ‘evacuees’. They were registered and issued refugee certificates. In terms of education and health both registered and unregistered refugees enjoy the same rights as the nationals. Nevertheless, in absence of specific legislation their legal 2 status remains ambiguous. The precarious nature of their status became clearer in the aftermath of Rajiv Gandhi’s assassination. NGOs’ access to the camps, refugee’s freedom of movement and access to education and informal occupations were all curtailed. On 6 January 1992, the Indian and the Sri Lankan governments signed a bilateral agreement to begin refugee repatriation on 20 January. Soon the programme was suspended when UN High Commissioner for Refugees (UNHCR) raised doubts about their safety 3 once they return. In July 1992, the Government of India (GOI) signed an agreement with the UNHCR and allowed the agency a token presence in Madras. By April 1993 refugee camps were reduced from 237 to 132 in Tamil Nadu and one in Orissa. Representatives of UNHCR were allowed to be in the transit area and could speak to returning refugees. Before conflict was resumed in 1995 some 55,000 refugees were repatriated from India to Sri Lanka and again a majority of them were women. Thus, when problems ensued once again these repatriated women faced it without the support of their families. After Rajiv Gandhi’s assassination, politicians began to shun the 4 refugees. As most of these were women they were initially considered harmless but with the number of female suicide bombers swelling there 5 was a marked change in GOI’s attitude to women refugees. What the GOI failed to acknowledge was that the number of female bombers swelled after the Indian Peace Keeping Force (IPKF) operations, due to 6 a demographic imbalance. The government turned a blind eye when touts came to recruit young women from the refugee camps in Tamil

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Nadu to work as ‘maids’ in countries of the Middle East. Most of these women were then smuggled out of India and sent to the Gulf countries. Often they were badly abused. One such case that caught the public eye was that of a young girl called Sivitha. She was smuggled to the Gulf with 30 other women. Her employer ‘took sadistic pleasure in thrashing her’. Twice she fell into a coma. Unable to bear this she sought refuge in the Sri Lankan embassy. She was sent back to Sri Lanka, into the war-torn area of Vavuniya. She tried to get back to India to her parents 7 but failed. Ultimately, she committed suicide. Even when the situation is not so extreme it is still traumatic for young women. Women are discouraged from taking up employment outside the camps. During multiple displacements women who have never coped with such situations before are often at a loss for necessary papers. When separated from male members of their family they are vulnerable to sexual abuse. The camps are not conducive for the personal safety of women as they enjoy no privacy. But what is more worrying is that without any institutional support women become particularly vulnerable to human traffickers. These people aided by a network of criminals force women into prostitution. Millions of rupees change hands in this trade and more lives get wrecked every day.

OF THE STATE AND THE OTHER: WOMEN FROM MYANMAR Since independence, Burma has been torn apart by civil wars between the central government and the various opposing ethnic groups. Such ethnic rivalries were in part a legacy of the divide and rule policy of the occupying British government and in part the policy of discrimination practised by the ruling elite. Political instability in Burma, later renamed as Myanmar, led to the military coup of 1962. Since then a ruthless military junta rules the country. This junta has suppressed any dissent from either the ethnic groups or pro-democracy movements leading to massive desertion and displacements. There are many ethnic minorities that have suffered discrimination under successive Burmese governments, and massive persecution by the present Burmese regime. Following the brutal crackdown of 1988 by the State Law and Order Restoration Council (SLORC), against democratic movements in Burma refugees came to Mizoram in large numbers. Here we will discuss conditions of two different groups of refugees from Myanmar: the Chins and the Rohingyas. Refugee camps were set up in Champai and Saiha

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districts of Mizoram to accommodate these Chin refugees by the Mizoram government. However, these camps were closed down in 1994– 5 when the Indo-Myanmar border trade talks began. One of the main reasons for closing down the camps was the request of the Burmese government which believed that the Chin National Front (CNF) which is fighting for the independence of Chin State, was operating from these camps. Since then the Chin refugees have been scattered all over Mizoram and forced to find work for their survival. The GOI largely followed a hands-off policy regarding the Chin refugees. It has so far allowed the Mizoram government a free hand to deal with the situation. In September 1994 and in June 1995, when the ongoing anti-foreigner movement in Mizoram targeted the Chins, and statements were made by local politicians that all foreigners including the Chins would be pushed back, a large number of Chin refugees came to Delhi and requested UNHCR for protection and help. However, the refugees got very little help from UNHCR and large numbers of these were pushed back, contrary to the principles of non-refoulement. As in any displaced population more than 50 per cent of the Chins who came to India were women. Many of these women took up jobs in local schools. Yet when the pushback came even they were not spared. One such woman is a Chin whose father was a Christian pastor. She said she was arrested in Burma in 1993 after she spoke against the government within earshot of an army officer. She said the officer beat and raped her. She fled to India but returned to Burma last year. The abuse that she faced was not ground enough to give her refugee status in India. She was never tried under the Foreigners Act and was merely pushed back. On going back she continued her political activity, when she heard that the military was after her she fled to Guam. When she arrived, she tested positive for tuberculosis in a skin test. Because she was pregnant, officials were afraid to take an X-ray. Instead, they kept her in isolation. But when the church group toured the prison and found the woman, they were alarmed by the effect of months of isolation. The Reverend Jerry Elmore, pastor of the University Baptist Church, offered to sponsor the woman himself so she could be released 8 from custody to his care. The situation of this woman is not exceptional. Such cases are happening in increasing frequency. Young women who are particularly vulnerable to sexual harassment are being abused by the police and then pushed back. The women are not given the status of refugees as sexual abuse is never ground for such a status. The situation of the Rohingya women is even worse than the Chins. These women are Muslims and are considered ‘resident foreigners’,

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even in their homeland. Their subordinate status within their own community discourages them from procuring education or working outside their homes. The state authorities and the army habitually sexually abuse them. Sayeeda, an 18-year-old Rohingya girl, who has had some education was of the opinion that the state machinery used 9 rape as a way to push women out of Myanmar. Forced relocation especially without compensation is also used to push women out of 10 Myanmar. These women are first taken to Bangladesh. But after the UNHCR repatriation programme started in Bangladesh new arrivals were no longer admitted to UNHCR camps. They were often pushed across the borders to India and then to Pakistan. The Rohingya population in Pakistan is mostly concentrated in the suburbs of Karachi, including Korangi, Orangi and Landhi. All these settlements receive regular visits from law enforcement agencies extorting money from their undocumented inhabitants. The Government of Pakistan has largely ignored the issue of trafficking of Rohingya women. Besides the risk of being sold, Rohingya women become victims of slavery through debt bondage. Because of their undocumented status, Rohingya women 11 constantly face arrest and imprisonment. The Chin and the Rohingya women epitomise the plight of stateless women in South Asia. Unwanted in their homeland the women are victims of gender based crimes such as rape, which are hardly ever considered as grounds for refuge. In a foreign country without any supporting documents these women are disenfranchized and depoliticized. They are unable to protest against sexual crimes for want of a legal status. The abuse that had pushed them across international border in the first place often seems to follow them in their new settlements. If they successfully repatriate to their birthplace they are still in a state of not belonging. In patriarchal systems women are constantly reduced to the status of non-subject. Crimes that are perpetrated particularly against women are often trivialized. Thus, fear for loss of life can become a ground for asylum or refugee status; fear of rape cannot.

INSTITUTIONAL RESPONSES OR LACK OF IT… None of the South Asian states are signatories to the 1951 Convention relating to the Status of Refugees or the 1967 Protocol. As India is the largest South Asian state it should be interesting to see how women refugees are dealt with here. In India, Articles 14, 21 and 25 under Fundamental Rights guarantee the Right to Equality, Right to Life and

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Liberty and Freedom of Religion of citizens and aliens alike. Like the other South Asian states India had ratified the 1979 Convention on the Elimination of all Forms of Discrimination Against Women in 1993. Although there is no incorporation of international treaty obligations in the municipal laws, still rights accruing to the refugees in India under Articles 14, 21 and 25 can be enforced in the Supreme Court under Article 32 and in the High Court under Article 226. The other guiding principles for refugees are the executive orders that have been passed under the Foreigners Act of 1946 and the Passport Act of 1967. The National Human Rights Commission has also taken up questions regarding the protection of refugees. It approached the Supreme Court under Article 32 of the Constitution and stopped the expulsion of 12 Chakma refugees from north-east India. Yet all these orders are ad hoc in nature and the legal position remains nebulous. This is true not just of India but all of South Asia. Pakistan also operated under the 1946 Foreigners Act. According to the provisions of this act no foreigner could enter Pakistan without a valid passport or visa. Such an act can be detrimental for all persons fleeing with their lives and especially for women who are unused to handling documentation proving citizenship. When 6–7 million persons entered Pakistan after partition this Act proved useless and had to be supplemented by the Registration of Claims Act of 1956 and the Displaced Persons (Compensation and Rehabilitation) Act 1958. Such Acts did not establish a legal regime for refugees in Pakistan, only the claims of a group of refugees. The ad hoc nature of Pakistani refugee regime continued. As for Sri Lanka, it is not a refugee receiving country but a refugee generating country. There are two Acts, which are especially detested by displaced people, the Prevention of Terrorism 13 Act and Emergency Regulations. Sri Lanka does not have any special acts that help or privilege internally displaced women who are vulnerable to abuse because of their gender. As for other state laws in South Asia, Nepal has an Immigration Act of 1992, which provides that no foreigner is allowed to enter or stay in Nepal without a visa. His Majesty’s government has full authority to expel any foreigner committing immigration offences. Most South Asian states have punitive measures for immigration offences but hardly any measures for helping displaced people. Further, none of these states have made any special stipulations for women refugees although a majority of all South Asian refugees are women. Why this lack? According to one observer, South Asian attitude to women has been 14 guided by ‘mystified notions of chastity’. This has led to the acceptance

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that women in South Asia belong to their communities. Indian and Pakistani attitude during the nascent stage of state building institutionalized this through their treatment of abducted women. It was agreed that in a state of dislocation women could lose the power to represent themselves. This was essential as dislocation meant that traditional control on women was eroded. Male centric states then assumed the prerogative of control. Women were often put under not just cultural but political control. They were restricted by representations and practices that homogenize and degrade them by transforming them into non-autonomous and dependent social category of ‘victim’. They as victims have no political voice. Their individual identity is subsumed within the identity of their communities. Therefore, when women are displaced in large numbers the focus shifts from them as a person to their communities. But methods of displacing women are often gender centric. Abuses are based on their individual gender roles. Thus, when states try displacing communities like the Burmese vis-a-vis the Rohingyas they use rape as an instrument for displacement. Yet when a large number of Rohingya women are pushed out and when other states respond institutionally the gender dimension is often overlooked. Not merely South Asian states but also international actors often overlook the gender dimension of this problem. As for international actors UNHCR is acquiring some importance in the region for its efforts regarding refugees and the internally displaced. The UNHCR has a guideline for the protection of women refugees but 15 it is left to the discretion of countries to follow these recommendations. In patriarchal states where policies are weighted against women, if these guidelines are left to the discretion of the government then it does not succeed in its purpose. Further, the programmes of these institutions such as UNHCR are built on certain practices. Similar to state practices the practices of international organizations such as the UNHCR also delegate women to the status of victim – a disenfranchizing phenomenon. The women have little or no say on policies that govern their lives and bodies even in camps run by the UNHCR. Albeit the UNHCR concerns itself with the protection of these women but they do not work towards their agency. This is not to suspect the intention of UNHCR but many of their policies such as the policy of repatriation can work against women who have acquired agency over their own person. Decisions regarding their relocation also assumed that refugees/ women cannot have any say in it. Even refugee subsistence allowance does not empower women but rather works towards their homogenization as victim. The Afghan urban women in India are denied

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agency by the UNHCR when they are not allowed to hold jobs. The Sri Lankan women refugees are denied agency when they are forced to use passes to get in and out of their camps. The practices that govern the daily lives of women in these camps also relegate them to the status of dependants. Then they are degraded in governmental and nongovernmental reports and discourses as miserable victims. The situation of Afghan refugees portray that even international agencies such as the UN can ignore the gender dimension of the problem. It has been observed that even UN Gender Missions can contribute to depoliticizing women. A case in point is Angela King’s mission to Peshawar and Islamabad. When Afghan women requested the UN through Ms King that they should try to mobilize educated Afghan women in peace-making, Ms King reportedly asked them to apply for UN jobs instead. After the meeting the women felt ‘confused, insulted, hurt, angry and substantially ignored’. But they noted bitterly ‘this is not an unusual situation – neither within our societies, nor within 16 the UN agencies’. Thus, the gender bias found in state policies regarding women’s dislocation might also be reflected in the attitude taken by international agencies. A state/state-like institution centric narrative on the situation of refugee women leads to their trivialization as mere victims. It shifts attention from the argument that state policy often results in the creation of refugees. State policy is not ungendered. To retrieve women’s experiences from such marginalizations it is essential to recognize the individual voices of refugee women in any narrative of displacement. Narratives based on responses of South Asian states cannot do so because governmental discourse reduces women to the status of victim and then justify their experiences as marginal and hence unimportant. Only by retrieving refugee women’s own voices and not dismissing their individual experiences as anecdotal can we centre the marginal.

NOTES 1. Syed Sikander Mehdi, ‘Chronicles of Sufferings’, Refugee Watch, Nos. 10 and 11, July 2000, pp.33–4. 2. Nirmala Chandrahasan, ‘A Precarious Refuge: A Study of the Reception of Tamil Asylum Seekers in Europe, North America and India’, Harvard Human Rights Yearbook, Vol. 2, 1989, pp.55–96. 3. B S Chimni, ‘The Legal Condition of Refugees in India’, Journal of Refugee Studies, Vol. 7, No. 4, 1994, p.385.

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4. C Amalraj, ‘Sri Lanka: The One-eyed Hope’, The New Leader, 1–15 June 1995, p.19. 5. About 23 female suicide bombers died by March 1998. Source: Yerimalai Report. 6. Joke Schrijvers, ‘Constructing Womanhood, Tamilness and The Refugee’ in Selvy Thiruchandran, ed, Woman, Narration and Nation: Collective Images and Multiple Identities, Vikas, New Delhi, 1999, p.179. 7. ‘The Maid Running Madness’, South Asia Refugee Information, Vol. 3, September 1996, p.1. Also see, ‘A Journey without End: Sri Lankan Tamil Refugees in India’, Refugee Watch, No. 2, April 1998, pp.9–11. 8. ‘Hundreds of destitute Burmese asylum-seekers marooned on Guam’, South China Morning Post, 6 February 2001, Source: Europe Intelligence Wire. 9. Interview with the author on 20 September 1998 in Dhaka. 10. ‘Trafficked from Hell to Hadis’, Report by Images Asia, November 1999. 11. Soma Ghosal, ‘Stateless and Opressed from Burma: Rohingya Women’, Refugee Watch, Nos. 10 & 11, July 2000, p.15. 12. See National Human Rights Commission vs. Union of India (1996: 1 SCC 295); Also Khudiram Chakma vs. Union of India (1994: Supplementary 1 SCC 614). 13. Interview with Yashoda in Sithamparapuram camp, Vavuniya, 22 April 1996. 14. Samir Das, ‘Ethnic Assertion and Women’s Question in Northeastern-India’, A K Jana, ed, Indian Politics at the Crossroads, New Delhi, 1998, p.177. 15. UNHCR, ‘Guidelines for Protection of Refugee Women’, EC/SCP/67, Geneva, July 1991, para 53/ Ia.. 16. Cassandra Balchin, ‘United against the UN: The UN Gender Mission Attitude Towards Afghan Women Refugees Within its Own Rank is Glaringly Hypocritical’, Newsline, April 1998, p.95.

GENDER, MEDIA AND THE TSUNAMI †

Ammu Joseph

We journalists are simply beachcombers on the shores of other people’s knowledge, other people’s experience, and other people’s wisdom. We tell their stories. Bill Moyers Host of the public affairs series ‘NOW with Bill Moyers’, on the US-based PBS television network, at Harvard Medical School in December 2004 Among the many questions this thought provoking quotation raises are: who are the people whose stories we tell, what aspects of their stories do we choose to highlight, when and where do we look for stories, how do we tell the stories we find, and why do we tell some stories but not others? More specifically, now, as beachcombers on the many shores devastated by the recent tsunamis, whose experience, knowledge and wisdom do we draw upon to tell the many tales waiting to be told? Which are the stories that have remained untold despite the carpet coverage given to the disaster and its immediate aftermath? Early critiques of media coverage in the wake of the tsunami tragedy of 26 December and beyond focused primarily on the widespread use of extremely graphic images of the dead and injured, especially on television, in contrast to the discretion exercized by the international media during the 9/11 disaster in the US, suggesting double standards with regard to the dignity and privacy of human beings in the so-called First and Third Worlds. There have been other manifestations of the †

Ammu Joseph is an author, a noted journalist and works on women’s rights. Refugee Watch, 24–6 October 2005.

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apparently incorrigible bias of sections of the mainstream international media accessible from India – for instance, the excessive, if not exclusive, attention paid to post-disaster aid originating in Western nations, with little mention of inter-Asia assistance and, of course, scant reference to the tremendous outpouring of contributions in cash, kind, labour and expertise from civil society within the affected countries. Similarly, the relative coverage given to the impact of the disaster on different countries is fairly revealing – Somalia, for example, has barely been on the media radar whereas Thailand, where the maximum number of foreign tourists died or disappeared, was very much in focus. The domestic media, too, has received some brickbats about sensationalism, voyeurism and about the insensitivity with which grieving, traumatized survivors have been pursued, especially by television reporters anxious to feed the apparently insatiable hunger of 24-hour news channels for dramatic images and sound-bytes. […] Among the many stories that remain to be told are those of tsunami affected women. This is one aspect of post-tsunami media coverage that does not seem to have received much attention so far. It cannot be said that women have been missing from media coverage. […] However, they have been appearing primarily as victims (weeping, wailing, awaiting or availing relief), as mothers (faced with bereavement and/or difficult choices, especially in their attempts to save children), and as heroines (for example, the Swedish mother and the British schoolgirl holidaying in Thailand). […] It may seem irrelevant to raise the question of gender awareness in the context of media coverage of a natural disaster such as this one, which obviously affected all those who happened to be in the path of the massive waves – men, women and children. Can there possibly be a gender angle to the tsunami story? Is it at all reasonable to call for a gender perspective while covering the post-tsunami situation? Assuming that the primary purpose of media coverage of disasters is to highlight the impact of such events, as well as their fallout, on diverse sections of the affected people, especially those at most risk, the answer to those questions is a very definite ‘yes’. The fact is that gender, along with other socio-economic variables such as class and caste, race or ethnicity, age and health status, does influence people’s experience of the events themselves, as well as their access to subsequent help in coping with the consequences and rebuilding their lives. What journalist Praful Bidwai wrote a few days after the disaster is significant in this context: ‘…Natural disasters are natural only in their causation. Their effects are socially determined and transmitted through

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mechanisms and arrangements which are the creation of societies and governments. Natural disasters are not socially neutral in their impact. 1 Rather, they pick on the poor and the weak, rather than the privileged’. Considering the gender based inequality and inequity that mark most societies – certainly those affected by the recent tsunamis – women are clearly disadvantaged in multiple ways. It naturally follows that women from the economically and socially deprived communities that usually bear the brunt of disasters – both natural and man-made – are likely to be especially vulnerable in the aftermath of calamities, as well as conflicts, unless special care is taken to ensure that their needs and concerns are taken care of. […] As a recent UN press release put it, ‘The Indian Ocean tsunami may have made no distinction between men and women in the grim death toll it reaped with its waves but it has produced some very gender-specific after-shocks, ranging from women’s traditional role in caring for the sick to increased cases of rape and abuse. Understanding and measuring these differences is essential for an effective response’. There were a few, scattered glimpses in the media soon after disaster struck of the special vulnerabilities of women in such situations. For example, there was one story about women having been hampered by their saris in their bid to escape the waves. And another one about women being raped and molested in unprotected refugee camps. The latter, a Reuters report based on a statement by the Women & Media Collective in Sri Lanka, underlined the importance of expanding the range of news sources to be tapped and taken seriously even in a crisis situation that appears, on the surface, to have nothing to do with gender. There were also hints of potential gender related stories in some other early reports. For example, the unscrupulous tactics reportedly employed by some family members in Tamilnadu to corner the funds expected as compensation for deaths does not bode well. Countless earlier examples of post-disaster and post-conflict situations, including the post-Kargil scenario, have demonstrated that the most vulnerable in society – including women and children – often tend to lose out in this process. […] However, a number of other important stories concerning women have, by and large, been missing from the media over the past month. For example, media coverage of the impact of the disaster on people’s livelihoods seems so far to have focused primarily on the fishermen, their boats, nets, and so on. This may well be because that is what the government and several other agencies are concentrating on. Despite the mandatory, usually superficial and ill-informed quotes and sound-bytes from the so-called man/woman-on-the-street that have become media

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staples these days, the media continue to rely excessively on the ‘authorities’, ‘leaders’ of various groups and sundry ‘experts’ for information on and analysis of crisis situations. While restoration of fishing is no doubt an obvious and important issue that needs to be urgently tackled, too little attention is apparently being paid to other economic activities in coastal areas, including those involving women. A recent report by a team of volunteers who have just returned from the affected areas points out that rehabilitation packages for livelihoods formulated from a ‘property owner centric’ viewpoint tend to ignore the needs of people from the fishing and farming communities who do not own boats, nets, lands or shops. […] Unfortunately, even reports documenting and highlighting the callous, indefensible neglect of Dalit and Adivasi communities in the relief and rehabilitation process, tend to be genderblind. Yet women, especially those from such marginalized communities, who form a major section of the informal or unorganized sector of labour, and who rarely own property, are likely to be even more invisible and unaccounted for in this situation. And such an information gap could have serious repercussions in terms of reconstruction and rehabilitation efforts, official and otherwise. If women’s economic activities, losses and needs are not taken into account, the relief, recovery and rehabilitation process may not address the livelihood concerns of a wide range of women, including female heads of households, widows, other single women, older women, destitute women, and so on. Consequently, they and their families may not receive the kind of help they require to survive in the short term, and rebuild their lives in the long term. […] By highlighting women’s economic roles and requirements, the media could prompt the authorities and other decision-makers to pay more heed to them. A relatively simple way to do this would be to talk to members of the women’s Self Help or Savings and Credit Groups (SHGs and SCGs) that reportedly exist in most of the tsunami hit villages highlighting their members’ livelihood related concerns and needs. At present these groups are being ignored by the government, other agencies as well as gram panchayats in the process of planning and decision-making, according to preliminary reports from a team, including five women survivors of the Latur and Gujarat earthquakes, which visited 13 villages in the worst affected areas in Nagapattinam district in mid-January to share experiences with and assess the needs of fellow disaster-struck women. The team of grassroots women also uncovered gender disparities in access to available health services – not on account of discrimination

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per se but because of the general lack of attention to women’s special needs and concerns. For instance, in Madatikuppam and other villages where government health teams have been operating since the waves wrecked havoc, […] many women and girls told the team that they were too embarrassed to go to the health camps even though they needed medical attention, because all the doctors were male and the facilities did not provide any privacy for check-ups. Again, the media could play an important part in helping to remove such hurdles to women survivors’ access to healthcare. […] It is clear, for example, that women are best placed to provide insights into the kind of relief measures and/or materials that would be most useful in the initial stages since they are likely to be the ones trying to ensure that their families are fed and clothed. In view of the vital role they play in ensuring family survival and well-being, their views also need to be subsequently sought on issues such as how and how long the temporary relief camps should operate, what assistance people need when they are in a position to return to their villages, […] how to make sure that the situation of women and other traditionally deprived sections of society is better, not worse, in the post-tsunami scenario. The experience of survivors of the Latur earthquake – which has since been shared and built upon with earthquake survivors in Gujarat, Turkey and, now, tsunami survivors in Tamilnadu (and, possibly, Sri Lanka) highlights the immense value of involving communities, particularly women, in the design and implementation of post-disaster plans and programmes, as well as in more long-term efforts towards appropriate, holistic development in the affected areas. […] The point is that, while gender is often seen as a narrow, special interest issue far removed from the hurly-burly of hard news coverage, gender awareness can actually lead to a better, more holistic understanding of any event and its after effects. Taking the time and trouble to talk to women and women’s groups – even in a crisis situation – cannot only yield insights into the larger picture but point the way to special stories that are not only interesting but significant. The media – and media professionals – stand to gain by recognizing that there is a gender dimension to virtually every event, process, institution and/or individual experience covered by the media, including disasters and conflicts. And that women – including poor and illiterate women have information, knowledge and opinions on practically everything. Failure to tap women – including those now attempting to resume life after the disaster – as sources and resources can only impoverish media coverage and diminish our understanding of the post-tsunami scenario, as well as many other similar situations.

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According to Heyzer, ‘The special protection needs of women and girls require attention, and the voices and perspectives of women and women’s support networks need to be given visibility in national strategies for relief and reconstruction, by aid organizations, and by the media. By responding in this way, we can turn the crisis into an opportunity for laying the foundations of a future where all people can live with dignity, security and justice’.

NOTES 1. The News, Pakistan, 30 December 2004.

WHY SHOULD WE LISTEN TO HER? Maria Ahlqvist

†

The refugee situation is one of the burning issues in today’s world, where 1 refugees make up more than 1 per cent of the whole population. Moreover, a great majority – of over 80 per cent – of refugees are women 2 and their dependent children. The world’s refugee situation is thus strongly manifested in and lived through the gendered experiences of women refugees. Yet, even in the face of the telling figures there however exists a striking disparity between the reality of the refugee situation and the business-as-usual of the refugee regime – refugee women’s experiences are deemed to fundamental otherness. According to UN High Commissioner for Refugees (UNHCR), ‘(H)istorically, the refugee definition has been interpreted through a framework of male experiences’. […] Without taking into account refugee women’s experiences, it is not possible to understand the refugee situation in a comprehensive and integrated manner. Omitting women’s experiences leads to a deficient and incomplete refugee regime and results in inadequate and often even faulty responses to the refugee situation. […] It is also of importance and interest to elaborate on the argument on a broader plain. It is possible to connect the argument for example to feminist historiography. In this connection, the argument for the importance of moving towards a more complete refugee regime through listening to women’s experiences can be strengthened by the notion that ‘a representative history can only be written if the †

Maria Ahlqvist researches on development studies at the University of Helsinki, Finland. She is currently the co-ordinator at the National Committee for UNIFEM in Finland, Refugee Watch, 24–6 October 2005.

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experience and status of one half of humankind is an integral part of the 3 story’. Further, as the work of Ritu Menon and Kamla Bhasin on women’s narratives about the partition of India points out: ‘Hardly ever, and hardly anywhere, have women “written history”. […] Women historians have noticed this absence and emphasized the importance of retrieving women’s history through oral sources. Because women have used speech much more widely than the written word, oral history practitioners have found in interviews […] a rich vein to mine and to surface what, so far, has been hidden from history […]’. In the case of refugee women, such qualitative information derived from listening to their experiences can, for example, vividly point out to the kind of specific needs refugee women have. […] ‘It is in the person of a refugee that women’s marginality reaches its 4 climatic height.’ What, then, amounts to the female refugee experience? What makes it gender-specific? The literature on the theme draws up a highly multidimensional picture of the issues, influences and vulnerabilities that a woman refugee faces. This multidimensionality makes the listening to women’s experiences, and hence properly understanding the refugee situation, a challenging and necessary task. […] Yet, the gendered experience is always contextual. There is no single bloc of female refugee experience as ‘refugee women are not merely women, but possess other identities that relate to race, class, ethnicity and 5 religion’. It must thus be kept in mind that these ‘other identities may 6 divide women more than they are united in their common gender’. Yet, I argue, and the literature on the theme also suggests, that patriarchal norms are a common denominator to refugee women’s experiences from countries and societies under conflict, marking the experiences women refugees frequently go through. It is thus imperative to listen to women’s experiences in order to understand the factors, of which patriarchal norms are part/in which patriarchal norms are embedded in. […] My elaboration on how patriarchal norms mark refugee women’s experiences focuses on a few selected aspects, which a number of sources highlight as of especial significance in the context. […]

GENDERED VIOLENCE Displacement situations are ‘universally often preceded and accompanied 7 by physical violence’. It has, however, to be noted that conflict affects men and women differently and ‘the targets of ethnic violence are particularly women and they suffer the worst forms of cruelty and

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indignity in the form of rape’. Gendered, sexual violence indeed stands out as a key denominator permeating refugee women’s experiences. Women’s vulnerability to gendered, sexual violence in conflict and refugee situations is a strong manifestation of women’s patriarchally governed social positions. Patriarchal norms’ manifestations in this context are, moreover, dual in nature. On one hand, ‘Desecration of women’s honour to demoralize the enemy’, for instance, ‘has always been an important 9 wartime strategy’. On the other hand, another, contrasting manifestation of the role of patriarchal norms in the gendered violence faced by women is described by Urvashi Butalia in what happened during the partition of India, where, when ‘women were concerned, the debate entered another 10 realm altogether – that of the honour of the nation, and of its men’. Characterizing the gendered violence drawing from patriarchal norms faced by many women in the partition, was thus the notion that ‘While the men could thus save themselves, it was imperative that the women – and through them, the entire race – be “saved” by them’ through the martyrdom of women in the face of the threat of forced conversion and rape […]’. Refugee women’s bodies are frequently the site of the protection of 11 national honour and namely, the markers of male honour. The patriarchal control over refugee women’s sexuality can further be identified in 12 the institutional responses, which vary with individuals. As a historical example, women refugees from East Pakistan who ‘were considered respectable and therefore useful for the nationalizing and state building 13 project were accommodated within the majoritarian community’. ‘The experience of being a woman refugee is already fraught with health risk 14 and uncertainty’ – a plight with interconnected elements contributing to the risk and vulnerability. The gendered violence permeating women refugees’ experiences amounts in severe health and psychological problems understanding of which and appropriate responses to which can be attempted only when the experiences of women themselves are listened to. Further, as Asha Hans points out, ‘sexual violence is not only a personal trauma but has a social stigma attached to it’, which highlights the way in which a refugee woman’s status and sexuality are tied to the society – a further challenge for the understanding and for providing appropriate responses in refugee situation.

