Stateless refugees and the right to return: The Bihari refugees of South Asia - Part 1

International Journal of Refugee Law

Volumn 11, Issue 4, 1999, Pages 625-645

  Sen, Sumit ^a,b,c  

^a LL M in Human Rights Law   (United Kingdom)

^b JAWAHARLAL NEHRU UNIVERSITY   (India)

^c LONDON SCHOOL OF ECONOMICS   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

HUMAN RIGHTS; IMMIGRATION POLICY; LEGAL SYSTEM; REFUGEE;

INDIA; PAKISTAN;

EID: 0033361834     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/11.4.625     Document Type: Article

References (118)

1. Hashmi, Taj, 'The "Bihari" Minorities in Bangladesh: Victims of Nationalisms', mimeo (1996) 4.
2. Minority Rights Group, The Biharis in Bangladesh, Report 11, 4th ed., (Jan. 1982), 7.
3. Chowdhury, E. Haque, 'Non-Bengali Refugees in Bangladesh: Patterns, Policies and Consequences', in Rogge, John (ed.), Refugees: A Third World Dilemma, Rowman & Littlefield, New Jersey, (1987), 220.
4. Although it has argued that the Urdu-speaking educated, well-to-do and businessman preferred West Pakistan to East Pakistan as they envisaged the existing socio-economic-political conditions congenial for their future prospects. See Begum, Khurshida, 'The Stranded Pakistanis in Bangladesh and International Implications', paper, International Workshop on Internationalization of Ethnic Conflict, International Centre for Ethnic Studies, Kandy, Sri Lanka, 2-4 Aug. 1989, 9.
5. The term Muhajir literally translates to mean a refugee. In this case, the Muhajir is the Bihari refugee.
6. Chowdhury, 'Non-Bengali Refugees in Bangladesh', above n. 3, 223.
7. It has been argued that the government provided the Biharis bank credit facilities for industrial and commercial investments and nominal interest rates, licences for national and international trade, large scale estate housing and the establishment of Urdu-medium schools. Over a period, '[a]ll these had their impact (on the social and economic fabric of East Pakistan, resulting in alienation and) on the disintegration process', leading to the independence of Bangladesh. 'The government deliberately followed a policy to keep the Biharis isolated from the Bengalis'. See Begum, Khurshida, 'The Stranded Pakistanis', above n.4, 10-12.
8. See Chowdhury, 'Non-Bengali Refugees in Bangladesh', above n. 3, 224.
9. Hashmi, Taj, 'The "Bihari" Minorities in Bangladesh', above n. 1, 6.
10. Ibid., 5. In fact, Mujibur Rahman, later the first Prime Minister of Bangladesh, is said to have urged Bihari Muslim refugees to emigrate to East Pakistan. See Chatterjee, Basant, Inside Bangladesh Today: An Eyewitness Account, New Delhi (1973), 85.
11. Ibid., 5. In fact, Mujibur Rahman, later the first Prime Minister of Bangladesh, is said to have urged Bihari Muslim refugees to emigrate to East Pakistan. See Chatterjee, Basant, Inside Bangladesh Today: An Eyewitness Account, New Delhi (1973), 85.
12. The history of disintegration of Pakistan in 1971 and the massive refugee flows from East Pakistan into India are extensively discussed in Callard, Keith, Pakistan: A Political Study, London (1957).
13. Hashmi argues that the upper echelons of the Biharis in East Pakistan, as junior partners of West Pakistani business groups, believed that their existence and continued prosperity depended on the goodwill of the Pakistani ruling elite. 'Consequently they also joined the anti-East Pakistani and pro-West Pakistani stream, mobilising the half-educated or illiterate, poorer, working class sections of the Biharis against the Bengali neighbours, thus forsaking the economic and political interests of their adopted home, East Pakistan. On several occasions, Bihari mill-workers at Narayanganj, Dhaka, Khulna and Chittagong took part in anti-Bengali communal riots, whipped up their Pakistani masters in the 1950s and 1960s'. Hashmi, above n. 1, 7.
14. Ibid., 8.
15. Ahmed, Kamruddin, The Social History of East Pakistan, University Press, Dhaka (1967), 124.
