Refugee Watch

"A South Asian Journal on Forced Migration"

Issue NO.29

The Foreigner and The Right to Justice in The Aftermath of September 11 by Francois Crepeau
Exclusion from Refugee Protection in Europe: An Attempt at Legal Conceptualization by Patrick Hoenig
The Boundaries of Belonging: Reflections on Migration Policies into the Twenty-First Century by Alison Crosby
Who Went Where and How are They Doing? Pakistanis and Indians Outside South Asia by Papiya Ghosh
A Report by Women's League of Chinland on Hidden Crime Against China Women -Report I
A Report by Uddipana Goswami on Muslim IDPs in Western Assam -Report II
Bangladesh Minorities Increasingly at Risk of Displacement -Report III
Book Review by Anita Sengupta
Book Review by Samir Kumar Das 

The Foreigner and The Right to Justice in The Aftermath of September 11
by Francois Crepeau (*Professor of International Law, Canada Research Chair in International Migration Law, Scientific Director, Centre for International Studies (CÉRIUM), University of Montreal)

In January 2003, the Privacy Commissioner of Canada stated in his report for 2001-2002, to the Parliament, that[i]:

The Government is, quite simply, using September 11 as an excuse for new collections and uses of personal information about all of us Canadians that cannot be justified by the requirements of anti-terrorism and that, indeed, have no place in a free and democratic society…
Now I am informing Parliament that there is every appearance that governmental disregard for crucially important privacy rights is moving beyond isolated instances and becoming systematic. This puts a fundamental right of every Canadian profoundly at risk. It is a trend that urgently needs to be reversed…
Regrettably, this Government has lost its moral compass with regard to the fundamental human right of privacy.

These are extremely hard words, when expressed by an officer of Parliament with a majority Government in the House. The Commissioner was referring to various acts or draft legislations of the government, all prepared in the aftermath of September 11^th:
§          Canada Customs and Revenue Agency’s new passenger database;
§          the unrestricted access by Royal Canadian Mounted Police (RCMP) to all information that airline companies collect on their passengers and its transfer to foreign authorities under the Aeronautics Act[ii];
§          dramatically enhanced state powers to monitor our communications, especially international ones;
§          a possible national ID card with biometric identifiers, as advanced by the Citizenship and Immigration Minister, on the model of that which has already been adopted for permanent residents; and
§          the Government’s support of precedent-setting video surveillance of public streets by the RCMP.
Many of these measures would have never been accepted a decade ago. Why are considered acceptable today?
            A reason for this may be found in the fear of terrorism, exacerbated by the wars in Afghanistan and Iraq and also, up until recently, by the failure of the Middle East Road Map. There is another element of explanation which is not mentioned in official documents: in our collective mind, the persons who are targeted by anti-terrorist measures are essentially foreigners.
« If you have nothing to hide, you have nothing to be afraid of »: this is the McCarthyist argument which is put forward everywhere by those who justify drastic measures taken in the fight against terrorism. According to them, the new measures will provide effective protection for good citizens who respect the laws from all these foreigners ‘who hate us’.
            The classical rhetoric of the distinction between “them” and “us” is operating here. The deterioration of the rights of foreigners in Canada, as in other western countries, originates from the idea that, when security is at stake, a foreigner should not necessarily enjoy the same fundamental rights as the citizen.
            This breach of the fundamental dignity of the person does not seem to be objected to by a large majority of our population, even if it has devastating consequences for the individuals and their families, as long as these persons are foreigners.
            In effect, on purely moral grounds, it is somewhat difficult to reconcile the wave of sympathy created by the Maher Arar affair with the almost total indifference, if not hostility, with which most foreigners are sent back to a potentially similar fate.
            What is at stake here is the fate of foreigners who risk their freedom, their security or their life when returned home, or simply the fact that they may be detained or deported on very slim basis. Is also at stake the fate of their families in Canada. Individuals are uprooted, families may be separated, children may be wrenched from the only world they have ever known. Decisions having such consequences should be carefully monitored.
            I shall first illustrate the erosion of foreigners’ rights, during the last decade and especially as it is related to the current security agenda, and then underline the fact that foreigners are not anymore considered as persons necessarily deserving of justice and dignity.           

1. The Erosion of Foreigners’ Rights in Canada 

            During the 1990s, immigration entered what Didier Bigo called the paradigm of internal security. Immigration was considered more and more as an issue related to criminality[iii].
            After the events of September 11^th, the fear of terrorism led to the adoption of many new anti-terrorist measures and a reinforcement of the security-related policy apparatus in Canada and elsewhere. Immigration had entered the realm of national security.
            On October 12, 2001, the Minister of Citizenship and Immigration announced immigration measures to be integrated in the new anti-terrorist strategy.[iv]
            Two months later, the Canadian and U.S. governments issued the Joint Statement on Cooperation and Regional Migration Issues and the 30-point Action Plan for Creating a Secure and Smart Border.[v] Under these instruments, Citizenship and Immigration Canada enjoys primary responsibility, on Canada’s part, for ten initiatives, among which are:
§          Administering the processing of refugees and asylum-seekers, including screening for security or criminal risks and sharing information;
§          Managing claims for refugee status and asylum, including by negotiating an agreement to manage the flow at land borders of individuals seeking asylum;
§          Developing compatible immigration databases, by automating existing exchanges of lookout information and developing parallel immigration databases for regular information exchange.
            Many of these measures are perfectly understandable improvements on previous practice. They are a necessary tool in the fight against international criminal activities, such as terrorism.
            However, it is clear that they do not aim at protecting more individuals from persecution in their home country. On the contrary, efficient border management includes making sure that fewer persons will be able to reach the border and ask for protection. No provision is made in these instruments for more fully-fledged implementation of the 1951 U.N. Convention relating to the Status of Refugees or other human rights obligations.
            Indeed, we shall see that they may infringe upon the fundamental rights and freedoms of foreigners in ways that we would not deem acceptable if they were applied to ourselves as citizens in Canada or to Canadian citizens abroad by foreign authorities. 

1.1.Elimination of Appeals Available to Foreigners 

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

1.2. Reduction of Legal Aid 

            The Canadian refugee determination system is considered one of the best in the world. Ministers like to say that Canada has “the Cadillac” of the refugee determination systems. Based on the Canadian Charter of Rights and Freedoms, this system is quasi-judicial and each refugee claimant has the right to a hearing with full interpretation and the right to counsel. However, it has never been deemed important, in Canadian law and policy, to provide sufficient legal aid to help refugees prepare their case. Although the refugee determination system is of federal jurisdiction, legal aid in such matters has been left to the provincial legal aid schemes without insuring some equalization. In Ontario, the average legal aid fee for a refugee determination case is still over CAN$1500. In Quebec, it is CAN$455, which represents three hours of work, if an interpreter is not required. In British Columbia, legal aid for refugee determination cases was totally eliminated in June 2003, although further negotiations resulted in the re-introduction of a limited service in March 2004. The importance of legal aid in criminal cases has been underscored, in order to help accused persons to defend themselves properly and ensure the legitimacy of any subsequent guilty verdict. If the worst mafia boss has a right to legal aid, why is it that, in refugee cases, when the consequences of an erroneous decision can be death, torture or prison, the provision of legal aid is not thought equally important? 

