THE PROTECTION OF ROHINGYA REFUGEES IN INDONESIA ACCORDING TO THE INTERNATIONAL REFUGEE LAW

UNDERGRADUATE THESIS

This Undergraduate Thesis is submitted as one of the requirement to obtain the degree of Bachelor of Laws at Faculty of Law Universitas Muhammadiyah

Yogyakarta

Name : Medisita Nurfauziah Istiqmalia

Student Number : 20120610198

Faculty : Law

Major : Law Science (International Program for Law and Sharia)

Field of Study : International Law

FACULTY OF LAW

UNIVERSITAS MUHAMMADIYAH YOGYAKARTA 2016

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This Undergraduate Thesis is submitted as one of the requirement to obtain the degree of Bachelor of Laws at Faculty of Law Universitas Muhammadiyah

Yogyakarta

Name : Medisita Nurfauziah Istiqmalia

Student Number : 20120610198

Faculty : Law

Major : Law Science (International Program for Law and Sharia)

Field of Study : International Law

FACULTY OF LAW

UNIVERSITAS MUHAMMADIYAH YOGYAKARTA 2016

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PROTECTION OF ROHINGYA REFUGEES IN INDONESIA

ACCORDING TO THE INTERNATIONAL REFUGEE LAW”, has never been for the purpose of obtaining a degree submitted to other institution and, to the extent of my knowledge, does not contain contribution written and published by any another author prior to the submission of this Legal Research unless expressly referred to otherwise in its contents, included in the References and its content is truly the work of my own.

Written by:

Name : Medisita Nurfauziah Istiqmalia Student Number : 20120610198

Faculty : Law

Major : International Program for Law and Sharia (IPOLS)

University : Universitas Muhammadiyah Yogyakarta

Yogyakarta,

Medisita Nurfauziah Istiqmalia

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This Undergraduate Thesis dedicate to:

My Lord, Allah SWT Prophet Muhammad SAW

Families

My father: M. Chanifuddin My mother: Sri Agoeng Prapnawati My Brother: Muhammad Arterio Chanifuddin

My sisters: D’yasa Cessarisinta Hanief and Lareyna Kyneta Hanief

My second home, Fakultas Hukum UMY All Lectures and IPOLianS

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Assalamualaikum wr.wb

First of all, the author is grateful to Allah SWT, The Most Merciful and Most Gracious and salawat is for the prophet Muhammad SAW for all of the blessing given to me to accomplish my Undergraduate Thesis entitled “The

Protection of Rohingya Refugees in Indonesia According to the International Refugee Law” at Universitas Muhammadiyah Yogyakarta. I would like to

express my gratitude to my advisors, Dr. M. Nur Islami, S.H., M.Hum, and Mr. Yordan Gunawan, S.H., Int. MBA who have guided me with patient, advice, suggestions, wisdoms, motivations, and compassions.

I would like to say thanks to Dr. Trisno Raharjo Raharjo, S.H., M.Hum as the Dean of Faculty of Law UMY, Mr. H. Nasrullah, S.H., S.Ag, MCL as the Director of International Program for Law and Sharia (IPOLS) Faculty of Law UMY, Dr. M. Khaeruddin Hamsin,, Lc., M.A as the Director of International Centre for Law and Sharia Studies (ICLASS) Faculty of Law UMY, Mr. Iwan Satriawan, S.H., MCL (Ph.D. Cand), Mr. Muhammad Endrio Susilo, S.H., MCL (Ph.D. Cand), Mrs. Hj. Fadia Fitriyanti, S.H., M.Hum, M.Kn (Dr. Cand) and all of the Lecturers in the Faculty of Law Universitas Muhammadiyah Yogyakarta.

I address special gratitude to my parents: the late dr. H.M. Channifudin MH.Kes and Ir. Hj. Sri Agoeng Prapnawati who gave unlimited supports, motivations, and strengths so that I can finish this Undergraduate Thesis. Thank

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much. Thanks to all of my fellows in International Program for Law and Sharia, especially batch 2012. Last but not least, for those who helped me to finish this Undergraduate Thesis, only God may return the kindness.

Finally, I realize that this thesis is far from perfection and there are so many mistakes, thus correction and feedback from the guides and readers are very welcomed. I hope this undergraduate thesis may help the development in Indonesia and could have benefits for all human beings, Amen.

Yogyakarta,

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ABSTRACT ... i

APPROVAL PAGE ... ii

ENDORSEMENT PAGE ... iii

DECLARATION PAGE ... iv

DEDICATION PAGE ... vi

FOREWORD ... vii

TABLE OF CONTENTS ... ix

LITS OF STATUES ... xi

LIST OF ABBREVIATION ... xii

CHAPTER I – INTRODUCTION A. Background of Research ... 1

B. Research Problem ... 5

C. Research Objective ... 6

D. Research Advantages ... 6

E. Systematic of Writing ... 7

CHAPTER II – LITERATURE REVIEW A. The Concept of Refugee ... 10

B. International Refugee Law ... 19

C. Non-refoulement Principle ... 23

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C. Method of Collecting Data ... 37

D. Method of Data Analysis ... 38

CHAPTER IV – FINDING AND ANALYSIS A. Overview of the History of the Rohingyas Ethnic ... 39

B. The Protection of Refugees according to International Refugee Law ... 46

C. The Protection of the Rohingya refugees in Indonesia ... 53

1. The Obligations of Indonesia as a Transit State ... 53

2. The Cooperation of UNHCR to Resolve Rohingya Refugees Case ... 59

CHAPTER V– CONCLUSION AND SUGGESTION A. Conclusion ... 65

B. Suggestion ... 66

BIBLIOGRAPHY APPENDIX

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Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishments

Convention Relating Status of Refugees 1951

Protocol Relating to the Status of Refugees 1967

The 1945 Constitution of the Republic of Indonesia

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ECOSOC : United Nations Economic and Social Council

IOM : International Organization for Migration

IRO : International Refugee Organization

UN : United Nations

UNHCR : United Nations High Commissioner for Refugee

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In recent decades the phenomenon of refugees increases year by year and becomes the attention of the international community. The states are supposed to be a safe place to live for its citizens, on the contrary their own government is the source of their torture. They, the Rohingyas is one of example of a state which do persecution and inhumane treatment toward their citizens. The Rohingyas is a minority ethnic which subjected a torture done by the junta military of Myanmar. The Rohingyas are stateless people, and they have no protection because the Government of Myanmar did not give the nationality status and did not acknowledge them as the citizens of Myanmar. That is the reason why the Rohingyas fled to another country to get a safe place to live. The problem arises when the Rohingyas came to Indonesia, and Indonesia has not ratified the 1951 Convention and its Protocol. The purpose of this research is to know and explain the protection of refugees according to the international refugee law also to understand the implementation of Indonesia to give the protection of the Rohingya refugees. This research uses normative legal research with statute and case

approaches. By using a qualitative descriptive method, this study analyzes the

Rohingya refugees according to the international refugee law such as 1951 Convention Relating to the Status of Refugees and 1967 Protocol. The result shows that the international protection for refugees is already protected by the 1951 Convention, and its protocol establishes fundamental rights to be acquired for refugees. Although Indonesia is non-state parties, Indonesia as a transit state did not force the Rohingyas to return to their habitual residence and facilitate the emergency needs of the Rohingyas. The Indonesian government should ratify and implement the 1951 Convention and its protocol to give status determination in this case is the Rohingyas.