16. While interestingly, most of the Muhajirs in West Pakistan openly defied Ayub Khan and demanded more rights and opportunities. 'This indicates that, unlike the Biharis in East Pakistan, refugees from India in Karachi had leaders from within their community who did not want to compromise with the central government at the expense of their adopted home, Karachi'. See Hashmi, above n. 1, 9.
17. The first movement of 10 million refugees, when the Bengali refugees fled to India, returned in the early 1970s and have been successfully resettled. The second constitutes the Bihari refugees who fled their homes in East Pakistan because of persecution by the majority Bengali population, are presently in Bangladesh, and are still awaiting a resolution to their inordinately long crisis.
18. Since South Asia lacks domestic refugee legislation, the 1951/67 definition is used as the basic international definition.
19. Goodwin-Gill, G.S., The Refugee in International Law, Oxford: Clarendon Press, 2nd ed., 1996, 40.
20. The results of the parliamentary elections fuelled the dissatisfaction of the Bengali mass, when on 1 Mar. 1971, President Yahya Khan prorogued the impending parliamentary session, with the excuse of formulating an understanding between the Awami League (East Pakistan-based, majority party in Parliament) and the Pakistan People's Party (West Pakistan-based, with the second largest majority), in order to reach a consensus on the future constitution of Pakistan. See Hashmi, above n. 1, 11.
21. Aziz, Qutbuddin, Blood and Tears, Karachi (1974).
22. Minority Rights Group, The Biharis in Bangladesh, London (1982) 8-9.
23. Mascarenhas, Anthony, The Rape of Bangladesh, Delhi (1971). These figures are corroborated by another report, which stated 'the brutal massacre of thousands of non-Bengalis . . . (where) 20,000 bodies have been found . . . in Bengal's main towns but the final count could top 100,000': The Sunday Times, London, 2 May 1971.
24. Mascarenhas, Anthony, The Rape of Bangladesh, Delhi (1971). These figures are corroborated by another report, which stated 'the brutal massacre of thousands of non-Bengalis . . . (where) 20,000 bodies have been found . . . in Bengal's main towns but the final count could top 100,000': The Sunday Times, London, 2 May 1971.
25. Browne, Malcolm, New York Times, 10 May 1971.
26. The Times, London, 6 Apr. 1971. A memorandum by Diwan Wirasat Hussain of the East Pakistan Refugee Association delivered to the British Parliamentary Delegation on 20 Jun. 1971 estimated that out of 50,000 Muslim refugees, that is, Biharis, barely 150 survived in Mar.-Apr. 1971, before the arrival of the Pakistani troops. See Aziz, Qutbuddin, above n. 20, 121.
27. The Times, London, 6 Apr. 1971. A memorandum by Diwan Wirasat Hussain of the East Pakistan Refugee Association delivered to the British Parliamentary Delegation on 20 Jun. 1971 estimated that out of 50,000 Muslim refugees, that is, Biharis, barely 150 survived in Mar.-Apr. 1971, before the arrival of the Pakistani troops. See Aziz, Qutbuddin, above n. 20, 121.
28. Aziz, Qutbuddin, above n. 20, 183, where it was stated, 'I am an eyewitness of how Bihari businessmen and their family members were gunned down and how 700 Biharis were kept in jail and later killed by Bengalis at Sirajganj town in April 1971, prior to the arrival of the Pakistani army'.
29. East Pakistan Crisis, White Paper, Government of Pakistan, Aug. 1971.
30. Operational headquarters of the Bengali troops.
31. Aziz, Qutbuddin, above n. 20, 48.
32. Ziring, Lawrence, Bangladesh from Mujib to Ershad: an Interpretive Study, University Press, Dhaka (1992) 64-5.
33. A military officer, later Lieutenant-General and President of Bangladesh till 1981.
34. The systematic massacre of the Biharis was complete when in 28 March 1971 Zia-ur-Rahman ordered his troops to shoot the male Biharis prisoners in Chittagong, and allowed his troops to outrage the modesty of the female prisoners. See Mascarhenas, Anthony, Bangladesh: A Legacy of Blood, London (1986) 118-9, 122.