1.3. Increased Powers of Detention 

            Although Canada’s detention practice is not as harsh as what can be seen in other countries such as the United States, the detention of undocumented asylum seekers has increased considerably in the past years. This increased detention was a policy objective announced by the minister.
            For example, the Immigration and Refugee Protection Act has a provision allowing an officer to arrest and detain a foreigner without warrant where he or she “has reasonable grounds to suspect that the permanent resident or the foreign national is inadmissible on grounds of security”: such a possibility is open if the officer determines, inter alia, that the arrest and detention of the person in question is necessary to prevent the carrying out of a terrorist activity.[vii] The normal level of evidence in such matters is that the officer must “believe on reasonable grounds” that a criminal activity will be committed. How low is the threshold of the “suspicion on reasonable grounds”? What is a suspicion based on unreasonable grounds? These questions remain to be answered by Canadian courts[viii].
            During the summer of 2003, some twenty persons, most of them Pakistani or Indian citizens studying in Canada, were arrested without warrant. There was a suggestion that they might have constituted a sleeper cell for Al-Qaeda. This suggestion was based on such information as their being registered in a flying school, or being registered with a now defunct business school, or having two different residential addresses in order to avoid paying higher auto insurance premiums, or having documents measuring the CN tower in Toronto. Most of them have been released on bail. The Immigration and Refugee Board Member who authorized their release noted that the activities deemed suspect were not special or unusual among potential new immigrants.[ix] 

1.4. Easier Use of Security Certificates 

            Security certificates, as an instrument for removing foreigners who pose a threat to the security of Canada, on grounds of security, or on grounds of a violation of human rights or international law, serious criminality or organized criminality, have been available under Canadian immigration legislation since 1991.
            Foreign nationals who are the subject of a security certificate are automatically detained. If the judge determines that the certificate is unreasonable, the certificate is quashed. If, however, the judge decides that it is reasonable, it is considered conclusive proof that the foreign national named in it is inadmissible. This is the case despite the fact that the foreigner has not had access to most of the evidence.
            The Immigration and Refugee Protection Act increased the effect of security certificates, by providing for suspension or termination of a claim for protection as refugee upon their issuance, by making broader provision for their issuance in relation to organized crime, by eliminating appeals, by preventing any access to Pre-Removal Risk Assessment and by streamlining the removal process[x].
            Specific procedures designed to deal with very sensitive information such as security intelligence are essential in any legal system and provisions have been recently added to the Criminal Code that deal with security issues, allowing for example some of the evidence to remain secret if a judge determines that this can be done without jeopardizing justice in the criminal proceedings involved[xi].
            However, a procedure providing for a person to be sent back to their country, eventually to persecution or torture, without knowing on what factual basis such an order is issued, seems completely arbitrary.
            Solutions to this real dilemma exist and some imagination has to be exercized here. For example, some have suggested that a small number of defence lawyers could be given full security clearance, be obliged to take a special oath of office and be assigned to the defence of foreigners under security certificates. They would thereafter be allowed to see the whole of the evidence against their client – although not to communicate it to their client – and would therefore be in a position to defend their client adequately[xii].
            The legitimacy of the whole security certificate system is at stake. 

1.5. Aggravated Sanctions for Human Smuggling  

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

1.6. Safe Third Country Agreement  

            Canada and the U.S. signed a Safe Third Country Agreement in December 2002.[xvi] This agreement will allow each country to send back to the other all the asylum seekers that have reached the territory of the former by way of the territory of the latter. Figures provided by Citizenship & Immigration Canada (CIC) indicate that from 1995 to 2001, approximately one-third of all refugee claims in Canada were made by claimants known to have arrived from or through the U.S. Of those claiming refugee status at a port of entry (at an airport or border post), where verification of transit countries may be more easily undertaken, 60% to 70% came from or through the U.S. on their way to Canada. No one seems to be able to provide hard data regarding the flow of refugee claimants from Canada to the U.S., but it appears to be less than a few hundred per year.[xvii]
            Such international cooperation is in principle desirable: it would be to the advantage of refugees if States cooperated to better protect them. However, in this case, one may question the basic premise that the U.S. is a “safe” country for all asylum seekers. NGOs[xviii] and the United Nations High Commissioner for Refugees expressed concerns about certain U.S. practices, especially in the fields of detention procedures and the expedited removal process. Canada is therefore preventing foreigners in the U.S. to ask for asylum in Canada, in the full knowledge that they will not be treated in a similar way than they could expect to be treated in Canada.
            By deciding to return asylum seekers to the U.S., Canada reduces by a third the caseload of the Immigration and Refugee Board (IRB). In doing so, however, Canada deprives these persons of a refugee determination system based on the Canadian Charter of Rights and Freedoms that has no equivalent in the U.S. It is common knowledge that the American refugee determination system has been downgraded, especially at the level of the U.S. Board of Immigration Appeals[xix]. And the perception is that, regarding certain nationalities, the American system is not fair, which explains why many were seeking protection from Canada.
            It is also predictable that the implementation of such policies is creating a huge market for migrant smugglers to help people cross the border undetected before asking for refugee status inside Canada. This will further degrade the image of asylum seekers, in effect turning them, in the court of public opinion, into the menacing figures of international criminals. Harsher repressive or deterrent measures against them would then be made possible. 

1.7. Interception Measures Beyond State Borders 

            Canada’s Immigration and Refugee Protection Act has several provisions that make carriers responsible for the removal costs of passengers arriving at Canadian airports with improper documents.[xx] Under the Immigration and Refugee Protection Act, the Department of Citizenship and Immigration charges a carrier an administration fee for each traveller arriving with improper documents. The Department has signed agreements with most airlines flying regular routes into Canada. According to the agreements, carriers with good performance records in deterring these travellers from arriving in Canada pay reduced administration fees. Airlines, in turn, agree that immigration control officers will train their staff and assist them at foreign airports in identifying passengers with improper travel documents.[xxi] All these measures aim to enhance the efficiency of interception of undocumented foreigners before their arrival at the Canadian border. The practices developed for controlling papers at foreign airports can respect very thorough guidelines, or they may be blatantly discriminatory: in either case, their control by Canadian tribunals or other reliable external third party is inexistent.
            Controlling the actions of Canadian immigration or intelligence services overseas is extremely difficult. Even if thousands of immigration files are processed annually and systematic discrimination is alleged, little can really be done. As in most western countries, Canadian authorities have adopted systematic policies for the interception and interdiction of irregular migrants outside of Canadian territory and international cooperation in this field is very active.[xxii] Canada maintains that it will respect its international obligations towards the protection of refugees and human rights generally, but nothing in the Canadian Government’s interception and interdiction policies provides for effective means of allowing the irregular migrants in real need of protection to come to Canada. Judicial control of such policies, based on the Canadian Charter of Rights and Freedoms, is improbable at present.  