DYNAMICS OF DISEMPOWERMENT AND EMPOWERMENT Displacement is a two-way path on which refugee women are never merely marginalized victims but can in fact transform their marginality

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15

into agency. Indeed, ‘While it is true that during periods of intense crisis and dislocation, patriarchy can intensify and deepen the subordination of women, it is equally true that new space for manoeuvring is created. Dislocation can produce a climate in which women are no 16 longer obliged to adhere to traditional, culturally determined roles’. The spaces of empowerment brought about by displacement, however, face their negative counterpart in patriarchal norms where ‘the process of empowerment’ can be burdening. […] Understanding the question of women’s disempowerment in refugee situations and the interplay of patriarchal norms in it, is of vital importance further because it also touches upon the destiny of refugee children. For example, where ‘patriarchal norms have not prepared women for an independent life, especially as the heads of households in an unknown environment’ there is a risk that ‘generations of children in refuge go without the 17 common necessities of childhood’. Understanding the ways in which patriarchal norms lie and influence refugee women’s experiences of disempowerment and/or empowerment is another vital dimension for a proper understanding of the refugee situation and for the formation of appropriate responses, to promote empowerment and/via the transformation and reformulation of old elements into progressive patterns. This does not address only refugee women – refugee men also need support where ‘the collapse of traditional structures of patriarchy and the lack of stability or security have undermined traditional gender roles’. […]

THE REFUGEE REGIME AS A REPRODUCER OF PATRIARCHAL NORMS The majority of refugee women come from developing countries in which patriarchal norms mark their positions and further, their destinies as refugees. It is of critical importance anyhow to take another look at patriarchal norms – the way in which they are reflected and reproduced in the refugee regime. Firstly, it can be interrogated to what extent the international refugee regime in itself is based on a fundamental patriarchal notion where it is based on the officials’ representing the refugees. Refugees are infantilized in a process where decision-making power is transferred from 18 refugees to officials. This process is especially strong with reference to women refugees who have the least opportunity to represent themselves but instead, ‘the practices of international organizations such as the

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UNHCR tend to delegate women to the status of victim, which is a 19 disenfranchising phenomenon’. Listening to and chronicling women’s experiences is extremely significant in tackling another challenge of paramount significance in the proper understanding of and appropriate responses to the refugee situation – namely, to respond to the ‘call for a definition of persecution which acknowledges the feminist theory of social bifurcation: that society is divided into public and private spheres […] the public sphere 20 is male-dominated and women are relegated to the private sphere’. Understanding this is imperative for a gender-conscious, more complete refugee regime because of ‘a distinct “women’s experience” of the 21 private sphere which is the site of gender oppression’. […] A further, practical manifestation of the presence of patriarchal norms in the refugee regime marking women refugees’ experiences is illustrated by Susan McDonald: ‘Often it is the male who applies for and receives 22 permanent residency status and he then will sponsor his wife’. Such a procedure amounts to women’s vulnerability where, ‘When a woman does not have a secure immigration status, the fear of deportation can be overwhelming. An abuser may have made threats in this context or 23 actually have withdrawn his sponsorship’.

CONCLUSIONS AND FURTHER THOUGHTS From the viewpoint of this term paper, listening to women’s experiences, and also chronicling them, is particularly important in understanding the refugee situation and forging appropriate responses because patriarchal norms lie at the heart of many of the women refugees’ gendered experiences and vulnerabilities and the fact that many of the women refugees’ claims go unrecognized. Only through listening to women themselves can the interplay of these norms in what constitutes the great majority of the refugee experience be comprehended and responded to in a constructive and sustainable manner. […] On a broader plane, listening to women refugees’ experiences, and chronicling them, is of particular importance because women’s experiences add a critical and vital dimension to ‘any analysis of the refugee situation’s impact on women and men, on the relations between them and also the relation between gender and social as well as 24 historical processes’. […] Listening to women’s experiences is also important for it can pave the way for the recognition that the notion of gender element should also cover for example refugee claims based on

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differing sexual orientation. Further, as Asha Hans (2000) points out, listening to women’s experiences about how conflict ‘has affected women’s lives […] is an important dimension in the general study of peace and conflict which is overlooked’. (Italics added) Attention to women refugees’ experiences should also increase critical awareness on the reasons why people are forced to become refugees in today’s world to begin with. […] A gender sensitive view taking into account women’s socio-economic positions reveals that, ‘presumably because more money is required to flee to Europe than is required to flee to refugee camps in neighbouring countries (as the great majority of refugees are forced to do), less than a quarter of the few 25 asylum seekers […] are women’. Such accounts highlight the inequality between those on the favourable and those on the unfavourable side of globalization, and further, the lot of women in this context, and call for critical self-reflection by the former on their involvement in and contribution to the problem.

NOTES 1. Paula Banerjee in Joshva Raja, ed, Refugees and their right to communicate: South Asian perspectives, World Association for Christian Communication, London, 2003, p.139. 2. Ibid. 3. Ritu Menon and Kamla Bhasin, A Community of Widows: Missing Citizens and Speaking for Themselves: Partition History, Women’s Histories in Borders & Boundaries: Women in India’s Partition, Kali for Women, New Delhi, 1998. 4. Paula Banerjee, in Joshva Raja, ed, op. cit. 5. Mekondjo Kaapanda and Sherene Fenn, Dislocated subjects: The story of refugee women, Special essays in Refugee Watch, as available online on 2 December 2004 at [http://www.safhr.org/refugee_watch10&11_8.htm]. 6. Ibid. 7. Asha Hans, ‘Internally displaced women from Kashmir: the Role of the UNHCR’, Refugee Watch, Vol. 2, No. 1, July 2000. 8. Ibid. 9. Hans in Ranabir Samaddar, ed, Refugees and the State – Practices of Asylum and Care in India, 1947-2000, Sage Publications, New Delhi, 2003, p.379. 10. Urvashi Butalia, The Other Side of Silence, Duke University Press, Durham, 2000. 11. Paula Banerjee, in Joshva Raja, ed, op. cit., p.143. 12. Ibid., p.146. 13. Ibid. 14. Patricia Kennedy and Jo Murphy-Lawless, ‘The Maternity care needs of refugee and asylum seeking women in Ireland’, Feminist Review, Vol. 73, Palgrave MacMillan, London, 2003.

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15. Paula Banerjee, in Joshva Raja, ed, op. cit., p.160. 16. Mekondjo Kaapanda and Sherene Fenn, op. cit. 17. Hans in Ranabir Samaddar, ed, p.356. 18. Ibid. 19. Paula Banerjee, in Joshva Raja, ed, op. cit. 20. Jacqueline Greatbatch in Chimni, B S, ed, International Refugee Law – a Reader, Sage Publications, New Delhi, 2000, p.35. 21. Ibid. 22. Ibid., in Canadian Woman Studies, Vol. 19, No. 3, p.164. 23. Ibid. 24. Ritu Menon and Kamla Bhasin, A Community of Widows: Missing Citizens and Speaking for Themselves: Partition History, Women’s Histories in Borders & Boundaries: Women in India’s Partition, Kali for Women, New Delhi, 1998. 25. Teresa Hayter, No borders: the case against immigration controls, Feminist Review, Vol. 73, Palgrave MacMillan, London, 2003, p.7.

WOMEN, TRAFFICKING AND STATELESSNESS IN SOUTH ASIA †

Paula Banerjee

It is estimated that around 27 million people today are living in conditions similar to that of slavery and human trafficking has become a 1 global industry worth $ 12 billion a year. It is even more baffling to note that twice as many people are enslaved today than during the days of the African slave trade. How can that be and what exactly is human trafficking? Human trafficking can be described as the forced movement of people for purposes of labour, such as prostitution and other kinds of work, including domestic work. If one looks at the history of the term ‘trafficking’ it can be traced back to ‘white slave trade’. Before the great wars it meant the coercion or transportation of Caucasian women to the colonies to service white male officers. From 1904 there were efforts to stop ‘white slave trade’ leading to the Convention for the Suppression of the Traffic in Person and the Exploitation of Others in 1949. It is the Palermo Protocol to the United Nations Convention against Transnational Organized Crime that made trafficking in persons an international criminal offence in the year 2000. The Protocol was drafted to meet all aspects of trafficking, whether for sexual or labour exploitation. The Protocol’s objectives are to prevent trafficking, punish traffickers and protect victims. The Protocol urges states to criminalize trafficking. It also specifies the activities, means and purposes that constitute the offence. The important features of the Protocol are:

†

Department of South and South East Asian Studies, Calcutta University and Senior Researcher in Calcutta Research Group, Refugee Watch, 27 June 2006.

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• The activities involve: recruitment, transportation, transfer, harbouring or receipt of persons. • The means include: threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of other giving or receiving of payments or benefits to achieve the consent of a person having control over another person. • The activity must be for the purpose of exploitation, which must include – inter alia exploitation for prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices 2 similar to slavery, or servitude. The Protocol makes it clear that consent of the victim is irrelevant if means such as these are used. No doubt that such a Protocol is definitely a step forward even though it does not give a watertight definition of trafficking or define terms such as ‘exploitation, coercion and vulnerability’. Yet notwithstanding the Protocol today the estimated profit from prostitution and forced labour of trafficked persons amounts 3 to $ 8–10 billion annually. The global trade in human trafficking has boomed and the victims are largely women and children from the developing world. This cheap availability of flesh is exacerbated by another phenomena that can be termed as statelessness. For in the words of Senator Brownback of Kansas, ‘this ready reservoir of stateless 4 presents an opportunity rife for exploitation by human traffickers’. ‘Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality, nor denied the right to change his nationality’, declares Article 15 of the Universal Declaration of Human 5 Rights (UDHR). Yet, today thousands are deprived of their nationality in many different parts of the world and South Asia is no exception. This happens because as per international law it is the state that decides who are its citizens and who are not. In this process of inclusion and exclusion many are denied citizenship by any state and so they become stateless. The case of Rohingyas of Myanmar, Chakmas in parts of north-east India, Biharis in Bangladesh and Lhotsampas from Bhutan immediately comes to ones mind if one only looks at South Asia. 6 People deprived of a nationality are called stateless. There are many reasons for statelessness. […] The problem of statelessness multiplies manifold when these hapless people fall victim to human traffickers. This essay will reflect, with examples taken from South Asia, on how statelessness is both a cause and effect of human trafficking. It will also reflect on the fact that the perceived gendered nature of trafficking in South Asia makes it a low priority for South Asian states and so states

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do little to contain this problem. By their inability to create a regional mechanism against trafficking, South Asian states are contributing to the violation of both women’s rights and human rights and increasing both the number and the plight of stateless people.

TRAFFICKING: A RESULT OF STATELESSNESS That statelessness results in human trafficking is borne out by the situation of displaced ethnic minorities from Myanmar such as the Chins and the Rohingyas. Since independence, Burma has been torn apart by civil wars between the central government and the various opposing ethnic groups. Such ethnic rivalries were in part a legacy of the divide and rule policy of the occupying British government and in part the policy of discrimination practised by the ruling elite. Political instability in Burma, later renamed as Myanmar, led to the military coup of 1962. Since then a ruthless military junta rules the country. This junta has suppressed any dissent from either the ethnic groups or pro-democracy movements leading to massive desertion and displacements. There are many ethnic minorities that have suffered discrimination under successive Burmese governments. […] Following the brutal crackdown of 1988 by the State Law and Order Restoration Council (SLORC), against democratic movements in Burma, refugees came to Mizoram in large numbers. Refugee camps were set up by the Mizoram government in Champai and Saiha districts of Mizoram to accommodate these Chin refugees. However, these camps were closed down in 1994–5 when the Indo-Myanmar border trade talks began. One of the main reasons for closing down the camps was the request of the Burmese government, which believed that the Chin National Front (CNF), who were fighting for the independence of Chin State, were operating from these camps. Since then the Chin refugees have been scattered all over Mizoram and forced to find work for their survival. […] As in any displaced population more than 50 per cent of the Chins 7 who came to India were women. Many of these women took up jobs in local schools. Yet when the pushback came even they were not spared. Chin women came to India both for reasons of political persecution and to earn money. As one Chin woman told Refugee International, ‘It is true that I have come to Mizoram to earn money. The Burmese army forcibly conscripted my son. I have not seen him for more than two years. My husband is sick and he cannot work. […] What alternative do I have but

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to come here, earn money and take it back with me to Burma? If I don’t 8 come to Mizoram, my family in Burma will not survive’. […] The situation of the Rohingya women is even worse than the Chins. These women are Muslims and are considered ‘resident foreigners’, even in their homeland. Their subordinate status within their own community discourages them from procuring education or working outside their homes. The state authorities and the army habitually sexually abuse them. Sayeeda, an 18-year-old Rohingya girl, who has had some education, was of the opinion that the state machinery used 9 rape as a way to push women out of Myanmar. […] The Chin and the Rohingya women epitomise the plight of stateless women in South Asia. Unwanted in their homeland, the women are victims of gender based crimes such as rape, which are hardly ever proved, and their perpetrators are almost never punished. In a foreign country without any supporting documents these women are disenfranchized and depoliticized. They are unable to protest against sexual crimes for want of a legal status. The abuse that had pushed them across the international border in the first place often seems to follow them in their new settlements. […] The Rohingya women are de jure stateless but there are many displaced women who are not de jure stateless but become de facto stateless in their situation of displacement. This is borne out by the circumstances of women living in the refugee and IDP camps. Many refugee women and young men living in refugee and IDP camps become depoliticized and are unable to exercise their political rights. In such a situation they are unable to access resources for their living and fall victims to human traffickers. The situation of Sri Lankan refugees in India is a case in point. By 1989 there were about 160,000 refugees from Sri Lanka to India, again largely women with their dependents. Initially, the state government provided these refugees with shelter and rations, but still many of them preferred to live outside the camps. Although the Sri Lankan refugees were given a political status by the Government of India (GOI) but still their plight was unmitigated. They were registered and issued with refugee certificates. In terms of education and health both registered and unregistered refugees enjoy the same rights as the nationals. Nevertheless, in the absence of specific 10 legislation their legal status remains ambiguous. The precarious nature of their status became clearer in the aftermath of Rajiv Gandhi’s assassination. NGOs access to the camps, refugee’s freedom of movement and access to education and informal occupations were all severely curtailed. […]

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After Rajiv Gandhi’s assassination, politicians began to shun the 11 refugees. As most of these were women they were initially considered harmless but with the number of female suicide bombers swelling there 12 was a marked change in GOI’s attitude to women refugees. What the GOI failed to acknowledge was that the number of female bombers 13 swelled after the Indian Peace Keeping Force (IPKF) operations. The government turned a blind eye when touts came to recruit young women from the refugee camps in Tamil Nadu to work as ‘maids’ in countries of Middle East. Most of these women were then smuggled out of India and sent to the Gulf countries. Often they were badly abused. […] Even when the situation is not so extreme it is still traumatic for young women. In Indian camps refugee families are given a dole of Rs 150 a month, which is often stopped arbitrarily. Women are discouraged from taking up employment outside the camps. During multiple displacements women who have never coped with such situations before are often at a loss for necessary papers. When separated from male members of their family they are vulnerable to sexual abuse. […] In a situation of statelessness, sexual abuse and human trafficking go hand in hand. This is portrayed by the case of Nepali speaking Bhutanese refugees. These southern Bhutanese refugees were deprived of their citizenship by the Citizenship Act of 1985 and then driven away from their homes from 1990 onwards. This happened in the wake of Drukpanization of the Bhutanese people. The government devised various strategies to bring about a demographic balance that was favourable for a Drukpa/Ngalung nation by reducing the number of Lhotsampas to around 25 per cent of the population and to prevent the demand for democracy from southern Bhutan. The Marriage Act was even more discriminatory for Lhotsampa women and children. The Act declared all foreign wives of the Bhutanese citizens as non-citizens, even though most of them were granted citizenship under previous citizenship laws. In contravention of all international norms the Royal Government denied several thousand children (born out of marriages between Lhotsampa husbands and Nepali speaking wives from Nepal or India) of their right to nationality. They were evicted along with their parents. This Act was only enforced against the Lhotsampas. The Lhotsampas who married non-Bhutanese wives could not get jobs in either the Armed Forces or the Foreign Services. They did not have the right to vote in the National Assembly elections, they were often denied promotions in civil services and were denied most fellowships and grants. They were also denied business and agricultural grants and loans given by the government and could not avail of government supplied

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fertilizers, seeds and farm machineries on subsidies. After 1988 government officials carrying out the census declared all non-Bhutanese wives of Lhotsampas as illegal immigrants. These women were threatened with deportation and many such women committed suicide. These South Bhutanese people were asked to prove of their presence in Bhutan on 31 December 1958. If people failed to provide the evidence sought they were declared as illegal migrants and then evicted. By the 1990s more than 125,000 Nepali-speaking Lhotsampas of Southern Bhutan, nearly a sixth of the kingdom's total population of approximately 782,548 were forced to leave or forcibly evicted from the country by the Bhutanese government. This made Bhutan one of the highest per capita refugee generators in the world. As on March 2001, 98,886 Bhutanese refugees are living in seven refugee camps in eastern Nepal managed by the UNHCR. About 25,000 are living in India and some are scattered in the hills and valleys of Nepal. Many southern Bhutanese are living in UNHCR run refugee camps. Recent reports suggest that many of these women in the camps are facing problems. A number of them fled systematic discrimination including rape, imprisonment and forced labour. […] The male dominated leadership in the camp often ignored the sexual violence and domestic violence that a number of women faced. Also, the camp management often undertook the work of providing assistance to women. This also meant that aid was given on an ad hoc basis to women who did not have any male support. Several cases of sexual exploitation involving refugee aid workers surfaced in Nepal in October 2002. […] Faced with no hope of repatriation, abused by the male members and aid workers these women became easy prey for human traffickers. Many of them ended up in brothels in Mumbai and elsewhere. Statelessness makes women even more vulnerable to displacement. In patriarchal societies such as those found in South Asia women are usually looked upon as unequal partners in the process of state formation. […] Once citizenship is denied then it becomes much easier to evict and displace women. In such situations women become so vulnerable that they fall prey to different kinds of abuses. Trafficking is the worst form of abuse that is meted out to these women. […] However, there is another side to this argument and that is trafficking leads to statelessness. There is a plethora of examples where once trafficked women end up being stateless. Let us look into this phenomenon now with examples taken from South Asia.

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TRAFFICKING: A CAUSE OF STATELESSNESS Etienne Balibar has argued that the fissures in the ‘modern political community’ emerge from the ‘practical and ideological sexism as a structure of interior exclusion of women generalized to the whole society’, 14 which leads to the ‘universalization of sexual difference’. Thus, modern states that are built on gender difference develop a precarious relation with its women. Women became both subjects of the state as well as its other. In pluralistic societies, such as those found in South Asia ‘the modern projects of national independence, state building, and economic 15 development have had distinctive gender implications and outcomes’. […] I argue that one way of marginalizing women from body politic is done by targeting them and displacing them. Patricia Tuitt has commented that, ‘space in its physical and mental form is organized 16 between race, class and gender among other factors’. Women’s relation to space is therefore different from that of men. Since displacement is intrinsically related to space, women respond differently from men in situations of displacement. Taken together with women’s traditional distance from state power it means that at least initially women are often at a loss to cope with displacement. […] Recent newspaper reports from the borders of India and Bangladesh are rife with news of the growing trafficking of women and children from Bangladesh into this region. To find out why this whole region is vulnerable to traffickers one needs to realize that this is a region of endemic poverty, social imbalance and political violence particularly against vulnerable groups of whom women form a large part. This region is undergoing certain social and political turmoil where more and more women are getting marginalized. In Bangladesh for example, effects of globalization, growth of fundamentalism, modernization policies such, as building of dams, etc. have all contributed to violence against ethnic and religious minorities, and against women. Of course minority women are in a double bind. They are attacked both as minorities and as women. […] According to Meghna Guhathakurta, ‘it was advantageous therefore for the fundamentalists to target women who step outside the bounds of social norms since they represented a 17 potential threat to the male-dominant status quo’. To compound all of these developments there is endemic poverty and land alienation of poorer groups of people in chars (enclaves). Such developments have led to widespread control and destabilization of women in the region leading to their displacement. A fallout of this is an increase of trafficking of women and children across the border. To these, another

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cause can be added that directly affects the scenario of trafficking of women from Bangladesh. The immediate past and the present governments have embarked on a policy of brothel eviction. One of the biggest brothels in Bangladesh is in Tanbazar in Narayanganj. This brothel started during the colonial period. Later, many internally displaced women gathered in the area and were dependent on this brothel for their livelihood. In July 1999 sex workers from this brothel were evicted by the government and sent to vagabond centres where there are evidences that they were severely mistreated. In such situations it is not surprising that women fall prey to traffickers and cross borders for survival. Women from Bangladesh are not the only group of women who are trafficked in this region. There is an increase in cases of trafficking from north-east India as well. Evidence gleaned from north-east Indian media reports clearly portrays such a phenomenon. A newspaper report from north-east India said that: Of late, there have been reports in the media that trafficking in women is taking place from Assam and other states of the northeast, and a well established conduit is functioning to dispatch the hapless women to the metros of the country. The target is obviously the poor girls who are easily enticed with the lure of money and a promise of a respectable job either as a ‘maid’ or a ‘sales girl’ in a house or establishment. Apparently, there are local 18 connivers who function as a cover for the operators. The other region that has been seriously affected by an increase of human trafficking in South Asia is Nepal. The popularly termed Maoist rebellion has exacerbated the situation further. Nepal is considered the most significant source of girl child commercial sex workers in India. The girls who come from Nepal to Indian brothels are as young as 9 to 10 year olds. In this era of globalization, tourism has become another occasion for child trafficking from Nepal. […] A very disturbing phenomenon within this process is that young Nepali ‘virgins’ are trafficked because people not only prefer their fair complexion but also there is a ridiculous but common belief among some communities that having intercourse with a young girl can cure many sexually transmitted diseases as well as AIDS. Hence Nepali girls are in great demand in India. […] Once these women are trafficked they lose most of their rights and become virtually stateless people. Even migrant women workers from

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Nepal end up being trafficked. In Nepal there are no specific laws or acts to protect the women migrant workers. […] Moreover, most of these women do not have documents that prove their legal identities and this becomes a primary reason for their vulnerability and statelessness. Without papers nowhere are they able to access either their rights or justice. These women do not have any unions to protect their interests neither do they have linkages with their embassies. Also most of these women come from very poor families so even their family networks are unable to protect them. Often their families are responsible for selling them. So in times of need these women are unable to turn to the state, community or family. In South Asia, Nepal and Bangladesh are the big suppliers of women and children into the flesh market with north-east and east India steadily increasing their supplies as well. India is the major receiving country. The size of India’s flesh trade can be understood from a report of the Save Our Sisters Movement. The report states that there are 10 million prostitutes in India of whom 100,000 are in the city of Mumbai alone. The red light districts in Mumbai generate an annual revenue of $ 400 million and children as young as nine years are auctioned where they can fetch up to Rs 60,000. People from as far as the Gulf countries come to these biddings. The same report suggests that more than 40 per cent of the 484 girls rescued from Mumbai in 1996 were from Nepal. […] Satellite towns of the Indian states of Bihar and Uttar Pradesh such as Begusarai, Dhaulpur and Gorakhpur are allegedly ‘market centres’ for transporting girls from Nepal and Bangladesh. What is more disturbing to note are the players in the organized chain of cross border trafficking often includes the cross border policemen – the very people who are 19 assigned to protect and combat the problem. But, India is not the only receiving country and Nepal and Bangladesh not the only suppliers. In this region all countries supply and receive trafficked people. Pakistan is often the destination point for those trafficked from Bangladesh, Burma and Central Asia. It is also the recruiting ground for women from within the country. Pakistan is also a source and transit country for young boys who are trafficked to the United Arab Emirates, Kuwait and Qatar to act as camel jockeys. Women trafficked from East Asian countries to the Middle East also transit through Pakistan. […] Trafficking is not a problem of just one country but of the entire region of South Asia if not the world. Most researchers agree that more women and children are trafficked than men. The tsunami of 26 December 2004 also enormously increased the number of trafficked

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people from South Asia. These people are trafficked not just for commercial sex trade but also for the purposes of labour. […] There are well-documented cases of Bangladeshi labourers travelling to Southeast Asia where they are forced to live and die as illegal migrants so that they cannot get out from the clutches of agents who live on the money that these hapless people have earned. […] For women the situation is even worse. At least in the case of South Asia most women are not used to carrying identity papers. Even in their own homes it would be difficult for them to prove their national identities. As for women who are trafficked it becomes even more of a problem. They are in a permanent state of not belonging. Hardly ever do they have any papers. The moment they cross borders they become stateless and liable for prosecution if they are caught. They are threatened, persecuted, abused and kept in a constant state of insecurity. They are unable to protest because they are stateless. In all South Asian countries, stateless people are dealt with much severity notwithstanding the fact that they have been trafficked. In fact in countries such as India stateless people are marked as ‘illegal migrants’ and are equated with terrorists. This is borne out by a comment made by the leader of the opposition party Lal Krishna Advani. He said that ‘Infiltration of foreigners from Bangladesh and terrorism are two of the biggest threats faced by the country today’. In the same report, ‘Advani expressed the view that the infiltration of foreigners has posed a threat to the entire country, particularly the North-Eastern states, Bihar and West Bengal. No country in the world is taking the problem of illegal migration so 20 casually’. […] The seriousness of the problem can be understood from the fact that in 2006, the state of West Bengal is supposed to hold the state elections. In that election, 40 sex-workers from Kalighat have been denied the right to vote even though they have been living in the same area for over ten years. Notwithstanding international protocol, these women are shunned as stateless women. The magnitude of the situation can be understood by the threat of all the sex workers from the same area to boycott the elections as they are aware that the fate of women who are denied from voting might become more precarious if the state 21 decides to push them beyond the borders.

CONCLUSION I began this essay by stating that one of the most important rights that a human being is supposed to enjoy is the right to nationality. Yet there are

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stateless people all over the world who are denied this right. The 1930 Hague Convention, the 1948 UDHR, the 1954 Convention Relating to the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women and the 1989 Convention on the Rights of Child among others are efforts to reduce the scourge of statelessness. The EU has drafted the 1997 European Convention on Nationality. Yet Asia has no such mechanisms even though most Asian states are signatories to many of these conventions. In South Asia, a lack of legal mechanisms for addressing the problem of statelessness is compounded by the endemic poverty of the region leading to greater pauperization of women, heightened conflict leading to increased violence against women and a general proclivity of all these states for treating women as secondclass nationals have all contributed to a great increase in the trafficking for women. […] Though liberal South Asian laws and constitutions guarantee people’s right to be protected from exploitation and thereby prohibit trafficking, no amount of liberal and humanitarian legislation has been able to stop this form of servitude or semi-servitude of large groups of women. Most South Asian states such as India, Nepal, Bangladesh, Pakistan and Sri Lanka have legal provisions that condemn trafficking, yet their implementation is often unsatisfactory. […] In Asia there are hardly any regional mechanisms to address this issue other than the Bangkok Declaration of 1999. The severity of the problem has multiplied because trafficking is often accompanied by such banes such as AIDS. According to one observer, ‘Women and children who are trafficked are at high risk for infection with HIV, which is a death sentence for the 22 victims’. […] As is apparent from the preceding commentary, stateless women become even more insecure because they can be displaced any time that the state or the majority community so desires. When displaced they are destabilized from their moorings and such destabilization is made an occasion for their sexual exploitation and women are ready prey for traffickers. Both trafficked men and women are marked as aliens in all the countries of South Asia but it is the women whose alienness translates into sexual vulnerability. By marking such women as sexually available their sexual exploitation is facilitated. Therefore, statelessness and trafficking are related, if not two sides of the same phenomena. […] The rapid spread of AIDS makes it imperative for South Asian states to sit up and take note of this issue otherwise South Asia will soon be faced with the greatest eradicator of our generation.