35. Begum, Khurshida, above n. 4, 13.
36. Umar, Badruddin, Juddhattar Bangladesh (Bangladesh after the War), Muktodhara, Dhaka (1982) 26.
37. Begum, Khurshida, above n. 4, 17.
38. Canada v. Ward, 2 SCR 689 (1993).
39. See Goodwin-Gill, Refugee, 49.
40. Ibid., 71-2.
41. Hashmi, above n. 1, 19.
42. 'Tiger' Kader Siddiqui was granted general amnesty for his political crimes by Mujibur Rahman.
43. Minority Rights Group, above n. 21, 9.
44. Report, Friends of Bangladesh Conciliation Mission, London (27 April-23 May 1972) 7.
45. Chatterjee, Basant, above n. 10, 102-13.
46. See Report, Friends of Bangladesh Conciliation Mission, above n. 41, 11. This has been further corroborated in the interviews conducted in the Bihari camps.
47. Ibid., 8-12.
48. The Times, 11 May 1972.
49. The Times, 2 May 1972.
50. The Daily Telegraph, 14 Mar. 1972.
51. The Observer, 16 Apr. 1972.
52. Ben Whitaker wrote, the '. . . psychological despair (is) developing in the Bihari ghettos (read refugee camps) . . . the Biharis do not have the courage to venture outside (the camps), even to contact the authorities'. See The Observer, 14 May 1972.
53. Also referred to as Presidential Order 16 of 1972.
54. Ibid., s. 2(l)(i).
55. See s. 2(1), Bangladesh (Taking Over of Control and Management of Industrial and Commercial Concerns) Order, 1972, also referred as Acting President's Order I, 1972, in Rakshit, M.K., The Law of Abandoned Properties in Bangladesh, SR Rakshit Publisher, Chittagong (1994) 18-19.
56. Ibid., s. 2(2).
57. Hashmi, above n. 1, 22.
58. The first reference to these officials is stated in s. 7(1) of the Bangladesh (Taking Over of Control and Management of Industrial and Commercial Concerns) Order, 1972. See Rakshit, above n. 52, 25-6.
59. Ahmed, Moudud, Bangladesh: Era of Sheikh Mujibur Rahman, Dhaka (1991) 16-19. See text of the Order in Rakshit, above n. 52, 23-44.
60. Ahmed, Moudud, Bangladesh: Era of Sheikh Mujibur Rahman, Dhaka (1991) 16-19. See text of the Order in Rakshit, above n. 52, 23-44.
61. As an example, the case of Mr Murad Ali Qureshi deems attention. Qureshi was employed by the Central India Customs and Excise Department in Calcutta. In 1947 he opted for Pakistan and was transferred to East Pakistan. In 1971, while he was the Assistant Director, Customs Intelligence and Investigation, his house in Chittagong was declared abandoned and allotted to a Bengali. The assets were forcibly removed and he was forced to go on unpaid leave. His failure at judicial recourse in Bangladesh led him successfully to seek repatriation to Pakistan. Correspondence of (a) Abdul Hamid Ghazi, First Secretary, National Affairs, Overseas Pakistanis and Prisons Division, Government of Pakistan, FS/OP/7503, 25 Feb. 1975, (b) ICRC Delegation in Pakistan, 10 Mar. 1975, (c) Anne Marie Testut, ICRC Delegate, Bangladesh, Case No.B/14661, 2 Apr. 1975.
62. See O'Connell, D.P., International Law, 2nd ed., 1970, 377-81, 388-9; State Succession, 2nd ed., chs. 6, 10.
63. See O'Connell, D.P., International Law, 2nd ed., 1970, 377-81, 388-9; State Succession, 2nd ed., chs. 6, 10.
64. The citizenship laws were in force as under the Bangladesh Citizenship (Temporary Provisions) Rules in 1978. See Rakshit, above n. 52, 140.
65. The 'zero option' solution was adopted, in general, by States that consist of a majority of their own ethno-national group, under which citizenship is granted to all people living in the republic either at the time of independence or at the moment the new nationality or citizenship law was passed. This conception has been discussed, among others, in Henckaerts, Jean-Marie, Mass Expulsion in Modern International Law and Practice, Martinus Nijhoff Publishers, The Hague/Boston/London (1995) 92.