2. The Foreigner, Even at Risk, is Perceived as A Security Threat 

            The foreigner is not considered anymore as a person who, as a matter of principle, always deserves justice, and therefore dignity.
            Foreigners do not benefit from the immediate sympathy of public opinion. They have no proper political representation. Some say that they are not part of the social compact. They may be feared from start. Political antipathy towards foreigners can easily be built and all social institutions, courts included, can be influenced by such sentiments. Most human rights, however, are not conditional upon membership in any social compact: being human is a sufficient precondition, whether in international law or in most domestic law frameworks.
            In the Canadian Charter of Rights and Freedoms, only sections 3 (right to vote and be elected), 6 (right to enter and remain in the country) and 23 (minority language educational rights) specifically protect citizens. All other rights, including the right to equality and to not be discriminated against on the basis of national origin (Art. 15), should equally apply to all human beings under the purview of the Charter, and the Supreme Court has said that this means “every person physically present in Canada and by virtue of such presence amenable to Canadian law”.[xxiii]
            Article 1 of the Canadian Charter of Rights and Freedoms prescribes a duty to protect rights and freedoms of everyone, except for limitations foreseen by the law, which are reasonable and justified in a free and democratic society. Until now, this test has been submitted to a strict interpretation in order to provide the largest scope of rights possible. I hope that, despite the pressures exerted upon them by the government and by public opinion, the courts will not alter their position simply because those who are involved in such cases are foreigners. We shall have to wait for the outcome of the courts’ decisions on the constitutionality of many of the measures we mentioned, in order to have a better understanding of the situation.
            Let us take the examples of the right to equality and the right to a fair trial, remembering that all human rights instruments should be given a generous interpretation in order to afford all persons the maximum protection, just as criminal provisions are, for the same reason, to be interpreted restrictively.
            The right to equality before the law has often been interpreted as inapplicable to proceedings relating to foreigners in an irregular situation.[xxiv] The reasoning for such an exemption is that such proceedings do not correspond to anything to which a citizen could be subjected. If an effect-based interpretation is adopted, as favored by the Canadian Supreme Court in Andrews[xxv] for example, there is no reason to distinguish the detention of a foreigner from any other person’s detention since the effect of the detention in either case (i.e. the deprivation of physical liberty) is exactly the same. Deportation proceedings can also be interpreted by reference to their consequences. If the risk posed to an individual by particular proceedings is death, torture, detention, cruel, inhuman or degrading treatment, there is no reason to consider these proceedings of lesser seriousness than those which would subject citizens to similar treatment, such as extradition proceedings. The case law on the right to equality and the fight against discrimination is growing and foreigners should benefit from it.
            The right to a fair trial, for its part, is still understood to apply only to criminal proceedings. The whole of the treatment applied to foreigners in an irregular situation such as detention or deportation, is still regarded as administrative procedure to which fair trial provisions do not apply. This is the case under the Canadian Charter of Rights and Freedoms. This interpretation comes from an era where administrative law was embryonic and therefore human rights instruments did not yet envisage its future development, much less its extreme impact on rights and freedoms. If more modern human rights instruments are considered, one can see that the fair trial provision is being expanded to cover all proceedings under the law, regardless of their criminal or administrative character. The recent Charter of Fundamental Rights of the European Union[xxvi] (the E.U. Charter) does not make such a distinction. Article 47 of the E.U. Charter extends the “right to an effective remedy and to a fair trial” to “everyone whose rights and freedoms guaranteed by the law of the Union are violated”. This includes a right to “a fair and public hearing within a reasonable time by an independent and impartial tribunal”, as well as a right to legal aid.
            Domestic tribunals have not yet all met this challenge. Protecting the rights of foreigners today corresponds, mutatis mutandis, to protecting the rights of workers a hundred years ago, the rights of women fifty years ago, the rights of Aboriginals twenty-five years ago or the rights of gays and lesbians nowadays. In their time, all of these categories were considered outside the circle of citizenship or legality, were deemed legal minors to be dealt with as objects, not respected as subjects of the law.
            Courts take time to come to terms with such difficult social issues, but no less time than the whole of society. Courts can be a little ahead of their society and help it understand the complex implications of the rights that citizens have come to recognize as essential to their own dignity, to their own sense of self.
            Whether foreigner or citizen, we are all deserving of justice when our fundamental rights are at stake. And, we are all deserving of the same justice, in quite the same way as we have finally admitted that, in the criminal system, the guilty and the innocent have the same right to justice.
            We should continue to defend the modern conception of the law according to which the protection of fundamental rights outweighs the Raison d’État, unless it is justified by a national emergency situation.
            The protection of Canadian citizens cannot be based on the denial of foreigners’ rights. The same rights are at stake: the violation of a foreigner’s rights is a violation of a citizen’s rights.
            It took us time to understand that the fight against crime could not be legitimately held unless we respected the rights of the accused and we accepted that it was more important not to jail an innocent, than to let a criminal escape punishment.
            Likewise, the fight against terrorism is a primary political and social objective of our States and should be conducted with all the necessary means, which include security intelligence, counter-espionage, police operations, arrests, detentions, etc.
            Nevertheless, this is not a fight at any cost. The fight against terrorism, in order to be legitimate in the long run, should be subordinated to the protection of the rights of any suspect, including a suspected foreigner.
            During the last decades, foreigners have progressively obtained most of what criminals got in the 19th century, that is, the recognition that their rights will prevail upon the State’s interests.
            We acknowledged, in 1982, that the protection of the fundamental rights prevailed upon parliamentary sovereignty, that democratically elected persons cannot do anything they want, that the legitimacy of a collective act depends on the respect of everyone’s fundamental rights.
            If we make now an exception for foreigners to this key element of the Rule of Law, other exceptions might be accepted tomorrow: arguably, nothing would prevent restricting the rights of socially disabled persons if the State declared this would be in our interest. Our shared humanity is based upon the principle of equality. The Canadian courts have made themselves the champions of this conception of the right to equality and Canada has projected the image of a country preoccupied with human rights, human dignity and the “duty to protect”, included in the Human Security Agenda promoted by Canada
            Our openness to immigration and our fundamental commitment to respecting human rights are essential elements of the image that Canada projects abroad, an image all Canadians are proud of. Canada’s International Policy Statement, recently released[xxvii], is full of this rhetoric. We are still considered as a country that cares for and respects human rights for all. But some of our policies towards migrants could start denting that image. Certainly, the Maher Arar case is troubling enough. The debate around security certificates will continue: the need for them can be demonstrated but the conditions of their implementation will need better human rights
guarantees. Discrimination in other immigration policies will be invoked and discussed, such as the one mentioned on p. A8 of the Globe & Mail of the May 10^th, where a Canadian citizen invoked the Charter to blast the decision of CIC to reject his sponsorship application for his 73 year old non insuline dependant diabetic mother.
            Lest we reconsider the rights that foreigners are recognized in this country, in relation to those enjoyed by citizens, we risk loosing the moral high ground that we have enjoyed in the past decades. 