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NOTES 1. Gilbert King, Woman, Child for Sale: The New Slave Trade in the 21st Century, Chamberlain Brothers, New York, 2004, p.19. 2. Bridget Anderson and Ben Rogaly, ‘Trafficking and Forced Labour in the UK’, Refugee Watch, Nos. 24–6, October 2005, p.25. 3. Gilbert King, op. cit., p. 21. 4. Ibid., Senator Brownback, Press Release, 24 September 2003. 5. The author to portray the gendered nature of such declarations as the Universal Declaration of Human Rights added the italics. 6. For an in-depth analysis of statelessness see Carol Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’, International Journal of Refugee Law, Vol. 10, 1998, pp.156–83. 7. Paula Banerjee, ‘Chin Refugees in Mizoram’, Refugee Watch, No. 13, March 2001. 8. As reported in Refugees International Bulletin, 2004. 9. Interview with the author on 20 September 1998, Dhaka. 10. Nirmala Chandrahasan, ‘A Precarious Refuge: A Study of the Reception of Tamil Asylum Seekers in Europe, North America and India’, Harvard Human Rights Yearbook, Vol. 2, 1989, pp.55–96. 11. C Amalraj, ‘Sri Lanka: The One-eyed Hope’, The New Leader, 1–15 June 1995, p.19. 12. About 23 female suicide bombers died by March 1998. Source: Yerimalai Report. 13. Joke Schrijvers, ‘Constructing Womanhood, Tamilness and The Refugee’ in Selvy Thiruchandran, ed, Woman, Narration and Nation: Collective Images and Multiple Identities, Vikas, New Delhi, 1999, p.179. 14. Etienne Balibar, Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After Marx, translated by James Swenson, Routledge, New York, 1994, pp.57–8. 15. Valentine M Moghadam, ‘Gender, National Identity and Citizenship’, Hagar: International Social Science Review, Vol. 1, No. 1, 2000, p.42. 16. Patricia Tuitt, ‘Rethinking the refugee concept’ in Frances Nicholson and Patrick Twomey, eds, Refugee Rights and Realities: Evolving International Concepts and Regimes, Cambridge University Press, Cambridge and New York, 1999, p.107. 17. Meghna Guhathakurta and Suraiya Begum ‘Bangladesh: Displaced and Dispossessed’ in Paula Banerjee, Sabyasachi Basu Ray Chaudhury and Samir Das, eds, Internal Displacement in South Asia, Sage Publications, New Delhi, 2005. 18. ‘Trafficking in Women’, Meghalaya Guardian, 13 September 2004. 19. Strengthening Cross Border Networks to Combat Trafficking of Women and Girls, Proceedings of Workshop organized by NNAGT and supported by UNIFEM, Kathmandu, July 2001, p.42. 20. ‘Advani Warns Against Influx’, Assam Tribune, 12 December 2004. 21. Star Ananda, 18 March 2006. 22. Donna M Hughes quoted in Gilbert King, op. cit., p.172.

THE BAR DANCER AND THE TRAFFICKED MIGRANT: Globalization and Subaltern Existence Flavia Agnes

†

BAR DANCERS AND DIFFERING PERCEPTIONS An important feature of a rally organized by bar owners against police raids in Mumbai on 20 August 2004 was the emergence of the bar dancer. A large number of girls with their faces covered were at the forefront of the rally holding up placards with blown up pictures of semiclad Bollywood stars. It was a statement questioning the hypocritical moralilty of the state and civil society. […] The media reported that there were around 75,000 bar dancers in the city of Mumbai and its suburbs and they had organized themselves into a union to resist police raids. The mushrooming of an entire industry called the ‘dance bars’ had escaped the notice of the women’s movement in the city. Everyone in Mumbai was aware that there were some exclusive ‘ladies bars’. But usually women, especially those unaccompanied by men, were stopped at the entrance. So many of us did not have any inside information regarding the bar dancers. But the 20th August rally changed all that. Soon after the rally, Ms Varsha Kale, the President of the Bar Girls Union approached us (the legal centre of Majlis) to represent them through an ‘Intervener Application’ in the Writ Petition filed by the bar owners. During the discussion with the bar dancers, it emerged that while for the bar owners it was a question of business losses, for the bar girls it was an issue of human dignity and right to livelihood. When the bars are †

Jurist, Majlis, Mumbai; Refugee Watch, 30 December 2007.

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raided, it is the girls who are arrested, but the owners are let off. During the raids the police molest them, tear their clothes, and abuse them in filthy language. At times, the girls are detained in the police station for the whole night and subjected to further indignities. […] As far as the abuse of power by the police was concerned, we were clear. But what about the vulgar and obscene display of the female body for the pleasure of drunken male customers, which was promoted by the bar owners with the sole intention of jacking up their profits? It is here that there was a lack of clarity. I had been part of the women’s movement that protested against fashion parades and beauty contests and semi-nude depiction of women in Hindi films. But the younger lawyers within Majlis had a different perspective. They belonged to a later generation, which had come to terms with fashion parades, female sexuality and erotica. Finally after much discussion, we decided to take on the challenge and represent the bar girls’ union in the litigation. In order to understand the issue we spoke to many bar dancers and also visited dance bars. Though I was uncomfortable in an environment of palpable erotica, I realized that there is a substantial difference between a bar and a brothel. An NGO, Prerana, which works on anti-trafficking issues, had filed an intervener application, alleging the contrary – that bars are in fact brothels and that they are dens of prostitution where minors are trafficked. While the police had raided the bars on the ground of obscenity, the Prerana intervention added a new twist to the litigation. […] At times, after the court proceedings, we ended up being extremely confrontational and emotionally charged, with Prerana representatives accusing us of legitimizing trafficking by bar owners and us retaliating by accusing them of acting at the behest of the police.

OUT OF THE CLOSET – INTO THE PUBLIC DOMAIN Sometime in March 2005, when the arguments were going on in the High Court, the first announcement on the closure of dance bars was made by the Deputy Chief Minister Shri R R Patil. The announcement was followed by unprecedented media glare and we found ourselves in the centre of the controversy as lawyers representing the bar girls’ union. The controversy had all the right ingredients – titillating sexuality, a hint of the underworld, and polarized positions among social activists. Ironically, the entire controversy and the media glare helped to bring the

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bar girl out of her closeted existence. It made the dance bars more transparent and accessible to women activists. […] Suddenly the dancer from the city’s sleazy bars and shadowy existence had spilled over into the public domain. Her photographs were splashed across the tabloids and television screens. She had become the topic of conversation at street corners and marketplaces, in ladies compartments of local trains and at dinner tables in middle-class homes. Everyone had an opinion and a strong one at that. […] The antitrafficking groups who had been working in the red light districts had not succeeded in making a dent in child trafficking in brothels that continue to thrive. But in this controversy, brothel prostitution and trafficking of minors had been relegated to the sidelines. The brothel prostitute was viewed with more compassion than the bar dancer, who may or may not resort to sex work. […]

HYPOCRITICAL MORALITY Was it her earning capacity, the legitimacy awarded to her profession, and the higher status she enjoyed in comparison to a sex worker that invited the fury from the middle-class Maharashtrian moralists? While the proposed ban adversely impacted the bar owners and bar dancers from the lower economic rungs, the state proposed an exemption to hotels which held three or more ‘stars’, or clubs and gymkhanas. Those of us who opposed the ban raised some uncomfortable questions: ‘Could the State impose arbitrary and varying standards of vulgarity, indecency and obscenity for different sections of society or classes of people? If an “item number” of a Hindi film can be screened in public theatres, then how can an imitation of the same be termed as “vulgar”? […] Bars employ women as waitresses and the proposed ban would not affect this category. Waitresses mingle with the customers more than the dancers who are confined to the dance floor. If the anti-trafficking laws had not succeeded in preventing trafficking, how could the ban on bar dancing prevent trafficking? And if certain bars were functioning as brothels, why were the licenses issued to them not revoked?’ Since the efforts of the Deputy Chief Minister to get an ordinance signed by the governor failed, the government drafted a bill and presented it to the State Assembly. It was an amendment to the Bombay Police Act, 1951 by inserting certain additional sections. On 21 July 2005, the Bill was passed at the end of a ‘marathon debate’. Since the demand for the ban was shrouded with the mantle of sexual morality, it was passed unanimously. […]

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It was a sad day for some of us, a paltry group of women activists, who had supported the bar dancers and opposed the ban. We were sad, not because we were outnumbered, not even because the Bill was passed unanimously, But because of the manner in which an important issue relating to women’s livelihood, which would render thousands of women destitute, was discussed. We were shocked at the derogatory comments that were passed on the floor of the House, by our elected representatives, who are under the constitutional mandate to protect the dignity of women! […] One member stated: ‘we are not Taliban but somewhere we have to put a stop. The moral policing we do, it is a good thing, but it is not enough […] we need to do even more of this moral policing’. Suddenly, the term ‘moral policing’ had been turned into a hallowed phrase! […] It was a moral victory for the Deputy Chief Minister, Shri R R Patil. In his first announcement in the last week of March 2005, he had said that only bars outside Mumbai would be banned. A week later, came the next announcement. The state shall not discriminate! All bars, including the ones in Mumbai, would be banned. What had transpired in the intervening period one does not know? But, what was deemed as moral, legal and legitimate, suddenly a week later, came to be regarded as immoral, vulgar and obscene. The ‘morality’ issue had won. The ‘livelihood’ issue had lost. It was indeed shocking that in this era of liberalization and globalization dominated by market forces, morality had superceded all other concerns, even of revenue for the cash-strapped state. […] On 14 August 2005, at the midnight hour, as the music blared in bars packed to capacity in and around the city of Mumbai, the disco lights were turned off and the dancers took their final bow and faded into oblivion. As the state celebrated Independence Day, an estimated 75,000 girls, mainly from the lower economic strata, lost their means of livelihood. Some left the city in search of options, others fell by the wayside. Some became homeless. Some let their ailing parents die. Some pulled their children out of school. Some were battered and bruised by drunken husbands, as they could not bring in the money to make ends meet. Some put their pre-teen daughters out for sale in the flesh market. […]

CONSTRUCTING THE SEXUAL SUBJECT Soon thereafter, petitions were filed in the Bombay High Court challenging the constitutionality of the Act by three different segments –

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the bar owners associations, the bargirls union and social organizations. After months of legal battle, finally, the High Court struck down the ban as unconstitutional. The judgement was pronounced on 12 April 2006 to a packed court room by a Division Bench comprising of Justices F I Rebello and Mrs. Roshan Dalvi and made national headlines. The ban was struck down on the following two grounds: • The exemption (given to certain categories of hotels as well as clubs etc.) has no reasonable nexus to the aims and objects which the statute is supposed to achieve and hence it is arbitrary and violative of Article 14 of the Constitution of India (the clause of equality and non-discrimination); • It violates the fundamental freedom of the bar owners and the bar dancers to practice a occupation or profession and is violative of Article 19 (1)(g) of the Constitution. […] A glaring discrepancy in the arguments advanced by the state was in the realm of the agency of this sexual woman. At one level, the state and the pro-ban lobby advanced an argument that the dancers are evil women, who come to the bars to earn ‘easy money’ and corrupt the morals of the society by luring and enticing young and gullible men. This argument granted an agency to women dancers. But after the ban, the government tried to justify the ban on the ground of trafficking and argued that these women lack an agency and need state intervention to free them from this world of sexual depravity in which they are trapped. Refuting the argument of trafficking, the court commented: ‘no material has been brought on record from those cases that the women working in the bars were forced or lured into working in the bars. The statement of Objects and Reasons does not so indicate this. […] To support the charge of trafficking in order to prohibit or restrict the exercise of a fundamental right, the state had to place reliable material, which was available when the amending Act was enacted or even thereafter to justify it […]’. During the entire campaign, the world of the bar dancer beyond these confines lay hidden from the feminist activists who were campaigning for their cause and was carefully guarded by the bar dancer. Only now and then would it spill over more as a defiant statement. So while we were exposed to one aspect of their lives which had all the problems – of parenting, poverty, pain and police harassment, we must admit that this was only a partial projection, an incomplete picture. We could not enter the other world in which they are constantly negotiating their sexuality, the dizzy heights they scale while they dance draped in gorgeous chiffons studded with sequins, oozing out female erotica and enticing their patrons to part with a generous tip.

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THE TRAFFICKED WOMAN […] Faced with the almost negligible employment options and the destitution of their families, some dancers negotiated with the bar owners and a via media solution was reached to employ the former dancers as waitresses in ladies service bars. Given the fact that the majority were illiterate, this was the best option for them to ‘rehabilitate’ themselves at a lower rung within the familiar environment of the bars, where there is no stigma attached to the former bar girls. Waitressing is a perfectly valid legal option as per all the existing legislations including the latest Amendment to the Bombay Police Act. However, women employed as waitresses continued to face harassment. The police continued to hound these women and harass them on various pretexts. They were abused and taunted to and from work, and the police continued to demand their haftas from the women, now earning negligible amounts, barely sufficient to meet their basic needs. The state constantly hounded these women in other ways too. In fact, no avenues were left out in the witch-hunt that followed and it continues to this day. The DCM Shri R R Patil, went to the extent of announcing to the press that the witch-hunt could be public now – a licence and an invitation. The news that one or two bar dancers (e.g. Taranum) have been discovered to have large amounts of unaccounted wealth was blown out of proportion to suggest that all bar girls have unaccounted wealth. Shri R R Patil went to the extent of making a public announcement that people could now go out and hound the bar dancers. Whoever was successful would be rewarded with 20 per cent of the moolah. This was not a general announcement, but a specific one targeted at bar dancers. In the midst of this increasing public vilification of bar girls, on 26 August 2005, around 85 bar dancers who were working as waitresses were arrested. While the bar owners, managers and male staff who were arrested were released on bail the very next day, the women driven to penury could not pay the huge amount of Rs 15,000 and were languishing in prison cells. We met these women along with social workers from the Tata Institute of Social Sciences who later intervened with the bar owners association and after months of negotiations the girls were finally released on bail. […] In the study conducted by SNDT University along with women’s groups where 500 girls were interviewed, there were a significant number of Bengali girls; all of them stated that they hailed from Kolkata and most had Hindu names. (It is not uncommon for bar dancers to

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change their names when they come to the bars and the names they take on are usually of famous stars from Bollywood or television serials. When we asked them their names, they would respond, ‘which name should I give – the family name or the bar name?’ […]). Through our interviews we were able to detect a certain migration pattern and also probe into issues of trafficking. The girls claimed that they came to Bombay through some networks. They were initially brought to work as domestic maids but were later introduced to bars where they worked as waitresses or dancers. There was no coercion or force in getting the women to work at the bar. Though the women did not come to Bombay intending to work at the bars, and they may not have been initially apprehensive about the work, however, now most say that this work is the best option for them in their present circumstances since they were earning far more than they would as domestic workers and they enjoyed a certain degree of economic freedom. During our interviews when asked whether they would go back to the bars after their release, initially they denied and stated vehementaly that they would never work in a bar again. They stated that the work was indignified and humililating. There was also the fear that they might be arrested. But on further probing they admitted that it was their best option and that if the ban was lifted then they would go back to working at the bar. […] There was no compulsion, other than their own economic compulsion, that made them become bar dancers. The women arrived at some sort of arrangement with the friend who had got them the bar work. Most paid the friend a daily amount, generally Rs 100 for food and lodging. The women were not in any manner controlled by the bar owners. They lived separately, got daily payments and travelled to and from their rooms. […] Initially, in our minds we linked this to prostitution. But later we realized that among this strata, it is common to have shared accommodations on daily rental basis with an average of about four to six girls sharing a room. If the girl changed her bar she would also change her accommodation. It was very simple. Thus, our initial suspicion that the daily room rent was an indication of prostitution was not true.

STING OPERATION AND THE BACKLASH Just when we had surmounted the hurdle of getting these girls released on bail through negotiations with bar owners, there was yet another incident, this time far more lethal and its implications far more grave. In October,

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2005, while the bar dancer issue still had a lot of value, and the High Court case was pending, this incident made news headlines and shattered the lives of many former bar dancers. A television channel splashed a sensational story of the rape of a former bar dancer in the satellite town of Nerul in Navi Mumbai. The case as it unfolded had all the ingredients of a cheap thriller – the sting operations carried out by a reporter of a television channel and her ‘source’, then the filing of the case and the media hype that followed, the detention of the victim in police custody for two days, followed by the news of her retraction before a magistrate, the questioning by the police of the journalist which ended in a dramatic suicide bid by the alleged ‘source’, who named the police and the reporter in his suicide note. […] Entangled amidst the twists and turns of this high profile sexual thriller were two powerful players – the state and the media. […] But what has not been so easily discernible is the vicious retaliation by the state on the entire local community of bar dancers in Nerul and surrounding areas. […] [The police] arrested around 91 people, of whom 65 were former bar dancers – impoverished and illiterate, mostly Muslim, predominantly Bengali speaking. Damned as ‘illegal immigrants’ they would be languishing in prison cells, until they are able to produce papers to prove their claim to Indian citizenship. Meeting the family members of these ill-fated women was a harrowing experience. That was when we confronted the naked strength of the ‘state’ in peacetime ‘operation’. Forlorn teenaged boys sobbed while asking for news about their detainee mothers. Elderly women came with infants in their arms asking what should they be doing with the motherless toddlers. […] The unspoken question in everyone’s eyes was just one: what had gone wrong? Nothing much, really. Just that a lowly bar dancer living on the edge of life, had been goaded on and under a false sense of security, had dared to pose a challenge to the might of the state. The incident of rape of a former bar dancer, which would have otherwise gone unnoticed was scaled to the peak by the media and it would have had grave implications on the state in the case pending before the High Court. So the entire community had to pay the price. This time the state machinery was wiser. The girls were not arrested under the newly amended Bombay Police Act but under the Foreigners’ Act with no avenues open for bail or release. The only option ahead was deportation. The situation had become even worse due to certain extraneous political and legal incidents. One was the serial bomb blast that occurred in Delhi markets on 27 October 2005. The newspapers

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reported that the terrorists had entered the country not from Pakistan but through the porous border between India and Bangaldesh. The second was the Supreme Court decision regarding the Assam Foreign National Act where deportation could occur even without due process of law. […] As one under nourished teenager who admitted that she was a Bangladeshi mentioned to us poignantly, ‘Didi, I had not eaten for a week, there was no milk in my breast and my three month old child was starving. If we had not crossed the border, we would have all died. After entering India, I left my baby with my mother in a village in West Bengal and came here six months ago to earn some money to keep my mother, my child and myself alive. You may do anything, but I can never return to my country. If I do I will die’. […] It is not that there weren’t such ‘push back’ operations in the past. But that was years ago, during the BJP–Shiv Sena rule. In those days, the ‘illegal migrant labour’ was predominantly male. And, the voices of the secular forces protesting against them were loud and clear, and high-pitched. Several citizens’ reports had condemned the inhuman manner in which the deportations were carried out. The Left government in West Bengal had protested against the treatment of Bengali Muslims and raised its voice against the deportations. But times have changed. Now it is the secular and Left supported UPA government at the centre and the Congress–NCP alliance in the state. Those who have been arrested are not the male migrant labour but the morally debased former bar dancers. Hence, the voices of protest are weak and feeble, just a motley group of women activists. And no one else really cared. You might wonder how the entire incident ended. We talked to lawyers, human rights activists, members of national and West Bengal women’s commissions groups in Bangladesh. We had the option of ‘exposing’ the story to the media, filing a writ petition in the High Court and gaining even greater visibility and thus a name for ourselves and our organizations. But as we were thinking and planning the desperate voices of the women and girls kept haunting us, ‘Didi please leave us alone. Let us get deported rather than languishing in this prison cells. Let them take us to the border and we will find our way back’. […] For the media there were stories each day of erotic dance and the thowing of the money scenes, which the audience loved. So no matter what the issue, more than half the screen would be filled with these erotic images, which served to arouse the middle-class Maharashtrian moral sense. For the bar owners, their money-making motive could be couched under the human rights concerns. For the dance bar union people there

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was the constant media publicity, which made them leaders overnight. For women’s rights activists, it gave a new cause and newer insights and a feminist awakening regarding the bar girls and their concerns. At the end of the entire episode I wondered what exactly did the bar girl gain from this. And more importantly, where have they all vanished? […]

GENDER, MIGRATION AND TRAFFICKING […] The combination of the moral cultural panics, lack of data and a general confusion in conceptual approaches to migration and trafficking has led to not only questionable responses from states but also to harmful interventions by NGOs, human rights and social justice groups at both the national and international level. The need is to critically examine the intersections of migration trafficking, labour, exploitation, security and terrorism, women’s rights, sexuality and human rights. Any analysis of the complexities of the female migrant must extend beyond the confining parameters of the current conceptual and operational work on cross-border movements. […] While both male and female migration is driven by economic reasons, female migration is impacted much more by value driven policies that contain gender-bias and other assumptions about the proper role of women. There is also a difference in the kind of work available to male and female migrants in destination countries. Males expect to work as labourers, whereas women find work in the entertainment industry or the domestic work sector. Women are in demand as well for professional work of specific kinds such as nursing. We need to accept that migration does not take place only between the developed First world and the under-developed Third World and that there is greater cross-border migration within regions than from the Global South–North. This is particularly true with respect to the Asian region. For example, there is considerable migration from Bangladesh to India with numbers varying from 13 to 20 million. The cross-border movement of the transnational migrant female subject is inadequately addressed in law and policy. This inadequacy owes in part to two conflations: the tendency to address women’s cross border movements primarily within the framework of trafficking and the conflation of trafficking with prostitution. In order to make migration policies (both international and national) conducive to women’s rights, we need to consider the nuances in the relationship between trafficking and migration and de-link trafficking from prostitution.

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Innumerable conceptual clarity exercises in every region have made the consideration of these conceptual distinctions the focus of their objective. And yet either due to ideological baggage and positions of the various stakeholders or due to the vested interest of states, trafficking is often used as a façade to deter the entry of certain categories of migrants or to clean up establishments within the sex industry. In view of these states or unstated agendas and positions, a human rights approach to trafficking cannot merely be confined to achieving conceptual clarity. It must develop specific and contextualized strategies and arguments to extricate the genuine concerns related to trafficking of persons from the unstated or moralistic concerns with migration, prostitution or national security. Migration is not trafficking; irregular migration is not trafficking and even smuggling is not trafficking. And yet, there is an overwhelming tendency to address cross-border movements of women primarily through the framework of trafficking. […] To some extent, anti-trafficking NGOs need to accept responsibility for the propagation of this image of the trafficked person as a victim. When faced with the problem of trying to attract government attention to anti-trafficking initiatives, NGOs may have resorted to this simplistic image to garner support for their activities. It is not abundantly clear that this victim image does not capture the complexities of women’s own migratory experiences and agendas and that the image of the trafficked person needs to be conceptually reworked. For example, one conceptual move may be to shift away from the notion of a vulnerable subject to that of the risk taking subject. […] The combination of sexual conservatism and the construction of a woman as the symbol of national and cultural authenticity are seen to lead to the stigmatism and ostracism of a migrant woman who is portrayed as an aberrant female. If the dominant anti-trafficking approach has blurred the portrayal of the female migrant, then one way to counteract this is to view migration within the broader context of global reality of the transnational female migrant. Migration must take its rightful place within the context of globalization if the flow of capital and goods encounters no borders. Why should the human participants of globalization be treated any differently? If a juridicial person can be granted a transnational/ multinational identity, which enables the crossing of borders largely unimpeded, why is it that a natural person is being denied her identity as a global citizen? These questions must be brought to the forefront of the debate and thoroughly examined.

INTERVIEW/CORRESPONDENCE

INTRODUCTION Can the marginalized speak? Can ‘we’, who have not lost our homes, truly understand the nuances of the words of pain and agony expressed by the displaced/refugees? It is a difficult task no doubt, especially from the point of the theoretical jigsaw, proposed by postmodern writers. But, disregarding such academic nonsense, people in every age have come forward to the suffering humanity – with sympathy to listen to their voices and with commitment stand by them. Refugee Watch, the committed friend of the refugees/displaced people of the world, has occasionally sought to present such voices to its readers in the form of interviews or sometimes through ‘personal’ correspondence. The literature of marginalized voices, expressed in the forms of personal diaries, letters and interviews, also known as ‘testimonials’, should not be judged as statements of ‘pure’ truth. Beyond the conventional yardsticks of truth or falsity, they can be seen as catharsis – the process of venting out the emotions of the victim/marginalized. Thus, besides having factual and historical importance, they give us a chance to understand ‘the mind’ of the refugees, or rather ‘minds’. In this section, we have chosen some of this literature, voiced by the victims and also by a sympathetic observer. Needless to say that the issues and problems raised here are very much relevant and living even today. The first one is an excerpt of an exclusive interview with Upendralal Chakma, president, Jumma Refugee Welfare Association of the Chittagong Hill Tracts (CHT) of Bangladesh, in a South Tripura Refugee camp, on the eve of the ‘Peace Accord’ between the Jana Samhati Samiti and the Bangladesh Government in 1997. Chakma narrates the grim condition of the Jummas (13 different ethnic groups) in the CHT, who were forced to flee to India, after the state sponsored atrocities let loose in 1986, and he also focuses on the worsening conditions of Jummas in India, living on mere doles. The second piece is an interview of Ratan Gazmere (1998), the front ranking leader of Bhutanese refugees of Nepalese origin. The readers

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are already acquainted with the brutal ways that the Bhutanese security forces apply to deal with the Lhotshampas (‘people [Nepali Hindus] from the south’). In this brief interview with Gazmere, they will hear the voice of agony and a strong determination to return to Bhutanese soil, without waiting for democracy being established in Bhutan. The third and the fourth interviews, published in 2004, contain voices of two exceptional persons of different origins of West Asia: a) Dr Nawal El Saadwal, Arab feminist writer and activist, b) Lev Grinberg, political sociologist, who claims to be both a Zionist and a supporter of the Palestinians. The readers must also go through a bunch of letters (2003) written from a war-torn refugee camp of Palestine. Although addressed to a friend, they are, in reality, written for the whole humanity, living under the shadow of death and nightmare. Yet they fill the readers’ hearts with a ray of hope with unstinting faith in life and solidarity and also a determination to resist.

VOICES FROM EXILE – 1 †

An interview with Upendralal Chakma

Just before the conclusion of the agreement on the Chittagong Hill Tracts (CHT), Sabyasachi Basu Ray Chaudhury visited refugee camps in South Tripura and had an extensive interview with Mr Upendralal Chakma, president, Jumma Refugee Welfare Association. In this interview, Mr Chakma expresses his opinion on different issues related to the situation in the CHT, Bangladesh. Here is an excerpt of this exclusive interview. Refugee Watch (RW): After 50 years of partition of the Indian subcontinent, how would you relate the CHT problem to that of partition? Do you think that the partition on the whole created the problem? Upendralal Chakma (UC): In 1947, 97.5 per cent of the total population of the CHT were Jummas and the remaining 2.5 per cent were non-Jummas. Logically, the Jumma people expected that their region would be merged with India. The Jumma leaders were working hard in that order. They met different political leaders at that juncture. Our leaders placed their demands before the visiting sub-commission that the CHT should be made a part of the new nation of India. But, on 18 August, we heard on radio that the CHT has been included in Pakistan. Our leaders talked to the Indian leaders. While the new Prime Minister of India, Pandit Jawaharlal Nehru did not take the matter seriously, Sardar Ballavbhai Patel showed keen interest in the entire issue at the point. Nevertheless, there was no attempt to resist the unjust treatment of the CHT and we were included in Pakistan.

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Refugee Watch, 1 January 1998.

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Therefore, the unjust judgment of the Radcliffe Commission is the main reason behind our poor condition today. We have often been treated as Class III citizens during the Pakistani rule in the CHT or in the newly emerged Bangladesh. Being deprived citizens of Pakistan, we expected that things would be better after the creation of Bangladesh. But, the situation remained the same even after 1971. The basic attitude of the rulers did not change. After the creation of Bangladesh we saw large-scale infiltration of Muslim settlers in the CHT. We, as Bangladeshis, still look back to 1947. We hope that our culture would be protected within the political framework of Bangladesh. But, so far we have received only bullets and no sympathy. Over and above, millions of Muslims settled in the CHT through government sponsorship, administrative help, and direct connivance of the army. Our homestead, plantation and all have been taken over by the Muslims. Law, judiciary all are there, but these administrative agencies have not really come to the aid of the Jummas. Therefore, till now we are victims of exploitation, deprivation and torture. RW: You expressed hope earlier that, with the rise of the Awami League to power, the condition of the CHT could improve and that, in turn, would facilitate the repatriation of the Jumma refugees. Are you still equally optimistic about the present Awami League government? And, how do you view the situation of the refugees at this juncture? UC: During their election campaign, the Awami League promised that they would like to have a political solution to the CHT problem if they win the elections. They said the refugees would be repatriated. The Jummas believed the Awami League leaders and voted for them in the last two elections in all the constituencies of the CHI. We hoped that there would be a solution to our problem and there would be an end to our refugee life. In March this year, a Bangladesh government delegation led by the Chief Whip of the Awami League Mr Abul Hasnat Abdullah, visited the refugee camps in Tripura and tried to persuade the camp inmates to repatriate. A 20-point benefit package was announced on behalf of the government of Bangladesh after our Agartala meeting. Under the circumstances, we agreed to go back, and about 6,700 refugees were sent back in the third batch. We hoped that the Bangladesh government’s promise would be sincerely implemented, and as a result, the remaining 44,161 refugees staying in Tripura would be able to go back. But, after two months of repatriation, our review team went to the CHT to make an assessment of the rehabilitation process of the refugees

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and also to examine the overall situation in the CHI. This team was accompanied by three Indian officials. After their three-day visit in the CHT, they realized that the situation has not improved at all. To be precise, the Awami League government has failed to implement the proposed 20-point package for the refugees as the earlier BNP government failed to implement their 16-point package for the refugee rehabilitation. Frankly speaking, the Jumma refugees are pained and shocked to see the apathy of the Bangladesh government and dilatory and fraudulent tactics of the Bangladesh officials in implementing the proposed policies of rehabilitation. At the root of the government’s failure to resettle the returning refugee lies Dhaka's reluctance to tackle the land question in the CHT. RW: Is there any possibility of further repatriation of these refugees as being discussed at different levels? UC: As the situation stands today, no one is eager to go back as far as the refugees in all the six camps in Tripura are concerned. But, the Jumma refugees are keen to go back to their homeland at the earliest possible opportunity. However, unless there is a proper rehabilitation process, the promises made by the Government of Bangladesh are kept, and the 20-point package announced by Dhaka is implemented, the Jumma refugees are not at all eager to go back to their homeland. RW: Has the situation in the refugee camps improved since you first came here? UC: To save their life, the Jumma refugees came to Tripura in 1986 in the face of massacres led by the Bangladesh regime. They were compelled to take shelter in India. We are very grateful that the Indian government gave us shelter in six camps and supplied us food. But, what the Jumma refugees in Tripura were given as ration and cash doles are much less compared to say what the Tamil refugees in India receive from the Government of India. As refugees in India, we expected that like other people taking refuge in India, we would get similar treatment. We as Bangladeshis still look back to 1947. We hope that our culture would be protected within the political framework of Bangladesh. But, so far we received only bullets and no sympathy. Law, judiciary all are there, but these administrative agencies have not really come to the aid of the Jummas. Therefore, till now we are victims of exploitation, deprivation and torture. 11 years have elapsed since we came to Tripura. There has not been any betterment in the condition of the Jumma refugees. The refugees receive the same amount of ration and cash doles as they used to

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receive when they first arrived in India in 1986. Do you think that a cash dole of 20 paise per day per person that was being given to the refugees then, is also adequate for them today? Several petitions have been made on our behalf to raise the amount, but with no positive result. We did not receive any sympathetic treatment as far as this issue is concerned. We understand that we are refugees in India. Beggars cannot be choosers. We have to be happy with what we get. At least we can say that in the refugee camps in Tripura we can live without any fear or danger. The Indian government has given us shelter for so many years and provided us with food – we are ever grateful to them and the Indian people. RW: Are the refugees at all keen to go back to their homeland? UC: I must make it clear at the outset that we do not want to stay in India as refugees and we would like to go back to the CHT as soon as possible. But, the attitude of several Bangladesh regimes has indicated that, they do not want us back. Therefore, their promises have not been kept. So, I feel that the Bangladesh government should be persuaded by both the international community and India. All peace loving people should pressurise the Government of Bangladesh so that there is genuine rehabilitation of the Jumma refugees. Bangladesh is one of the poorest countries in the world. They depend largely on aid from the several developed countries in the world. 80 per cent of Bangladesh government’s budget fund comes from foreign aid. So, a light at the end of the tunnel can be visible if the donor countries and agencies giving aid to Bangladesh cut-off their supply of money, or if they insist that their aid would be correlated with the peaceful solution of the CHT problem. RW: Do you think that the UNHCR should take part in the repatriation of the Jumma refugees? UC: The UNHCR, ICRC and other international organizations should take part in the repatriation and rehabilitation process of these refugees. Unless they become involved in our repatriation and rehabilitation process, despite all sorts of promises by the Bangladesh government, nothing would be implemented. So, we are demanding their involvement in this process. The Jumma refugees have decided that without the involvement of the UNHCR and ICRC there is no point in going back.