CHAPTER I INTRODUCTION

A. Research Background

More than 43 million people worldwide are now forcibly displaced as a result of conflict and persecution, the highest number since the mid-1990s. Several million people remain displaced because of natural disasters, although updated statistics are not available. More than 15 million of the uprooted are refugees who fled their home countries, while another 27 million are people who remain displaced by conflict within their own homelands -- so-called

‘internally displaced people.’1

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as "refugees," and to extend to them the sorts of protections established under the United Nations Refugee Convention. Such an approach would expand the traditional refugee definition significantly 2

1 Anonymous, “The Numbers”, United Nations Global Issues, taken from

http://www.un.org/en/globalissues/briefingpapers/refugees/ accessed on November 30th _{2015 at}

12.30 p.m

2 _{Matthew Lister, Who are Refugees?, Law and Philosophy, Volume 32, No. 12-40, 2013, U}

Two United Nations agencies, the UN High Commissioner for Refugees (UNHCR) and the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), are responsible for safeguarding the rights and well-being of the world’s refugees. Major refugee populations include Palestinians (4.8 million), Afghans (2.9 million), Iraqis (1.8 million), Somalis (700,000), Congolese (456,000), Myanmarese (407,000), Colombians (390,000), Sudanese (370,000).3

Based on geographical location, Indonesia is located between the continent of Asia and Australia, and also between the Indian Ocean and the Pacific Ocean. Thus, the area of Indonesia is at the intersection, which is of significant importance in relation to the summer climate and the economy. The position of Indonesia which is located between two oceans and two continents, make Indonesia a strategic place for the movement and also a refugee transit, mostly toward the Australian continent. Since 1999, Indonesia has become a transit point especially to the refugees from the Middle East, mostly heading to Australia's Christmas Island. 4

There are around 10,000 refugees and asylum seekers in Indonesia. Indonesia is not a party to the 1951 Convention relating to the Status of Refugees (Refugees Convention) or the 1967 Protocol. Asylum seekers and refugees (and stateless people) here face difficulties staying in the country. Asylum seekers and refugees in Indonesia are not permitted to work and to

3 _{United Nations Global Issues, Op.Cit.}

4 _{Yahya Sultoni, 2014, Alasan Indonesia Belum Meratifikasi Konvensi 1951 Tentang Pengungsi}

dan Perlindungan Hukum Bagi Pengungsi Di Indoneisa, Malang, Fakultas Hukum Universitas Brawijaya, p. 3-4

receive social benefits from the Government of Indonesia. The Government of Indonesia allows them to stay here while they have current registration documents from the Office of the United Nations High Commissioner for Refugees (UNHCR).5 Indonesia as non-state parties of the 1951 Convention and 1967 Protocol, does not have authority to grant Refugee Status Determination, thus the regulation of the refugees established by UNHCR (United Nations High Commissioner for Refugees) in accordance to the mandate received by UNHCR Statute of 1950.6

Myanmar is one of the countries in ASEAN that makes the citizens feels danger to stay in their own country, Myanmar is one of the worst violators of human rights. The Government of Myanmar did not recognize that the

Rohingyas as citizen in Myanmar and didn’t give nationality status to them. With this conditions they become stateless person and they don’t have nationality protection.

Inhumane treatment by the government of Myanmar to the Rohingyas is long enough to happen. With the majority of the people of Myanmar are Buddhist religion, they did discrimination against the Rohingyas. The differences of religion in Myanmar against ethnics Rohingya are very obvious. They are ostracized, even they are killed in open places such as highways.

5 Anonymous, "Para Pengungsi dan Pencari Suaka di Indonesia”, Indonesian Civil Society

Network for Refugee Rights Protection, taken from http://suaka.or.id/public-awareness/refugees-and-asylum-seekers-in-indonesia/ accessed on December 17th _{2015 at 2.13 p.m.}

6 _{Atik Krustiyati, 2012, Kebijakan Penanganan Pengungsi di Indonesia: Kajian Dari Konvensi}

Pengungsi tahun 1951, Law Review, Volume XII, No.2 Surabaya: Fakultas Hukum Universitas Surabaya, hlm 174.

That’s why makes the Rohingyas chose to leave Myanmar and sought a new and better life than to risk their life in Myanmar.7 _{The Rohingya ethnic left} Myanmar secretly, because it was too risky for them if they are caught by he military junta of Myanmar, they will be end up in the jail.

Recently, the Government of Myanmar withdraw a "white card" which is the only official identity card of the Rohingyas. The white card belonging to the Rohingya people was declared invalid since March 31, 2015. The white card is an identification card that is given to people who live in Myanmar, but did not get official status as a resident, resident association, and resident’s

neutral, or foreign nationals. White card holder’s means they are not Myanmar

citizens or foreign citizens. Along with the white card withdrawal, the Rohingya people also lose the right to participate in elections (elections). In accordance with the referendum held in 2008, the white card holders get the right to vote in elections. Cancellation of President Thein Sein has closed the opportunity to participate in Myanmar Elections, 2015 for the Rohingya people.8

Last year, hundreds of the Rohingyas fled from their homeland because of human right abuses and psychological pressures. They used boats to flee to safe places to live. They stayed in the boat without food and water. Even some people jumped into the sea because they're live jostle in the boat. Finally, they

7 Anonymous, May 2015, “Jumlah Pengungsi Rohingya di Indonesia Capai 11.941 Orang”, Aceh

Tribun News, taken from http://aceh.tribunnews.com/2015/05/19/jumlah-pengungsi-rohingya-di-indonesia-capai-11941-orang, accessed on October 27th _{2015, at 6.41 p.m.}

8 _{Antonius Purwanto}, June 2015“Menelisik Akar Persoalan Rohingya”, Kompas Print, taken from

http://print.kompas.com/baca/2015/06/03/Menelisik-Akar-Persoalan-Rohingya accessed on December 19th _{2015 at 9.23 a.m.}

were found by fishermen in Aceh in deplorable conditions. Until nowadays there are displaced Rohingya Muslims in Indonesia as many as 11.941 people, it is based on the data received by the Foreign Minister of Indonesia since 2005. For the Rohingyas who arrived in Indonesia recently, the number was around 1,346 people. The first group of as many as 558 people, second until the third group of as many as 664, followed by 47 and 96.9 The problem arises when Indonesia until nowadays has not ratified the 1951 Convention and its protocol, and Indonesia also does not have any regulations to protect the refugees.

Hence, the significance of this proposed research needs to be studied further on the protection of refugee in Indonesia and analyze the way of protection of refugee based on International Refugee Law especially in this case is the Rohingyas. It will focus on the implementation of the International Refugee Law to protect the right of the Rohingyas in Indonesia.

B. Research Questions

Based on the background that has been explained by the author above, there are two legal problems as the guidance to do the legal research those are: 1. How is the protection of refugee according to the international

refugee law?

2. How does the protection of the Rohingya refugees in Indonesia?

9 Yudha Manggala P Putra, June 2015, “Pengungsi Rohingya Harap Myanmar Seperti Indonesia”,

Republika, taken from http://www.republika.co.id/berita/nasional/daerah/15/06/01/np8cp4-pengungsi-rohingya-harap-myanmar-seperti-indonesia, accessed on October 27th 2015, at 6.20 p.m.

C. Research Objective

There are two purposes of conducting this legal research, which are the objective and subjective purposes:

1. Objective Research

a) Based on the research questions, this research is to know deeply about the protection of refugees according to international refugee law.

b) To understand the implementation and obligation of Indonesia towards refugee protection such as in the case of Rohingya people. 2. Subjective Research

The subjective purpose of conducting this legal research is to fulfill the requirement from the International Program of Law and Sharia, Faculty of Law Universitas Muhammadiyah Yogyakarta to obtaining a Bachelor of Law degree (Sarjana Hukum).

D. Research Advantages

This research is also expected to bring benefit both theoretical and practical: 1. Theoretical Advantages

In a theoretical perspective, this legal research is expected to give benefit function as a legal contribution to develop the science especially on the international law on the issue of protection of refugees.

2. Practical Advantages

The Results of this research would give better understanding and provide scientific reference regarding the refugee law which concern about the protection of refugees according to International Refugee Law in the case of the Rohingya refugees in Indonesia.

E. Systematic of Writing

This research consists of five chapters, namely Chapter I: Introduction. Chapter II: Theoretical Framework. Chapter III: Research Methodology. Chapter IV: Analysis and Discussion, and lastly, Chapter V: Conclusion and Suggestion.