Conclusion 

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

[Note: This paper has benefited from the financial support of SSHRC, FQRSC and the programme of Canada Research Chairs. A previous version of this paper, in French, has been delivered on 26 November 2004, at the colloquium of the Ligue des droits et libertés du Québec : « Un monde sous surveillance : Sécurité, libertés civiles et démocratie à l’ère de la ‘guerre au terrorisme’ ». The author thanks Ms. Idil Atak, doctoral candidate at the University of Montreal and research collaborator at the Chair, for the finalization of the manuscript. ]

Exclusion from Refugee Protection in Europe: An Attempt at Legal Conceptualization 
by Patrick Hoenig (Visiting Professor, Academy of Third World Studies, Jamia Millia Islamia)

I. Background 

            The interpretation and application of the Exclusion Clauses under the 1951 Convention on the Protection of Refugees has been evolving, factoring in historical and political considerations, not all of which proved to be conducive to securing a comprehensive legal framework designed for refugee protection.  In the 1990’s, Western Europe faced an unprecedented rise in applications for refugee status, prompting EU member states to tighten borders to keep out “illegal migrants,” to shorten asylum procedures, to limit the right of appeal, and to pass on responsibility to other nations—“safe third countries”—through which asylum seekers traveled en route to Western Europe.  In their totality, the policies and practices applied have given rise to concern that EU member states are increasingly bent on denying access to individual determination procedures on EU territory; curtailing privileges rightfully enjoyed by refugees under international conventions; and preparing the ground for revoking from the obligations under the 1951 Convention altogether.[i]  The application of the Exclusion Clauses under Article 1 F of the Convention is a case in point.  UNHCR has consistently argued in favor of a restrictive interpretation of the Exclusion Clauses, given the legal nature of the provisions as an exception from Article 1 A and the potentially serious consequences of exclusion from Convention protection.[ii]  But state practice is far from homogeneous and a range of problems regarding the interpretation and application of the Exclusion Clauses persist.  Weaving together the manifold threads of the discussion, it appears that “increased interest in exclusion is part of a wider policy to limit refugee status in general.”[iii]
           At the same time, demographic trends suggest that a comprehensive overhaul of immigration laws and policies is required for Western European countries to avoid a slump in population and a subsequent economic backlash.  In several countries legislation has been adopted or brought underway with a view to paving the way for eligible foreign nationals to be granted citizenship.  But as the need for attracting foreigners to Europe is reluctantly being recognized, it seems to become harder and harder for refugees to clear the hurdles for obtaining a legal status that would reflect the legal obligations of states under the 1951 Convention.  The process of synchronizing asylum laws and policies, likely to be largely affected by the expansion of the European Union to Eastern Europe, has further raised concern that European harmonization policy may generate “least common denominator” dynamics, prompting EU members with more generous asylum policies to cut back on their standards to accommodate their more restrictive neighbors.[iv]  Against that background, it is safe to say that the search for a common definition of the term refugee, minimum procedural standards and mechanisms of temporary and complementary protection has sparked a fiercely antagonistic and highly politicized debate in Europe.  In a climate of social insecurities, alienation with globalization policies and fear of terrorism, the refugee is perceived, not only in Europe, less as an individual deserving of protection but rather an alien raising suspicion.[v]  It is now the time for advocacy to ensure that the Exclusion Clauses are applied in a coherent and rights respecting manner rather than used as loopholes to discredit legitimate claims to refugee status. 

II. The Exclusion Clauses in European Practice  

A. The Grounds of Exclusion Under Article 1 F  

1. Article 1 F (a) 

            Article 1 F (a) of the 1951 Convention provides that individuals can be excluded from refugee protection on the grounds of a crime against peace, a war crime or a crime against humanity.  Whereas crimes against peace do not play a role in exclusion practice, war crimes formed the basis of a number of exclusion decisions.  In France, for example, a former soldier of the Russian army was excluded on the grounds of evidence suggesting that he had committed war crimes when he took part in the destruction of villages in Afghanistan in 1985 and the killing of civilians, including children, during an attack on a kindergarten in Chechnya in 1995.[vi]  The bulk of exclusion decisions under sub-clause (a) of Article 1 F, however, is grounded in an alleged crime against humanity.  But what are the elements that constitute a crime against humanity and what is the scope of its application?  The Danish Refugee Council reported a decision of the Danish Refugee Board in 1999, in which a Bosnian Croat, detained as a prisoner of war in the Dretelj Camp, had been excluded because of his participation in violent acts committed against fellow detainees, resulting in the death of two of them.  Could it be argued that a prisoner of war, by definition, is a potential victim, not perpetrator, of crimes?  Although legal issues in the realm of crimes against humanity abound, there is hope that problems will diminish in future practice as the crime against humanity has attracted considerable research interest following its inclusion in Article 7 (1) (i) of the Statute of the International Criminal Court. 

2. Article 1 F (b) 

            The overly broad interpretation of the term “serious non-political crime” in many European countries poses a key problem with respect to the application of Article 1 F (b). Decision-making bodies are often found to be lacking due diligence in distinguishing between civil and political criminal offenses.  Sometimes criteria for what constitutes a serious non-political crime are missing or drawn up arbitrarily.  In this context, it should be noted that in France crimes committed as part of the armed struggle for the independence of the “Basque Country” are prima facie considered to be of non-political nature.[vii]  Austrian authorities, in particular, have been criticized for a lack of consistency and overly lax interpretation, resulting in the qualification of aggravated fraud and minor drug related offenses as serious crimes under Article 1 F (b).  NGO’s based in Austria also have observed that asylum seekers alleged to be involved in minor criminal activities were rejected on the grounds of a change of conditions in the country of origin when it was clear that no such change had occurred.  Applicants from Africa have been reported to face considerably more problems than others to have their applications taken seriously.  At the other end of the specter, the Danish Refugee Board is to be commended for going to great lengths to make a proper distinction between civil criminal offenses—resulting in the denial of asylum—and political criminal offenses—leaving open the possibility of asylum being granted.  In a three-step-procedure, the Board first determines whether there is a direct and clear connection between the act committed and the political goal pursued; secondly, the seriousness of the act is measured against the treatment to be expected by the asylum seeker if returned to his country of origin; lastly, a proportionality test is applied: The harsher the consequences of the act, the less likely it is considered to be political.  The French Refugee Appeal Commission holds that “not only the gravity of the crime should be taken into account but also the goals pursued by the perpetrators and the degree of legitimacy of the violence that they carried out.”[viii]  Similarly, the UK House of Lords, in T v. Secretary of State for the Home Department, backed a decision by the Court of Appeal that found it to be “inappropriate to characterise indiscriminate bombings which led to the deaths of innocent people as political crimes.”[ix]  The court held that while not all terrorist acts fell outside the scope of the Convention, an atrocious act that was grossly out of proportion to any genuine political objective, with no sufficient close or direct causal link between it and the alleged political purpose, could not be qualified as political.  However, a noticeable shift has occurred in Great Britain with the passing of anti-terrorist laws as early as in February 2001 and the interpretation of Article 1 F (b) is increasingly affected by human rights concerns caving in to national security considerations.  Terrorist legislation gives the police wide powers to arrest individuals plotting or supporting terrorist activities abroad and seizing money for organizations banned by the parliament.  Amnesty International considers the creation of a distinct system of arrest, detention and prosecution relating to “terrorist offences” as a violation of the internationally recognized right of all people to be equal before the courts, adding that the difference in treatment is not based on the seriousness of the criminal act itself but, rather, on the motivation behind the act, defined in the Act as “political, religious or ideological”.[x]  Because of the reference in the bill to a “political” act, it is widely expected that it will have serious implications for refugees in status determination procedures. 