VOICES FROM EXILE – 2 An interview with Ratan Gazmere

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As the Secretary General of the Appeal Movement Coordination Council, Ratan Gazmere has been at the forefront of the Bhutanese refugee movement. Under his leadership, scores of Bhutanese refugees of Nepali origin, who say they have been uprooted from their hearth and homes by the Royal administration have tried to march back to Bhutan through Indian territory in the last three years – without much success. By his own admission, Gazmere is now taking a back seat, trying to review the movement, even as its present leadership tries to coordinate the fight for democracy in the Himalayan kingdom. Gazmere spoke to Subir Bhaumik of Refugee Watch recently in Calcutta. RW: What is now the main priority of your movement – sending back the refugees first or stepping up the movement for democracy in Bhutan? Gazmere: Clearly the priority for us now is to send back the refugees rather than wait for changes to take place in Bhutan. This is an issue, which divides the ‘pro-repatriation forces’ and the ‘pro-democracy forces’ in our movement today. There are those amongst us who argue that unless the problem that led to the creation of the refugee crisis is taken care of, it is no use sending back the refugees. But, I would like to see the repatriation of the refugees first rather than wait endlessly for democratic changes to take place – the repatriation of the Bhutanese refugees should not be entangled with the movement for democracy, which may take years to materialize.

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Refugee Watch, 3 July 1998.

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RW: Why is this tone of despair evident in what you say? Why do you insist that the refugees have to be sent back now? Is it a case of now or never? Gazmere: Well, to some extent, yes. It is almost eight years now that the refugees from Bhutan have been stranded in camps in eastern Nepal. There is no light at the end of the tunnel; it is not at all certain that the refugees will get back to Bhutan with honour and dignity. Once in a while, the international community does raise dust on the issue, but to what effect? And the Nepal–Bhutan bilateral talks for repatriation! They are turning out to be a joke. They are going on forever, and neither side has any interest in finding a solution. So, there is no chance of their going back home unless the refugees themselves push their way back, regardless of the risks involved. RW: Would you think that the policy of the Indian government is responsible in a big way for the despair that now seems evident? Gazmere: Well, the Indian policy to block the refugees from going back to Bhutan through Indian territory has definitely contributed to the desperation. The Bhutanese refugees realize that India’s pro-Royal government position on the issue is one of the big and important factors forcing them to live as refugees. We now have to ensure that India plays a positive role in settling the refugee problem. How we get to ensure a change in Indian policy is something we don’t know yet, but we have to make sure that India does not repeat the police actions of 1996 when hundreds of our refugees were arrested in West Bengal while making their way back to Bhutan. A change in Indian policy towards the refugees is a must – without that, we cannot go back home. RW: There are some people in your movement who argue strongly that a solution of the refugee problem will mean nothing unless Bhutan itself democratizes and changes from a system, which the refugees and so many others in Bhutan say they have found to be so oppressive? Do you see logic in their argument? I am opposed to the argument that these refugees should for the moment stay in camps in Nepal and only return home once democracy is established in Bhutan. These people don’t realize the refugee repatriation process itself can be a catalyst of sorts i.e. something Bhutan’s present rulers understand, which is why they are trying to stop the repatriation at all cost. At the moment, the pro-democracy movement has hardly taken off. Solid groundwork is required inside Bhutan to spark off a movement like the one we have seen in Indonesia.

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Gazmere: I think we can talk of the two perspectives in the same breath. Now look, even in the refugee camps of Nepal, it is becoming evident that the international community will not look after the refugees indefinitely. The UNHCR is already saying their funding of the refugee camps in eastern Nepal will be scaled down – we think this cutback could be quite drastic. Nepal is a poor country and though most of the refugees are of Nepali origin, Kathmandu will have very little enthusiasm to maintain these refugees. There is another fear – because the refugees are of Nepali origin, they may start melting into Nepalese society. That will complicate the problem. Now I believe in a strong pro-democracy movement in Bhutan but I am also a realist and I am sure that if the refugees are asked to wait until such a movement overthrows the present system in Bhutan, I doubt whether they can return home in Bhutan in their lifetime. The pro-democracy movement can proceed in its own pace, depending on realities on the ground, but it should be our priority to enable the refugees to go back to their place. RW: Do you think the pro-democracy groups have succeeded in intensifying their movement? Gazmere: At the moment, much of it is big rhetoric. I would argue for the return of the refugees and let them participate in the democratic struggle in Bhutan rather than let foreigners take the initiative. If Bhutan is forced to take the refugees back, then, that, in itself, will be a big blow to Bhutan’s present government. That will help strengthen the prodemocracy movement. There exists a symbiotic relationship between the two – those who cannot see it is making a mistake.

DAUGHTER OF ISIS †

A Talk with Dr Nawal El Saadawi

Dr Nawal El Saadawi, president of Arab Women’s Solidarity Association, writer and activist, is used to controversies and confrontations. Despite bans on her work, she continues to defy set rules. Aditi Bhaduri meets her at the World social Forum in Mumbai. ‘I am a novelist, writer, doctor, a psychiatrist and president of Arab Women’s Solidarity association. I live in Egypt’ – she describes herself. It does not do Dr Nawal El Saadawi justice, for she is much more. The ultimate humanist, she looks beyond the injuries specific to her own gender. So, she is a harsh critic of both female and male circumcision, Israel’s treatment of the Palestinians, the Taliban’s treatment of women in Afghanistan or the ‘allied’ Anglo-American onslaught on Iraq. And of course, she continues to challenge her own government and clergy of the Islamic society that she belongs to. She has been imprisoned, exiled, censored and her books banned. She was director of Health and Education in Cairo, but was dismissed in 1972 for her political writing and activities. In 1981, she was imprisoned by Anwar Sadat for writing against the government’s policies and the growing religious fundamentalism in Egypt. A fatwa hangs over her head even now, but she continues to write and speak out against injustice, wherever she senses it. Many of her books are taught at prestigious western universities where she often lectures. She invites me to a seminar of Arab NGOs that she was participating in. Casually but smartly dressed in a red shirt and black trousers, a big

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Refugee Watch, 21 April 2004.

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bag hanging over her shoulders full of books, nothing in her gait or mien reveals that she is a ripe 72 years old. Her voice is vibrant, her face enquiring but tranquil. So popular is she in the Arab world, in spite of the book bans and fatwas that all Arab participants, men and women crowd around her. Each has something to tell or ask her. She answers all and sundry, and then shoos them away like an indulgent mother, smiling at me apologetically. What made you become an activist from a doctor? Since childhood I have been an activist. I was brought up between the poor village family of my father and the bourgeoisie family of my mother. So I was aware of class oppression. As a girl, I was aware of gender oppression – my brothers had more privileges than me. I suffered the agony of circumcision. So I have been active since I was a child – when you are oppressed you fight back. Hers was one of the first voices heard against female circumcision, a widespread practice in many parts of Africa. She wrote The Hidden Face of Eve based on her intimate knowledge of the phenomenon – both as doctor and victim. Her struggle was vindicated when at last the Egyptian government banned the practice. She has also been an untiring critic of the veil, a widespread practice in the Muslim world, than female circumcision is. ‘[…] It is not Egyptian, it is not Islamic.’ I think of the thousands of Muslim women both here, in India, and in other countries who are untiring advocates of the veil. No, she shakes her head emphatically. ‘There is not a single verse in the Quran that talks about the veil. Even the sayings attributed to the Prophet regarding the veil are contradictory as there is not much evidence or support for this attribution […]’. She observes that the veil today has become more of a ‘political symbol’ in countries like Iran and Saudi Arabia where it is mandatory, even for non-Muslim women. She is thankful that veiling is not obligatory in Egypt. ‘[…] My identity as an Egyptian has nothing to do with the dress, my identity is my brain. My peasant grandmother, who worked in the field was never veiled’. Saadawi always mentions her grandmother Mabruka – ‘She, she has been the greatest influence in my life, – an illiterate peasant woman, a fighter and a heroine in the village’. It was from her – who had never read the Quran, that Saadawi learned ‘God is justice’. It is all she needs to know about God, the concept that sustains and gives her strength to carry on. But, if she is critical of the veil, so is she of make-up and micro jeans. ‘Makeup is the postmodern veil’. ‘[…] See the contradiction […] how women are sold between the fundamentalist, patriarchal values and the

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consumer values of capitalism and neo-imperialism. The veil as per religious patriarchal values and nakedness as per commercial values are two sides of the same coin. […] But the most dangerous is the veiling of the mind’. Her other ideals are her parents – mother Zeinab Shukri, who insisted that Saadawi continue her education, and father Isaid I Saadawi, who was a professor of Islam. ‘He rebelled against the oppressive parts of Islam, and so do I.’ A legend in the Arab world, she is admired by women all over. Thrice married, twice divorced, she is said to have aborted her own foetus herself? She replies without batting an eyelid. ‘Oh yes. I divorced two husbands because […] they were against my writing. I was pregnant from my second husband so I got rid of the foetus of course. Of course’, she nods. ‘I am a medical doctor and I am for abortion because I own my body not the state, so I have to decide.’ Hers is one of the few voices heard from the world of Arab women. I ask her why we see such little women’s initiative in the Arab world. ‘Women are scared in the Arab world. […] The Government of Egypt closed our [Arab Women’s Solidarity] association in 1991, because we protested against the [first] Gulf war. The government closes any association that is dissident […] We have many women’s groups but they need government approval and do some “safe” social work, illiteracy programmes, but separated from global politics’. I lost my job, went to prison, was put on the death list, exiled and censored. How many are ready to face that? Most women want gain – women’s issues bring money, fame […]’, she says matter of factly. So in this climate of fear and hostility, how does she mobilize women? ‘Though banned, we continue to work in Cairo. We organize seminars, international conferences. The government banned our magazine, so I write in the opposition newspapers. I attend pan-Arab and international meets. We connect local struggle with global one. And then there are my books…’ She strongly believes that to resist global injustice there has to be action at all levels: ‘We have to fight “glocally” – globally against foreign neo-colonialism and locally – against our own governments’. She is happy to be here in Mumbai and to speak. ‘[…] this is the new super power – the power of the people. I hope the next forum will be held in Africa’. She expresses her disapproval, though, at the choice of the Chief Guest of the WSF – the Iranian Nobel laureate Shireen Ebadi. […]

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‘For the opening to have a woman who won a Nobel Prize and is veiled in Iran, who did not speak a single word to connect human rights to women’s rights, was not quite right’. She also feels that the conference was a bit disorganized, ‘[…] a lot of women have been ignored […] I have a different philosophy. I am not famous like the Nobel Prize winner. I am famous for people like you – my readers’.

RIGHT OF RETURN An interview with Lev Grinberg

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Lev Grinberg, political sociologist at Ben Gurion University, and public intellectual of Israel discusses the issue of Palestinian refugees and their ‘right of return’ in an interview with Aditi Bhaduri.

You are both a Zionist and a supporter of the Palestinians, who has branded Israel’s military action in the occupied territories as ‘state terrorism’. How do you explain this dichotomy? There is no contradiction in being a Zionist and recognizing the national rights of the Palestinians. In common perception, Zionism is synonymous with Palestinian dispossession and colonization. For me, Zionism is completely different – meaning living in a Jewish community, speaking in Hebrew, celebrating Jewish culture and holidays without fear that I shall be persecuted for my Jewishness. But it also does not mean the repression of the Palestinian people. On the contrary, since my arrival in Israel I started to struggle against discrimination of the Palestinians Arabs in Israel and against the occupation of the West Bank and Gaza strip – the Palestinian territories. Two years after my arrival in Israel I founded a students’ movement called ‘Campus’, which had both Jewish and Arab students. Some of the Arabs of that movement are today members of Knesset and gained their political experience in that movement. As a Zionist, for me it was clear that if I was against the discrimination of Jews in the Diaspora I must be against the discrimination of the Arabs. I do not want Israel to be a Jewish state but rather a democratic one that treats

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Refugee Watch, 21 April 2004.

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all its citizens as equals. It is then that Israel for me will be a Jewish state as then we shall be respecting the Jewish principle of loving our neighbours as ourselves. Please share some of your experiences in peacemaking. As a citizen I was trying to work with other people, struggling against the policies of my government. After organizing ‘Campus’ during the occupation of Lebanon we organized, together with some friends, a movement of soldiers refusing to participate in the war. For the first time it was clear to a large section of public opinion that this was not a war of defence and that we were not protecting the security of Israel but attacking the PLO in Lebanon. So organizing the soldiers was the most important work to do as it was clear that the power of the military is the basis of the whole political system that makes it possible to continue the occupation. I was spokesman of the movement in 1982 but was sent to prison in 1987 as I refused to serve as a reservist in the West Bank. It was the beginning of the first Intifadah. I was the first refusenik during the Intifadah and when I came out of jail, I returned to my position as speaker of the movement. In my opinion, the impact of the refusenik movement in Lebanon and during the Intifadah was one of the direct causes that the military supported the peace process. I can even say that we initiated the peace process in the sense that it started the movement that caused the chief of staff of IDF to declare that ‘there is no military solution to the Intifada’, meaning that we need a political solution. That there is no military solution does not mean that Israel does not have military power but that it means that soldiers were not ready to use it and the officers of the military understood it very well. What made you become a peacenik? I am not a peacenik, I am a humanist and war is not humane and I think I was a humanist even before I came to Israel and thus my reaction against discrimination and military occupation was a normal one. What in your opinion is the status of the Palestinian refugees? The Palestinian refugees are in varied situations in different parts of the world. From the citizenship point of view and social point of view some of them are still in refugee camps and some are in refugee camps inside the Palestinian territories. The majority are in Jordan as citizens and the worst situation is that of the refugees in camps in Lebanon and Syria where they have no citizen rights and are also in a bad economic situation. From 4 million refugees there are today 1.2 million in refugee camps, which means that three-fourths of the refugees have already left the camps and come to

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some kind of autonomous economic life, and have some kind of citizenship like in Jordan or even like some Palestinians in the Gulf countries. The best situation is that of Palestinians who live in Europe – they have citizenship of the countries they are residing in and are also leading good economic lives. However, majority of the Palestinian refugees are in Arab countries and are without a decent life. What do you think of the right of return of the Palestinian refugees? I think one of the problems right now is that the Palestinians are hooked on to the right of return. Bringing 4 million Palestinians to Israel that has a population of 6 million is an impossible project. I’m not saying that the existence of Israel as a Jewish state is under threat. I’m talking about the economic viability and even of housing – most of the homes of these refugees do not exist and others already have other people residing in them. How can a state absorb a population, which is almost as big as its own population? India is a big state and yet I do not think it can successfully absorb a population almost as big as its present one. As a matter of fact, I do not have any doubt that the majority of Palestinians don’t have any concrete intention of moving into Israel. What they do want is compensation, which for sure they deserve, and the recognition that an injustice was done to them. Also the right of return does not necessarily mean concrete return but, the right to decide today or in the future, namely not to be considered an alien in your own country. It is a kind of normalization of the space called Israel, and recognizing that it is also Palestine. I assume that probably they do not want to return to Israel but to visit it and some may visit and want to stay on. Do they have the right to do that? Yes, I believe so. I support the right of return mainly because I think Israel must take responsibility for what it has done in the past to the Palestinians. Israel must compensate and must recognize that the territory of Israel is also the homeland of the Palestinians. Why was there a complete collapse of the Israeli peace camp after the failure of the Camp David talks between the Israelis and the Palestinians in September 2000? The leaders of the peace camp in Israel committed two mistakes. One, they thought that if they recognized the PLO and allowed Arafat to build the Palestinian Authority, then they did not need to do anything more, forgetting that they had not started to dismantle the Jewish settlements and the (Israeli) military rule in the Palestinian territories.

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The second mistake was that they thought that all the peacemaking was just to have negotiations with the Palestinian leadership and to reach an agreement. They forgot that they needed to build a strong coalition of peace supporters inside Israel. However, because they did not dismantle the occupation, the life of Palestinians under the ‘peace process’ was just like it was before or worse, and after the failure of negotiations the anger of the Palestinians exploded. Since then the Israeli peace camp had no political support to continue their project in the Israeli public opinion. So, the whole process was discontinued and the peace camp had nothing to say and nothing to do because everything they did failed. Nevertheless the peace camp continues to exist and act, no matter how feebly. What is its strategy now? Unfortunately, there is no strategy. Many groups are organizing protest actions, solidarity with the Palestinians, and even some coalitions on key issues like the resistance against the wall. But we have no strategy, namely a political goal shared by all those that didn’t accept Ehud Barak propaganda after the Camp David Summit that the Palestinians rejected the ‘most generous offer’ Israel could make. What do you think of the Geneva Accord? Would it work or is it already doomed because of the clause on the right of return? Palestinians are mostly opposed to it. I believe the clause of the right of return is bad, but also the erasure of the green line and the acceptance of Israeli settlements is not a good idea. However, the worst element of the Geneva Accords is the distraction of the international public opinion from the core issues of the occupation to a virtual agreement that has no chance to be implemented because the Israeli side is not in power. The Geneva Accords don’t create a strategy to struggle against the occupation or a formula how to dismantle it, rather it is a reply to Barak argument that the Palestinians are not partners of peace. What would be your solution to the problem of the Palestinian refugees? In my opinion the core issue is recognition and humanization of the problem. We must go beyond the myth of return. This is the constitutive myth of the Palestinian people, the myth of return, and it is the nightmare of the Israeli Jews, losing their nation state. I believe that all Palestinians must get reparation payments, both for the loss of property and for their suffering, and should be offered options for reconstructing their lives. These options must be to return to Israel, to the Palestinian state, or to get

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citizenship in the state they lived for the last 55 years. I assume most people will not opt to return to Israel if their houses or villages don’t exist anymore. What is your opinion of the wall that Israel is building? Is it endangering the peace process? The wall is designed to erase international borders. It doesn’t endanger the peace process because there is no peace process. It can be destroyed in the future, if there is political will to do it. But it is hurting hundreds of thousands of Palestinians, ruining their capacity to work, taking their lands or preventing entrance to them. It also prevents movement to cities, hospitals and schools. The wall is the ultimate expression of the evil of military occupation and the discrimination of the Palestinians vis-a-vis the settlers. I cannot call it the apartheid wall, because in my opinion it is much worse than apartheid. What do you see happening in reality in the near future? There is a very wise ancient proverb in Hebrew: ‘Since the Holy Temple was destroyed [by the Romans] prophecy was given to the fools’. No serious person can forecast even the near future. I know that the US administration discussed the idea to invade Iraq before 11 September, but the legitimacy to do it was provided by Bin Laden. Similarly we cannot forecast the results of the elections in the US and what will be the policy of the next administration. All these are very relevant elements in future developments. Also, Israeli and Palestinian internal politics are very uncertain. Which do you think is more feasible – a bi-nation state, or two states – Israel and Palestine, existing side by side? Both solutions are very difficult to achieve, and are possible if both sides accept them. I always prefer the solution that will cost less life. Today it seems to be the two states, but in the future it can change. However, no matter one state or two, or some type of confederation or consociation, in any case the principles must be the same: recognition of the equality between Jews and Palestinians, both as individuals and as collective identities. Based on the principle of equality, any solution is good, without that principle all solutions are doomed to fail. In the present situation, we are very far from that principle, I prefer to start dismantling the occupation, and to have negotiations on the final status when the Palestinians are free to say no without suffering the consequences. The UN and international community have a crucial role in ending the occupation.

LETTERS FROM A PALESTINIAN † REFUGEE CAMP The following mails were sent by Tariq Hashhash, 26-year-old male resident of El Awwar Refugee Camp, near Hebron on the West Bank, Palestine. Tariq is a student of American Literature at the Bethlehem University and also a coordinator at the polyclinic run by UNRWA at the camp. These mails were sent to his friend Aditi Bhaduri in Kolkata, whom he met and befriended during the later’s visit to the camp in January 2002. The mails were sent during the period of Israel’s military operation ‘Operation Defensive Shield’ undertaken to root out ‘terror’ from the Palestinian territories occupied by Israel. 21 Feb 2002 Dearest Aditi How are you doing, hope things are fine there. You know, I really wished to deliver you better news than what I am writing here. I am sorry for not being able to write earlier, cos I was busy registering for the coming semester at the University. I am sure that you heard about the situation here, tension is increasing, and Sharon (the cow) is increasing things. The rise of the terrible and horrible situation meant to scare the Palestinians and to make them go back. 33 martyrs in 24 hours is a disaster, a catastrophe. Nothing would make them differentiate between a woman, a child, an old man, or anything else. You can say that the people here are full of fear, but they deeply believe that they have no other choice. As for me, and for everybody around, we are still alive and things are going badly, as if each of us is waiting for his moment to come, seeing them coming closer and closer all the time, you start to feel that your life is

†

Refugee Watch, 19 August 2003.

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worthless for them and they are able to put the bullet in your body any moment they want to. As for Saieda, I delivered to her your best wishes and she passes through me her best wishes to you also. Her husband still didn’t find work, and so he is still unemployed. I wish you always best of luck Aditi, and I will write as soon as this Feast (Aladha) finishes, it starts tomorrow Friday and finishes on Tuesday. Take care of yourself Your friend, Tariq Hashhash *** 8 March 2002 Dear Aditi First let me pass our (Me, Saieda & Ziad ) regards and appreciation to you for the great concern. I am sorry for writing this late, but I had no chance since I was sick. The last period was not easy at all to all the Palestinians in the West Bank and Gaza strip, days that are filled with pain, days that are filled with depression, days that are longer than years in the Palestinian eyes, hearts and minds. After the announcement of The th Israeli Cabinet on the 16 of February, Sharon and his ministers decided that this land should drink blood till the Palestinians either leave or die here. The strikes started in Balata Camp and continued to Jeneen camp, killing 26 Palestinians (four of them are children that are less than 11 years old) in less than 10 hours, injuring more than 240 Palestinians, destroying houses and demolishing everything in their way […]. Then strikes happened at Ramallah, Bethlehem, Nablus, Hebron and Gaza, killing in two days around 27 Palestinians, 90 per cent of whom are civilians. Today, strikes are once again in Tol Karem, Ramallah, Hebron and Bethlehem and almost everywhere killing around 13 Palestinians from 6 in the morning till 9:30. The normal reaction of the Palestinian resistance is to answer Sharon, with bombing inside Israel and shooting on the settlers and on the Israeli army with their light weapons. The Palestinians would never do that unless they wanted to tell Sharon that they would never raise the white flag to him, and they would never surrender, and they would never give up. Sharon doesn’t care about the bloodshed in the West Bank or Gaza. And he is also careless about Israeli blood. Sharon is never convinced that it’s not easy to finish a human

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being, to finish his future and to finish his career, to take his soul easily with no price. As for Fawwar – it’s closed for more than 15 days, and no one goes out, electricity is disconnected most of the time (by Israeli hands). Choppers and helicopters are all the time hitting Dura, Yata and Dariah. The people of Fawwar watch that view almost everyday now, and it’s hard to imagine the pain they feel, seeing those choppers hitting everywhere, with no ability to do anything. Dura lost three martyrs yesterday, Dahria lost two martyrs, Yata lost two martyrs and Halhoul lost one martyr on one day. Beit Jala is once again almost totally occupied and it’s also almost damaged from the demolition of houses, schools, buildings, houses, churches and everything in front their tanks. Ramallah is almost with no roads, everything is almost destroyed. Roads, buildings, trees and schools, the same for any other Palestinian place. Even in the village of Sour Bahir, which is an Arab village in Jerusalem, an Israeli planted a bomb in a boys school, and the bomb was to explode at 7:55, it means that it was timed to explode five minutes before the students got into classes. Fortunately, one of the teachers noticed it and informed the other teachers not to enter the children in classes, this was five minutes before it exploded. The bomb injured 14 students and the teacher himself making him a disabled person. That’s it for now, I will write once again as soon as we have electricity. Take care Thanks for the great concern and great care Tariq Hashhash *** 2 April 2002 Dear Aditi Thanks a lot for being so worried and concerned. Physically I am fine, no harm has happened to me, but psychologically I am not. We are here living a continuous horror and so terrifying a life with the closest violence that we’ve ever faced. Martyrs are everywhere and all the time wounded people are not counted, cities are totally destroyed, no one is able to move under the closure and curfew. Neither ambulances nor journalists are allowed to move. Israel calls it war as if it was between two equivalent armies, but it’s not […] it’s a war against civilians. Civilians are killed all

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the time, and assassinated in cold blood all the time. People are so afraid and terrified here […] with tension and anger all the time. This is the situation till now; I’ll be in touch with you when things are less terrifying. Yours Tariq Hashhash *** 4 April 2002 Dearest Aditi, I know deep in my heart that you are supporting us and your thoughts are always with us. I don’t have to thank you because you are one of us, you feel the same pain and you have the same anger. You lived here for some time and you know the amount of suffering here. The situation in the West Bank is full of tension. You already know that Ramallah is in its seventh day under the re-occupation by the Israelis. Until this moment Ramallah lost 48 Martyrs, 13 women and five children under the age of 10. The rest are civilians and resistance men. Bethlehem is also under occupation for the fourth day, and until now Bethlehem lost 18 Martyrs and right now the Israelis are trying to get into the Nativity church because they claim the resistance is hiding inside. Six nuns and a priest of a church were killed, and he was an Italian. They destroyed many historical and cultural places all over Ramallah and Bethlehem, such as the Virgin Marie Hospital, Bethlehem University, Al-Freer School, The Square Junction, and both Ramallah and Bethlehem municipalities. That’s in addition to the buildings, stores, roads, trees, water and electricity companies. The occupation moved last night to Jeenin and Nablus. Until now there are around ten martyrs in the two cites. Tulkarem is occupied since three days. Still, Hebron and Gaza are waiting for their turn; lots of tanks and airplanes surround Hebron all the time, waiting for the orders. Last night they started their occupation of Hebron by occupying Wad Elahariah, but there was lots of resistance and an Israeli soldier was killed and so they were forced to withdraw. Hebron is totally surrounded from three sides. Hagai which is to the south of Hebron, Dura, which is to the south-east of Hebron, and Halhoul, which is to the north of Hebron. The old city of Hebron is under curfew for more than one month. More than 500 families in Hebron are under total