The purposes of this research are to learn deeply about the perspective of international refugee law towards the protection of the Rohingyas in Indonesia. Besides, this research will elaborate the topic systematically by dividing it into five chapters.

In Chapter I, consisting of Introduction, the author will elaborate general matters, such as background, research questions, research objective, research advantages, and overview of the chapter. The background contains about the protection of refugees according to international refugee law. Here, the author uses the case of the Rohingyas, and focuses on the protection of international refugee law.

Furthermore, Chapter II, Literature Review, the author will elaborate each variable on this undergraduate thesis. The author will explain about the

definition of refugee, types of refugee, non-refoulement principle, international refugee law such as the 1951 Convention on Relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, historical background of UNHCR, duties of UNHCR, and activity of UNHCR. Moreover, it will elaborate more about the International Refugee Law and the way to protect the refugee of the Rohingyas.

In Chapter III researcher will discuss the research method used for conducting this undergraduate thesis. This research methodology consists of the type of research, data collection, method of collecting data and method of data analysis. The characteristic of research is a normative legal research. The type of research will use statute approach and analytical approach. This research will use material legal research taken from literatures consist of primary legal material, secondary legal material and tertiary legal material. Also the data finding method taken form literature research such as library research. Then the method of data analysis in this research used systematical analysis through juridical qualitative.

The fourth is Chapter IV, Research and Analysis. The author will analyze the case with the normative legal research, with case approach. The focus of this research is on the protection of refugees based on international refugee law and the protection of the Rohingyas in Indonesia as non-state parties of 1951 Convention also explain the principle of non-refoulement as the basis of protection of refugee and the role of UNHCR to resolve the case of the Rohingyas.

Finally, Chapter V, Closing, the author will conclude what has been discovered in previous chapter about the protection of the refugee and the rights of the Rohingyas in Indonesia according to International Refugee Law, the author also will give the suggestion from the author toward the result of the research.

CHAPTER II LITERATURE REVIEW

A. The Concept of Refugee

1. The Definition of Refugee

The general definition of refugee is “Anyone looking for a safe place when

there is a danger that threatens their region.”1 On Oxford Learner’s Pocket

Dictionary, describes refugee a “persons forced to leave their country, especially because of political or religious beliefs”2

Black’s Law Dictionary listed the definition of refugee as “A person who flees or is expelled from a country, especially because of persecution, and seeks

haven in another country”3 There are two scholars who stated the definition of

refugees. Malcom Proudfoot gives the definition of refugee in the perspective after World War II. He stated:

“These forced movements, ...were the result of the persecution, forcible

deportation, or flight of Jews and political opponents of the authoritarians governments; the transference of ethnic population back to their homeland or to newly created provinces acquired by war or treaty; the arbitatry rearrangement of prewar boundaries of sovereign states; the mass flight of the air and the terror of bombarment from the air and under the threat or pressure of advance or retreat of armies over immense areas of Europe; the forced removal of populations from coastal or defence areas under military dictation; and the deportation

for forced labour to bloster the German war effort.”4

1 _{Yudus Badudu, 1994, Kamus Bahasa Indonesia, Jakarta, Sinar Harapan, p.54}

2 _{Anonymous, 2009,} Oxford Learner’s Pocket Dictionary_{, Third Edition, Oxford, Oxford}

University Press, p. 360-361

3 _{Bryan A. Garner, 1999,} Black’s Law Dictionary_{, Seventh Edition, Thomson West, St. Paul Minn,}

p.1307

According to Pietro Verri, he provides a definition of refugee by citing the Article 1 UN Convention on the Status of Refugees on 1951, he stated: “[it] applies to many person who has fled the country of his nationality to avoid

persecution or the threat of persecution.”5

The definition of refugee according to Statute of UNHCR clearly mentioned on Article 6 (b):

“Any person who, as a result of events occurring before 1 January 1951

and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it.”

The Article 1A (2) Convention relating to the Status of Refugees 1951, mentioned that the definition of refugee is:

“…. as one who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, member boat of particular social group or political opinion, is outside the country of his nationality and unable or owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having nationality and being outside the country of his former habitual residence as result of such events, is unable

or owing to such fear, is unwilling to return to it.”

This definition contains several important elements:6

5 _{Achmad Romsan, 2002, Pengantar Hukum Pengungsi Internasional, Bandung, Sanic Offset,}

p.36.

6 _Walter Kälin, “Flight in Time of War”, _{International Review of the Red Cross, Vol. 83, No. 843,}

1. Well-founded fear: It is not necessary for the refugee to have already become a victim of persecution. Fear of future persecution is sufficient if such fear is not just subjective but has an objective basis in the facts of the case.

2. Persecution: It usually takes the form of human rights abuse or similar harm, but must reach a certain level of seriousness in order to be regarded as relevant.

3. Convention grounds: What distinguishes refugees from other victims of human rights violations who have left their country is the fact that they are persecuted “for reasons of race, religion, nationality, membership of a particular social group or political opinion”. Whereas the grounds of race, religion and political opinion do not usually give rise to any particular problems, there is considerable debate today about the meaning of “social group”. In contrast, there is widespread consensus that “nationality” not only denotes citizenship but also ethnicity.

4. Outside the country of nationality or habitual residence: Flight is not a necessary element of the refugee definition. Someone who has left his country without having been persecuted at that time becomes a refugee sur place when relevant circumstances change in a way that would make him a victim of persecution were he then to return to that country.

5. Unable or unwilling to avail himself of State protection: This last element makes sure that refugee status is granted only if protection

by the country of origin is not available to the person concerned or if he, in the light of what has happened or will happen to him, cannot be reasonably expected to ask for such protection.

The definition of refugees according The Group of Governmental Experts on International Co-operation to Avert News Flows of Refugees is:

“Refugees defined man-made disaster in the following terms: wars, armed

conflict, acts aggression, alien domination, foreign armed intervention, occupation, colonialism, oppressive segregationist and racially supremacist regimes practicing policies of discrimination or persecution, apartheid, violations of expulsions, economic and social factors threatening the physical integrity and survival, structural problems of development; manmade ecological disturbances and severe environmental

damages.”7

Someone become refugees because they feel danger, because of natural disaster or man-made disaster. Refugee caused by natural disaster is protected by their country and they can escape to another country to save their life. They are able to ask for help on their origin country.

It is different when someone becomes a refugee because of man-made disaster such as war, armed conflict, etc. The evacuation of refugees is out of the country due to avoid prosecution and persecution in their country. Sometimes these refugees occur because of political reasons, they also forced to leave the country, and these people no longer receive protection from government of their country. International Refugee Law only regulated refugee

caused by man-made disaster because they were not protected by their country. This kind of refugee is very vulnerable to suppression of human rights.

According to the definition above, it is explained that there are two types of refugees, the Internal Displaced Persons and refugees. The differences on these two types of refugees are only within the scope of the region. Internal Displaced Person is displaced out of a particular territory and occupies other areas but still within the territory of their country, whereas refugee is a refugee person who fled or was displaced to other regions out of their country.

2. Types of Refugee a. Economic migrant

“Person, who, in pursuit of employment or a better overall standard

living (that is, motivated by economic consideration), leave their country to

take up residence elsewhere.”8

b. Internally Displaced Person (IDP)

Until the beginning of the 1990s, internally displaced persons were defined negatively: they were people who had fled their homes, but who were not refugees (having remained within their country). It is only recently that some efforts have been made to devise a comprehensive definition of internally displaced persons. An important step was taken in 1992 when the UN Secretary-General proposed a working definition. That definition was

revised in 1998 and the Guiding Principles on Internal Displacement now define internally displaced persons as: 9

“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 human-made disasters, and who have not crossed an internationally recognized State

border.”