3. Article 1 F (c)  

            Under Article 1 F (c) a person will be excluded from the protection under the 1951 Convention if found guilty of acts contrary to the purposes and principles of the United Nations.  From the fact that only states can be members of the United Nations, it has been concluded that Article 1 F (c) applies “notably” to persons in senior government positions, who, by virtue of their responsibilities, ordered, or lent their authority to, actions to be considered at variance with those purposes and principles as well as to members of the security forces personally responsible for such breaches.[xi]  In some countries, such as Germany, decision-makers emphasized that Articles 1 and 2 of the UN Charter were concerned with international, not individual, relations.  Consequently, they held that the Exclusion Clauses did apply only where inter-state peace was affected.  Along the same lines (and yet little compelling), the Austrian Administrative Court denied refugee status under Article 1 F (c) to an applicant for his carrying out a bombing campaign to reunite South Tyrol with Austria, arguing that the actions by the applicant had affected the relations of nations, namely Austria and Italy.[xii]  A French court held that the exclusion of former Haitian President Jean Claude Duvalier was justified on the grounds of Article 1 F (c), not only because the applicant had been guilty of acts contrary to the purposes and principles of the United Nations, but also because he had executed them in his capacity as “President of the Republic, chief of the army, of the police and of the National Guard.”  Broadening the scope of the provision, the French Appeals Board held that actions inconsistent with the goals and principles of the United Nations could also be committed by persons who, without being part of the bodies in power, participated in the activity of judicial, penal or law enforcement agencies.  It thus sanctioned the exclusion under Article 1 F (c) of two nationals of the Democratic Republic of the Congo who had admitted their involvement, as informers paid by the former civilian guard, in the arrest and persecution of opponents of deposed president Mobutu.[xiii]  Finally the French Appeal Court, in the Avetisian case (1997), held Article 1 F (c) to be applicable in the case of a Georgian asylum seeker who had participated in an attempted coup against the “legitimate and democratic” government of President Shevarnadze.[xiv]  In this decision, there was no longer any reference to the applicant holding any power bestowed on him by the state or related to him informally by a state agency.  This development is to be welcomed in principle as neither the UN Charter nor the 1951 Convention can easily be construed as providing that individuals, not acting in their official capacity, are exempt from being excluded, no matter what the motive and impact of their action.  But the case of the two Congolese in particular shows how thin the line has become between rightful exclusion and contempt of the ground realities by decision-making bodies placed in a political and social environment barely comparable.  Furthermore, attempts in some jurisdictions, notably the United Kingdom, to equate “terrorist” activities with a breach of the purposes and principles of the UN Charter should give rise to concern.  In re Youseff, the applicant, an asylum seeker from Egypt, was denied asylum on the grounds that he was considered to be a senior member of the Egyptian Islamic Jihad constituent assembly.[xv]  The State Secretary concluded that, in light of Article 1 F of the 1951 Convention and the UN Declaration on Terrorism, acts, methods and practices of terrorism were contrary to the purposes and principles of the United Nations.  He was satisfied that there were serious reasons for considering that the applicant had been guilty of acts contrary to the purposes and principles of the United Nations.[xvi]  The equation of “terrorist” activities with a violation of the purposes and principles of the United Nations, however, is to be met with criticism.  While it is true that the UN Security Council, in resolutions 1373 (2001), 1377 (2001) and 1624 (2005), has determined that acts of international terrorism are contrary to the purposes and principles of the United Nations, it conspicuously omitted a definition of terrorism.  States continue to be under an obligation to show in each and every case how the “terrorist” act the applicant is believed to have committed comes under one of the three categories provided for in Article 1 F.[xvii]  While many terrorist activities will, in fact, fall under one of the definitions, the suspicion of membership to a “terrorist” or “criminal organization” as such does not bar an applicant from the protection under the 1951 Convention. 

B. Exclusion Procedure 

1. Inclusion Before Exclusion 

            As a matter of principle, exclusion procedures should only be entered into when the decision-making bodies have established that the asylum seeker meets the requirements of the refugee definition set out in Article 1 A of the 1951 Convention.  However, this is not an unanimous position.  The Ministry of Justice of the Netherlands categorically claims that exclusion is a case apart and should be examined first.[xviii]  In a case involving an applicant alleged to have hijacked a plane, the Dutch Council of State argued that only if the Exclusion Clauses proved to be non-applicable would the question arise as to whether the conditions of Article 1 A (2) were met.[xix]  It is of course expedient to see whether the criteria of the Exclusion Clauses are fulfilled and, if so, save any further exchange of arguments on the refugee credentials of the applicant.  In the Netherlands, asylum seekers are subjected, based on a first hearing, to either an Article 1 A or an Article 1 F enquiry.  Article 1 F interviews are conducted by specially trained agents and have been described by asylum experts as resembling police interrogations.  Lawyers representing asylum seekers warn that there is a real danger for applicants to be found guilty by association as interviews, rather than aiming at depicting a well-rounded portrait of the applicant, focus almost entirely on facts linking the applicant to excludable acts.[xx]  The procedural problems are compounded by (1) the fact that asylum seekers are generally prepared for interviews by volunteer workers rather than lawyers; (2) the withholding of information from the interviewees concerning the consequences of Article 1 F determination procedures; (3) the reliance, on the part of decision-makers, on country reports, which, at times, prove to be outdated, incoherent, and ill-informed; and (4) a tendency to consider as prima facie excludable those individuals who, for whatever reason, have been linked to an organization with a ‘cruel purpose’.  The example of the Netherlands bears out the practical problems stemming from giving priority to exclusion procedures over determining the merits of the case first.  It is a sad but undeniable fact that the risk of arbitrary decisions increases by the degree by which state authorities are allowed to deny refugee status without fully considering the merits of the case.[xxi]  State practice suggests that the examination of the question of inclusion prior to initiating exclusion procedures also provides asylum seekers more adequately with minimum procedural safeguards, such as fair hearing.  French courts have established a practice of determining the existence of well-founded fear before applying the Exclusion Clauses, thus fielding evidence hinting at inclusion before turning to the question of exclusion.[xxii]  The Danish Refugee Council also subscribes to a reading of the Danish Aliens Act that renders mandatory a determination of the question as to whether the applicant is in need of protection before deciding on his excludability.  From a rights respecting perspective, this practice is preferable. 