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siege since the beginning of March. The expectations of this occupation say that it would last for a long period could be for months. Medical teams are not allowed to work, wounded people are left all the time in streets and ambulances are not able to reach them. More than ten doctors and nurses were killed since the beginning of the occupation. Journalists were not able to move since the beginning of the occupation, and they are dismissed by force, At least six journalists were killed, two Palestinians, one Egyptian, one Turkish, one Italian, and the last was killed in Jeenin and he was French. In the end, the Israeli occupation doesn’t distinguish between a child and a woman, nor a [young] man and an old man. They kill, demolish and destroy every thing they face, every stone that took the Palestinians lots of years to build. Dear Aditi, no matter how hard these attacks are, still the Palestinians are a strong nation, they are so eager to face them and to stand against occupation. Since we believe that it’s the only way to reach our freedom. I would like to thank you personally for every move and every message you forward to support us and to support our case. Tariq Hashhash *** 9 April 2002 Dear Aditi It was 12:00 in the afternoon when people said that there was an attack on Fawwar. Suddenly there was a heavy shooting everywhere in Fawwar, then the Israeli troops moved to Yata. People went out of their homes thinking that fire was only to scare people in Fawwar. The result was a 14-year-old child called Robin Jameil al-khdoor was a martyr and another 15 people injured. We all moved to our positions according to the emergency plan that was put up two days ago. In our clinic we received six injured. We were all shocked that all the cases we received were under the age of 14. 90 per cent of the injured in Fawwar were children. We all felt as if it was a nightmare attack of 20 minutes. Why? What did these children do? Did they throw stones on tanks? What a stone might do to a tank? Fawwar is known as an area under Israeli control, so there is no resistance. We worked with our simple equipment in the clinic, and our simple tools, with shortage of medications and first aid. No ambulances, but with private cars and three of them were

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demolished later by the tanks. No one was able to move, then we were obliged to provide a house with some essential medications that people would need for treating injures. The Israeli troops came back and surrounded Fawwar from the two points of entry. People ended their tragic day with the huge funeral of Robin with tears filling the eyes of every child in Fawwar, and those of his family and friends. Sadness filled each heart in Fawwar – for those small children that have no guilt but of being Palestinians. The sun of the next day rises with the sound of fire filling the space everywhere in Fawwar. Once again early in the morning we broke the siege and rushed to our positions. Early in the morning we received two seriously injured people, we transferred them directly to Hebron after giving them first aid. The things got somehow quiet until the same time once again 12:00 in the noon and until 2:30 we received 15 wounded in two and a half hours. Two were very serious and were also transferred to Hebron. The percent this time was somehow different – one-third was children. There were only five children among all the wounded of the second day. Fortunately, on the second day there were no martyrs and this was because of the great efforts our medical team made. They did a great job in Fawwar despite the scare, the horror and the risk; they deserve to be heroes. That’s the situation in Fawwar for the last two days, and tomorrow is a new day. Sincerely yours Tariq Hashhash *** 24 April 2002 Dearest Aditi Well, I am terribly sorry for being too late. There really were lots of reasons. First, the psychological situation that we all had to go through. Secondly, I was also injured three days ago. After that our centre was a target of the Israeli bullets, and one of the bullets crashed into the window directly in front of me in the office and the shards hit my body all over. I sustained lots of injuries. I am much better than before. By the way it’s the third time I got injured in this Intifada. I am really doing fine now and my health is excellent. Everyone here in Fawwar is doing fine, I think you heard that Fawwar also lost another martyr four days ago, he was 32 years old. A father of six children and he was shot while going

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back home in Fawwar in his private car in cold blood. I am sorry Aditi that I didn’t ask about Ayat Hliqaui, as I know that they are doing fine (the family). I don’t know Ayat personally, but anything you would like to write [to] her for sure, I’ll translate and convey to her. For your question about the university, I haven’t seen the university for a month now. It’s been closed since the end of March. Tariq

REPRESENTATIONS

INTRODUCTION This section contains five articles. The first two reflect on the problems and prospects of refugee representation in creative literature as well as in the media. The business of representation is drawing keen theoretical attention in recent years. Modes of representation are being seen as arenas for textualizing and performing subjectivity. Essentially, ‘representation’ is a work of substitution. The process of representation substitutes somebody/something for the other, in order to re-present somebody/something with an ‘original’ point of reference. Thus, in the process, it becomes a kind of un/intentional distortion/deformation of ‘the original’, whatever might be the amount (lesser/greater) such distortion/ deformation. The risk of such distortion/deformation runs through all attempts of representation. This can be done by an ‘outsider-powerful’ or an insider/self-representative. This point occupies the centre of a debate, which began since the publication of Edward Said’s Orientalism (1978). th In this seminal work, Said famously quotes a line from Marx’s The 18 Brumaire of Louis Bonaparte, to describe the desire of the ‘outsiderpowerful’ (in this case, the Western ‘Orientalist’ scholars) to represent the (mute and weak) Orient: ‘They cannot represent themselves; they must be represented’. This desire to represent the mute Orient led the Orientalists to rebuild/refashion the Orient according their (imperialist) imagination. Although the postcolonial self-representation (of the formerly colonized) seeks to invert the colonial/imperialist (distorted) representation of the native, the same theoretical objections can be raised against an indigenous self-representation, since it reintroduces the problem of the theoretical impossibility of simply producing a ‘true’ representation. Thus, the work of a ‘true’ representation, according to postcolonial writers, becomes not only a complex but also an ‘impossible’ project. Should we bother about these theoretical niceties? The answer is both yes and no. Although we must keep in mind that true representation

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is a misnomer, representation itself, especially representation of the marginalized/displaced is an ethical and therefore, a political position. It posits our secured and decent self face-to-face with the uncertain and fragile self of the other. Thus, it makes us stand for them: understand the problems of the refugees not only statistically but also culturally and psychologically. Shubhoranjan Dasgupta’s ‘Creativity’s Mirror’ is a literary journey through the trauma and terror of the ‘dehumanized millions’, who were coerced to cross the borders of India and Pakistan on the eve of the partition. These hapless, uprooted people, popularly termed as ‘refugees’, bore the scar of partition on their psyche for generations. Thus, in the words of the late Akhtaruzzaman Elias, a trendsetter Bangladeshi novelist, ‘The Partition of 1947 was so catastrophic, so deplorable, so heartrending and meaningless that [we] are realizing it more everyday’. Pamela Phillipose, on the other hand, is disgusted by the way the media, as ‘an extension of the existing power apparatus’, mirrors the government’s prejudices and misconceptions in the matters loosely defined as ‘national interest’. This leads to a lack of sensitivity and a general ‘lack of information and background’ in its perception and catering of the problems of the refugee/displaced. In her writing, ‘Writing Displacement: Creativity and Objectivity’, Phillipose suggests a way to fill this chasm and make the media more sensitive to documenting the phenomenon of displacement: ‘A clue, I think, lies in all great literary work, and here’s where the heart comes in’. Thus, a blend of the so-called ‘objectivity’ and ‘creativity’ is required: ‘As for creativity, it is a quality that is required more than ever in any age in which attention spans have shrunk and nearly every aspect of life has been rendered “instant” [by the media]’. The other three writings – Hameeda Hossain’s ‘Boundaries, Borders and Bodies’, Markus Mervola’s ‘Forced Displacement & Identity Formation in the EU’ and Mika Aaltola’s ‘The Changing Scales of Good & Evil: Morality Plays at the Profiled EU & US Borders’ – raise the issue of ‘representation’ from the angle of identity and image formation. For Hameeda Hossain, ‘Border movements within South Asia deny individuals the right to livelihood, to cultural identity and to bodily integrity’. She ridicules the slogans like ‘India Shining’ or ‘Bangladesh Shining’, publicized in order to attract global capital and maintains that the clash between the image of ‘shining’ and the realities of ‘suffering’ would inevitably ‘lead to a trafficking trap’. In his excellent analysis, Markus Mervola, exhorts us to remember, that an ‘illegal immigrant’ never exists per se. In the context of present

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Europe, he identifies that ‘it is an outcome of certain rules that regulate aliens’ entry into and presence in the particular territory’. He finds nothing ‘primordial’ in European identity and argues: ‘Europe is not one, but many. It does not appear any determined way and hence it is perfectly possible to perform the European identity other ways than displacing people forcibly by means of deportations’. On the other hand, Mika Aaltola focuses on the ‘how the drama of processing of people at the border is related to wider political imageries in the United States and in Europe’. In this context, Aaltola shows the importance of ‘morality plays’ to categorize and hierarchize the wouldbe migrants and ultimately divide them into the desirable privileged foreigner (e.g. businessmen and good consumer) and illegal immigrant/ asylum–abuser. ‘Thus, morality plays can be said to put the limelight on actors’ moral characteristic and their ability to make correct choices.’ Therefore, the author concludes, ‘the profiled border, […] creates an imagined landscape for a community of people. From this community, those beyond its gates – the unwanted elements – stand apart’.

CREATIVITY’S MIRROR Subhoranjan Dasgupta

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With the collapse of Nazi Germany, Kathe Kollwitz and Bertolt Brecht’s country was divided into two, East and West. Partition, then, was either the outcome of a full war or it could also be caused by the war-like disposition of two groups and their animal brutality proceeding hand in hand with pernicious politics – for example, the partition of Bengal and Punjab. Partition, again, could foment an exodus of two kinds. One, single or collective efforts, frantic and despairing, to cross over barbed wires as depicted by Margarethe von Trota in her film Alexzanderplatzor; massive, multitudinous transfers of population associated with trauma and terror as recorded by Ritwik Ghatak, S M Sathyu, Govind Nihalni and Nemai Ghosh in their films. Taken together, war and partition in this century prompted massive migrations, which dehumanized millions. Adil Mansuri singled out the individual, broken and battered, as the microcosmic victim of the entire process in his poem When the injured Sun opened his Eyes: When the injured sun opened his eyes here he was blinded by the flash of daggers. Clouds of faithlessness thundered; as we went out of our homes, our homes were wiped out. The link line of soul and body was disconnected and the hands raised for prayer were slashed. Blood ties were reduced to ashes

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Noted writer, journalist and senior researcher in Institute of Development Studies, Kolkata, Refugee Watch, 14 June 2001.

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And the ashes concealed words of introduction. It was difficult to recognize the hazy spots: there were flames in the distant horizon And conflagration shooting out of the night’s body. Numerous ants were crushed on the roads; the startled pigeon on the window was scared of his voice. Now there are neither doors nor walls in between And no place on earth to keep your feet on. Fill up the mirages with tears; 1 Irrigate the wilderness of migration. When confronted with this reality of displacement and diaspora even while recollecting it, the creative writer hardly had a choice. He realized in this frightening wilderness of migration where the hand raised for prayer was slashed that he had ‘no place on earth to keep your feet on’. Hence, his reaction was unequivocal condemnation. Even the so-called sops, which the partition was supposed to bring turned stale and sour. They were nothing more than mirages created by the instrumental reason of politics to waylay and inflame people. Instead of offering a new home, as promised partition broke the hitherto single home into ruinous fragments, dividing the self into innumerable vengeful others. It scissored the bond or link, which thereafter turned into memory, hymnic and elegiac at the same time. The castigation, in literary terms, was not univocal. It was prompted either by the elegiac memory of homes broken and lives uprooted and to that extent suffused with nostalgia, or it was simply harsh and merciless. While the reminiscences of Bengalis who were forced to leave East Bengal (compiled in the collection Chhere Asa Gram) belong to the former category, Saadat Hasan Manto’s stiletto sharp sketches are examples of the latter. Those who had left their villages evoked the hymnic world lost forever and voiced the critique in lyrical letters. There was even a strain of illusion in their evocation of the past but even that was better than the lashes of actuality. In fact, this castigation was spiritual in essence because it refused to discover the enemy in the assaulting ‘other’. Consider, for instance, this fragment of remembrance: ‘A group of Bihari people, villagers from Bihar […] had become people of this village, sharing our soul […] Are they still there in my village? In our childhood we noticed that the Muslims’ joy at Durga Puja was not any less than ours. As in the Hindu households, new clothes would be bought in their houses too. Muslim women would go from one 2 neighbourhood to another to see the images of Durga. When one reads

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a tender remembrance like this, one feels like judging partition and exodus as a gruesome accident, which defied the human course of events. But, here is a different strain – a cynical disgust. Manto’s cynical disgust at the horrors of partition prompted an unforgettable dialogue in Mistake Removed: Who are you? And who are you? Har Har Mahadev, Har Har Mahadev! Har Har Mahadev! What is the evidence that you are what you say you are? Evidence? My name is Dharm Chand, a Hindu name. That is no evidence All right, I know all the sacred Vedas by heart test me out. We know nothing about the Vedas. We want evidence. What? Lower your trousers. When his trousers were lowered, there was pandemonium ‘Kill him, kill him’. Wait, please wait […] I am your brother […] I swear by Bhagwan that I am your brother. In that case, why the circumcision? The area through which I had to pass was controlled by our enemies, therefore, I was forced to take this precaution […] just to save my life […] this is the only mistake, the rest of me is in order. Remove the mistake. 3

The mistake was removed […] and with it Dharam Chand. As if to protest against this rupture between the ‘self’ and the ‘other’, Manto’s Toba Tek Singh refused to accept either India or Pakistan and Samresh Bose’s protagonists in the short story Adab found themselves tied in the natural bond of love. In the words of Manto, Toba Tek Singh ‘screamed and as officials from the two sides rushed towards him, he collapsed on the ground […] on one side, lay India and behind more barbed wire, on the other side, lay Pakistan. In between, on a bit of 4 earth that had no name lay Toba Tek Singh. By refusing to vacate his no-man’s land Toba Tek Singh, condemned to his diaspora, rejected partition and exodus. Manto’s ideal sensitivity deciphered the irrepresible rebel in him. In the different emotional backdrop of Adab, a Hindu worker and a Muslim boatman surrounded by screams of ‘Bande

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Mataram’ and ‘Allahu Akbar’ clung close to each other. Both said, ‘No, we are no longer men, we have turned into sons of bitches. Only sons of bitches bite on another like this’ (Samaresh Bose, Adab). Their confession cutting across the divide condemned the essence of partition, which interpreted the agony of the other as the jubilation of the ‘self’. Indeed, the psycho-sadistic ballast of the politics of displacement earned a fitting rebuff in the literature of partition. Creative sensitivity refused to identify the other’s paroxysm as the self’s exultation. After studying the Urdu literature on partition, Aijaz Ahma (confirmed, ‘Out of the thousands of poems, short stories and even novels written in the Urdu language, say between the Pakistan resolution of March 1940 and the Indo-Pakistani war of October 1965, there is not even one which has, by any critical standards whatever, any sort of literary merit and that celebrates the idea of Pakistan […] when we consider this very broad spectrum of literary productions, on both sides of the border, the sheer absence of a literary text which is pro-Pakistani in sentiment seems most remarkable and indicative of a certain consensus of 5 perspective’. This is the defiant consensus of creative sensitivity on exodus and partition. On the eastern side, the celebrated novelist Akhtaruzzaman Elias condemned the partition of Bengal in the same unequivocal manner. Refusing to discover the ‘new dawn’ in the homeland of Bengali Muslims, he asserted, ‘My father like many other members of the educated Muslim middle class of that time earnestly wanted that Muslim boys and girls should keep pace with their Hindu counterparts, that they live with equal dignity. But, let us not forget, these Muslim boys and girls belonged to a particular class. Hence, only the progress of this middle class was aspired for. But the movement they unleashed in order to fulfill this aspiration simply cannot be approved. The partition of 1947 was so catastrophic, so deplorable, so heartrending 6 and meaningless that we are realizing it more everyday ’. Elias’ critique acquired its creative articulation in his novel Khowabnama where he showed how the dream of Pakistan was deceptive to the core. Against the unending reiteration of the Muslim League’s promise that Pakistan would liberate the oppressed Muslim peasantry from the clutches of zamindari tyranny, he posited the disbelief of the loner Choto Mia who refused to accept that the ‘social responsibility of the Muslim zamindar’ would blossom once Pakistan came to being. According to Choto Mia, the rule of the Muslim League in Bengal ‘had only famine to offer as its achievement’. Moreover, his query, which exposed the duplicity of partition politics in one

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revelatory flash, went unanswered, ‘All the bigwigs of your League are rich people and zamindars. If you expel them how can you ensure the 7 survival of the party?’. A Muslim homeland offered no relief to Elias. A passage in the novel where he portrayed defiance of the peasants against landlords brought out his politics. This redemptive politics invested with the halo of victory-in-defeat guided his creativity: ‘The jotedars have come with the police. Trains filled with police are spreading out in every station. They come down like cholera, like small pox. Peasants attack them with their scythes and sickles. The scoundrels gasping for breath cannot find the 8 path to escape’. In contrast to this explicitly political accent, Elias’ friend Kayes Ahmed, himself a refugee, emphasized the psychic and metaphysical nightmare of homelessness. Almost recalling Ritwik Ghatak’s resolutely emotional opposition to partition, Kayes Ahmed in his novel Nirbasito Ekjan described partition as the ‘freedom to be a refugee’. His protagonist (or alter ego) cogitated, ‘What is the meaning of refugee? Udbastu. That means he who has no home. But I do have a home. Still I am a refugee, because I am countryless […] So, this freedom that we have gained after driving out the English – this Hindustan and Pakistan – is it to produce refugees? […] Is this the name of freedom? […] Who are those who manoeuvred and manipulated to turn human beings into 9 refugees after so many years?’. The actuality of rootless diaspora has received its most eloquent expression in Kayes Ahmed’s soliloquy. Kayes Ahmed’s uprooted psyche brooked no compromise. His rejection of partition was so compulsive that he even regarded members of his next generation as alien and rootless, ‘Rabeya will give birth to a child after some months. As the child – boy or girl – will be born with my identity, will grow and live, so I too with a false identity will survive 10 among thousands and die with the same false identity’. After reading Elias’ Khowabnama and Kayes Ahmed’s Nirbasito Ekjan we conclude that these are texts of commitment which expose and indict the politics and psychology of partition in unforgiving terms. Placed at a distance from the carnage, Tasleema Nasreen writes her poem Divided Bengal meticulous in its roll call of place names and compelling in its tragic force: There was a land of mangoes, jackfruits where one could get soaked to the skin Returning home in rain then faintly tremble,

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Or bask in the sun after the fog cleared. There was a land – yours, mine, our forefathers’? Some suddenly halved this land of love into two. They who did it wrenched the stem of the dream Which danced like the upper end of the gourd, Dream of the people. They shook violently the roots of the land And people were flung about who knows where, None kept account of who perished who survived. Residents of Bikrampur landed on Gariahata crossing Some came to Phultali from Burdwan, Some fled to Howrah from Jessore, From Netrokona to Ranaghat, From Murshidabad to Mymensingh, The outcome was inevitable Like when you release a wild bull in a flower garden Two parts of the land stretch out their thirsty hands Towards each other. And in between the hands Stands the 11 manmade filth of religion, barbed wire. All wars fought in this world since the days of epics, all partitions and all migrations have not been able to throttle this human voice. Alokeranjan Dasgupta writes in At the Border: At that moment he stood up; if he so desired He could demolish all the barriers of convention. I trample ice and sun to touch him And find he is nowhere… Or did he carry freedom to the utmost limit on his bodily frame, gaunt with martyrdom? Failing to find his own name amongst the banished, He died for all refugees.

NOTES 1. Translated from Urdu by Pritish Nandy and Ain Rasheed, Adil Mansuri, ‘When the injured sun opened his eyes’, Modern Indian Poetry, p.27. 2. Dakshinaranjan Basu, ed, Chhere Asa Gram, Calcutta, 1975, pp.8–13.

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3. Saadat Hasan Manto, ‘Mistake Removed’ in Partition, New Delhi, 1991, pp.16– 17 translated from Urdu by Khalid Hasan. 4. Saadat Hasan Manto, ‘Toba Tek Singh’ translated by Khalid Hasan, Kingdom's End, Penguin India, New Delhi, 1989, pp.11–18. 5. Aijaz Ahmad, ‘In the Mirror of Urdu: Re-compositions of Nation and Community, 1947-1965’, Aijaz Ahmad, Lineages of the Present, New Delhi, 1996, pp.210–11. 6. Akhtaruzzaman Elias, Lyric Volume 8, edited by Ezaz Yusufi, Dhaka, April 1992, p.132. 7. Akhtaruzzaman Elias, Khowabnama, Calcutta, 1996, pp.99–100. 8. Ibid. 9. Kayes Ahmed Samagra, Dhaka, 1993, p.97. 10. Ibid., p.98 11. Taslima Nasreen, ‘Bhanga Banga Desh’ in Behula Eka Bhashyechilo Bhela, Dhaka, 1993, p.15, translated by the author of this essay.

WRITING DISPLACEMENT: Creativity and Objectivity Pamela Philipose

†

The media has been variously defined as a public sphere providing space for issues of importance to be discussed and debated; a major collective source of information and images, which is essential for citizen participation; a network providing a crucial link between individuals and ‘the collective’, which is society. Its power stems from its ownership of the power to interpret, reproduce and disseminate information. It is a power that arises from the social recognition that all human beings have the right to information and the freedom of expression. Having said this, let us look at this resource a little more closely. The fact that it has often proved unequal to the task it is expected to do is to state the obvious: its silences often being as significant as its statements. It would be useful to ask ourselves, then, why this happens. Well, society as we know it is a terrain in which various discourses, reflecting the interests of discrete groups, are constantly competing with each other for supremacy. While some of these get to the top of the heap, the rest are marginalized, and often forgotten. The newspapers we read, the television we watch, the internet we scan, contributes in no small measure to this process. But, that’s not all. The media, even as they attempt to reflect social and political events occurring around us, are themselves sites where contending ideologies and viewpoints do battle. But there is a further complication to consider. Since the media are, in many ways, an extension of the existing power apparatus especially †

A noted writer and journalist, Refugee Watch, 20 December 2003.

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when it comes to what is loosely defined as ‘national interest’! It should come as no surprise to anyone that the inadequacies, prejudices, misconceptions and interests marking government and political formulations on this issue are faithfully mirrored in print and television reports and analyses. The Indian government, as we know, has chosen to deal with displaced populations through political and administrative measures, sometimes very ad hoc ones, rather than perceive the issue as one of legal and humanitarian entitlements. It has not signed the 1951 Convention relating to the Status of Refugees, which specifically expresses the wish that all states recognize the ‘social and humanitarian nature of the problem of refugees’. In fact, possibly because it is not a signatory, the Indian state doesn’t appear to be obliged to use precise terminology and it uses words like ‘refugees’ in what would appear as a deliberately loose manner, so that the legal obligations they entail are lost sight of. It follows from this that the government’s response to the displacement of people and population flows across the border is often inconsistent, knee-jerk and motivated by the inclinations and ideology of the party in power. Take the political and media discourse on what has come to be termed the ‘Bangladeshi problem’. Here the genuinely displaced person/ environmental refugee has become synonymous with the jehadi terrorist. The distortions that now characterize this discourse, the general conflating of terms like refugees/migrant workers/displaced people/ infiltrators, have had two unfortunate consequences. It has not only prevented the government from framing an ethical response to a very human predicament of vast numbers of people, but ironically also from evolving a legal and rational framework with which to deal with what are sometimes justified concerns, relating to the nation’s security and its social and economic well-being, that arise out of such mass displacement. Therefore, in these times of economic flux, social hatred and military conflict, it becomes crucial for an institution like the media to be ever conscious of its appointed two-fold role of furthering the right to know and the right to express – both of which can be regarded as a universal right flowing from the concept of the ‘inherent dignity’ of every human. What, it seems, the media needs most of all in dealing with human displacement is a value addition of mind and heart. Let me try and explain this a bit further. Talking of the mind, there cannot be effective media coverage without good information and the adequate absorption of it. Very often what we get dished out to us in terms of news reports and analyses are

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products of a tunnel vision. The peripheral feedback which is so important for the telling of the ‘whole story’ is invariably absent. When poor media treatment is extended to a community that is already on the fringes, that is already the subject of strong social approbation, there are two immediate consequences. The community is either ‘invisibilized’ as a group not deserving of media space and attention – as a mass of faceless, nameless itinerants in whose lives society has no stake – or ‘visibilized’ in a manner designed to feed existing prejudices and fears, as a group of economic predators out to rob local people of their jobs and facilities, as social predators out to undermine the religious identity of local populations, and sometimes even as dangerous terrorists out to breach national security. Both approaches – the visibilizing and the invisibilizing – perpetrate immense damage on a people who have already been deprived of the anchorage of a settled existence and are in grave need of support structures given the general deprivations that mark their lives. We then come to the first of the big lacunae that characterizes media coverage: lack of information and background that could help in perceiving seemingly disparate people in their global, regional, local, geographic and historic contexts. Greater media literacy would demand a knowledge not just of immediate events – but of the factors that caused them. For instance, the only recent instance when Bangladeshis were received with sympathy and support on Indian territory, both in terms of popular support and media coverage, was in 2001. What helped greatly in this instance was the perception that these were members of the Hindu minority community facing religious persecution under the Khaleda Zia regime that overtly and covertly encouraged Islamic fundamentalists. Getting the big picture helped in this case and it may help even in cases where there is no manifest communal angle. There will, obviously, be more public sympathy for a group of displaced people who have been victims of a natural disaster like a flood, than for a group perceived as a bunch of marauders out to trouble the peaceful existence of local communities. Yet, how often does media coverage of displacement give the reader or viewer the big picture? The ignorance, incidentally, exists at different levels and is not confined to entities like newspapers and TV channels alone. Several scholars have pointed to the general inadequacy that marks academic historiography of modern South Asia. Even the most defining event in modern South Asian history – its partition by colonial rulers that resulted in the creation of the three nation states of India, Pakistan and eventually Bangladesh – is a largely underwritten one. Yet, partition, let

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us remember, has been a crucial factor in causing population flows and not just in the immediate aftermath of 1947. The communal polarization it fomented continues to be a factor in the riots and civic disturbances that surface every once in a while in the region. Such disturbances not only trigger actual displacement but colour perceptions about such displacement. It has been pointed out that something as crucial as the actual death toll that occurred during the events of 1947 remains imprecise. It could vary from 2 lakh to 2 million, with no estimate based on dependable sources. Much of the material we have, and which continues to masquerade as the authoritative history of partition, are ideologically coloured accounts or casual reminiscences based as much on rumour as fact. Mention has been made, for instance, of the account of a ‘General Tuker’, writing long after the event and without citing any sources, of the women of Garhmukteshwar cheering when their men butchered Muslim women. This account has been used by Pakistani historians as evidence of Hindu barbarity. As we all know, history has a way of rudely intruding into the present, especially when it is cynically deployed for political purposes. We see the most manifest consequences of this when riots break out. Many who lived through the partition riots have pointed out that the Sikh riots of 1984 reflected in their brutality and orchestrated fury that earlier moment. Events like these can never be truly buried. They surface time and again and the biases of a flawed history impinge crucially on perceptions on a mass scale, including those of media personnel. The ‘outsider’ then, already at a disadvantage in terms of not ‘being one of us’, comes to be perceived through a patina of manufactured hatreds. How then can the media help alter this reality? How can they be made more sensitive to documenting the phenomenon of displacement? A clue, I think, lies in all great literary work, and here’s where the ‘heart’ comes in. We were taught in journalism school that news reports, unlike works of fiction, are based on facts. This, of course, is a sound principle. However, there is a great deal in good literature that the intrepid journalist can imbibe. For the purposes of this workshop, let us confine ourselves to just two of them: the ethical framework and depth of creativity that mark all great literature. The ethical framework of literature is really anchored in a sense of the human. Bhisham Sahni, the great chronicler of partition, who died recently, put it this way in an introduction he had written to a Sahitya Akademi anthology of Hindi short stories: ‘In spite of its differences, the literature of one period is not altogether different from that of another.

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The depth of human sensibility that permeates all good writing links the literatures of one period with that of another. This humanity enables literature to transcend time, prevents it from aging despite the passing of the centuries. This humanity makes literature relevant in time as well as free of time. The literature that is most relevant to its time becomes, on the strength of this humanity, meaningful for other times too. But when the well springs of humanity begin to dry up in a literature, it grows irrelevant even in its own time, let alone later times’. We have here, then, a kind of brief manifesto that is relevant ultimately to all writing including that which goes by the term ‘journalism’, as indeed television scripting. And when the subject happens to be a dystopia populated by marginalized people, a people deprived of nationality, denuded of rights, detested as intruders, the reporter would need to remain even more conscious of that manifesto. As for creativity, it is a quality that is required more than ever in an age in which attention spans have shrunk and nearly every aspect of life has been rendered ‘instant’. Creativity here does not mean that the writer takes liberties with the facts, or undermines objectivity. Creativity could mean an accurate delineation of facts in a manner that invites empathy with the subject and encourages engagement, even a continuing engagement. Creativity means constantly looking for arresting ways to capture reality and bring it home to readers and viewers. One can refer here to the work of a journalist who went on to become one of our best-known litterateurs of the partition period: Sadaat Hasan Manto. Take this passage from one of his lesser known stories: ‘The dog of Titwal’, about a canine that keeps crossing the LOC. It begins almost like a news report about soldiers entrenched in their positions for several weeks with little fighting except the ‘dozen rounds they ritually exchanged every day’. ‘It was almost the end of September, neither hot nor cold. It seemed as if summer and winter had made their peace’. The one living thing that comes to distract them is a dog out of nowhere… ‘Prove your identity’, Harnam Singh ordered the dog, who began to wag his tail. ‘This is no proof of identity. All dogs can wag their tails’, Harnam Singh said. ‘He’s only a poor refugee’, Banta Singh said, playing with his tail. Harnam Singh threw the dog a biscuit which he caught in mid-air. ‘Even dogs will now have to decide if they are Indian or Pakistan’,

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one of the soldiers observed […] Harnam produced another biscuit from his kitbag, ‘And all Pakistanis, including dogs, will be shot’. The dog then runs across to the Pakistani camp, with a makeshift collar bearing a short message: ‘Jhunjhun. This is an Indian dog’. The words cause great consternation in the Pakistani camp, with Subedar Himmat Khan venturing to suggest that they may even constitute an enemy code. He picks up his wireless set and speaks to his platoon commander, studies the map again, tears a small piece out from a cigarette packet and writes: ‘Shunshun. This is a Pakistani dog’. He ties it to the dog’s neck. He fires an extra round, which is promptly greeted by a round from the Indian side. The story ends with both sides shooting the dog as it tries to make its way back to the Indian side of the border. There is a great deal a reporter can pick up from this story in terms of its nuanced irony and careful distancing, all of which are essential to provide a perspective on an unnecessary war and an artificial boundary. To conclude, an aware and active media can indeed play a crucial role on issues like population flows and human displacement. It can provide important background and perspective, highlight conditions of life on the ground, counter prejudices and biases – many of which are inspired by patently communal agendas of political parties – and help governments formulate policy, marked by rationality and a consciousness of universal human rights.