If we look more closely at the situation of internally displaced persons, this bond is not completely severed, because they still remain within the jurisdiction of their state which has a duty of protection towards them. This has important implication for the nature of protection which can be afforded to them. What must not be forgotten is the essentially statist nature of international refugee law which is evidenced by the paramount importance of the border-crossing requirement in the refugee definition: the refugee is an unprotected alien who does not benefit from any protection, whereas the internally displaced is an unprotected resident who requires protection which is necessarily different in nature. Consequently, a legal synthesis between refugees and the internally displaced is meaningless, and a separate legal status should not be given to the internally displaced in international law.10

9 _{Catherine Phuong, 2004, The International Protection of Internally Displaced Persons, United}

Kingdom, Cambridge University Press, p. 1-2

c. Mandate refuges

Mandates are used to refer to people who recognized his status as a refugee by UNHCR in accordance with the functions, authority or mandate established by the Statute of UNHCR. The term mandate refugees used for refugees who were under the authority or mandate of UNHCR, such as:

1. People who are recognized as refugees by UNHCR, wherever they are, before the entry into force of the 1951 Convention on April 22th_{, 1964} and before the entry into force of the 1967 Protocol on October 4th , 1967.

2. People who are recognized as refugee by UNHCR who are outside the state parties to the Convention in 1951 (after the entry into force of the 1951 Convention since April 22th_{, 1954) and / or its 1967 Protocol (after} the entry into force of this Protocol since October 4th_{, 1967). The} mandate stated the refugee is a person who meets the requirement of the UNHCR Statute, as refugees and therefore the protection of the United Nations, wherever they are inside or outside the State Parties to the 1951 Convention or its 1967 Protocol.11

d. Refugees sur place

“A person who was not a refugee when he left his country, but who

became a refugee at a late date. A person becomes a refugee sur place due

to circumstances arising in her country origin during her absence.”12

11 _{Achmad Romsan, Op. Cit., p. 30-31.} 12_{Ibid, p. 29.}

These are persons who have entered the host country for reasons unrelated to questions of well-founded fear of persecution, such as education, medical treatment or tourism. However, subsequent developments render their return to the country of origin problematic. The conditions in the person’s country of origin may change suddenly, placing the person’s life and liberty in danger upon return—for example, a military coup or ethnic strife. A person’s political activities in the host country may also make it unsafe for her to return, because of political opposition. In this case, refugee status is determined on the basis of individual apprehension of persecution.13

e. Statutory refugees

“Persons who meet the definitions on international instruments

concerning refugees prior to the 1951 Convention are usually referred to

as “statutory refugees”.14 f. Stateless person

The 1954 Convention aims to provide stateless persons with a legal status and in appropriate cases, residence, which would enable them to access basic social and economic rights. Article 1 defines a stateless person as one ‘who is not considered as a national by any State under the operation of its laws’. Because the Convention does not permit derogations from Article 1(1), the definition of a stateless person is binding upon all state

13 _{Human Rights Law Network, 2011, Refugee and the Law, Second Edition, Human Rights Law}

Network (HRLN), New Delhi, p. 13

parties. Moreover, the International Law Commission considers the definition to be part of customary international law. The international legal definition of a stateless person is set out in Article 1 of the 1954 Convention relating to the Status of Stateless Persons, which defines a stateless person as "a person who is not considered as a national by any State under the operation of its law". This means that a stateless person is someone who does not have a nationality of any country. Some people are born stateless, while others become stateless over the course of their lives.15

One of the changes that occur in a country that can cause a person or a group of people to lose citizenship is a succession of state. According to Ian Brownlie “State succession arises when there is a definitive replacement of sovereignty over a given territory in conformity with international

law”.16

g. War refuges

“Persons compelled to leave their country of origin as a result of

international or national armed conflicts are normally considered refugees under the 1951 Convention of 1967 Protocol. They do, however, have the protection provided for in other international instruments, i.e. the Geneva Convention of 1949, et.al. in the case of forces invasion and subsequent occupation, occupying force may begin to persecute segment of the populations. In such cases, asylum seekers may meet the conditions of the

Convention definition.”17

15 _{Sandra Mantu, 2015, Contingent Citizenship: The Law and Practice of Citizenship Deprivation}

in International, European and National Perspectives, The Netherlands, Koninklijke Brill NV, p. 37

16 _{Kadarudin, Keterkaitan Antara Stateless Persons, Pencari Suaka dan Pengungsi, Jurnal}

Pengembangan Ilmu Hukum ‘Gratia’, Volume VIII, No I, 2012, p. 105

B. International Refugee Law

International law is a set of rules intended and created by sovereign states exclusively. In other words, as stated by Lassa Oppenheim: [t]he law of nations prescribes no rules as regards the kind of head of a State may have. Every State is, naturally, independent regarding to this point, possessing the faculty of adopting any constitution according to its direction. International law does not generally address domestic constitutional issues, such how a national government formed.18 International refugee law is a part of international law, it is also a law that governs all matters concerning refugee including the standards governing of the treatment of refugees.

International refugee law began on era of the 1920s. It is characterized by the term refugee and non-refugee. Then, its development became known in worldwide because there are some of famous figures such as Liisa Malkki, Nicholas Xenos and Michael Dillon, who contributed in the form of making the description and symbolism on terminology of refugee. At the beginning, only a state is able to determine and recognize whether the person or group of people is a refugee or not. Thus restrictions on refugee become full authority of each country, as stated by Grahl Madsen: 19

“There is no such definition of “refugee” even in international law, only

‘fitting’ definitions. What is attainable through a distillation of international

legal instruments, policy, documents and politico-sociological indications is an idea of who might be accorded refugee status or at least protection under what

circumstances, in both the real and the ideal world”

18 _{Jawahir Thontowi, Pranoto Iskandar, 2006, Hukum Internasional Kontemporer, Bandung, PT}

Refika Aditama, p.2-3.

International refugee law function as the international legal system, in terms of implementation and supervision carried out by international agencies. But, it does not rule out the possibility that domestic law has an important role in the implementation of international law.

After the World War I, the development of refugee law increasingly exists with the current scope of the universal ratification of the 1967 Protocol Relating to the Status of Refugees. There is an international community's urgency to regulate the issue of refugees is in their region, for example in Africa, Europe and Latin America.20 There are two legal bases on International refugee law to regulate the refugee such as:

1. The 1951 Convention relating to the Status of Refugees

The Convention was adopted by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, held at Geneva from July 1951 and entry into force on April 22th _{1954. The Conference} was convened pursuant to resolution 429 (V) 1 adopted by the General Assembly of the United Nations on December 14th 1950.21 This Conventionis the starting point of any matters of international refugee law. The convention is one of the two refugee instruments, both of which are 1967 Protocol which is a development of this convention.

20 _{Achmad Romsan, Op. Cit., p.13}

21 _{Ian Brownlie, 1993, Dokumen-Dokumen Pokok mengenai Hak Asasi Manusia, Edisi Kedua,}

The 1951 Convention defines what the term ‘refugee’ means then it outlines a refugee’s rights including such things as freedom of religion and movement, the right to work, education and accessibility to travel documents. It also underscores, in turn, refugees’ obligations towards their host governments. A key provision stipulates that refugees should not be returned to a country where they fear persecution. It also spells out individuals or groups of people who are not covered by the Convention.22

Person who has committed a crime his refers to an individual or against peace, a war crime, a crime organization – government, rebels or against humanity or a serious non-political another group – which forces people to do crime outside the country of asylum cannot be covered by the Convention.23

2. The 1967 Protocol relating to the Status of Refugees

The 1967 Refugee Protocol is a treaty in international refugee law which entered into force on October 4th _{1967. The 1967 Protocol removes the} geographical and time limitations written into the original Convention under which for the most part only Europeans involved in events occurring before January 1st 1951, could apply for refugee status. As a result, it turned the Convention into a truly universal instrument that could benefit refugees

22Christina Parmionova, “The 1951 Refugee Convention”, Slide Share, taken from

http://www.slideshare.net/WERI/The-1951-refugee-convention accessed on December 15th 2015 at 1.05 p.m

everywhere. Three-quarters of the world’s states have signed up to both the 1951 Convention and its Protocol.24

The Protocol is an independent instrument, adherence to which would not be limited to States parties to the convention but also open to other States.25 Nevertheless, State parties may make reservations to articles of the Convention other than to articles:

a. Article 1 (definition of the term refugee) b. Article 3 (Non-discrimination)

c. Article 4 (Religion)

d. Article 16 paragraph 1 (free access to the courts of law)

e. Article 33 (Prohibition of expulsion or return/ Non-refoulement)

f. Article 36-46 (Information on national legislation, the provisions cover)

In wider context both of 1951 Convention and 1967 Protocol contains three primary basis:26

a. The provisions relating to the definition of those who are not included in the definition of refugees

b. The provisions governing the status of refugee law, including the rights and obligations of refugees in the countries where they settled

24 _Ibid.

