Picture Taken from New Straits Times
The Joint Action Group for Gender Equality (JAG) and the Coalition for Child Rights Malaysia (CRCM) are appalled at the arrest and detention of 269 Rohingya asylum seekers, including 49 children, who arrived in Malaysia on Monday by boat.
The government should immediately release these individuals and cease the practice of detaining refugees.
At the outset, Malaysia’s unwillingness to legally recognize refugees – who by definition have fled their countries without a choice as a result of persecution and infringement on their most basic human rights, and are in need of international protection – is extremely inhumane and results in a violation of the norms of customary international law, including the right to seek asylum enshrined in the Universal Declaration of Human Rights (UDHR) and the principle of non-refoulment.
The arrest and detention of 49 children is a direct violation of our treaty obligations under the UN Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), as well as obligations under our own Child Act 2001.
Recognizing Refugees Part of Customary International Law
In addition to being bound by the specific conventions and treaties that we actively accede to, Malaysia, like all other countries, is bound by the norms of customary international law, whether or not they have been codified domestically.
Many legal scholars argue that the UDHR in its entirety – including the right to seek asylum – has become a part of customary international law. Additionally, among the principles that make up customary international law is the principle of non-refoulment, which prohibits any state from forcing refugees and asylum seekers to return to a country in which they may face persecution. There is no doubt that the Rohingya fall into this category of individuals.
In January, the UN International Court of Justice (ICJ) issued a preliminary decision in a case brought by the Gambia against Myanmar under the 1948 UN Genocide Convention for its treatment of Rohingyas.
In this preliminary decision, the ICJ found that the Rohingya were a “protected group within the meaning of the Genocide Convention” and that “there is a real and imminent risk of irreparable prejudice to the rights (of the Rohingya).”
Notably, Malaysia has in the past acknowledged the situation of Rohingyas, including supporting Gambia’s action against Myanmar at the ICJ as a member of the Organisation of Islamic Cooperation (OIC). However, subsequently, Malaysia’s actions towards the Rohingya have been contradictory.
From preventing boatloads of Rohingyas from entering Malaysian waters in April– resulting in the deaths of 30 individuals and the need for critical medical care of 400 others – to immediately arresting and detaining hundreds of Rohingyas on arrival, the government has made no progress towards acknowledging the rights or internationally recognized refugee status of Rohingyas.
Those Rohingyas who have remained in Malaysia face ongoing discrimination, harassment, and violence.
The principle of non-refoulment to which Malaysia and every country are bound is not strictly limited to a prohibition on directly returning refugees or asylum seekers to a country in which they would be persecuted. Rather, this principle extends to the circumstances into which refugees and asylum seekers are received.
According to the United Nations High Commissioner for Refugees (UNHCR): “In order to ensure that the principle of non-refoulment is respected and that those in need of international protection are identified and not forcibly returned to a situation of risk, they must have access to an asylum procedure, they must not be sent to a third country… and finally, the procedure for determining if they are refugees in need of protection must include certain guarantees and follow certain practices.”
Arresting and detaining Rohingya refugees upon their arrival and restricting their access to any asylum procedure, interpreters, UNHCR, or NGO support violates the principle of non-refoulment and the minimum standards required to uphold this principle.
Arrest of Children Violates CRC, CEDAW, and Child Act
The arrest and detention of the 49 Rohingya children who arrived on Monday is both especially inhumane and appalling, and a direct violation of our international obligations.
Under the CRC, Malaysia is obligated to ensure that a child who is a refugee receives protection and humanitarian assistance. Article 37 of the CRC states that arrest and detention of a child must be used only as a “measure of last resort and for the shortest appropriate period of time.”
Additionally, Article 22 articulates the obligation to ensure that a child who is seeking refugee status or who is considered a refugee, whether unaccompanied or accompanied, receives appropriate protection and humanitarian assistance.
Community-based alternative care arrangements in place of immigration detention have been proposed since 2014, but have yet to be implemented despite the prime minister (who was the then home minister) acknowledging that children should not be detained in immigration depots and confirming plans to release children from depots to implement this alternative-to-detention program.
Additionally, general recommendation 32 of the CEDAW committee requires a gender-sensitive approach to be implemented at every stage of the asylum process. This includes taking into account the specific needs of survivors of sexual and gender-based violence and vulnerable groups of women and girls, including safe facilities and access to basic hygiene and healthcare needs.
Based on information in the Human Rights Commission of Malaysia (Suhakam) reports of refugees detained by the government, these standards are not being met, and girls in detention are at serious risk of sexual and gender-based violence.
In its 2018 concluding observations to Malaysia, the Cedaw committee recommended to the government to fully respect the principle of non-refoulment; to adopt national asylum and refugee procedures in conformity with international standards; and to establish alternatives to detention for refugee and asylum-seeking women and girls, while in the meantime taking measures to ensure their protection against gender-based violence.
Two years since these recommendations were made, no concrete steps have been taken towards their implementation and fulfilling our obligations under CEDAW.
Similarly, the CRC committee’s 2007 concluding observations to Malaysia included several measures related to refugee children, such as taking urgent measures not to detain children in connection with immigration proceedings unless it is necessary to protect their best interests and to develop a legislative framework for the protection of asylum-seeking and refugee children.
On a national level, the Child Act 2001 domesticated our obligations under the CRC and put into place numerous provisions to uphold the rights of children. The CRC applies to all children – its scope and protections are not limited to Malaysians.
Section 31 of the Child Act prohibits any person responsible for the care of a child from abusing or neglecting the child, or exposing the child to physical or emotional injury, making it an offense to do so.
Despite this and other provisions intended to protect children and uphold their best interests, refugee children continue to be detained and subjected to emotional trauma, physical violence, and violations of their rights on multiple levels.
Adopt a Comprehensive Legal Framework for Refugees
We urge the government to immediately release the 269 detainees, including 49 children, and work towards the adoption of a comprehensive legal framework for refugees and asylum seekers that upholds the best interests of refugee children.
Part of Malaysia’s obligation under the customary international law principle of non-refoulment is to have asylum procedures in place. In addition to this general obligation, the Cedaw committee and CRC committee have specifically advised the government to put such procedures in place in conformity with international standards.
The CRC committee advised the government to ratify the 1954 and 1961 Conventions addressing stateless persons and the reduction of statelessness, while both the CRC and Cedaw committees advised ratification of the 1951 Convention relating to the status of refugees and the 1967 Protocol. We urge the government to implement these recommendations.
Despite these obligations under international law and past acknowledgment of the situation of Rohingyas, Malaysia has not taken any concrete action towards implementing a comprehensive framework with procedures to determine asylum claims.
Furthermore, by failing to even take the step of legally recognizing refugees, Malaysia continues to turn a blind eye to individuals – including children – most at-risk and in dire need of protection and instead subjects these individuals to continued persecution, violence, and discrimination.
Malaysia must step up and fulfill our legal obligations under international and domestic law, and stop the continued persecution of individuals in need of international protection.