BOUNDARIES, BORDERS AND BODIES †

Hameeda Hossain

[…] I was asked to speak on ‘forced migration and trafficking’ terms, which have now become major international law concerns. Recent debates in international agencies have sensationalized migration by linking it to trafficking in arms and drug smuggling and terrorism, to AIDS/HIV. The migrant, whose labour has served to build the wealth of other countries, has been reduced to a carrier of crimes and disease. The use of the word ‘forced’ is, of course, susceptible to many complex nuances of interpretation that serve different interests or reflect different perspectives. It is indeed a contentious issue between countries of origin and destination, and government responses have been both contradictory and hypocritical. While countries of origin welcome foreign remittances from workers, they do little to facilitate their terms and conditions of employment. […] The more powerful countries such as the US have gone to the extent of using trade sanctions against the country of origin. At the same time the US has tempted migration through the sale of lotteries. On the other hand, for ordinary citizens, freedom of movement is a choice for survival. Migration can be forced by political and economic circumstances in the country of origin, but administrative controls in the country of destination also force migrants into exploitative relations. […] While migration may be seen as a strategy for survival by families or an escape route for individuals, or even as presenting new opportunities, the human rights of migrants and their security are at risk from state controls, exploitation of the market and social exclusion. […] †

Prominent Women’s Rights activist in Bangladesh and founder member of Ain O Salish Kendra (ASK), Refugee Watch, 30 December 2007.

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POLITICAL CAUSES OF MIGRATION Let us look at what propels people in South Asia to move from their habitats, and how states have accommodated these movements. South Asia represents diverse languages and cultures, which have been formed historically by the entry of traders, warriors or even religious mendicants. Its boundaries have been cast and recast to cut across identities of family, clan and ethnicity. A further typography of migration suggests that in the last century, movements have resulted from conflicts – communal or ethnic violence, in which families were divided and sub-divided. […] South Asia has witnessed massive movements of population across newly created borders. In 1947 and 1971, people were compelled to flee on account of religious riots or military violence. Later, as states continued to exist in a state of suspended animosity, minorities faced with political intimidation, legal discrimination or social exclusion, have had to flee their homes. Demographic changes have divided families and communities, and these divisions have induced waves of movements across borders. Recognition to political ‘migrants’ was given by the Nehru Pact in 1952 and the Simla Pact in 1974. The first recognized the status of refugees following partition, and the second approved the transfer of Pakistani citizens from Bangladesh to Pakistan after the war of liberation.

IN SEARCH OF FREEDOM We have also known of cases of individuals escaping from repressive regimes – particularly writers, reporters, intellectuals and political activists. They too have been forced to move. A famous scientist had to leave Pakistan because he was an Ahmadiya, a religious sect whose citizenship rights were taken away by the state. Fortunately, he found sanctuary in a leading institution in Trieste and could contribute to scientific knowledge. Poets and writers have had to leave Bangladesh and India, under social censure or administrative oppression. The loss has been that of the host country.

ECONOMIC MIGRATION In recent years, patterns of global migration have shifted significantly, and economic necessity has become a prime cause. Globalization has contributed to a phenomenal number of people seeking livelihoods

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across borders. Migratory flows are an outcome of sharpening imbalances within countries and between countries, and they pursue global capital. While states are entitled to regulate their borders, it is important to realize that demand in growth led societies will inevitably induce the movement of supply from stagnant economies or resource poor countries. New conceptual categories have been attached to migration […] Forced migration or trafficking implies use of force or fraud that is used to deceive men, women and children into moving away from a familiar habitat. Each process involves an element of force and compulsion, each is susceptible to a degree of victimization. Even though demand acts as a pull factor, these movements are susceptible to controls that enmesh them in circles of insecurity, deny their right to livelihood, to cultural identity and to bodily integrity. The new world they enter is not hospitable. Documented workers from Bangladesh have been ghettoized into low paid work in many countries of the Middle East and South East Asia. Even when they have entered legally they are subject to numerous forms of exploitation by their employers and law enforcement agencies. […] Yet, countries of origin have so far been unable to protect their own citizens, and the bilateral treaties they have signed with labour importing countries have sadly omitted any guarantees for workers. Thus, the worker loses his/her right of stay. For an example, let us look at the boom period in Malaysia’s development in the 1990s. Cases were reported, in the media, of workers of Indonesian and Bangladeshi origin, who were forcibly kept in detention centres. Tanaganita, a Malaysian human rights organization published an investigative report on the use of torture and other human rights abuses in detention centres. Evidence from workers showed that they had been made ‘illegal’ by commercial practices that were intended to control their labour. […] Women, make up about one half of the world’s current migrant population. It is only in recent years that a growing number of women from Bangladesh have taken overseas jobs. The demand has come mainly from the Middle East. But, the conditions of work have not been particularly salutary and Bangladeshi embassies have had to cope with many complaints from women workers. […] Last year the government itself decided to recruit women from the ranks of Ansars (or village police) for employment as domestic workers in the Middle East. But, their experiences of exploitation and even violence has again brought to surface the contradictions between state

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policies that promote migration as a means for absorbing surplus labour and earning foreign exchange and ensuring security to their citizens. Many of the Ansar women complained of sexual harassment and assaults, and the government’s response was to bring them back home without registering any complaints. […] Bangladesh is a signatory to the UN Convention on the Rights of Migrants and their Families, but the Convention itself is without teeth since none of the receiving countries has agreed to its ratification. Bilateral agreements with Malaysia, Saudi Arabia and other states have generally been limited to numbers and period of stay of workers, but not to ensure protection of workers. State policies and other institutional arrangements seem inadequate to ensure their security during their stay overseas. […] Under bilateral treaties migrants find little protection, as they are subject to the laws of the receiving country. Emigration from Bangladesh is governed by the 1982 Emigration Ordinance. The latter deals with the process of recruitment, licensing of recruiting agents, emigration procedures, minimum standards for wages and service condition, charges for recruitment, malpractice, enforcement machinery etc. […] Successive governments in Bangladesh have tried to circumvent these rights by banning their employment overseas or demanding guardian approval. In other words, women migrants are treated as dependents. Restrictions and bans on their employment without the capacity for implementation have resulted in undocumented flows of women workers. […]

THE REGIME FOR TRAFFICKING IN SOUTH ASIA Movements within South Asia are even more problematic. Even though borders have historically been flexible and open, boundaries have been cast and recast to cut across identities of family, clan and ethnicity. Given the intimate kinship connections that transcend boundaries, South Asian states could have facilitated travel within the region. But, inter-state relations are steeped in protectionism, so that tourist visas are difficult to obtain and work permits are non-existent. The conventional response of states in South Asia has been to guard its borders and criminalize movements under the Foreigners’ Act. There has been little legislative intervention on behalf of the victim of migration, whether the act was voluntary or forced. Border movements within South Asia deny individuals the right to livelihood, to cultural identity and to bodily integrity. This is what

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makes them vulnerable to a trade in bodies, sometimes to expulsion, and often to exploitation. A migrant, whether documented or undocumented, seeks a space for survival in an unfriendly environment. Often people crossing borders are not even aware of their trespass across borderlines. Migration from Bangladesh to West Bengal and other parts of India has been prompted by a wide range of reasons. The war of independence inspired a large-scale migration. Fear and intimidation have often led to a quiet exchange of minorities along borders and across borders. The search for livelihood has been a compelling factor. Women have also seen in this an escape from oppressive relations in marriage or to escape social stigmas in their own village. Seasonal migration for work or trade has become a regular practice along some borderlines.

CIRCLES OF INSECURITY When migrants move from citizenship without freedom or choice to residence without citizenship they pass through such circles of insecurity. They do so by taking risks of social isolation, accepting unknown terms of employment or trusting agents. There are many anecdotal examples to illustrate this journey from one circle of insecurity to another. From oral histories of women victims of trafficking we know that they left their homes when economic deprivation, social discrimination and violence made their lives intolerable. In many cases they were tempted by offers of marriage or paid work by a family member or a friend. Or the move became a family’s strategy for survival. […] A study of several border villages in Rajshahi found that young girls were lured with promises of marriage, but found themselves as bonded labour in glass factories in Uttar Pradesh in India. There are also stories of women from Bangladesh engaged in sex work in [the brothels of] Sonagachi, Kolkata. While their conditions are known to be oppressive, some of them at least were able to invest their savings in real estate in their hometowns and move back into anonymity. They, thus evaded both official controls and social stigmas. Demand for seasonal labour provides an incentive for temporary movements. Case studies have documented how young women and children move across the river from Rajshahi to Maldah to harvest betel nuts or wheat in the chars or marshlands of West Bengal. Their daily

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movements are visible to the naked eye, and most of them are not hindered from working. Their labour is organized by informal agents. When some of them don’t return home, it is assumed that they were egged on by promises of work or marriage further west. But the rationale of the market is not evident to state forces and the policing of borders makes them into sources of extortion or oppression. For example, you must all have heard about the snake charmers or bedays [a gypsy community in Bangladesh], who, two years ago, were pushed back and forth into No Man’s Land by border police on both sides, without a care for their physical survival. […] In South Asia, we have not come to accept the particular gypsy culture as in Europe, where the Romanis are free to move from one country to another, they have even earned the right to vote. In South Asia, the bedays, snake charmers by profession and boat people by habitat can do neither one nor the other. […] Movements across Bangladesh’s land borders have inspired the creation of numerous services on both sides of the border. Guides, rest houses and moneychangers have become profitable businesses and sources of extortion. In addition, borders and boundaries stimulate corruption of border guards or local officials. […] Inspite of these obstructions, for people living in poverty, migration is often equated with the pursuit of a mythical golden deer.

PRESSURE FROM THE WOMEN’S MOVEMENTS FOR HUMAN RIGHTS STANDARDS Since the 1980s, diverse women’s movements have drawn upon their experiences of gendered violence to identify the implications of undocumented migration and trafficking for human rights of women. One of the outcomes has been a near universal acceptance of the 1 Palermo Protocol, which redefined concepts of trafficking as a forcible or coercive movement, and as a denial of freedom and choice. The definition delinked the act of trafficking from prostitution. This new approach has of course sparked off a debate within the women’s movements between the concept that links trafficking to prostitution and criminalizes all forms of sex work as forced, and the other concept of distinguishing between the exploitation of trafficking from the exploitation implicit in sex work. It is now acknowledged that trafficking itself leads to different kinds of oppression not only in prostitution or sex work.

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INTERNATIONAL LAW CONCERNS In raising these debates women have campaigned for policies that address the root causes of why women, children and men are lured into trafficking and migration – such as, economic poverty, political oppression and family violence. They have succeeded in transferring the focus of international law on the mode of movement, criminalizing the use of force and accepting the need to create conditions that prevent trafficking and protect the victims of trafficking. In the international arena, human trafficking has moved from the margins to the mainstream of international political discourse. Human rights are recognized as central to the causes and vulnerability factors that contribute to trafficking. Responses from regional and international institutions have shown a better understanding of the phenomenon. Thus, the 1949 Convention on Suppression of Trafficking for prostitution found it ‘incompatible with human dignity and a threat to the welfare of the individual, family and community’. Article 6 of CEDAW gave a broad direction to ‘suppress all forms of trafficking in exploitation of the prostitution of women’. […] The Declaration on Violence against Women (1993) which was adopted at Vienna (1993) and the Beijing Platform of Action (1995) took the demands of the women’s movements further by including all forms of gender based violence in the family, community and violence perpetrated by the state. The appointment of the Special Rapporteur on Violence against Women led to her reports that clarified the concept of trafficking to the act of ‘force, fraud, deception in the movement of persons’. The adoption of the supplementary to the Palermo Protocol, titled ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2003)’ aimed to prevent and combat trafficking in persons, particularly women and children; protect and assist the victims of trafficking, with respect for their human rights; and promote cooperation between state parties to meet these goals. […] These advances in the international arena thus have called upon states to: 1. Criminalize trafficking; 2. Quickly and accurately identify victims of trafficking; 3. Investigate and prosecute trafficking cases with due diligence; 4. Provide victims with support and protection; 5. Provide special protection for child victims; 6. Cooperate internationally and regionally in preventing investigating and prosecuting the perpetrator of trafficking.

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Some of these international concerns have found their way into 2 regional conventions such as in Europe. Within the South Asian region, the outcome of several years of debate has resulted in the ‘SAARC Convention on Combating Trafficking in Women and Children for Prostitution’. Unfortunately, the title and definition continue to link trafficking to prostitution, although experience has shown that women moving from one country to another are subjected to different forms of oppression […] But SAARC member states have made little progress in protocols and legislation to endorse these commitments into national legislation and move towards their implementation. The provision of repatriation is a problematic one since it does not necessarily take into account the choice of the victim. If she is discovered years after leaving the country it is possible that she may not want to go back to her original home. But the Convention does not make allowance for a person’s option to stay on in the country of destination. An experience of a legal aid organization in a case of repatriation demonstrated the difficulties of this condition. A married woman, who had been kidnapped from Dhaka, was discovered in a shelter home in Karachi. When she expressed her wish to go back to her husband, efforts were made to locate him, and it was found that he had remarried. Both husband and the wife in Karachi agreed that she should return back to her husband. She found herself alienated after staying away for a few years in a foreign country, and repatriation brought its own sorrows of rehabilitation and adjustment. It would have suited her best if she could have been given a work permit and allowed to travel back with confidence to her own country rather than remain as a dependent upon an unwilling husband. Rescue operations also tend to leave women and children in protection homes or correction homes, which confine inmates rather than become means of exit. The UN Rapporteur on Violence against 3 Women found the conditions in corrective homes as barely habitable. Rehabilitation itself becomes temporary and the reforms intended do not deal with rights. […] In most South Asian countries the judiciary too has taken a protectionist approach towards trafficking, confining women to protection of their guardians or a public shelter. Activism by several women’s groups in each country and their networking across borders has helped in the rescue and repatriation of women victims of trafficking to their home country but it is not certain whether their rehabilitation and reintegration has been in deference to women’s rights and choice.

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NATIONAL REGIMES FOR TRAFFICKING National regimes on people’s movements have been punitive rather than protective. Even though the demand from global capital for low cost migrant labour is on the increase, controls have been reinforced at the cost of human rights. In South Asia, regulatory legislation such as the Foreigners’ Act has restricted entry. Penalties provided in Penal Codes drafted 200 years ago for kidnapping, abduction, slavery, etc. seem outdated today. These laws have often been used for expulsion or even to obtain court orders. They have tended to act against the victim rather than to support her. Penal codes have provided penalties for kidnapping, abduction, slavery, etc., but national policies have ignored the needs of the victims. Human rights have therefore been absent in addressing the issue of forced migration and trafficking. […] An Indian legal analyst has argued that the ‘Immoral Trafficking (Prevention) Act 1956 does little to tackle the principle concern with trafficking of persons into situations of exploitation’. It is also argued that limiting the definition of trafficking in persons only to the purpose of prostitution deflects from the violations inherent in the act of trafficking. Further, conflating women and children as victims tends to 4 digress from the specifics of the act. In Bangladesh too, legislation on Violence against Women and Children (1955) which has undergone several amendments in 2000 and 2003 has authorized capital punishment for traffickers, which according 5 to legal experts makes convictions more difficult. […] Punitive legislation in many European countries has been directed to controlling movements from East Europe. Perhaps, Netherlands is the only country which offers some protection. The US has adopted the Victims of Trafficking and Violence Protection Act of 2000 with adverse consequences for women’s rights. The act authorizes the suspension of non-humanitarian, non-trade related assistance to any country that does not meet minimum standards for elimination of trafficking. The State Department Trafficking Investigation Report 6 (TIP) judges countries according to the degree of their compliance with minimum standards prescribed by the US, rather than with humanitarian standards. This Act has had adverse effects with governments rushing into enacting punitive laws, policies and law enforcement mechanisms that may violate women’s rights. While the enactment of harsh laws in countries such as India and Bangladesh may have raised them in the TIP list, the concern for human rights of trafficked persons has been overlooked.

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CONCLUSION How far does international law reach across to support women at the grassroots? The adviser on Trafficking from the Office of the High Commissioner on Human Rights in Geneva underscored the need to acknowledge that trafficking is both a cause and consequence of the violations of human rights, and that guiding principles of the Office of the High Commissioner for Human Rights place protection of human rights at the centre of any measures taken to prevent trafficking. Special care has to be taken to ensure that anti-trafficking measures do not adversely affect the human rights and dignity of persons, and in particular the rights of those who have been trafficked or those who are vulnerable to trafficking. States thus have a responsibility to act with due diligence to prevent trafficking, investigate and prosecute trafficking 7 and to assist and protect trafficked persons. It is clear that grass-root experiences of women have influenced international awareness of the need to move beyond legal sanctions and legal punishments towards addressing the root causes that perpetuate gender discrimination, economic disparities and imbalances in power. Effective mechanisms need to be introduced to monitor the impact of anti-trafficking laws, to provide meaningful education and awareness, to widen employment opportunities, to make rescue, rehabilitation and reintegration sensitive to women’s concerns and to ensure that victims of trafficking are treated as victims of human rights abuses and not as irregular migrants. National policies therefore, need to focus on changes in social and economic relations, to support a woman’s rights so that she can make informed and independent choices. An imperative is that such policies offer: 1. Viable livelihoods. 2. Equality within the family and at the workplace. 3. Recognition within the community. 4. Education and facilities for personal advancement. Human rights abuses in cross border trafficking within South Asia can be minimized if movements are rationalized allowing for work permits and temporary stays, so that women’s work is not criminalized. To attract global capital, countries are rushing in to proclaim their prosperity. India is now projected in publicity posters as India Shining or Incredible India. This is also the case in Bangladesh, where Dhaka becomes more developed than the rest of the country. It is inevitable that not all of India or all of Bangladesh will shine and the disparities will induce movements

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from ‘Suffering India’ and ‘Suffering Bangladesh’ to steal a bit of the shine for themselves. This will inevitably lead to a trafficking trap. A more balanced development for a genderwise and socially just world may be the answer. I leave it to you to consider whether we can take steps towards a more equitable development that will respect human rights and human security.

NOTES 1. UN Convention against Transnational Organised Crime, 2000. 2. Council of Europe Convention on Action against Trafficking in Human Beings and its Explanatory Report, Warsaw, 16 May 2005, [http://www.coe.int/ trafficking]. 3. Radhika Coomeraswamy, Report of the Special Rapporteur on Violence against Women, its Causes and Consequences: Mission to Bangladesh, Nepal and India on the Issue of Trafficking of Women and Girls, 28 October–15 November 2000, UN (E/CN.4/2001/73/Add.2, 2001). 4. ‘Trafficking Reform: An Analyses of the Protection of the Rights of Positive People, Children, and Sex Workers’, Feminist Legal Research Centre, New Delhi, January 2006. 5. The Control of Oppression on Women and Children (Special Provision) Act, (Act No 18 of 1995), Suppression of Violence against Women and Children Act 2000 (Nari Nirjaton Daman Ain) and Amendments to Suppression of Violence against Women and Children 2003. 6. The TIP report for 2005 is available on [http://www.state/gov/g/tip/rls/tiprpt/ 2005/46610.htm]. 7. OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, (E/2002/68/Add.1) Principles 1 and 2.

FORCED DISPLACEMENT AND IDENTITY FORMATION IN THE EU †

Markus Mervola INTRODUCTION

Forced displacement is a topical issue in all developing countries. It is often seen as an inevitable consequence of development. Thus, forced displacement and social problems associated with it are often represented almost like a ‘collateral damage’ of modernization, which, in turn, is seen as an irrevocable solution for ‘ills’ of the so-called Third World. It is only very seldom if ever that we discuss about forced displacement in the context of so-called highly developed political communities, such as the European Union (EU). This is very unfortunate since forced displacement is connected to the ways European societies are governed. […] Perhaps, one reason why forced displacement is not seen as such a pressing problem in the EU countries is that once forced displacement takes place due to environmental disasters or some infrastructure development projects, it is thought to be governed in an organized way following the procedures of good governance. While this arguably is a case, what remains unrecognized is that forced displacement of people is conducted also on grounds other than environmental disasters and development. […] In the European context it is commonplace to locate identity related forced displacement into Europe’s ‘peripheries’, such as the Balkan †

Department of Politics & International Relations, University of Tampere, Finland, Refugee Watch, 28 December 2006.

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region. But the EU itself is in fact a significant generator of forced displacement. This is not only because the EU countries have played a central role in restructuring world economy which has put people on 1 the move, but it is also a case in a much more immediate sense. Every 2 year about 350,000 people are deported from the EU. If by the term ‘displaced person’ we want to refer to one who is forced to leave a place in which he or she has settled in, it does not entirely make sense to consider all deportees as victims of forced displacement. […] Deportation as a practice of governing has generated some scholarly 3 interest. If we truly consider forced displacement being an important ethical concern, we must analyse systematically the very practices which produce displacement. Deportation is one such practice and it is particularly interesting insofar as it has been closely related to the process of identity formation in various locations throughout history. The contemporary EU is not an exception. What follows below is an analysis of how the issue of forced deportation as a form of forced displacement is underwritten in the process of identity formation in the EU. […]

DEPORTATION AND THE ‘PROBLEM’ OF ILLEGAL IMMIGRATION After he was put under deportation order by British authorities, Mustafa Kadir, a failed Iraqi asylum-seeker, went on a hunger strike and refused 4 to be sent back to his country of origin fearing a ‘certain death’. Why is it that British authorities claim to be obliged to deport him? The Home Office answer is indeed a diluted one: ‘It is important for the integrity of our asylum system that any individual who is found not to be in need of 5 international protection should be expected to leave Britain’. […] In one of the central policy documents we find again an ambiguous reasoning for why deportation constitutes an important part of the Union’s overall migration strategy: The credibility and integrity of the legal immigration and asylum policies are at stake unless there is a Community return policy on illegal residents. Moreover, all efforts to fight illegal immigration are questionable, if those who manage to overcome these measures 6 succeed finally to maintain their illegal residence. The technical expressions such as ‘integrity of the system’ cover the inherent discrimination that is embedded in the very ‘system’ as such:

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some people are allowed to enter whereas some people are aimed to be kept out from the area; or some people are forced to leave whereas some people are permitted to stay within the area. Thus, deportation is a technique that is part of a system, which, in turn, is meant to control who is allowed to enter and stay within the area. […] At stake in the practice of control of territory is control of the membership in a political community. In addition to exclusion from a political community, in the practice of deportation is exclusion from a particular territory. In legal–political communities based on ‘rule of law’, such as modern states, the practice of territorial exclusions becomes conceivable only against certain figures that embody an illegitimate status. In contemporary vocabulary ‘illegal alien’ or ‘illegal immigrant’ is such a figure. It is only by virtue of this figure that territorial exclusions can take place. In so far as in the context of the European integration process immigration and asylum are fairly recent policy issues, it is of course a case that in this same context the figure of illegal immigrant is of recent origin. Nevertheless, the large-scale obsession of the EU with the ‘fight 7 against illegal immigration’ makes it evident that illegal immigrant has now become an important figure at the supranational level of the EU. […] In summary, then, it is not the case that Europeanization of the problem of illegal immigration has constituted illegal immigrant as 8 something new and previously unknown to Europe. Rather, the upshot of Europeanization is that the phenomenon of illegal immigration can now be known and acted upon at the supranational level of Europe or the EU. It is quite important to understand how the figure of illegal immigrant entered into the EU stage in the first place. Though in the scope of this paper it is impossible to thoroughly present a complex evolution of the Common EU Immigration and Asylum, it is still necessary to mention a few crucial aspects of it. First of all, in many respects European integration at large has been an innovative and even radical project. In fact, European integration was originally a radical security project. The main objective was not, however, to strengthen Europe against the perceived military threat of the Soviet Union, for example. As Ole Wæver (1996) has argued, in Europe’s own self-understanding the main threat image was actually the possible return to Europe’s own past that had been characterized by violent nationalism and disastrous total wars. […] It was hoped that if various economic and social processes are to be managed in an effective and optimal manner, the European integration would result in

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production of prosperity and welfare for Europe as a whole. As a consequence, European states would become interdependent in a positive sense and recourse to violent conflict superbly unattractive alternative. […] Ultimately, then, Europe would become a space of activity in which such things as capital, goods, services and labour would move freely without obstacle and hence, it has been maintained, Europe would become a stable and prosperous place for its subjects. Moreover, since free movement of labour and services would practically be tantamount to free movement of people, the case for inevitable need for some kind of European citizenship started to be raised by 9 several commentators and practitioners. Thus, there truly was something radical in the European integration project insofar as it involved ideas of how to imagine and bring into being a novel form of political community for Europe which is inclusive and hence less prone to violence. This leads us to the next point. Secondly, despite the radical idea of transfiguring Europe into a sort of inclusive political community, the project of European integration has been dependent on exclusionary tendencies of defining who cannot belong to Europe and enjoy the public goods provided by the EU. The obvious example is the so-called Turkey question, which is often posed in terms of European identity. The question then would go whether Turkey is ‘European’ enough to be part of the EU. […] It is here that the problem of illegal immigrant was possible to be posed at the supranational level of the EU. In about the mid 1980s it became increasingly probable that member states of European Community (EC which later became the EU) would take important steps towards de facto internal market and hence open the internal borders for capital, goods and labour. This had notable ‘spill-over’ effects. The officials in charge of so-called law and order or internal security matters found new impetus in the moment of the coming into being of the European single market. In these circles, the materialization of borderless internal market was not represented merely in a positive matter. Rather, it was argued to pose a new set of risks for internal security of member states inasmuch as the traditional 10 kind of a border control was supposed to wither away. […] Simply put, the problem was represented in the following way: what will happen to one’s ability to control after one of the main techniques of surveillance (i.e. the border) becomes non-existent between member states? The solution for this perceived problem was that the alleged internal security deficit coming along with abolition of internal borders must be compensated by strengthening control by external borders and even

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beyond. […] European asylum policies aim at preventing migration with accelerated procedures for examining asylum requests, a common definition of a refugee, the notion of ‘safe third country’ and the 1990 Dublin Convention which organized a system to determine which 11 contracting party is responsible for examining an asylum request. Rather than being a response to the really existing security problem of illegal immigration, we should approach the EU obsession with illegal immigration as a discourse whereby certain actors aim to legitimate the adoption of various measures of territorial control. Thus, the imagined figure of illegal immigrant is of crucial importance at the EU level just because it has made possible the coming into being of control oriented Common Immigration and Asylum Policy. It is important to remember 12 here that ‘illegal immigrant’ never exists per se. It is an outcome of certain rules that regulate aliens’ entry into and presence in the particular territory. […] Within the EU, Pakistani citizens, just to give an example, are much more disposed to become defined as ‘illegals’ and hence susceptible to deportation or rejection by the border than citizens of Australia. This is so simply because Pakistan belongs to the list of countries whose citizens require a visa when entering the EU whereas Australians are not. Against this background, the EU’s obsession with illegal aliens/ immigrants indicates a thrust towards keeping territory ‘clean’ from certain elements of population. In this endeavour, such mechanisms as visa policy functions are an instrument of control by which authorities 13 can profile potential incomers and regulate entry into the territory. Deportation, in turn, functions as a technique by which individuals with a ‘wrong’ profile can be removed from the territory. Hence, a legal– political community of rights and benefits, such as the EU, is not only concerned with who belongs to it or who does not. It is also concerned with excluding territorially. If the obsession with illegal immigrants indicates a thrust towards keeping territory clean, it also indicates that territory is not just a piece of land; besides its obvious geographical dimension, territory has its particular normative dimension to the extent that a presence of a person within a particular territory could be deemed along the lines of 14 legality/illegality. If techniques of territorial control such as deportation presuppose a notion of illegal immigrant/alien, then the practice of production of ‘illegality’ is coeval with the practice of, what I call, normativization of territory. Hence, in the context of the EU, the following question becomes of significant analytical interest: How is the territory of the EU invested with the particular normative content so that a sovereign

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‘right’ to include and exclude becomes practicable? In order to explore this question, we must now take a little theoretical detour.