25 _{Andreas Zimmermann, 2011, The 1951 Convention Relating to the Status of Refugees and Its}

1967 Protocol: A Commentary, New York, Oxford University Press, p. 1469.

c. Other provisions relating to the application of refugees instrument from the standpoint of administrative and diplomatic procedures.

C. Non-Refoulement Principle

Referring to the etymology refoulement term derived from the French word. Refoulement defined as “expulsion or the return of a refugee from one

state to another”. Non-refoulement means “A refugee’s right of not being

expelled from one state to another, especially to one where him or her life or

liberty would be threatened”.27

According to Article 33 of the 1951 Convention relating to the Status of Refugees, regulated non-refoulement principle which states that:

a) No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories when his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

b) The benefit of the present convention may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convinced by a final judgement of a particularly serious crime, constitute a danger to the community of that country.

An Expert Roundtable was organized by the United Nations High Commissioner for Refugees and the Lauterpacht Research Centre for International Law, University of Cambridge, UK, 9–10 July 2001, and the general appreciation of the meeting was:28

a) Non-refoulement is a principle of customary international law.

b) Refugee law is a dynamic body of law, informed by the broad object and purpose of the 1951 Refugee Convention and its 1967 Protocol, as well as by developments in related areas of international law, such as human rights law and international humanitarian law.

c) Article 33 applies to refugees irrespective of their formal recognition and to asylum seekers. In the case of asylum seekers, this applies up to the point that their status is finally determined in a fair procedure.

d) The principle of non-refoulement embodied in Article 33 encompasses any measure attributable to the State which could have the effect of returning an asylum seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she is at risk of persecution, including interception, rejection at the frontier, or indirect refoulement.

e) The principle of non-refoulement applies in situations of mass influx. The particular issues arising in situations of mass influx need to be addressed through creative measures.

28Anonymous, “Summary Conclusions – _{The principle of Non-}refoulement”, United Nations

High Commissioner for Refugees, taken from http://www.unhcr.org/496351a72.pdf downloaded on December 22th 2015 at 1.05 p.m.

f) The attribution to the State of conduct amounting to refoulement is determined by the principles of the law on State responsibility. The international legal responsibility to act in conformity with international obligations wherever they may arise is the overriding consideration. g) There is a trend against exceptions to basic human rights principles. This

was acknowledged as important for the purposes of the interpretation of Article 33(2). Exceptions must be interpreted very restrictively, subject to due process safeguards, and as a measure of last resort. In cases of torture, no exceptions are permitted to the prohibition against refoulement.

Article 53 of the Vienna Convention on the Law of Treaties also states:

‘A treaty is void if, at the time of its inclusion, it conflicts with a

peremptory norm of general international law… a peremptory

norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law

having the same character.’

Again Article 64 declares that ‘[i]f a new peremptory norm of general international law emerges, any exiting treaty which is in conflict with that norm becomes void and terminates. As noted in chapter 3, the concept of jus cogens, of fundamental and entrenched rules of international law, is well established in doctrine now, but controversial as to content and

method of creation. The insertion of articles dealing with jus cogens in the 1969 Convention underlines the basic principles with regard to treaties.29

Also Article III (3) of the Principles concerning the Treatment of Refugees adopted by the Asian-African Legal Consultative Committee at its Eighth Session in Bangkok in 1966 provides that:

"No one seeking asylum in accordance with these Principles should, except for overriding reasons of national security or safeguarding the populations, be subjected to measures such as rejection at the frontier, return or expulsion which would result in compelling him to return to or remain in a territory if there is a well-founded fear of persecution endangering his life, physical integrity or liberty in that territory."

Non-refoulement is also regulated on Article 3 of the 1967 Decleration on Territorial Asylum that states that:

“No person referred to in article 1, paragraph 1, shall be subjected

to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to

persecution.”

The principle of non-refoulement is the cornerstone of asylum and of international refugee law. Following from the right to seek and to enjoy in other countries asylum from persecution, as set forth in Article 14 of the Universal Declaration of Human Rights, this principle reflects the commitment of the international community to ensure to all persons the enjoyment of human rights, including the rights to life, to freedom from

29 _{Malcolm N. Shaw, 2008, International Law, Sixth Edition, New York, Cambridge University}

torture or cruel, inhuman or degrading treatment or punishment, and to liberty and security of person. These and other rights are threatened when a refugee is returned to persecution or danger.30

This provision constitutes one of the basic Articles of the 1951 Convention, to which no reservations are permitted. It is also an obligation under the 1967 Protocol by virtue of Article I (1) of that instrument. Unlike some provisions of the Convention, its application is not dependent on the lawful residence of a refugee in the territory of a Contracting State. As to the words "where his life or freedom would be threatened", it appears from

the travaux préparatoires that they were not intended to lay down a stricter

criterion than the words "well-founded fear of persecution" figuring in the definition of the term "refugee" in Article 1 A (2). The different wording was introduced for another reason, namely to make it clear that the principle of non-refoulement applies not only in respect of the country of origin but to any country where a person has reason to fear persecution.31

D. International Organizations which Handle the Refugees

1. United Nations Relief and Rehabilitation Administration (UNRRA)

United Nations Relief and Rehabilitation Administration established in 1943 for the resettlement of refugees to their home countries as many as 30

30UN High Commissioner for Refugees, “UNHCR Note on the Principle of Non_-refoulement”,

Refworld, taken from http://www.refworld.org/docid/438c6d972.html accessed on February 5th

2016 on 11.14 a.m.

million displaced persons because of World War II. Resettlement refugees is a major objective of the establishment of UNRRA. The duty of UNRRA is increasingly difficult because there are 12 million Germany ethnics from East Block who does not want to be repatriated. They claim that because of their reasons of race, religion, and political opinion, they cannot return to their habitual residence. But Uni Soviet rejects those argument and all of displaced persons have to repatriation.32

2. International Refugee Organization (IRO)

International Refugee Organization set out the UN General Assembly on December 15th_{, 1946. The IRO Constitution regulate the functions and authority} of the agency in the prevention and treatment of refugees. Therefore, it does not regulate the rights and freedoms of refugees. The duties of IRO are: Repatriation of refugees, Identification of refugees, Registration and Classification of refugees, Public Relief of refugees, Legal Protection of refugees, and Politics of refugees, Transportation of refugees and Resettlement.33

IRO tasks include not only the refugees to the events that occurred during the World War II, but also refugees who recognized before the World War II. IRO is a non-permanent organization, thus IRO does not regulate refugees after the World War II. Therefore, this international institutions can no longer work for the refugees after World War II. Then United Nations High Commissioner

32 _{Achmad Romsan, Op. Cit., p.66} 33 _{Wagiman, Op. Cit., p. 137}

for Refugee (UNHCR)34 is established to resolve the problem of refugees in the world.