66. See The Economist, 13 May 1972. Further, it was argued by Sunanda Datta-Ray, '[a]ssimilation (of Biharis) with the aggressively Bengali culture of Bangladesh - Bengali has been declared the language for schools, courts and Government offices - is out of question. Even Indians from West Bengal wince at the militancy of Bengali chauvinism in the East (ie Bangladesh)'. See The Observer, 12 Mar. 1972.
67. See The Economist, 13 May 1972. Further, it was argued by Sunanda Datta-Ray, '[a]ssimilation (of Biharis) with the aggressively Bengali culture of Bangladesh - Bengali has been declared the language for schools, courts and Government offices - is out of question. Even Indians from West Bengal wince at the militancy of Bengali chauvinism in the East (ie Bangladesh)'. See The Observer, 12 Mar. 1972.
68. S. 2(l)(i), The Bangladesh (Taking Over of Control and Management of Industrial and Commercial Concerns) Order, 1972.
69. Prominent were Korban Ali, Shah Moazzem and nephew of Mujibur Rahman, Sheikh Fazlul Haq Moni. See Chatterjee, above n. 10, 102-13.
70. Ahmed, Moudud, Bangladesh: Era of Sheikh Mujibur Rahman, Dhaka (1991) 14-16.
71. The Bangladesh High Commissioner to the United Kingdom stated, '. . . I have on the authority of my Government to say that no such killing has taken place anywhere in Bangladesh'. See Letter to the Editor by Syed Abdus Sultan, The Times, London, 12 May 1972.
72. Weis, P., Nationality and Statelessness in International Law, 2nd ed., 1979, 127.
73. Ibid., 127-31. However, if the deprivation is not a part of a delictual act but merely involves denationalization of groups of citizens domiciled within the frontiers of a State, who lack any other links, then there is no delict.
74. Cf. Brownlie, I., 'The Relations of Nationality in Public International Law', 39 BYIL 284, 337 (1963); art. 1(2), CSR51; art. 9, 1961 Convention on the Reduction of Statelessness.
75. See above, Table 3.
76. Stranded Pakistanis in Bangladesh, Ministry of Relief and Rehabilitation, Government of the People's Republic of Bangladesh (1982) 3. However, interviews with a wide cross-section of the Bihari refugees prove that the governmental figures in relation to acceptance of Bangladeshi citizenship were grossly exaggerated.
77. Minority Rights Group, above n. 21, 13.
78. The persistent demand to repatriate to Pakistan made in 1972 is still held by Bihari refugees. This is corroborated by interviews conducted in 1996-97.
79. The Daily Telegraph, 18 Feb. 1972; The Times, 18 May 1972.
80. The Daily Telegraph, 18 Feb. 1972; The Times, 18 May 1972.
81. The Observer, 14 May 1972. However, Bangladesh did not proceed with the trials as an act of clemency. See Bangladesh-Pakistan-India Agreement on the Repatriation of POWs and Civilian Internees, 13 ILM (1974) 501, para. 15.
82. The Observer, 14 May 1972. However, Bangladesh did not proceed with the trials as an act of clemency. See Bangladesh-Pakistan-India Agreement on the Repatriation of POWs and Civilian Internees, 13 ILM (1974) 501, para. 15.
83. The Economist, 13 May 1972.
84. The Guardian, 11 May 1972.
85. 'Bangladesh-Pakistan-India Agreement on the Repatriation of POWs and Civilian Internees', 13 ILM (1974) 501.
86. See Office Memorandum by M. Aslam Tariq, No.31/78-Rep-I, Cabinet Division, Government of Pakistan, Rawalpindi, 26 Aug. 1978.
87. As quoted from the application receipt retained by Mr Shakoor, Ref No MD-10461, Geneva Camp, Mohammedpur, Dhaka.
88. Bangladesh-Pakistan-India Agreement, above n. 77, para. 12.
89. Ibid.
90. This was further emphasized by Nasim Khan. See Proceeding Report, International Conference to Consider the Plight of the Non-Bengalis in Bangladesh Who Opt to go to Pakistan, International Council of Voluntary Agencies, Geneva (13-14 Dec. 1982), Annexures III.
91. The term family was defined to include only the husband, wife and children under 18. See Proceeding Report, International Conference, above n. 82, Annexures IV; Salahuddin, M, Citizens of Utopia, Impact International, 25 July-7 August 1980.