LAW, COMMUNITY, AND TERRITORY It can be suggested that the ‘normativization’ of territory is a condition for any legal–political community: legal community cannot come into being unless it lays claim to territorial unity. Let us start with unpacking this argument that a legal–political community is perforce bounded in space. In an interesting article based largely on the philosophy of Hannah Arendt, Hans Lindahl, a legal philosopher makes an important point that for a legal–political community territory never appears only as a 15 piece of land. Above all, it is a commonplace shared by legal members and residents of a community. Hence, territory is conceived as a place in which certain commonalities can become realizable. Furthermore, claims to commonalities play an important role in organizing the social relationships within the particular community. For Hannah Arendt, these relationships function further as a medium by which a sense of the commonplace can become constructed: ‘kinds of relationships, based on a common language, religion, a common history, customs, and laws […] constitute the space wherein the different members of a group 16 relate to and have intercourse with each other’. This is not to say that these common things are pre-given, unalterable or inevitably exclusionary. Indeed, commonalities are always politically constructed. The point here is just to emphasize two things. Firstly, community is imaginable only by reference to certain commonalities. Only by a claim to something common is it possible to come to terms with what it means to be inside and outside a community. The second conclusion derives from the first: legal community arises once certain commonalities are given a legal expression. Thus, law presents certain commonalities as legally protected common values. This leap from the notion of commonalities to common values is justified on the grounds that once law stands up for defending something it claims to be common, it inevitably presents this defending of ‘something’ as being valuable from the common point of view. But what does it take to give legal protection for a selection of values? This question cannot be answered unless we first contemplate what it takes to make a common value realizable. Arendt’s discussion of ‘freedom’ is a good starting point:

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Freedom, where it existed as a tangible reality, has always been spatially limited. This is especially clear for the greatest and most elementary of all negative liberties, the freedom of movement; the borders of national territory or the walls of the city-state comprehended and protected a space in which men could move freely. What is true for freedom of movement is, to a large extent, 17 valid for freedom in general. In other words, whichever way we understand freedom, whether we like to define it negatively as a freedom from restrictions, or positively as freedom to belong to a political community, which for Arendt is a condition for equality, it can only become realizable within a certain place. Freedom must be produced, and its production must accompany the production of a bounded space. Arendt’s recourse to status of stateless people is illustrative in this context. Insofar as the primary condition for realization of any human rights is that a person belongs to a political community, a stateless person becomes politically and legally dead to the extent that it is out of place. Thus his or her voice is unheard and acts invisible: ‘The fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the 18 world which makes opinion significant and actions effective’. Though physically in a place, a stateless person is at the same time doomed into a non-place in which freedom is perennially unrealizable. What is true for boundedness of freedom is true for boundedness of other values too, such as ‘security’ and ‘justice’. Lindahl (2004) suggests that the collective attempt of the EU to create ‘the area of freedom, security and justice’ is indeed an attempt to produce a space for certain values becoming realizable. He points out that the creation of the Area can be conceived as a constitutive moment by which the EU closes off a space into territory, into a place of its ‘own’. […] Lindahl sketches out how and why the creation of the Area is to be interpreted as an act by which the EU shuts itself up into a legal community. Consider, for instance, the passage from the Treaty establishing EU that says that the EU bounds member states ‘to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice’. What is so interesting in this treaty is that legal power closes off a space into the territory – into the Area that is commonplace for the EU. For our purposes it is important to see how the constitution of a legal political community involves a ‘normativization’ of a territory: in a moment of constitution, legal power gives an expression to territory. […]

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Remember now Arendt’s contention that all sorts of commonalities play a fundamental role in constituting sociopolitical space. Indeed, in the case of the EU, the self-closure of the EU into a political legal community is justified by referring to certain commonalities. In order to demonstrate this, we cite a Commission Communication clarifying what ‘the Area’ is: The concept [of an area of freedom, security and justice] enshrines at European Union level the essence of what we derive from our democratic traditions and what we understand by the rule of law. The common values underlying the objective of an area of freedom, security and justice are indeed longstanding principles of the 19 modern democracies of the EU. Thus, freedom, security and justice are selected as legally protected values on the basis that they are held to be common values shared by all member states. Once the EU ‘offers’ its citizens (and legal residents) the Area it means that the EU forged a place in which the triad of values becomes realizable. […]

FORCED DISPLACEMENT AND EUROPEAN IDENTITY So far so good as there is nothing extraordinarily surprising here: law protects the legal subjects of a political community, for example, against the convicted law-breakers by penalizing or imprisoning, etc. However, with the Amsterdam Treaty the EU has set itself a task to protect freedom, security and justice by means of border control and in the field of asylum and immigration, including the practice of forced deportation: The Union shall set itself [the objective] […] to maintain and develop the Union as an area of freedom, security and justice, in which the free movements of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. Thus, the foundational documents of the EU maintain that the values of freedom, security and justice are endangered by international migration. Therefore, what happens here is that law constitutes

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immigrants into potential ‘freedom-abusers’ whose influx will risk freedom, security and justice as becoming a ‘tangible reality’ within the Area. Of course, there is no clear-cut criterion on how to measure who is a potential ‘freedom abuser’ and eligible to enter the EU territory. As 20 studies on the common EU (Schengen) visa policy indicates, the decisions concerning who is allowed to enter the EU territory are based on – not very sophisticated – technique of profiling. An unemployed, economically poor applicant from so-called Third World countries, for example, is profiled into a risk and hence his or her legal entry into the EU is near impossible. […] There are certain legally founded rules that are meant to govern the decision-making of authorities concerning allowing or denying the access of foreigners into the Area. The role of law here is to ‘emplace’ human behaviour: it tells where an individual ought to be; whether she or he should be ‘inside’ or ‘outside’ of the Area. […] This to say, as Lindahl (2004) neatly puts it, ‘legal power can only emplace persons by claiming to be itself emplaced’. But the puzzle here is that how on earth can it happen that legal power becomes emplaced in the first place. The foregoing analysis suggested that legal power in case of the EU has been emplaced on the basis of common values that the people of Europe are sharing. This account ends up being disturbingly circular: the people of Europe have contracted to close themselves off into a single legal community with a common territory (the Area) after having contracted 21 that they are sharing something common. […] We should not assume that a sociological unity of some sort would be non-existent before legal community. The unity of European identity, however, is a political construction; it must always be put politically into place (literally and metaphorically) in order that it can organize social relations. As van Roermund puts it: This process of setting the self of a first-person plural [i.e. we] is at the bottom of politics. To exercise (any form of) power with an appeal to a first-person plural that is for itself a unity (under construction) is to exercise political power. It always cuts across an infinite number of ‘people’. It installs a difference between ‘the population’ (people who happen to be live in each other’s neighbourhood) and ‘the people’ (people uniting under a common 22 identity) […] Since a common unified identity is always a contingent political construction, there is nothing else above or beyond the legal community

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that would attest its foundations than the very act by which a legal community is constituted. Thus, the moment of the act upon which the legal community closes itself off is extra-legal; it is beyond the scope of legal order and hence unfounded. This ‘unfounded’ founding political moment is, at least for a flashing moment, then, characterized with absolute violence: ‘Where violence rules absolutely, not only laws […] 23 but everything and everybody must fall silent’. Here, one may recognize reasoning close to a notorious German thinker Carl Schmitt who once argued that constitution of sociopolitical order of every political community is always built upon a primordial act of land appropriation: ‘all subsequent regulations […] are either a continuation of the original basis or a disintegration of and departure from the constitutive act of land 24 appropriation…’ […] Fortunately, we mustn’t follow Schmitt all the way down once we subscribe to the view that there is no primordial unity of identity but it is always a political construction. I think we have already insinuated this possibility when noting that the unity which becomes constituted in the very moment of self-constitution of a community presupposes a pre-existent unity. In this sense, the moment of appropriating the land appears in fact to be also a moment of re-taking it, as Hans Lindahl has demonstrated so brilliantly. […] The EU claims to give a legal expression for an aged old spatio-temporal unity of European people. This was neatly articulated in the draft Constitution for the EU. […] According to the Union’s self-image, the self-closure of the EU, and all the inclusions and exclusions it gives rise to, have already been determined at some non-specified point at the dawn history when ‘Europe’ appeared as a distinguished place by virtue of the presence of primordial European identity based on common values and traditions. Seeing from this perspective, then, the EU’s claim to territorial unity in terms of ‘freedom, security and justice’ is made on the grounds that the EU was already a common place. Hence the EU ‘appropriates the land’, and for that matter appropriates a ‘right’ to include and exclude. […] The unity of European identity is certainly a political construction; it is something that neither the authorities of the EU nor anyone else has 25 direct access to. The unity of European identity is represented by the area of freedom, security and justice to the extent that the Area is built upon it. European identity is a spatio-temporal continuity only in representation. Once European identity is radicalized in this way, we can see that there is no primordial European identity which would give any transcendental ‘right’ for the EU to include and exclude.

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Let us finally return to forced deportation as a form of forced displacement. Each forced deportation case, like each border crossing and each visa or residence permit application, involves a decision of an individual legal authority. Since there is no primordial unity of European identity, these decisions are neither informed by nor stem from any authentic European identity. Rather, these decisions are performances of European identity that reconstitute, more or less violently, the EU as a legal community. […] Since there is nothing primordial in European identity, it should be perfectly possible to play out the European identity in a less exclusive and a less violent way. Europe is not one, but many. It does not appear in any determined way and hence it is perfectly possible to perform the European identity in ways other than displacing people forcibly by means of deportations or inhabiting them within an area of insecurity and injustice.

NOTES 1. Hélène Pellerin, ‘New International Migration Dynamics’ in Stephen Gill, ed, Globalization, Democratization and Multilateralism, Macmillan, New York, 1997, pp.105–25. 2. Franck Düvell, ‘The globalisation of migration control’, Open Democracy, 2003, [http://www.opendemocracy.net/content/articles/PDF/1274.pdf]. 3. William Walters, ‘Deportation, Expulsion, and the International Police of Aliens’, Citizenship Studies, Vol. 6, No. 3, 2002, pp.265–92. 4. The Times, ‘I face certain death if sent back to Iraq, claims refugee’, News, 29 August 2005. 5. Ibid. 6. European Commission, ‘On the development of a common policy on illegal immigration, smuggling and trafficking of human beings, external borders and the return of illegal residents’, COM, 2003, p.323. 7. On policy design of ‘fight against illegal immigration’, see e.g. European Commission (2000, 2001 and 2003). 8. Recommendable analyses on Europeanization of the issues of immigration and asylum are Guiraudon (2000 and 2003), Huysmans (2000), Lavenex (2001) and Stetter 2000. 9. Catherine Wihtol de Wenden, ‘Post-Amsterdam Migration Policy and European Citizenship’, European Journal of Migration and Law, Vol. 1, No. 1, 1999, pp.89–101. 10. Jef Huysmans, ‘A Foucaultian view on spill-over: freedom and security in the EU’, Journal of International Relations and Development, Vol. 7, No. 3, 2004, pp.294–318. 11. Virginie Guiraudon, ‘The constitution of a European immigration policy domain: a political sociology approach’, Journal of European Public Policy, Vol. 10, No. 2, 2003, pp.265–6.

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12. Notice also that in the context European Law illegal immigrant is not a legal concept. In an important commentary, Elspeth Guild has shown that on the basis of European Law one cannot establish a priori who illegal immigrants are. Neither clandestine entry, uncertified residence nor informal work – each individually or altogether – constitutes inevitably illegality of an immigrant. Immigrant illegality becomes certain only ‘when he or she comes in contact with a state authority which categorises him or her as such’ (Guild, 2004). 13. Bigo, Didier and Elspeth Guild, ‘Policing at a Distance: Schengen Visa Policies’ in Didier Bigo and Elspeth Guild, eds, Controlling Frontiers: Free Movement into and within Europe, Ashgate, Aldershot, 2005. 14. Hans Lindahl, ‘Finding a Place for Freedom, Security and Justice:The European Union’s Claim to Territorial Unity’, European Law Review, Vol. 29, No. 3, 2004, pp.461–84. 15. Hans Lindahl, 2004, op. cit. 16. Hannah Arendt, On Revolution, Faber and Faber, London, 1963, p.263. 17. Arendt quoted in Hans Lindahl, 2004, op. cit. 18. Hannah Arendt, The Origins of Totaliatarinism, Harcourt, Brace, New York, 1950, p.296. 19. European Commission, ‘Towards an area of freedom, security and justice’, COM, 1998, p.459. 20. Didier Bigo and Elspeth Guild, op. cit. 21. Bert Van Roermund, ‘First-Person Plural Legislature: Political Reflexivity and Representation’, Philosophical Explorations, Vol. 6, No. 3, 2003, pp.235–52. 22. Ibid., p.248. 23. Hannah Arendt, On Revolution, Faber and Faber, London, 1963, p.9. 24. Schmitt quoted in Hans Lindahl, ‘Jus includendi et excludendi: Europe and the Borders of Freedom, Security and Justice’, King’s College Law Journal, Vol. 16, No. 1, 2005, pp.234–47. 25. Hans Lindahl, 2004, op. cit.

THE CHANGING SCALES OF GOOD AND EVIL: Morality Plays at the Profiled EU and US Borders †

Mika Aaltola

In this article, I will argue that the changing international order has hyperbolized international borders where profiling of the world’s people takes place. Knowledge about contemporary border practices is inadequate. The aim of this study shows how the drama of processing of people at the border is related to wider political imageries in the US and in Europe. […]

INTRODUCTION The widely socially shared and often personally lived experiences at the border greatly influenced the way in which the citizens have been educated about the nation state, but they also affect how people are conditioned into contemporary world order. Moreover, it can be claimed that the border related experiences provide an increasingly important loci for political pedagogy. Airports, border crossings and seaports supply not only the physical but also the mental templates into acknowledging the logic and method of separating people into various entities: e.g. into states, communities, nations, ethnicities, cultures and civilizations because a sovereign state’s power can be said to be at its

†

Professor, Department of Political Science and International Relations, University of Tampere, Finland, Refugee Watch, 27 June 2006.

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most definitive and explicit at the international borders, the recent change towards hierarchical world order has wide ramifications. […] During the twentieth century, the spread of the universalistic idea of citizenship replaced the particularistic and elitist notions of the past. The border practices in the West were, at least nominally, based on a system of random checks, whereby most, if not all people were inspected for travel documents and for security. The fledgling international hierarchy after the cold war bipolarity, however, brought a change to this tradition. After 11 September, international borders are increasingly defined by differential practices and a perceived imperative to classify and differentiate flows of people. […] People of the world are classified, their movements differentiated, flows slowed down or stopped, and suspicions are raised in ways that are meant to carry larger meanings. The personally experienced feelings of danger, fear, anxiety, boredom, ease and hate provide an effective setting for further political pedagogy. […] The fact that most people have experienced crossing borders first hand gives the border related political rhetoric more relevance. The personal nature of border practices highlights their importance from the perspective of contemporary world political pedagogy. This in mind, it is possible to argue that border crossings are places that cannot be ignored because they are utilized to teach people the relevancy of the larger macro-level ethics, the how and why of the Western international order. From this perspective, the prevailing hierarchical world order saturates the semiosphere of border crossing. At these places, people can experience, learn and memorize the effectiveness and the status of the order. […]

WORLD ORDER MORALITY PLAYS The term profiling can be defined as a practice whereby people are reduced to a type in a hierarchy of types based, for example, on their background, religion, ethnicity, region and state of origin, and on socioeconomic status and spending habits. […] An individual at the international border crossing becomes a personified abstraction, which derives part of its meaning from the global American mission in the War against Terror and part from the specificities of regional dynamics. The environment where the peoples’ reduction to types intertwines with worldwide production of security is often anxious, tense, charged and even dramatic. At their most dramatic, the occasions of profiling are highly publicized spectacles. No fly lists, red flags, diverted or

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stopped flights, and intercepting fighter planes accent these captivating stories. CNN carried the following news on 12 May 2005: ‘U.S. authorities have released a passenger and his family detained after their transatlantic Air France flight was diverted to Maine Thursday afternoon when the man’s name matched one on the U.S. “no-fly” list, federal officials said. […] A federal official told CNN that the man’s date of birth matched that of a person on the watch list, and the names were a “nearly exact match”. But he was allowed to continue on his way on Thursday evening after being questioned, a U.S. Customs and Border Protection official told CNN’. […] From a general perspective, morality plays involve a communal verdict, a passing of judgement about the moral status of the participants. Morality plays can be said to put the limelight on actors’ moral characteristics and their ability to make correct choices. In many ways, morality plays stage events in a manner that highlights the sense of being at crossroads. The main question becomes how well do actors choose: Do their choices reflect progressive or regressive moral characteristics? […] Another way at looking into morality plays derives from the iconic notion of ‘protestant ethic’. […] In this respect, the morality plays are not so much focused on the punishment of the wrongdoers than their stress on the teaching of correct behaviour, the virtues and values of hierarchical world order. It can be argued that the ambiguity between vices and virtues provides the background for staging pedagogic morality plays. On the one hand, there is a sense that what is seen as vices can still be taken by some as virtues. The old saying that ‘one’s terrorist is another’s freedom fighter’ captures the essence of this nervousness. The commitment to acts of terror can readily be construed as acts of justice and their inherent rationale may have dangerous appeal with people. The ‘strange’ appeal of the vice is compounded by the perceived dangers inherent in leniency and tolerance. On the other hand, although the good and evil are each illustrated by different and distinct figures, there exists a tense atmosphere of surprise. It can be suggested that this intense mixture of opposing elements is tightly related to ambiguity between vices and virtues. […] For example, the essentially virtuous figure of the international businessman is nevertheless a figure with mixed content. This figure is often evaluated against the background of idleness. The comfortable first-class seats, privileged access, and toplevel hotels can indicate excess and overindulgence. The Western wealth represented by the international business traveller is potentially both sinful and virtuous. […]

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In an important way, the unforgettable dramaturgy of 11 September set the stock plot for subsequent plays. The deviant figures managed to pervert sacred icons of modernity: airplanes and skyscrapers. The visual rhetoric of the images was one of pervasion and distortion. The inversion of icons portrayed an image of a disintegrating world. The theme of sacred symbols turning into their opposites is an old practice in morality plays to point out the disintegration of reality. The anxiety deriving from transgressed and violated boundaries provides another related ingredient for the plays. They become the setting for the attempts to maintain and restore wholeness. The nervousness and anxiety is framed by various declinist images. A case in point is offered by Samuel Huntington’s worry over the dilution of the American creed under the influence of Hispanic influx. Another example is provided by Robert Kaplan’s notion of spreading criminal anarchy. More liberal declinist visions are provided by the concepts of ‘blowback’ and ‘boomerang effect’. […] It can be argued that the theme of submergence provides one crucial sub-theme for the hierarchy-related world order morality plays. Even a quick review of the declinist literature reveals a stress on the world community’s creed, namely, on its moral, religious and cultural underpinnings. From this perspective, it is often thought that the primary sign of trouble is the disregard of the civic virtues and of the underlying civil religion. The causes of this are easily associated with foreign elements: the civil character becomes diluted when the hegemony of the preponderant actor turns into its opposite, into submergence, by the 1 excessive assimilation of the dominated elements. […] Furthermore, the morality plays of submergence often take on an explicitly hierarchical form. They point out the differential place of various nations, ethnicities, regions, civilizations and people. Therefore, it is often argued that the diligent maintenance of hierarchy is the best bet against submergence by the wave of ‘terrorist’ anarchy. Besides the sub-theme of dilution, it can be suggested that the world order morality plays are celebrations of rule-following and power of good examples. Namely, they point out the importance of faithful following of proper practices in international and domestic political behaviour. Furthermore, they demonstrate the negative consequences of deviance from the sanctioned norms. The smooth flows of international life, which are represented at the border crossings, signify the health of underlying political order and reassure people of its power against the declinist interpretations. […] In the post-11 September world, much of the political rhetoric is based on the premise (‘don’t debate, act’) that

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the intellectual argumentation does not provide the necessary sense of firm grounding of world order that needs to be instilled in people. In this prevalent rhetoric, the nuances and complexities of intellectual political deliberation is de-emphasized. Instead, their place is taken by political rituals of acknowledgement. […]

THE BEGINNINGS OF EUROPEAN PROFILING DRAMA The emerging and increasingly hierarchically ordered global space contains different imaginaries, which revolve around the morality plays of rule following and submergence. Before proceeding to examine profiling at the heartland, i.e. in the US, it is instructive to review the beginnings of profiling in Europe to understand the broader change that is taking place. In the context of the enlargement and deepening of the EU, there is a constant search for an understanding what the emerging Union is. It can be hypothesized that the plays at the border offer a tool for a self-image. The key term ‘profiling’ has profound implications because it includes a normative proto-theory about the proper nature of political community, namely, about the inherent order of things. Profiling determines who are allowed to cross borders, and, ultimately, who are considered trustworthy members of global community and how they are hierarchically related to each other. […] When trying to figure out the nature of the European profiled border and its wider implications, the definitions of the setting of the drama, its script, and central figures are required. Setting: While Europe has a long experience with political violence and terrorism, the type and scale of terrorism witnessed on 11 September has not been encountered in Europe. Although the bombings in Madrid and London demonstrated the relevance of the issue and reinforced terrorism related measures, the public debate associated these strikes partly with the foreign policies of the countries involved. […] Besides the discourse of terrorism, the most significant template for European profiling is the perceived rise in immigration. This is important largely due to the enlargement of the Union, and to the hierarchy created through differential deepening of the integration (e.g. Schengen area versus the rest of the Union). The change of the Union to a de facto political community of immigrants, which was driven by the end of the cold war, German unification, enlargements, lifting of internal boundaries, and by the attraction of its economic prosperity, has meant that the issue of terrorism has been blended with that of migration. […]

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Although the main impetus for the recent transformation of international borders in Europe has roots that go well beyond 11 September. Various ad-hoc policies, processes and institutions, such as those associated with Trevi and Interpol preceded the Schengen agreement of 2 1985 and the establishment of the Europol. Common policy coordination and cooperation across internal boundaries were well on the way during the 1990s. However, before 11 September, there had been deep suspicion and resentment against any supranational ‘European police’ 3 within the Union. The rationale and impetus for such an establishment came to appear more justified after the attacks […] Script: The script derives from the need to address problems, which the citizens perceive as important, and to avoid nationalist backlash from deepening integration and the expanded Union. From these two perspectives, the issue of immigration provides the nexus where the interests of the EU, its member states, and their citizens can converge and be balanced. This ‘coming together’ is illustrated by one of the Presidency Conclusions of the Laeken Council meeting (14–15 December 2001), according to which ‘the integration of the policy on migratory flows into the EU’s foreign policy’ is a top priority. […] The script of the morality plays of submergence emphasizes common European actions to effectively face the challenge posed by illegals and abusers of hospitality. The script revolves around the rites of decontamination, which protect the ‘pure’ European nationalities from bad outside elements. Although in some localities as in Spain and the UK the issue of migration blends strongly with terrorism, the script overlaps with the issue of terrorism only so far as the ethnic groups involved are the same. […] Figures: One way of approaching the nature of European profiled border is to ask: ‘whose is who at the border crossing morality plays?’ To suggest an answer to the question, there are a variety of profiled figures. Various stereotypes e.g. Russian, Eastern-European, Muslims, Roma people, Turks and Moroccans supply culturally relevant material for the Western European border related imaginary. However, when one reads the EU documents, the addressed problems are mainly attributed to the figures of terrorists, illegal immigrants, human smugglers, asylum-abusers, hooligans, illegal workers and foreign prostitutes. However, the protagonist of the EU morality play is a figure that stands for secure integration and harmonization. […] The figure is meant to be a highly visible conveyer of the sense that borders are guarded, wrong elements are kept out, and the submergence is avoided. This figure comes to play in, for example, when suspected terrorists get

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caught, a major drug-bust is announced, a dangerous criminal is handed over to another member state, or when there is a drive towards new legislation to stop the trafficking of women. It is significant for the figure of the protagonist that the recent European discourse highlights important dates and deadlines. The sense of urgency and haste prevails when it comes to the methods of border control. Unlike in the US, this was not primarily caused by 11 September. It can be argued that the anxiety stems from the vast eastward expansion of the Union, as the following quote from the Brussels Council, 16–17 October 2003, suggests: ‘[…] Council stresses that with the forthcoming enlargement, the Union’s borders are expanding, and recalls the common interest of all Member States in establishing a more effective management of borders, in particular with a view to enhancing the security of their citizens’. The more recent Council Conclusions contain such expressions as ‘intention to pursue rapidly’, ‘speeding up’, ‘set up swiftly’, ‘to swiftly examine’, ‘at the latest’, ‘as soon as possible’, and ‘a new approach is needed’. […] The sense of urgency also applies to European profiling, which involves the idea that distinguishing illegal from legitimate immigrants should be as quick and efficient as possible. In addition to the profiling at the points of entry into the Union, much of the effort is concentrated on ‘accelerated’, ‘rapid’, ‘streamlined’ and ‘efficient’ procedures. There are a number of new devices at the disposal of the protagonist. The Schengen Information System (SIS) and the new SIS II are the main instruments for policy enforcement in Europe. […] The 1990 Schengen agreement led to the creation of multiple common border control measures. SIS II, the Visa Information System (VIS), and the Customs Information System (CIS) form the crux of the recent European developments. The basic idea behind these measures is to create a centralized platform that would provide identification services in a uniform format. The SIS II differs from the previous systems in that the list of data sources is extended to include items such as credit cards, visas and residence permits. The future plans include EU passports and identity cards that will include biometric data. […] The figure of privileged foreigner: There are grey figures that fall between the protagonist and the deviant figures. Some foreigners have rights due to their high socio-economic or professional status. The EU and the member states try to attract as many of them as possible to gain a competitive edge in globalization and to avoid brain drain especially 4 vis-à-vis the US. Since 11 September, the lure of American education and a professional career has somewhat diminished. These develop-

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ments have led to a situation where foreign workers are given privileged treatment. The position of these people is legitimized because they are thought to represent an essential ingredient of the global economic infrastructure. Most of these people come from other Western states and from the educated elites of the developing world such as India and China. They do not arouse submergence related nervousness and are treated very differently from their less fortunate compatriots in the morality plays. The figures of illegal immigrants and asylum-abusers: The gallery of deviant figures gives a prominent role to an ‘abuser of European hospitality’. In the Union context, immigration can be linked with the 5 concept of over pressure, which refers to the point at which this pressure posed by external flow of people is no longer tolerated and interpreted as legitimate by the local communities. The discourse concerning illegals and abusers is much related to this perceived point where the terms illegal and abuser become useful. […] One gets a strong impression that the bulk of the European anti-terror measures after 11 September have been aimed at refugees and asylum seekers. The critical point has been lowered and the policies have become less 6 permissive and more restrictive. In respect to political asylum and immigration policies, the Presidency conclusions of the Council meeting in Laeken express the need ‘to maintain the necessary balance between the protection of refugees […], the legitimate aspirations to better life and the reception capacities’. The concept ‘reception capacity’ can be interpreted to refer to a political as well as organizational and logistical problem. In the EU texts, too lax asylum system is often viewed as a source of political disorder and the reason for the recent rise of the nationalist far right. The term ‘reception capacity’ provides a common definition, a point of convergence. […] Rather than concentrating so far on single individuals, the Union’s attention is focused on the larger flow of people across the Union’s external borders. As might be expected on the basis of these policy aims, profiled European borders are considered much more efficient in capturing unwanted immigrants than terrorists. Likewise, it is not surprising that in the European discussion, the flow of asylum seekers is mostly not connected with terrorism, as indicated for example in the following quote from the Council conclusions: ‘[…] in practice terrorists are not likely to use the asylum channel much, as other channels are more discreet and more suitable for their criminal practices’. However, much of the border related discussion concentrates on the figures of ‘illegal’ and ‘abuser’. […]

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The figures of hooligan, trouble-maker and anti-globalist: The European gallery of negative types includes the figures of aggressive troublemaker and, more specifically, that of football hooligan. There exists a common infrastructure and tools of border control at the disposal of the protagonist that enable the placing of temporary and geographically specific restrictions. The new extensions of SIS include profiling based 7 on a list of individuals with histories of violence. […] The aim is to stop potential trouble-makers in major traffic hubs (e.g. airports) from reaching their destination in the first place. The figure of illegal worker and foreign prostitute: Those whose rights are based on often illegal employment relationship with a single employer, 8 e.g. foreign prostitutes, are at the lowest level of political hierarchy. Although they have some purchasing power and exist at the level of consumers, they lack political rights. Furthermore, they are often viewed as dysfunctional from the perspective of the community. If they are not defined as victims, they are viewed as social problems. […] In this connection, the figure of human smuggler has emerged. A human smuggler is perceived as a deeply deviant figure undeserving of any empathy.

US BORDER DRAMAS Moving to the US, the morality play at the border has arguably much more visual setting, stronger allegoric script, and a different set of figures than the European ones. One of the most noticeable differences between the EU’s and the US’s border related morality plays have more to do with the spectacular visual nature of 11 September and the consequent effect it had on the dramaturgy of the American world politics. A further argument could be made that the pedagogic function of the American morality plays has much to do with their sheer visual power. Research concepts such as ‘visual rhetoric of sanctity’, ‘visuali9 10 zation of moral life’ and ‘visual spectacles’ describe this setting. The visual nature of politics and the robust use of public iconography greatly value the simplification of the interpretive act. The emphasis has shifted away from the nuances of the 1990s to the world order pedagogy and from the subtle and complicated specifics to the brute force of striking visuals. In this context, the iconic is blended with the striking details in morality plays that are increasingly allegorical. […] The need to do something, the sense that time is scarce, and the fear of imminent terror attacks creates a bias towards dramatic action.