3. United Nations High Commissioner for Refugee (UNHCR)

The problem of refugees has long been a concern of the United Nations. In 1946 the United Nations has adopted a specialized agency, the International Refugee Organization (IRO) and took over The United Nations Relief and Rehabilitation Agency (UNRRA). They help resettle around 1 million people to flee to a third country, and put over 73,000 people displaced in their own country.35 _{On December 14}th_{, 1950 by the United Nations Assembly began to} work on January 1st_{, 1951. The initial formation of duties UNHCR only provide} security protection, food and medical assistance in emergency situations and help find solutions for refugees for long periods of time. One of the solution is to return the refugees to their country of origin, or find a new country for them to start a new of their life.36

UNHCR is the agencies that originally formed to replace International Refugee Organization (IRO). IRO is an agency which was first established to deal with refugees. There are few differences between IRO and UNHCR, IRO was founded on April 20, 1946 the function of establishment IRO is to deal with the massive refugee problem created by World War II besides UNHCR has the scope and broader authority for refugees. Refugees are divided into refugee

34_Ibid.

35_{Achmad Romsan, Op. Cit., p.163.} 36_Ibid.

caused by World War II or refugees emerging after the formation of the UNHCR.

On 1954, the new organization won the Nobel Peace Prize for its ground-breaking work in helping the refugees of Europe. Its mandate had just been extended until the end of the decade. More than a quarter century later, UNHCR received the 1981 award for what had become worldwide assistance to refugees, with the citation noting the political obstacles face bt the organization. From only 34 staff members when UNHCR was founded, it now has more than 9,300 national and international members of staff, including over 1,050 in UNHCR's Geneva and Budapest Headquarters. The agency works in 125 countries, with staff based in 109 main locations such as regional and branch offices and 341 often remote sub-offices and field offices.37

The Statute of the Office of the United Nations High Commissioner for Refugees was adopted by the General Assembly on 14 December 1950 as Annex to Resolution 428 (V) and UNHCR exist since January 1951. In implementing their duties, UNHCR is guided by the mandate of United Nations General Assembly and Economic and Social Council (ECOSOC). The Statute of UNHCR 1950 explains the general function of UNHCR:

“Providing international protection and seeking permanent solution to the

problem of refugees by assisting Governments to facilitate the voluntary repatriation of such refugees, or their assimilation within the new national

communities”

37Anonymous, “A Global Humanitarian Organization of Humble Origins”, United Nations of

High Commissioner for Refugees, taken from http://www.unhcr.org/pages/49c3646cbc.html accessed on November 1st _{2015 at 10.29 p.m.}

Since its establishment UNHCR provides protection to refugees and in cooperation with the governments of the world to find long-term solutions to the problems faced by refugees. This is confirmed by Goodwin Gill who stated that:

“UNHCR has a unique statutory responsibility to provide international

protection of refugee and, together with government, to seek permanent

solution to their problem”. 38

The kinds of protection functions described in the Statute of UNHCR, include its supervision of law enforcement. During these five decades UNHCR has been helping 50 million refugees. UNHCR has more than 5000 staff who worked in more than 120 countries. Nowadays UNHCR handles more than 20 million refugees. UNHCR has the authority to provide international protection for refugees and to find solutions to the problems faced by refugees. This agency periodically reports its results to the United Nations General Assembly.39

According to article 1 on Convention on Relating to the Status of Refugees 1951, there are nine (9) duties of UNHCR to provide for the protection of refugees:

38 _{Wagiman, Op. Cit., p.188.} 39_Ibid.

a) Promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto;

b) Promoting through special agreements with Governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection;

c) Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities;

d) Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of States;

e) Endeavoring to obtain permission for refugees to transfer their assets and especially those necessary for their resettlement;

f) Obtaining from Governments information concerning the number and conditions of refugees in their territories and the laws and regulations concerning them;

g) Keeping in close touch with the Governments and intergovernmental organizations concerned;

h) Establishing contact in such manner as he may think best with private organizations dealing with refugee questions;

i) Facilitating the co-ordination of the efforts of private organizations concerned with the welfare of refugees.

When it was first established by the United Nations General Assembly in 1951, UNHCR was given responsibility to resettle 1.2 million European

refugees who had to leave their homeland after the World War II. To resolve the refugee problem, the forms of assistance provided by UNHCR are:40

a) Help during major emergencies involving the movement of large number of refugees;

b) Regular programmers in such field as education, health and shelter; c) Assistance to promote the self-sufficiency of refugees and their

integration in host countries; d) Voluntary repatriation;

e) Resettlement in third countries for refugees who cannot return to their homes and who face protection problems in the country where they first sought asylum.

For example, in 1997, approximately 55,000 new immigrants came to Hong Kong. The existing number in the refugee camp was about 350,000 people, not including half a million or more the people from Cambodia in the Thai border. In the end of June, a few of ASEAN countries announce on July 20 to 21 in Geneva that 65 governments responded to an invitation from the United Nations General Secretaries to attend a conference related to Indo-Chinese refugees. In general, there was an increase for the resettlement of 125,000 to 260,000 people.41

40 _{Achmad Romsan, Op. Cit., p.176.}

CHAPTER III

METHODOLOGY OF RESEARCH

A. Type of Research

This legal research will be conducted based on normative legal research. Normative legal research is also called doctrinal legal research, it means that normative legal research is performed and directed by reviewing secondary data or library materials.1

Cohen and Olson defined legal research as follows:

“Legal research is the process of finding the law that governs activities

in human society. It involves locating both the rules which are enforced

by the states and commentaries which explain or analyze these rules.”2

Jacobstein and Mersky also defined legal research as follows:

“…seeking to find those authorities in the primary sources of the law that are applicable to a particular situation. The search is always first for mandatory primary sources, that is, constitutional or statutory provisions of the legislature, and court decisions of the jurisdiction involved. If these cannot be located then the search focuses on location persuasive primary authorities, that is, decision from courts other common law jurisdictions…

When in the legal search process primary authorities cannot be located, the searcher will seek for secondary authorities”3_.

This research uses statute approach and analytical approach. Statute approach means that the researcher uses the legislations as the basis for

1 _{Amirrudin and H. Z. Asikin, 2006, Pengantar Metode Penelitian Hukum, Jakarta, PT. Grafindo}

Persada, p. 118

2 _{Morris L. Cohen and Kent C. Olson, 2013, Legal Research in a Nutshell, Eleventh Edition, USA,}

West Publishing Corporation, p.1

3 _{Johnny Ibrahim, 2013, Teori dan Metode Penelitian Hukum Normatif, Malang, Banyumedia}

conducting the research. Any legal rules are the focus and become the central topic into the research4_{, because it would tell regulations such as} Convention relating to the Status of Refugees 1951 and Universal Declarations of Human Rights or other document relating to the issues of refugees. The using of case approach in normative legal research aims to understand the implementation of legal norms which is conduct in legal practice pertaining to the Rohingya case.5

B. Data Sources

This legal research uses data sources taken from the literatures that consist of primary legal sources, secondary legal sources, and tertiary legal sources.

1. Primary legal sources

The primary legal sources consist of legally binding material bound to all elements and refer to the several legislations related to the refugees consist of:

a. Universal Declaration of Human Rights

b.The 1951 Convention relating to the Status of Refugees c. The 1967 Protocol relating to the Status of Refugees d.The 1945 Constitution of the Republic of Indonesia e. Law No. 39 of 1999 on Human Rights

4 _{Johnny Ibrahim, Ibid., p. 302} 5_{Ibid., p. 321.}

2. Secondary legal sources

The secondary legal source is a legal material that explain the materials that have been described in the primary legal materials namely:

a. Books;

1) Romsan, Achmad. 2003. Pengantar Hukum Pengungsi Internasional: Hukum Internasional dan Prinsip-Prinsip Perlindungan Internasional (UNHCR), Bandung, Sanic Offset; 2) Wagiman, 2012, Hukum Pengungsi Internasional, Sinar

Grafika, Jakarta.

b. Scientific journals;

1) Gunawan, Yordan & Priambodo, Gatot, Burma’s Rohingya Case in International Law Perspective, Media Hukum, Vol. 20 No. 1, 2013, Yogyakarta: Fakultas Hukum Universitas Muhammadiyah Yogyakarta.

c. Seminar papers related to the issue; d. Other related documents;

e. Trusted internet sites.