2. Balancing Test 

            On the question as to whether Article 1 F provides for a test balancing the seriousness of the crime against the gravity of the exclusion consequences, views have also been at variance.  UNHCR has long been known for holding the position that in the framework of Article 1 F the fear of persecution on the part of the applicant needs to be measured against the seriousness of the crime.  This approach is shared by a Joint Position of the EU Council, which states that “[t]he severity of the expected persecution is to be weighed against the nature of the criminal offense of which the person concerned is suspected.”  In support of a balancing test, it can be argued that there has been a fundamental change of circumstances since 1951 in terms of human rights law and restrictions on extradition, where persecution is to be feared in its aftermath.  Article 1 F (b) thus can no longer be deemed absolute with respect to the denial ab initio of refugee status.[xxiii]  Critics say that the balancing test proposed by UNHCR in the framework of Article 1 F (b) is well meaning, but ill-advised.  They maintain that de lege lata refugee law does not require the application of a proportionality test once the standard for exclusion is met, while de lege ferenda a balancing test would invite states to impose exclusion for crimes that fail “to meet the drafters’ basic litmus test of extraditable criminality.”[xxiv]
            The jurisprudence in European countries is divided over the question of a balancing test.  The Danish Refugee Board, in two poignant decisions, applied a balancing test to determine the excludability of asylum seekers.  In a case involving an applicant standing to be excluded for his involvement in an LTTE attack on a farm in Sri Lanka, the Board ruled in favor of the applicant, weighing in the age of the asylum seeker, his low rank in the organization, his inexperience in military operations, and the fact that he had learnt about the civilian nature of the target only shortly before the attack was launched.  In another case, the Board, in a decision dated January 2001, excluded from refugee protection an Iranian asylum seeker for the hijacking of a plane in Azerbaijan, despite the fact that he had been convicted for that act by a Russian court and had served most of his time.  In its reasoning, the Board stressed that, given the gravity of the act, extenuating circumstances had to be present for the applicant to escape exclusion.  Considering that the he had already traveled to other republics of the former Soviet Union before resorting to hijacking, a fact that diminished the urgency of his action, the Board decided that there were no mitigating circumstances to prevent the application of the Exclusion Clauses.  In a similar vein, French courts are generally reported to balance the gravity of the act committed against the severity of the persecution feared.[xxv]  However, there is no explicit support for a balancing test in other jurisdictions.  In T. v. Secretary of State for Home Department, the UK Court of Appeal held that the Convention does not provide for a balancing test in exclusion procedures.[xxvi]  In conclusion, building on the position held by UNHCR and taking into account recent developments of international human rights law, a sufficiently compelling case can be made for the examination of all factors pointing to inclusion, including the treatment likely to be meted out to the applicant in case he were to be excluded, before making a decision in respect of any of the sub-clauses in Article 1 F. 

3. Serious Reasons for Considering: Persecution v. Prosecution 

            In a number of cases the reasoning of the courts seems to suggest that the prosecution of an asylum seeker in his country of origin provides sufficient evidence for considering him excludable.  In re Baljit Singh (1994), a case involving a refugee from Punjab, a UK court held that “the status of refugee should not normally be given to someone facing the legitimate processes of law within his own country properly applied.”[xxvii]  Accordingly, Baljit Singh was excluded from protection under the 1951 Convention.  In another case in the UK, the Queen’s Bench Division held that the Secretary of State had “quite properly borne in mind that a person who was associated with a terrorist group acting unlawfully in its own country should not normally be given refugee status when facing legitimate processes of law within his own country, where those processes were properly applied.”[xxviii]  Empirical data suggests, however, that the line between persecution and prosecution is often blurred.  While it is vital to hold perpetrators accountable for their crimes, safeguards need to be put in place to prevent persecution to occur in the disguise of prosecution.  The rule of law does not uniformly apply, not even in counties with indisputable democratic credentials, when secessionist claims come into play and the integrity of the state is perceived to be in jeopardy.  Decision-makers in exclusion procedures should not easily discard the possibility of the judiciary in a foreign jurisdiction holding mock trials based on motives beyond their jurisdiction.  The indictment or conviction by a court in a foreign jurisdiction should give rise to serious reasons for considering an asylum seeker to be excludable only if the decision making body has satisfied itself that the criminal proceedings leading to the indictment or conviction have been conducted in compliance with international standards of procedural fairness. 

C. Exclusion and Refoulement 

1. The Need for Conceptual Disentanglement  

            Within the framework of the 1951 Refugee Convention, the interplay of Exclusion Clauses (Article 1 F) and the principle of non-refoulement (Article 33) is complex and multi-layered.  It is nevertheless possible to draw a clear line with regard to the purpose of the provisions.  Article 1 F seeks to ensure the credibility of the asylum system and the accountability of perpetrators of heinous crimes, whereas Article 33 is concerned with the security interests of the host community.[xxix]  It follows that neither the scope nor the consequences of Article 1 F can be identical to those of Article 33.  Rather, Article 1 F provides for the exclusion of applicants from refugee status—whereas Article 33 (2) applies to those who are recognized as refugees and would benefit from non-refoulement if it was not for national security concerns.  In European legislation, the line between exclusion and non-refoulement has sometimes been blurred, to the detriment of refugees.  The Austrian Asylum Act (1997), for example, provides that “[a]sylum shall be denied if any of the grounds set forth in the exclusion clauses in Article 1, Section F, of the Geneva Convention on Refugees is present.  Asylum shall further be denied if aliens for cogent reasons constitute a danger to the security of the Republic or have been convicted, by a final judgment of an Austrian court, of a particularly serious crime and, by reason of such punishable act, represent a danger to the community.”  This provision stands out as an example for how the merger of Article 1 F and Article 33 of the 1951 Convention into a single provision under the heading “disallowance of asylum” can produce results to be deemed in discord with the rationale underpinning the provisions of the Convention.  Under the Convention regime, a refugee coming under the scope of Article 33 (2), but barred from deportation, for example under Article 3 of the European Convention of Human Rights (ECHR)[xxx], enjoys all privileges conferred to him as a Convention refugee, except protection from refoulement for Convention purposes.  The denial of asylum to an applicant under Article 13 (2) Austrian Asylum Act on the grounds of his posing a threat to national security, however, deprives the refugee of all rights recognized in the 1951 Convention, including protection from refoulement.  The Asylum Act thus curtails the rights enjoyed by the refugee in contravention of the regime under the 1951 Convention.  Furthermore, the Austrian Aliens Act (1997) provides that decisions on issues pertaining to exclusion and refoulement are to be made by the same authorities.  Observers have critically noted that as a consequence the reasoning of exclusion decisions often resembles that of decisions on non-refoulement.  While it may be convenient for the authorities to mete out similar-worded decisions on cases to which different provisions of the law apply, such a practice is dubious at best in light of international human rights law and procedural accuracy.  Against this backdrop, it should be urged that national legislation either makes direct reference to the provisions of the 1951 Convention or otherwise ensures that the principles of exclusion and non-refoulement are not becoming entangled in a way detrimental to the rights enjoyed by refugees under the Convention.  As the rationale underlying the concept of non-refoulement is different from the doctrinal underpinnings of exclusion, decisions on Article 1 F ought to be made by bodies distinct from those dealing with cases involving Article 33 (2). 