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However, it can be argued that a particular type of complexity has remained although much of it exists only to accentuate the sense of instructive drama. The border related morality plays revolve around accurate identification of figures. What makes this task harder is that, in the US morality plays, the deviant figures can take on pretence; in the official documents, it is often claimed that they can manipulate their appearance, deceive the innocent and hide their true faces. The drama is one of careful and watchful confrontation. The case of the so-called ‘Dirty bomber’, who was captured at Chicago O’Hara airport on 10 June 2002, exemplifies this. […] It can be argued that a degree of uncertainty and ambiguity is instrumental in achieving the needed mind engrossing dramatic tension in the US border related morality plays. The audience of the contemporary morality plays is asked to remain on their toes because things might not be what they appear to be. The deviant figure is a deceiver, which requires complex systems of profiling to detect its essence under the pretence. The play aims at getting to the bottom of things and securing them. But the dramatizing uncertainty remains concerning whether this is achieved in a lasting way: One may be left wondering whether the sense of security is deceptive? This type of uncertainty and ambiguity related questions saturate the modern world order morality plays. Setting: The context of the US border related morality play is a contestation between the good and the deviant. The situation is tense, dramatic and open-ended. The theme of coexisting contradictory forces is further reinforced by the pervasive and unremitting anxiety over hidden intention and undiscovered identities. The concept familiar from anthropological studies of sacred kratophany, describes an essential feature present in this type of setting. Kratophany describes dramatic tension at the most critical moments. Kratophany may be taken to refer to a charged field of attraction and repulsion. This is especially tangible at international borders where not only different but also incompatible elements are pictured as coexisting. Furthermore, kratophany can be said to have been present in the stock event of American morality plays, 11 September. The setting of planes flying into landmark buildings intertwined the ultimate evil with striking acts of heroism and blended horror with a strange sense of captivating fascination. […] It can be argued that the setting of the border related drama between the protagonists and the deviants has at least partly to do with the notion of civilizational clash. The discussion concerning profiled borders is often based on cultural givens – e.g. American character – and on the firm sense of higher value of Western civilization identified with it. In this

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context, Samuel Huntington’s ideas concerning civilization clash have 11 been influential. It is not difficult to argue that the perceived solidity of Western civilization compounds the senses of nativism and essence, and inevitably turns the attention to the issue of foreigners and incompatibility. The kind of migration which brings together incompatible elements is easily defined as a destabilizing, corrupting and submerging factor (e.g. Huntington, 2004). […] Following from this logic, the practice of profiling for terrorist ‘types’ turns into a way of screening for the civilizational fitness and filtering out incompatible elements the wrong kinds of immigrants and aliens. […] What are the incompatibilities present at the staged border? Huntingtonian morality plays draw from the American civil religion, from the so-called American creed. Huntington famously identifies 12 immigration as a source of potential decay in a political community. […] Previously, once an immigrant crossed regional and continental divides they largely lost contact with their native landscape. According to Huntington, ‘contemporary forms of contact do not cut immigrants’ 13 umbilical cords in the same way. Links and contacts remain, turning people coming from different civilizations into sources of decay and erosion – into fifth columns and enemy aliens. It can be thought that the defence of a civilizational way of life involves a search for constancy in its various defining characteristics. Constancy allows making predictions based on the ethnic, religious, cultural and national features. […] The existence of civilization begs the question of its borders and composition. What is Western civilization in the US profiling? The general starting point is offered by President Bush’s ontological definition of terrorists as evil people ‘who hate the American way of life’. The incompatibility with the American way of life can be examined through the differential practices at the border. For example, the Visa Waiver Program (VWP) allows citizens of several countries to travel to the US for as long as 90 days without obtaining visa. It is telling of the American object of identification that of the 27 countries in the list for the VWP, 22 14 are European. The citizens of these countries are likely to enjoy an entry and exit to the US without the unpleasant hassle experienced by the rest. […] It can be claimed that this kind of reciprocity forms the presumed ‘hard core’ of Western civilization; it exemplifies the supposed nonthreatening elements that can be integrated into the model of modern Western societies. The definition of a constant national character and especially the one connected with the US/West has implications for people wanting to

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cross international boundaries. Combining culture with national identity and with a way of life leads to an imperative of integration designed to prevent the feared dilution of national character. […] This suggests that civilization, as a signifier is also a measure of the ability to adapt and integrate into what are its constituent geographical locations; a Westerner is able to adapt to the worldwide modern industrial society whereas a Muslim is able to adapt to the Muslim culture. […] Script: In comparison with the European border crossing morality plays, the main difference in the US practices is the history of immigration to the US. Due to historical reasons, the American public debate on immigration is relatively different from the European one. The US is a ‘nation of immigrants’, in which ‘immigration policy is a highly institutionalised process and in which pro-immigrant groups 15 have a legitimate, entranced role in policy-making’. Against this background, the profiled borders of the US explicitly aim at filtering out terrorist types and identifying ‘dangerous individuals’ from the stream of cross-border traffic. The detection and identification of the terrorist demonstrates also the identifiability and solidity of the American character. It can be argued that, from this perspective, the catching of terrorist is tightly connected with the maintaining of civilizational boundaries. In the context of globalization, international transactions being a necessity, the concept of trustworthiness and verifiability have become of vital importance. […] The figure of the protagonist: Whereas the EU’s manifest protagonist draws from secular cultural resources, the American protagonist is a more moral figure, a custodian of principle. In contrast to the pragmatic arbiter, whose task it is to turn various moral issues into practical ones, the custodian of principle converts the content of everyday politics into 16 fundamental moral issues. […] The legitimacy of the custodians of principle ultimately depends on how they promise and manage to alleviate the crisis and heal the situation. The stock example is offered by President Bush’s appearance and speech at the ruins of the World Trade Centre. It can be interpreted that he and figures of the similar type (e.g. major Rudolph Giuliani) managed to give meaning to apparently senseless acts of terror being in the middle of the vivid landscape and successfully using the visual rhetoric of sanctity. […] Their presence is felt at the profiled international border and their authority flows from every act of catching the bad guys. […] The American protagonist in the border-crossing morality plays signifies pre-emption of terrorism. Terrorists have to be stopped before they commit their acts or manage to reach the US soil. The preventive

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figure is armed with appropriate tools to uncover the hidden identities and suspect backgrounds. An illustrative case in point is provided by the experimental project with an iconic name of Matrix, which was dismantled in the spring of 2005 for privacy concerns. ‘Matrix’, short for Multistate Anti-Terrorism Information Exchange, was supposed to speed up the access of police to records on people through the use of parallel processing of data on numerous sources. Matrix included a proactively inclined statistical programme that scans available records to measure an individual’s propensity for acts of terror, the so-called Terrorist Quotient (TQ). The evaluation of the likelihood was based on statistical methods developed by a private company, Seisint. The method is based on scores derived from basic factors such as ethnicity, nationality, age and gender as well as more derived ones such as credit history, past criminal activities, professional licenses, property records, bankruptcies, business affiliates, and on ‘hot’ addresses used by terrorist suspects and their associates. Another criticized and partly changed yet revealing programme is the Department of Defence’s Total Information Awareness programme (TIA). TIA draws data from many commercial data 17 collecting sources. Because of the ‘big brother’ implications, the term ‘total’ was exchanged for ‘terrorist’ in the name of the programme. There are various other existing and often overlapping systems for automatic profiling in the US. They differ from the controversial programmes in that they are less based on using speculative means, such as TQ. The Computer-Assisted Passenger Pre-Screening System (CAPPS) was first utilized by Northwest Airlines in 1994. During the late 1990s, this same system was adopted by the whole aviation industry after being recommended by a US government commission. […] Transportation Security Administration (TSA) maintains the ‘no-fly’ list and a list of people that require additional screening. […] The system will assign the passengers three colour codes, green, yellow and red signifying the level of risk posed by each type of passenger. […] The assigning of the colour codes depends on the correlation between travel data and the data concerning known terror suspects and incidents of terror. Important past travel data include the city of departure, destination, travelling companions, and the manner and date of the ticket purchase. Airlines will send the passengers’ full name, date of birth, address, phone number and travel itinerary to a centralized data processing facility. Passenger Information Records contain all the information that airlines demand on purchase of a ticket such as name, departure and return flights, possible special requests by the passenger (e.g. special meals or medical conditions), the frequent 18 flyer number, and the credit card number. […]

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The figure of a good businessman and consumer: The morality play at the US border involves the figure of a vigilant and law abiding citizen. It can be argued that this figure highlights the role of consumer and consumption. For example, at the airport morality play, these figures revolve around the types of international businessman and American tourist whose work and consumption fuels not only the airport tax-free shop but also the American economy at large. One example of the importance of these figures is offered by the so-called Smart Border Plan that was started in 2002 between US and Canada. The explicit aim of this programme is to increase border security while speeding up legitimate travel for business and pleasure. […] […] The role of consumption is increasingly important for the legitimacy a modern state such as the US. Spending and the ‘American consumer’ have become the focus of state building and communal civic 19 culture. The national identities are increasingly fused with consumption as a way of life. Moreover, consumerism is intertwined with the notion of civilization. It is, therefore, not surprising that the PNR-data contains 20 information of the passengers’ consumptive habits. […] The figure of the terrorist: The figure of the terrorist represents the most dissolute behaviour imaginable by the post-11 September minds. The figure of the terrorist emerged from the defining defiling act. A terrorist becomes a complex that consists of determinate and detectable signs. How is this figure recognized? It is not surprising that in the aftermath of 11 September, immigration offences became the primary tool for detaining suspicious people. The process was based on profiling groups of people – men of middle-eastern background – and using minor offences to detain and deport them. One such sign of a possible terrorist, very much in the foreground of the public discourse, is the 21 over-staying on visas. In the American discourse, the over-stayers of visas are regarded as exploiting the country’s hospitality. This sign is related to the European language game of ‘asylum abusers’. At the point of entry, a person’s name may become a signifier of a potential terrorist. The name itself is important because it provides the basis of what is called ‘name profiling’. For example, the US’s most wanted list includes individuals with common Arabic names. […] In this way, names like Ahmed or Mohammed can result in further questions. The number of false positive alerts, checks and arrests is lower with names that have their origin outside South America, Middle East and South East Asia. One further identifying feature of the figure of a terrorist is the supposed disposition towards passivity. The Weekly Bulletin (19 May 2004) of the FBI that warned about possible suicide

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attacks in the US provides further examples of the type of terrorist character. The characteristics ranges from people wearing bulky jackets on warm days and smelling like flammable liquids or explosive chemicals to people whose ‘fists are tightly clenched’. […]

CONCLUSION The international border crossing provides a setting for the expression of the underlying values of being a citizen, European, American and westerner besides expressing numerous other shades and variations of identities. In the case of European identity, morality plays are meant to provide a locus for a sense of mixture of people united in their diversity. This sanctioned sense is achieved through contrast with the figures of abuser, illegal and the human smuggler. For an American, on the other hand, crossing the international border provides a sense of belonging to a great civilization whose way of life is being celebrated by secure and efficient travel along the arteries of the world. Whereas the European experience is based on a careful balance and sensitivity for each member states’ reception capacity, the American emphasis is on reaching decisive clarity, identifiability, and on the ability to eliminate threats. At the personal level of an individual traveller, the eye equipped with the respective political imaginations is on the lookout for different things. At Europe’s border, imagination focuses on human traffickers and illegitimate asylum seekers, whereas in the US, one looks for possible terrorists who might hijack planes and turn them into weapons. Through the recent changes in the world order, borders have become the loci for morality plays of transformed world order. Through the morality plays of rule-following and submergence, reassurance, security and certainty are conveyed. The morality plays at the border signify the sovereignty of the imagined political community and its contained and secured existence. The whole political community is both literally and symbolically present at the physical halls of international entry and exit hubs. However, the place is largely imaginary, a polito-cultural artefact meant to produce a sense of a community that has strong borders. The profiled border, as it is expressed in the uneven and differential flow of people across borders, creates an imagined landscape for a community of people. From this community, those beyond its gates – the unwanted elements – stand apart. The question as to how real the threats actually are is not as significant as the question concerning the status of the morality plays where those threats belong. They are allegories aiming to

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instruct people about the legitimacy of the underlying sanctity of the political community.

NOTES 1. For Gibbon, the disproportionate assimilation of conquered people and lack of moderation in the handing out of citizenship were signs of ‘immoderate greatness’ and inevitably led to the submergence of the Roman character: ‘[…] the price of universal domination turned out to be the obliteration of the Roman national character’ Gerald Gruman, ‘“Balance” and “Excess” as Gibbon’s Explanation of the Decline and Fall’, History and Theory, Vol. 1, No. 1, 1960, p.78. 2. M Baldwin-Edwards and B Hebenton (1994) in M Anderson and Rainer den Bauboeck and Hannes Wimmer, ‘Social Partnership and “Foreigners Policy”’, European Journal of Political Research, Vol. 16, 1998, pp.659–81. 3. Didier Bigo, ‘The European internal security field: states and rivalries in a newly developing area of police intervention’ in M Anderson and M den Boer, eds, Policing Across National Boundaries, Pinter, New York, 1994, p.162. 4. R H Williams and N J Demerath, ‘Religion and Political Process in an American City’, American Sociological Review, Vol. 56, 1991, pp.419. 5. Sami Mahroum, ‘Europe and the Immigration of Highly Skilled Labour’, International Migration, Vol. 39, No. 5, 2001, p.27. 6. Beryl Nicholson, ‘The Wrong End of the Telescope: Economic Migrants, Immigration Policy, and How it Looks from Albania’, Political Quarterly, Vol. 73, No. 4, 2002, p.436. 7. Commission Working Document on the relationship between safeguarding internal security and complying with international protection obligations and instruments. Brussels, 05.12.2001, COM (2001) 743 final. 8. Juliet Lodge, ‘Sustaining Freedom, Security and Justice – From Terrorism to Immigration’, Liverpool Law Review, Vol. 24, 2002, p.50. 9. Philip Muus, ‘International migration and the European Union, trends and consequences’, European Journal on Criminal Policy and Research, Vol. 9, 2001, p.42. 10. Clifford Davidson, Visualizing the Moral Life: Medieval Iconography and the Macro Morality Plays, AMS Press, New York, 1989. 11. Huston Diehl, ‘Inversion, Parody, and Irony: The Visual Rhetoric of Renaissance English Tragedy’, Studies in English Literature, 1500–1900, Vol. 22, No. 2, 1982. 12. Hermann Kreutzmann, ‘From the Modernization Theory Towards the “Clash Of Civilization”: Directions and Paradigm Shifts in Samuel Huntington’s Analysis and Prognosis of Global Development’, GeoJournal, Vol. 46, 1999. 13. Samuel Huntington, The Clash of Civilizations and the Remaking of World Order, Simon & Schuster, New York, 1998. 14. Samuel Huntington, ‘The Erosion of American National Interests’, Foreign Affairs, Vol. 76, No. 5, 1997, p.38. 15. The list includes Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San

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Marino, Singapore, Slovenia, Spain, Sweden, Switzerland and United Kingdom. 16. Christian Joppke, ‘Why Liberal States Accept Unwanted Immigration’, World Politics, Vol. 50, No. 2, 1998, p.272. 17. N J Demerath, and Rhys H Williams, A Bridging of Faiths: Religion and Politics in a New England City, Princeton University Press, Princeton, NJ, 1992, p.170. 18. One of the methods supplied to the protagonist is the right to demand cooperation and reciprocity. The US has emphasized that the practice of profiling is fundamentally based on international cooperation and data sharing. 19. There are plans that frequent travellers would be given a ‘trusted traveller’ status in exchange for background checks and biometric data. 20. Charles McGovern, ‘The Politics of Consumption: Material Culture and Citizenship in Europe and America’, Journal of Interdisciplinary History, Vol. 34, 2003. 21. For example, it details information on diet (such as pure vegetarian, vegetarian, lacto, seafood, fibre, and low on fat, calories, cholesterol, sodium and protein) and also reveals information on ethnic/religious diets (such as Asian vegetarian, Hindu, Muslim and kosher). 22. Two of the September 11th terrorists had over-stayed their visas.

Index Afghanistan xvi, 14, 45, 80, 92, 107, 110, 139, 140, 141, 168, 169, 170, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 194, 209, 214, 378 Afghan Refugees xvi, 140–41, 169, 171, 173–81, 186, 218n, 328 PDPA 168 Taliban 110, 140–41, 167–75, 179, 214, 358, 378 Annan, Kofi 5, 38, 44, 69, 119–20, 126n, 173 Arunachal 147, 160, 252–3, 256–7, 266, 272 Assam x, 109, 207, 212, 227, 230–31, 249–64, 266, 276, 313, 317, 350, 363 All Assam Students Union (AASU) x, 261 Bodo x, 46, 227, 250–51, 254, 257, 261–4 ULFA xii, 251 Asylum. See Europe Baba Amte 283 Banerjee, Paula xx, 22–3, 206n, 297– 8, 300, 320, 341n, 342n, 343, 354n Bangladesh xvi, 36, 109, 142, 145, 147–8, 184, 190–95, 199, 207–8, 211–13, 215–19, 238, 249–50, 256–9, 275, 299, 304, 306, 308–9, 311, 320, 322, 325, 344, 349–53, 363–4, 369, 371–4, 398, 408–9, 414–18, 421–3 Awami League x, 142, 190–92, 372–3 Bangladesh War, 1971 xvi, xviii, 208, 306

Bengal Partition 305 BNP x, 142, 190, 191, 192, 373 Chittagong Hill Tracts xvi, 36, 145, 147, 184, 256, 258, 369, 371 Basu Ray Chaudhury, Sabyasachi xx, 225, 229, 354n, 371 Bhaumik, Subir 249, 375 Bhutan xvi, 139–40, 148, 159–66, 218n, 225, 266, 298, 315–19, 344, 347–8, 369–70, 375–77 Drukpa 140, 159, 161, 347 Drukpanisation programmes 139, 160, 162 Lhotshampas 139, 140, 159, 160, 161, 162, 370 Burma 22, 139, 141, 147, 160, 188, 227, 249–50, 255, 257, 276, 323– 4, 345, 346, 351 Karen National Union (KNU) xi, 141, 188–9 Butalia, Urvashi 218n, 338, 341n Canada x, xi, 50, 52, 54, 56–60, 80– 1, 88, 101n, 210, 211, 212, 213, 214, 216, 217, 449 Canadian Charter of Rights and Freedoms 66, 82, 85--7 Immigration and Refugee Protection Act 83, 84, 85, 89n, 90n Privacy Commissioner of Canada 79, 89n Royal Canadian Mounted Police (RCMP) xi, 80 Safe Third Country Agreement 84 CCL x, 290 CEDAW. See Gender

454

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Chakmas xvi, 36, 147, 184, 218n, 252, 256–8, 304, 326, 329n, 344, 369, 371 Chittagong Hill Tracts. See Bangladesh Coal India Limited x, 285 Coal Mining Tracts 283–6, 288, 292 Cohen, Roberta 38–9, 42, 47n, 65–6, 70, 119, 126n, 127n, 205n Das, Samir xx, 4, 32, 202, 225, 229, 329n, 354n Deng, Dr. Francis 37, 39–41, 47n, 65, 70, 120, 126n, 127n Development x, xi, xii, xvii, xx, 3–6, 9–10, 13, 15, 17, 25, 28–30, 32, 34, 42–3, 45–6, 54, 65, 67–9, 73– 8, 95, 103, 105, 106, 115, 121, 122, 141, 183, 184, 204, 274, 275, 281, 282, 285, 287, 336, 426 Displacement. See Internally Displaced Persons Development-related displacement. See Internally Displaced Persons DEVAW. See Gender Elias, Akhtaruzzaman 398, 403–4, 406n Environmental Management Plans 288 Ethnicity 28, 139, 159, 161–2, 231, 233, 262, 331, 337, 414, 416, 437, 448 Europe x, xix, 4–5, 8, 16, 24, 39, 45, 50–51, 55–6, 59n, 66, 87, 91–3, 98--9, 101n, 102n, 107, 121–2, 125, 129–32, 134, 144, 148, 172, 209, 214–16, 219n, 232, 341, 343, 353, 384, 386, 399, 401, 418, 420– 29, 431–6, 440–44, 446–7, 449–50 asylum xvi, xviii, xix, 4, 6–7, 9– 10, 13–17, 20, 23–4, 27–8, 51, 55–7, 60n, 70, 81, 83, 85, 91– 102, 104, 110–11, 113–16, 124, 144, 148, 168–9, 173, 176, 179, 196–7, 201–204, 209, 216, 219n, 265, 269, 271, 320, 325, 341, 399, 425, 426, 428, 431, 434n, 441, 443, 445, 449–50

European Identity 399, 427, 432, 433, 450 European Profiling 440, 442 Exclusion Procedure 95–7 Figure of protagonist 441–2, 445, 447 Figure of terrorist 449 non-refoulement 55, 97–8, 176, 324 Refoulement 97–8, 131 Post-Exclusion Status 100 The Exclusion Clauses in European Practice 92, 94, 97–8 Gender xx, 22–3, 52–3, 75, 103–6, 108–9, 111, 113–16, 132–3, 142, 156, 193, 198–204, 297–302, 309, 320–21, 325–28, 331–34, 337–41, 343–4, 346, 349, 353n, 364, 378-9, 418–19, 422–3, 448 Gendered Dimensions of Persecution 112 Women: The Invisible Refugees 200–201 abducted women 22, 297, 300, 301, 302, 303, 321, 327 Convention on the Elimination of all forms of Discrimination against Women (CEDAW) 103, 104, 105, 315–16, 326, 353, 419 Declaration on the Elimination on Violence against Women (DEVAW) 105, 106 Gendered Violence 338, 418 Rape 22, 23, 38, 52, 84, 104, 105, 106, 109–110, 112–13, 124, 132, 142, 189, 190–91, 193, 199, 200–201, 207, 242, 297–8, 300, 302, 305, 315–17, 319, 324–5, 327, 332, 338, 346, 362 Rohingya women 326, 327, 329, 348 Sri Lankan Women 322, 328 Trafficked Woman 362 Violence Against Women

INDEX (VAW) 104–110, 132, 353, 419–21, 423n Women & Media Collective 332 Goldman, Robert K 5, 37, 47n Human Rights x, xi, xii, xiii, xiv, xvii, xix, 5, 9, 17–18, 20–21, 24, 28, 33, 37–45, 49–51, 53, 57, 65– 6, 68–70, 72, 76–7, 81–3, 86–9, 94, 96–100, 103–17, 119–22, 139, 142, 144–5, 150, 161, 170, 176, 178, 198–9, 210, 217, 240, 252, 259, 287, 317–18, 326, 329, 344– 5, 363–5, 381, 412–13, 415, 418– 19, 421–3, 430 Humanitarian law 22, 26, 37, 39, 40, 42–3, 55, 65, 68–9, 104, 117n Right to asylum 54–55, 60n, 99 Right to communication 4, 34–5 Right to information 4, 33–4, 407 Right to Return 14, 31, 298, 318 Universal Declaration of Human Rights xviii, 9, 20–21, 51, 104, 161, 176, 287, 318, 344, 354n Hussain, Monirul 227, 259 India xv, xvi, xvii, xviii, 18, 20, 22, 34, 47, 72, 83, 109–10, 133, 145– 8, 151, 155, 159–62, 184–6, 194, 199, 200, 202, 207–10, 212–19, 225–33, 235–6, 238–9, 241–2, 244–5, 247, 249–60, 264–74, 276, 279, 283–5, 288–90, 292, 293n, 294n, 297, 299, 301–3, 306–8, 311, 318–27, 329n, 331–2, 337–8, 344–52, 359, 362–4, 369, 371, 373–6, 379, 384, 398, 402, 408–9, 411–12, 414, 417, 421–22, 443 Northeast xi, xvi, 71, 73, 139, 147, 160, 226, 227, 233, 249, 251–3, 256–9, 326, 344, 350–51 Internally Displaced Persons (IDPs) xi, xx, 13, 38–40, 66, 119, 123–25, 139, 141, 150–51, 153–54, 156–7, 186, 188–9, 203, 227–8, 258 Border-Related Displacement 232

455 Development-Related Displacement 231, 250 Economic Migration 202, 414 Ethnicity-Related Displacement 231, 233 Externally Induced Displacement 232 Guiding Principles xvii, xviii, 5, 37, 41–8, 65, 69–70, 119–22, 126, 127n Kaptai Dam & Displacement 36, 145, 184, 256 The Potentially Displaced Persons 232 Typology of Displacement 225, 231 International Refugee Organization (IRO) xi, xviii, 9, 12, 30, 144 IRO Constitution 8, 16 Kalin, Walter 37, 42, 44, 46, 47n, 48n, 70, 121–2, 124, 127n Kashmir 145, 211, 217, 225–7, 234, 239–42, 244–5, 253, 272, Jammu & Kashmir 184, 226, 233–6, 238, 240, 242, 244–5, 247, 266 Kargil War 225, 226, 235, 238, 239, 244, 246, 247 Kashmiri Pandits 226, 239–43, 246, 248 Karen National Union (KNU). See Burma Kamtapuri People Party (KPP) 274– 5, 282 Kaptai Dam & Displacement. See Internally Displaced Persons Kennedy, David 27–8 Koch 227–8, 275–8, 281 Kuki National Army (KNA) xi, 255 Manipur 109, 250, 252, 255–7 Mizoram 250–53, 256–8, 323–4, 345–6 MQM xi, 209, 210, 211, 219n, 220n Muivah, Thuingaleng 4, 19–21 Naga 4, 19–20, 226, 250, 255–7, 260

456

THE FLEEING PEOPLE OF SOUTH ASIA

Nagaland xi, 19, 250, 253, 255 NSCN – IM 19, 20 Nepal xvi, 140, 148, 159–62, 164–6, 212, 218n, 225, 230, 249, 253, 261–3, 266, 272, 298, 316, 318– 20, 326, 347–8, 350, 351, 353, 370, 375–7 North Bengal 227, 274–6, 279–82 Pakistan x, xi, xii, xv, xvi, 14, 22, 27, 83, 109–10, 140–41, 145–8, 168– 70, 172–81, 183–6, 191, 207–13, 215–20, 226, 230, 234–9, 241–2, 245–7, 249, 253, 259–61, 297, 300–302, 305–7, 309, 312, 320, 322–3, 325–6, 327, 363, 371, 372, 398, 402, 409, 410, 411, 412 East Pakistan 27, 145, 147–48, 184, 207, 209, 219n, 230, 238, 249, 253, 259–61, 298, 309, 312, 322, 338 Kaptai Dam 36, 145, 184, 256 Mangla Dam 145, 184 PDPA. See Afghanistan Rajbanshis 227, 228, 275–82, Reangs 250, 252, 256–8 Refugee xi, xii, xiii, xiv, xv, xviii, xix, xx, 4, 10–29, 31–2, 38–9, 43, 47n, 49, 51–3, 56–7, 59, 60n, 65–7, 69– 70, 77, 79, 81–6, 89n, 90n, 91–3, 96–100, 101n, 102n, 103–4, 110– 15, 117n, 118n, 119–20, 122–25, 127n, 129, 139–43, 147–50, 155, 159, 162–64, 197–204, 205n, 206n, 207–10, 213, 217, 218n, 219n, 220n, 225–6, 229–30, 234–39, 244– 45, 249–50, 258–9, 261, 274, 282–3, 287, 297–300, 303–4, 309, 311, 315, 318–30, 332, 336–43, 345–8, 354n, 355, 369–78, 382–85, 387, 397–8, 400, 404–5, 407–8, 411, 413–4, 424, 428, 434n, 436, 443 Afghan Refugees xvi, 140–41, 169, 171, 173–81, 186, 218n, 328 Central Tibetan Administration (CTA) 268, 269

Definition xvii, 3, 7, 14–16, 30, 55, 95, 114, 144–6, 177, 198, 201 Hindu Refugees 161, 275 Tibetan Refugees xvi, 227, 265– 273 Saadat Hasan Manto 401–2, 406n, 411 Samaddar, Ranabir xix, xx, 4, 18, 78n, 101n, 135n, 199, 204, 205n, 206n, 341n, 342n Sri Lanka xi, xvi, 22, 25, 45–6, 67–8, 70–71, 73–5, 77–8, 96, 121, 139, 147, 150, 153, 155, 212–13, 217– 19, 225, 322–3, 326, 332, 334, 346, 353 Categories of IDPs in Sri Lanka 150 LTTE xi, 25, 71, 73, 96, 139, 151, 152, 153, 154, 157 Millennium Development Goals (MDGs) xi, 74, 78n North and the East Jaffna Peninsula 151 Vavuniya 150, 152–4, 323, 329n Taliban. See Afghanistan Tibetan Refugees. See Refugee Tsunami 70–74, 78n, 123, 203, 299, 330–34, 351 Tripura 26, 147–8, 249–53, 255–58, 312–13, 369, 371–4 UNHCR xii, xiv, xvii, xviii, 3–5, 9–16, 19–21, 30, 38–9, 46, 52, 60n, 66, 70, 72–3, 85, 91, 96–7, 100n, 101n, 111, 112n, 114, 118n, 119–20, 122, 123– 6, 140, 144, 148, 149, 155, 161, 164, 169, 173, 175–7, 179, 181, 184, 201–2, 258, 322, 324–5, 327–9, 336, 340, 348, 374, 377 The 1951 Convention xvii, xviii, 3, 14–17, 20, 23–4, 66, 91, 92, 94–5, 97–9, 111, 120, 181, 200, 327, 410 The 1967 Protocol xviii, 15–17, 30, 55, 111–112, 143, 167, 175, 181, 325

INDEX Rehabilitation 3, 12, 27, 74, 143– 4, 231, 246, 252, 256–7, 260, 264, 266–8, 271, 288, 290–91, 294, 301–3, 333, 372, 373, 374, 376, 420, 422 Regional approaches: The 1954 Caracas Convention on Territorial Asylum 16 The 1969 OAU Convention on Refugee Problems 16, 17 The 1984 Cartagena Declaration 17

457 United Nations Convention against Transnational Organized Crime 84, 90n, 343 Vishwa Hindu Parishad of America (VHPA) xi, 214 Women. See Gender World Bank 75, 145, 185–6, 197, 286–7, 289–90, 293n World Order Morality Plays 437, 445