3. Tertiary legal sources

Tertiary legal sources are legal materials to support or provide explanations and instructions regarding the primary legal materials and a secondary data that serves to expand and enrich the knowledge of author to understand the problems of refugee and also useful to support this undergraduate thesis.

a. Law dictionary, like Black’s Law Dictionary written by Bryan A. Garner; and

b. English dictionary, like Oxford Learner’s Pocket Dictionary;

c. Indonesian Dictionary, like Kamus Bahasa Indonesia written by Yuyus Badudu

C. Method of Collecting Data

In this research the author used the method of collecting data in this by literature learning. This research conducted in library as the main source. The author finds data or research information through reading scientific journals, reference books and materials available in the library of publications. By using data that require a deep analysis of literature studies, the author read, analyzed, other data which are related to this topic.

D. Method of Data Analysis

The data were analyzed systematically through juridical qualitative. Systematically means that the data was analyzed based on international law and Indonesian law, especially relating to the issue human rights, but focus on the protection of Rohingya Refugees in Indonesia, according to the International Refugee Law. Juridical qualitative means that it would be connected with the principle of law, convention and other related-regulations.6

6 _{Mukti Fajar ND, Yulianto Achmad, 2009, Dualisme Penelitian Hukum, Yogyakarta, Pensil}

CHAPTER IV

FINDING AND ANALYSIS

A. Overview of the History of Rohingya Ethnic

Myanmar is the largest state in mainland Southeast Asia with about 45 million people, and borders several important Asian states including China, India, Thailand, Bangladesh and Laos. It used to be one of the richest countries in Southeast Asia in term of its natural resources, now it is one of the poorest in terms of economic and social development. Regime after regime has laid waste to these resources or else exploited them for their own gain, usually at the expense of different ethnic groups.1

Rohingyas is an ethnic minority living in Arakan, which is now called Rakhine province in western Myanmar, bordering Bangladesh. Myanmar is a country with a lot of ethnics, but there are 8 huge ethnics such as Kachin, Kayah, Kayin (Karen), Chin, Burma, Mon, Rakhine and Shan, the rest are ethnics of minorities. The Rohingya are Muslims who reside in the northern parts of the Rakhine (historically known as Arakan) State, a geographically isolated area in western Burma, bordering Bangladesh. The British annexed the region after an 1824-26 conflict and encouraged migration from India. Since independence in 1948, successive Burmese governments have

1 _{Kenneth Christie and Denny Roy, 2001, Politics of Human Rights in East Asia, London, Pluto}

considered these migration flows as illegal. Claiming that the Rohingya are in fact Bengalis, they have refused to recognize them as citizens. Shortly after General Ne Win and his Burma Socialist Programme Party (BSPP) seized power in 1962, the military government began to dissolve Rohingya social and political organizations. The 1974 Emergency Immigration Act stripped Burmese nationality from the Rohingya. In 1977, Operation Nagamin (Dragon King) constituted a national effort to register citizens and screen out foreigners prior to a national census.2

For centuries, the Rohingya Muslims coexisted relatively peacefully with the Rakhine Buddhists. However, this changed around the Second World War, when communal riots erupted between the two ethnic groups at the instigation of third parties, most notably the British Raj. The bitterness was fuelled by the pogrom of March 28, 1942 in which approximately 100,000 Rohingyas were massacred and another 80,000 had to flee from their ancestral homes. Two hundred and ninety four Rohingya villages were totally destroyed. Since then the relationship between the two communities deteriorated to the extent that for the Rohingya there remained hardly any option open other than self-determination in an autonomous territory that would protect their basic human rights. After Burma’s independence in 1948, Muslims carried out an unsuccessful armed rebellion demanding an autonomous state within the Union of Burma. This resulted in a backlash

2 _{Anonymous, The International Observatory on Statelessness, taken from}

against the Muslims that led to their removal from civil posts, restrictions on their movement, and confiscation of their property.3

Upon achieving independence from England in 1948, Myanmar struggled with armed ethnic conflict and political instability during a prolonged period of political reformation. In 1962, a military coup produced a one-party, military state informed by socialist notions of governance—it would last for more than sixty years. During that time, the Burmese army committed numerous human rights abuses, such as killing, raping, and torturing the state’s Rohingya Muslim population. Notably, the army subjected the group to mass expulsions in 1977 and 1992, creating what has been widely viewed as a chronic refugee crisis in neighboring Bangladesh.4

The resulting military campaign led to widespread killings, rape, and destruction of mosques and religious persecution. By 1978, more than 200,000 Rohingya had fled to Bangladesh. The Burmese authorities claimed that their flight served as proof of the Rohingya’s illegal status in Burma. Under the 1982 Citizenship Law, Rohingya were declared “non-national” or “foreign residents.” This law designated three categories of citizens: (1) full citizens, (2) associate citizens, and (3) naturalized citizens. None of the categories applies to the Rohingya as they are not recognized as one of the 135 “national races” by the Myanmar government. More than 700,000

3Habib Siddiqui, “A Long History of Injustice Ignored: Rohingya: The Forgotten People of Our

Time”, Islam Awareness, taken from

http://www.islamawareness.net/Asia/Burma/ro_article003.html accessed on March 23th _{2016, at}

7.03 a.m

4Engy Abdelkader, “The Rohingya Muslims in Myanmar: Past, Present, and Future”, _Oregon

Rohingya in northern Rakhine today are effectively stateless and denied basic human rights.5

In Arakan state, for instance, the Rohingyas have largely been discriminated against; they are denied national identity cards and they restrict the Muslims’ travel and freedom of movement. In 1982 a Citizenship Act had effectively removed citizenship from this group making them ineligible for basic social services, health and education. In early 1992 as many as 250.000 of these Burmese Muslims fled into neighboring Bangladesh, claiming that the army had been engaging in plunder, rape and massacres against them, aimed at expelling them from the country. Although the majority has returned, they still claim that they face discrimination and unequal rights; between 1996 and 1997, many of them tried to establish their case for asylum, in Bangladesh, citing the potentially fatal threat that awaited then if they returned.6 Besides doing discriminate, the government does not recognize Rohingyas as citizens of Myanmar, which is regulated on Burma Citizen Law 1982, in article (4) stated: “The Council of State may decide whether any

ethnic group is national or not” that is one of the reasons that the Rohingyas

ethnic becomes stateless.

Under the military regime of General Ne Win, beginning in 1962, the Muslim residents of Arakan were wrongfully labeled illegal immigrants who had settled in Burma during the British rule. Their history and culture to their ancestral land was conveniently ignored. The Burmese central government

5_Ibid.

made all efforts to drive them out of Burma, starting with the denial of their citizenship. The 1974 Emergency Immigration Act took away Burmese nationality from the Rohingyas, making them foreigners in their own country. Then came the Burma Citizenship Law of 1982 violating several fundamental principles of the international law and effectively reduced them to the status of Stateless.7

The human rights and humanitarian condition of the Rohingya is further exasperated by their official “statelessness.” The Citizenship Act, enacted in 1982, codified the legal exclusion of the Rohingya, presently numbering approximately one million, by denying the group citizenship rights. The Act officially recognizes 135 “national races” that qualify for citizenship. The Rohingya Muslims are not included on that list and as such are denied the full benefits of citizenship on account of what the Burmese government has described as their “nonindigenous ancestry.” Widespread societal prejudice against the group informs the historical (and contemporary) lack of political will to repeal the law. To be sure, the denial of Burmese citizenship has resulted in additional injustices and inequalities. Illustrative is a Burmese law—the Emergency Immigration Act—requiring the possession of National Registration Certificates by all citizens. As non-citizens, however, the Rohingya can only possess Foreign Registration Cards, which are rejected by a number of schools and employers.8

7Habib Siddiqui, “A Long History of Injustice Ignored: Rohingya: The Forgotten People of Our

Time”, Islam Awareness, taken from

http://www.islamawareness.net/Asia/Burma/ro_article003.html accessed on March 23th _{2016, at}