92. The term family was defined to include only the husband, wife and children under 18. See Proceeding Report, International Conference, above n. 82, Annexures IV; Salahuddin, M, Citizens of Utopia, Impact International, 25 July-7 August 1980.
93. Proceeding Report, International Conference, above n. 82, 5.
94. A Study on Statelessness, UN doc. E/1113 and Add.1(1949).
95. Batchelor, Carol, 'Stateless Persons: Some Gaps in International Protection', 7 IJRL 241 (1995). It has been argued that this division was in fact implicit in the ECOSOC res, 116D(VI), 1-2 Mar. 1948, which requested the Secretary-General (a) to undertake a study of the existing situation in relation to the protection of stateless persons and (b) to undertake a study of national legislation and international agreements and conventions relevant to statelessness. It is clearly evidenced that (a) dealt with the status of refugees and (b) with the elimination and reduction.
96. Batchelor, Stateless Persons, above n. 86, 243.
97. Report of the Ad hoc Committee on Statelessness and Related Problems, UN doc. E/1618 and Corr.1, 17 Feb. 1950 at 120.
98. Report of the International Law Commission, A/CN.4/88 (1954) 8. The Special Rapporteur Manley Hudson had commented that '[p]urely formal solutions . . . might reduce the number of stateless persons but not the number of unprotected persons. This might lead to a shifting from statelessness de jure to statelessness de facto'. He further had stated that the 'so-called stateless persons de facto are nationals of a State who are outside its territory and devoid of its protection; and to call this group de facto unprotected persons, in distinction to de jure unprotected persons ie stateless persons'. See Hudson, Manley, Report on Nationality, Including Statelessness, International Law Commission, UN doc. A/CN/.4/50 (21 Feb. 1952) 49.
99. Report of the International Law Commission, A/CN.4/88 (1954) 8. The Special Rapporteur Manley Hudson had commented that '[p]urely formal solutions . . . might reduce the number of stateless persons but not the number of unprotected persons. This might lead to a shifting from statelessness de jure to statelessness de facto'. He further had stated that the 'so-called stateless persons de facto are nationals of a State who are outside its territory and devoid of its protection; and to call this group de facto unprotected persons, in distinction to de jure unprotected persons ie stateless persons'. See Hudson, Manley, Report on Nationality, Including Statelessness, International Law Commission, UN doc. A/CN/.4/50 (21 Feb. 1952) 49.
100. This argument is further corroborated by Goodwin-Gill, who states 'Refugee status . . . might appear determinable in the light of the situation prevailing in the country of origin as the "country of former habitual residence".' He dismisses Hathaway by stating in a footnote that '[t]here is no historical, textual or commonsensical basis for the view that because a stateless person is not "returnable" to his or her country of former habitual residence, so he or she is not in danger of being refouled and therefore not a refugee': see Goodwin-Gill, Refugee, 42.
101. Stenberg, Gunnel, Non-Expulsion and Non-Refoulement, Iustus Forlag, Uppsala (1990) 60.
102. Goodwin-Gill, Refugee, 41.
103. Goodwin-Gill, Refugee, 42. He had earlier noted: 'Stateless persons have not been historically distinguished. Refugees and stateless persons [w]alked hand in hand, and after the First World War, their numbers and condition were almost coterminous . . . their paths diverged, with refugees being identified by reference to the reasons of flight, and their statelessness, if it existed, (was) seen as incidental to the primary cause', Goodwin-Gill, G.S., 'The Rights of Refugees and Stateless Persons: Problems of Stateless Persons and the Need for International Measures of Protection', in Saksena, K.P., ed., Human Rights Perspectives and Challenges (in 1990 and Beyond), Lancer Books, New Delhi (1994) 389-90.