2. State Obligations Following Exclusion  

            State obligations do not end with the exclusion of an applicant from the refugee protection regime under the 1951 Convention.  The Legal Advisory Group of the Lawyers Committee for Human Rights (now Human Rights First) stressed the need for a state rejecting an applicant on the grounds of Article 1 F to ensure that criminal proceedings will be initiated, while international human rights law continues to apply, regardless of the nature of crime the excludee is suspected of having committed.[xxxi]  Post-exclusion scenarios are rife with problems.  In the European context, legal predicaments arise in particular with respect to the reconciliation of Article 33 (2) 1951 Convention and Article 3 of the European Convention on Human Rights (ECHR).  In Ahmed v. Austria, the European Court for Human Rights held that the applicant, a refugee from Somalia, would face the risk of being subjected to treatment contrary to Article 3 ECHR if returned to his home country.  It therefore ruled that the applicant could not be deported.  In Chahal v. the UK, the Court held that despite posing a risk to national security of the host state, a Sikh separatist could not be returned to India since he faced treatment there that was in contravention of the Convention.  In T.I. v. United Kingdom, the Court reaffirmed its view that Article 3 ECHR imposed an obligation on the contracting states not to expel a person to a country where there were substantial grounds for believing that he would face a real risk of being subjected to torture or to inhuman or degrading treatment.[xxxii]  This means that an individual found to be undeserving of the right to asylum will nevertheless be protected from deportation if the situation in his home country does not allow for the authorities in the country of refuge to reasonably expect him to be treated in compliance with basic human rights standards.  In light of the European Court for Human Rights jurisprudence on non-refoulement, the suggestion has been made that the 1950 European Convention rendered refugee law largely irrelevant.[xxxiii]  Organizations assisting refugees, on the other hand, have pointed out that protection from persecution under Article 3 ECHR is far from being comprehensive.  Austrian courts, for example, are reported to protect refugees from returning to a country where they are faced with death penalty, torture or inhuman treatment.  However, it has been noted with alarm that the observance of due process safeguards in the country of origin is usually not being taken into consideration in non-refoulement decisions.
             Minimum procedural standards for deportation also need to be met in the realm of post-exclusion.  It is often heard that no recourse is to be had to formal extradition procedures where a person has been excluded from protection under Article 1 F and can be returned to his country of origin under Article 3 ECHR.  But why the excludee should have fewer rights than other groups of people slated for deportation is not clear.  A person falling within the scope of Article 33 (2) must be dealt with in the same way as any other criminal: Extradition laws apply to him in exactly the same way as to someone who has committed post-status crimes in another country.[xxxiv]  The 1951 Convention does not override international extradition agreements; it is, in fact, blind to national extradition law.  What is more, the application of national extradition procedures may provide an additional safeguard for human rights protection.  Deportation proceedings bring out very prominently tendencies toward criminalizing asylum seekers and leave them vulnerable to human rights abuses.  As a case in point, the European Commission on Racism and Intolerance expressed alarm over episodes of excessive violence in Denmark occurring during deportations and ill-treatment of asylum seekers in the course of police operations aimed at clamping down on drug dealing.[xxxv]  It is therefore essential that post-exclusion deportations are executed according to the same standards that apply to other deportees. 

3. Post-Exclusion Status 

            International law is silent on the question of status of asylum seekers who have been excluded on the grounds of Article 1 F but are barred from deportation under Article 3 ECHR.  It is generally being felt to be untenable that exclusion decisions throw the excludee into a legal limbo, but national authorities still have to come up with a sound post-exclusion policy and a comprehensive legal framework.  In search of a solution, it has been recommended that countries cut back on providing services and aid to individuals found to be excludable but protected from deportation.  The EU Commission proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States provides for the possibility of reducing or withdrawing reception conditions, such as housing, food and clothing, if “there are serious grounds for believing that the applicant has committed a war crime or a crime against humanity or if, during the examination of the asylum application, there are serious and manifest reasons for considering that grounds of Article 1 (F) of the Geneva Convention may apply with respect to the applicant.”[xxxvi]  Such drastic measures aimed at flushing out undesired asylum seekers are believed to be permissible on the grounds that Article 3 ECHR “lacks a positive obligation in that housing, work, services need to be provided.”[xxxvii]  With all due respect for conservative budget spending policies, such welfare reduction schemes must be deemed incompatible with international economic and social rights.  The right to work is recognized in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to an adequate standard of living, including adequate food, clothing and housing, spelt out in Article 11 ICESCR.  Those who are eager to lay a legal groundwork for discriminatory measures against refugees, placing them in a position where they are virtually left hovering between life and death, must be aware that they propagate not only a breach of human rights law—but also an attack on human dignity.  There is emerging consensus that human rights concerns should govern the post-exclusion phase.  But criminal justice arguments are increasingly being advanced.  Ideally, the excludee will be prosecuted in the community, in which there are reasons to believe he has committed a crime under Article 1 F of the 1951 Convention.  If fair proceedings are not likely to be had capacity building schemes could kick in to reform the local justice system from the grassroots up.  Sadly, such an approach commands resources and commitment well beyond what is generally thought to be available—or affordable.  Alternatively, in cases where the International Criminal Court lacks jurisdiction, the state whose authorities have excluded the applicant could proceed to prosecute the alleged criminal under jurisdiction established by international law.[xxxviii]  International recognition of the principle of universal jurisdiction has enabled domestic courts to try individuals accused of the most heinous crimes, thus filling one of the last lacunae of criminal justice procedures following the exclusion of suspected war criminals.[xxxix].  It emerges that a rights respecting approach to the interpretation and application of the Exclusion Clauses under Article 1 F of the 1951 Convention does not stand in the way of closing up the gaps of impunity allowing for perpetrators of genocide, war crimes and crimes against humanity to evade justice.

The Boundaries of Belonging: Reflections on Migration Policies into the Twenty-First Century 
by Alison Crosby (Inter Pares, Canada)

This paper examines the politics of categorization that defines people who move, as well as the migration containment policies that set and maintain the boundaries of these categories. The paper explains why “the problem” is not migration per se, but rather the way the powerful seek to control and contain the movement of people. Migration policies are a form of population control; the issue is who is controlled, and how. And because of the who, and the how, migration policy is a justice issue. Indeed, it is one of the most pressing justice issues of our time, and requires the consolidated and coordinated attention of all of us concerned with issues of human rights and social justice. It cannot be ignored. 