7.03 a.m

As of 1999, there have been no less than 20 major operations of eviction campaigns directed against the Rohingyas that were carried out by the successive Governments of Burma. In pursuance of the 20-year Rohingya Extermination Plan, the Arakan State Council under direct supervision of State Council of Burma carried out a Rohingya drive operation code named Naga Min or King Dragon Operation. It was the largest, the most notorious and probably the best-documented operation of 1978. The operation started on 6th February 1978 from the biggest Muslim village of Sakkipara in Akyab, which sent shock waves over the whole region within a short time. News of mass arrest of Muslims, male and female, young and old, torture, rape and killing in Akyab frustrated Muslims in other towns of North Arakan. In March 1978 the operation reached at Buthidaung and Maungdaw. Hundreds of Muslim men and women were thrown into the jail and many of them were being tortured and killed. Muslim women were raped freely in the detention centers. Terrified by the ruthlessness of the operation and total uncertainty of their life, property, honor and dignity, a large number Rohingya Muslims left their homes to cross the Burma-Bangladesh border.9

In 2012, local Buddhists blame the Muslims Rohingyas for the outbreak of violence, which appeared to have started when a woman was raped and killed. Three Muslim men are in custody following the attack. In what seems to have been a revenge attack, 10 Muslims were killed in an attack

on a bus.10 That's made the situation become worse and a riots between both of ethnic Rakhine and ethnic Rohingyas arouse in Arakan.

As a result of the riots, 88 people lost their lives of which 31 people were Rakhine and 57 were Muslim Bengalis. Similarly, houses and religious buildings from both communities were burnt down. The Government took immediate actions with full restraint to restore law and order and stability in places where riots broke out since the very beginning of violence. As a result, law and order in Rakhine State is improving and overall situation is now returning to normalcy.11 _{This condition forced them to become boat people} and fled to get an asylum especially in Thailand, Malaysia and Indonesia.

On May 2015, hundreds of Rohingyas people escape form Myanmar in boats to find good welfare in new country. They stayed in the boat for almost 2 months with no food and water. Even some people jumped into the sea because theirlive jostle in the boat. Finally Rohingys have landed in Aceh, Indonesia and have received proper treatment by the Government of Indonesia. They also get help from many other countries.

Until nowadays, there are the Rohingya Muslims in Indonesia as many as 11.941 people, it is based on the data received by the Foreign Minister of Indonesia since 2005. For the Rohingyas who arrived in Indonesia recently, the number was around 1,346 people. The first group of as many as 558

10Anonymous, “Old tensions bubble in Burma”, BBC News, taken from

http://www.bbc.co.uk/news/world-asia-18402678 accessed on November 6th _{2015 at 12.14 a.m.} 11Ministry of Foreign Affairs Nay Pyi Taw, “The Government of the Republic of the Union of

Myanmar Ministry of Foreign Affairs”, Webcitation, taken from

people, second until the third group of as many as 664, followed by 47 and 96.12

B. The Protection of Refugee According to International Refugee Law

Every citizen has rights to get protection from their government, because protecting citizen is primarily their responsibility of States. Sometimes in reality, not all of States are able to protect their citizen. Moreover, some of the States commit discrimination and human rights abuse or similar harm to its citizens. If the state cannot provide the protection to their citizens itself, in the end citizens need to survive and leave their homeland to seek a safe place to live in another country.

Someone who is very vulnerable to safety because he is a stateless person, or who is persecuted in their homeland and also des not have any protection is called as a Refugee. The existence of Refugees has increased in number from year to year. It shows that the existence of refugees should be given special attention. International community try to solve the problems of refugees, the humanity as human beings has led them to provide protection and help refugees. This was due to the refugees who escaped from their country and have no protection from their country, and it will difficult for the refugees to survive in their new environment. According to Universal

Article VII

reservations and declarations

1. _{At the time of accession, any State may make reservations in respect of}

article IV of the present Protocol and in respect of the application in accordance with article I of the present Protocol of any provisions of the Convention other than those contained in articles 1, 3, 4, 16 (1) and 33 thereof, provided that in the case of a State Party to the Convention reservations made under this article shall not extend to refugees in respect of whom the Convention applies.

2. _{Reservations made by States Parties to the Convention in accordance}

with article 42 thereof shall, unless withdrawn, be applicable in relation to their obligations under the present Protocol.

3. _{Any State making a reservation in accordance with paragraph 1 of this}

article may at any time withdraw such reservation by a communication to that effect addressed to the Secretary-General of the United Nations.

4. _{Declarations made under article 40, paragraphs 1 and 2, of the}

Conven-tion by a State Party thereto which accedes to the present Protocol shall be deemed to apply in respect of the present Protocol, unless upon accession a notification to the contrary is addressed by the State Party concerned to the Secretary-General of the United Nations. The provisions of article 40, paragraphs 2 and 3, and of article 44, paragraph 3, of the Convention shall be

deemed to apply mutatis mutandis to the present Protocol.

Article VIII

entry intoforce

1. _{The present Protocol shall come into force on the day of deposit of the}

sixth instrument of accession.

2. _{For each State acceding to the Protocol after the deposit of the sixth}

instrument of accession, the Protocol shall come into force on the date of deposit by such State of its instrument of accession.

50 C O N V E N T I O N A N D P R O T O C O L

Article IX

denunciation

1. _{Any State Party hereto may denounce this Protocol at any time by a}

noti-fication addressed to the Secretary-General of the United Nations.

2. _{Such denunciation shall take effect for the State Party concerned one year}

from the date on which it is received by the Secretary-General of the United Nations.

Article X

notifications

By thesecretary

-

generalof theunitednations

The Secretary-General of the United Nations shall inform the States referred to in article V above of the date of entry into force, accessions, reservations and withdrawals of reservations to and denunciations of the present Proto-col, and of declarations and notifications relating hereto.

Article XI

deposit inthearchives

ofthesecretariat oftheunitednations

A copy of the present Protocol, of which the Chinese, English, French, Rus-sian and Spanish texts are equally authentic, signed by the President of the General Assembly and by the Secretary-General of the United Nations, shall be deposited in the archives of the Secretariat of the United Nations. The Secretary-General will transmit certified copies thereof to all States Members of the United Nations and to the other States referred to in article V above.

Protocol relating to the Status of Refugees

THE GENERAL ASSEMBLY,

considering that the Convention relating to the Status of Refugees, signed at

Geneva on 28 July 1951(1)_{, covers only those persons who have become}

refu-gees as a result of events occurring before 1 January 1951,

considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,

considering that it is desirable that equal status should be enjoyed by all refu-gees covered by the definition in the Convention, irrespective of the date-line of 1 January 1951,

taKingnote of the recommendation of the Executive Committee of the

Pro-gramme of the United Nations High Commissioner for Refugees(2) _{that the}

draft Protocol relating to the Status of Refugees should be submitted to the General Assembly after consideration by the Economic and Social Council, in order that the Secretary-General might be authorized to open the Protocol for accession by Governments within the shortest possible time,

general assemBly resolution

2198

(

xxi

)

(1) United Nations, Treaty Series, vol. 189 (1954), No. 2545. (2) See A/6311/Rev.1/Add.1, part two, para. 38.

52 C O N V E N T I O N A N D P R O T O C O L

considering that the Economic and Social Council, in its resolution 1186 (XLI) of 18 November 1966, took note with approval of the draft Protocol contained in the addendum to the report of the United Nations High Commissioner for Refugees and concerning measures to extend the personal scope of the

Con-vention(3) _{and transmitted the addendum to the General Assembly,}

1. taKesnote of the Protocol relating to the Status of Refugees, the text

of which(3) _{is contained in the addendum to the report of the United}

Nations High Commissioner for Refugees;

2. _{reQuests the Secretary-General to transmit the text of the Protocol to}

the States mentioned in article V thereof, with a view to enabling them

to accede to the Protocol(4)_.

1495th _{plenary meeting, 16 December 1966}

(3) Ibid., part one, para. 2.

(4) The Protocol was signed by the President of the General Assembly and by the

Secretary-General on 31 January 1967. UN

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