104. Goodwin-Gill, Refugee, 42. He had earlier noted: 'Stateless persons have not been historically distinguished. Refugees and stateless persons [w]alked hand in hand, and after the First World War, their numbers and condition were almost coterminous . . . their paths diverged, with refugees being identified by reference to the reasons of flight, and their statelessness, if it existed, (was) seen as incidental to the primary cause', Goodwin-Gill, G.S., 'The Rights of Refugees and Stateless Persons: Problems of Stateless Persons and the Need for International Measures of Protection', in Saksena, K.P., ed., Human Rights Perspectives and Challenges (in 1990 and Beyond), Lancer Books, New Delhi (1994) 389-90.
105. Batchelor, Stateless Persons, above n. 86, 239.
106. Goodwin-Gill, Refugee, 42.
107. Ibid. Also Fisher Williams, J, 'Denationalization', 8 BYIL (1927) 45.
108. Ibid. Also Fisher Williams, J, 'Denationalization', 8 BYIL (1927) 45.
109. Art. 27 ICCPR66 provides that '[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language'. The Bihari can be termed as a national minority of Pakistan, based on their ethnic origin and difference. With regard to refugee status, and drawing on art. 27, the persecution by Pakistan of her national minority (that is, Biharis) occurred by the denial to the minority's right to return to their country of habitual residence. It is obvious that the State practice of the denial of nationality and the resultant persecution, would qualify the Biharis for refugee status on reasons, apart from others, of nationality. See Grahl-Madsen, A., The Status of Refugees in International Law, vol.1, (1966) 218-9.
110. Linguistic minorities have been studied, among others, in Capotorti, F., Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, UN doc. E/CN.4/Sub.2/384/Rev.1 (1978); Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities: UN doc. E/CN.4/1994/72 (13 Dec. 1993).
111. Linguistic minorities have been studied, among others, in Capotorti, F., Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, UN doc. E/CN.4/Sub.2/384/Rev.1 (1978); Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities: UN doc. E/CN.4/1994/72 (13 Dec. 1993).
112. Goodwin-Gill, Refugee, 41. In addition, the travaux préparatoires of the 1951 Convention provide further evidence in favour of the Biharis as de facto stateless refugees. The Ad Hoc Committee agreed that 'unable', hence the inability, referred to stateless refugees who possessed a nationality but are refused passports or other protection by their governments. See Report of the Ad Hoc Committee, UN doc. E/1618 at 39.
113. Goodwin-Gill, Refugee, 41. In addition, the travaux préparatoires of the 1951 Convention provide further evidence in favour of the Biharis as de facto stateless refugees. The Ad Hoc Committee agreed that 'unable', hence the inability, referred to stateless refugees who possessed a nationality but are refused passports or other protection by their governments. See Report of the Ad Hoc Committee, UN doc. E/1618 at 39.
114. It has been argued that persecution for reasons of nationality is also understood to include persecution because of lack of nationality, resulting in statelessness. See Grahl-Madsen, Status of Refugees, 219.
115. However, if they renounced their nationality for personal convenience, they would not be entitled to special protection. See UN doc. E/CONF.17/SR.10, 11.
116. Brownlie proposes that '. . . large numbers of refugees may retain a de jure nationality for which they have no use and so are referred to as "de facto stateless".' See Brownlie, Ian, Principles of Public International Law, (5th ed., 1999) 560.
117. Batchelor, Stateless Persons, above n. 86, 248.
118. Stenberg, Non-Expulsion and Non-Refoulement, above n. 91, 76.