The Politics of Indifference 

In July 2001, a photograph by Javier Bauluz caused controversy in Spain, and around the world.1 It was even published in the New York Times. The photograph, entitled The Indifference of the West, was of two beachgoers in Tarifa, Spain, sitting under an umbrella, while to their right there lay a dead body. The photograph generated much debate about camera angles, and whether the beachgoers actually were indifferent. Indifferent to whom? Who was this dead person? The answers to these questions lie in geography, in economy, in sociology, in the politics of movement and the boundaries of belonging, in migration and citizenship policies. And the answers, as well as the questions themselves, implicate us all.
            Tarifa sits on the edge of Europe, looking across the Strait of Gibraltar to Morocco and the African continent. Since the implementation of the Schengen Agreement in 1993 2 , and the ensuing Spanish Ley de Extranjería (Law on Aliens), passed in 2000, which denied the great majority of people from sub-Saharan Africa and Morocco entry visas to Europe, bodies have been washing up on the beaches of Tarifa. The local human rights ombudsman’s office in Andalucía estimated that over the past fourteen years 2,000 people have died in the Strait of Gibraltar trying to reach Spain in precarious dinghies. 
            The photograph may have generated controversy about camera angles, but it didn’t stop the bodies. In 2003, a local human rights activist in Tarifa, Nieves García Benito, published an anguished cri du coeur about the deadly situation in the Strait of Gibraltar, and the bodies that continued to wash up on the beaches of Tarifa in front of her home. 3 She wrote that she could only wish that what she was seeing was fiction, that the accusations of photo manipulation against Javier Bauluz were true, that it could all be explained away as media bias. But it simply was not the case. Because in Tarifa, “Without setting it up, without a special angle, with a special angle, in the daytime, at night, anyone can take a picture of a drowned person.” García Benito described the Strait of Gibraltar as a “space of indifference,” providing a “separation between the living and the dead.” And, she might have added, between citizens and non-citizens. 
             She also identified the reasons for this indifference, the motivation of the powerful for keeping the Strait just as it is: the energy companies laying gas pipelines beneath the waters to fuel the workings of multinational corporations; the oil companies transporting crude oil from its place of origin to the refineries in Europe; the entrepreneurs who benefit from cheap labour supplied by those lucky ones who survive the journey. 
             “Their indifference towards the dead persons is real,” she said. “They don’t even remotely consider the possibility of experiencing any change in the sum of their profits.” She also argued that the Strait is a space of indifference for the citizens of Europe, “who, in spite of being people of good will, have not prevented, not with their words nor with their deeds, the implementation of a Ley de Extranjería that carries, inherent within it, the real death of thousands of people.” 
             The response to the plight of these vulnerable people on the move has been silence, from the powerful economic elites, from the Spanish and European governments, and from the citizenry.
             This distressing situation is not unique. In fact, it is all too commonplace, finding echoes in many corners of the world. Every now and again, the British newspapers publish accounts of the deaths of “illegal migrants” in truck and shipping containers – suffocated as, in desperation, they tried to reach the shores of the United Kingdom by any means possible. In Central America, in a bitter echo of past history, organizations comprised of relatives of the disappeared search for the bodies of their loved ones who, in trying to reach the United States through an increasingly militarized Mexico, often jump to their deaths from moving trains to avoid police and army checks. Women are particular targets for abuse in border regions throughout the world, and in many cases, are murdered when they are no longer “of use.” 4 
             And as for the thousands of people who do survive their perilous journey, their stories do not get much better. The countries of the north profit from their illegality, exploiting their labour to do the work that their own citizens are not prepared to do, or at least not for the wages paid. García Benito laments that we only seem to care when it is already far too late, when we cannot ignore the bodies on the beach. Then there is some hand-wringing by those in authority, and unscrupulous traffickers or smugglers are usually blamed. 
            Traffickers and smugglers are not the cause of the problem, but rather part of the problem and one of the symptoms. Nor is the problem migration per se. Throughout the ages, in all corners of the globe, people have been on the move, seeking safer and better lives. So-called settler nations, including Canada, were created through such movement. Indeed, Canada is known as a “nation of immigrants.” 
            This myth of nationhood is a very particular one. Canadian immigration policies have always been racialized. The Chinese migrants who helped build the Canadian nation by constructing the Canadian Pacific railway were charged a head tax of $500 (equivalent in the day to the price of two houses) and denied citizenship, while at the same time, immigrants from European countries were offered land on the prairies and instant recognition as Canadians. 5 Meanwhile, the “nation” was also being built on the extermination, exclusion and containment of indigenous peoples, who to this day suffer the consequences of this foundational injustice, confined to reservations and confronted with multi-faceted and structural forms of discrimination in all aspects of social life. As Catherine Dauvergne argues, “The silence to which the mythology of migration law and of nationhood confines aboriginal peoples speaks its own powerful truth.” 6 
            There is significant data that shows the economic benefits of migration, for countries of origin and destination. With ageing populations, declining birthrates and gaps in the labour supply, countries of the north need people. 7 The economic impact of remittances by migrants to their families at home is also significant. According to the World Bank, in 2005, “Officially recorded remittances worldwide exceeded $232 billion… Of this, developing countries received $167 billion, more than twice the level of development aid from all sources.” 8 In many countries in the global south,9 remittances now also exceed the amount received in tourism or from natural resources.10
             The paradox of migration is the contradiction between its economic benefits, and the political momentum in the countries of the north against it. While so much of the world’s population on the move remains within the poorest countries of the global south, the citizenry in the countries of the north live in fear of the supposed masses clamouring to get in. 11 The mainstream view of migration is frequently reinforced through water imagery. Migration is described as a flood, an unstoppable torrent, a force of nature bent on destroying those in its path – in other words, a threat to the privileged in their protected places. And this climate of fear has been heightened in the current global context. Some people who move are now seen as a security threat, “migrants” increasingly equated with “terrorists.” International health regulation frameworks are also being used to prevent particular people from crossing borders – migrants as disease carriers who will infect the body politic. 12 In this milieu, a critical and measured discourse on these issues is difficult to establish.
            Migration policies reflect who we are as nations and citizens, because they set the boundaries between “us” and “them,” who can belong and who cannot. These boundaries of belonging are increasingly becoming fortress walls separating the privileged and powerful from the vulnerable and marginalized.  

The Politics of Categorization 

The Universal Declaration of Human Rights asserts the right of people to leave their country. Indeed, the International Organization for Migration (IOM) estimates that over 175 million people (roughly three per cent of the world’s population) currently live outside the countries of their birth. However, as we move further into the 21st century, the right to move is becoming increasingly constrained, in particular for those who have been dislocated from their places of belonging because they are fleeing persecution, violence or war, or the destruction of their local economies or ecologies. 
            There is a politics to movement, to mobility; some people can move with impunity, most cannot. For the most vulnerable, the world is divided and delineated by rigid borders, boundaries and categorizations that define who a person is, and what possibilities they can have. 
            The international community has created many categories to contain people who move, depending on what we perceive to be the reason for their movement, and where they may end up: “refugees,” “asylum-seekers,” “internally displaced persons,” “development displacees,” “trafficked persons,” “economic migrants,” “immigrants.” These categories contain value-laden fault lines: illegal/legal, documented/undocumented, political/economic. And these categories assume, first, that the people within them are all the same, and second, that the categories themselves are distinct. 
             The categorization of migration is inherently racialized, classed and gendered, whereas the privileged who move have other, more fluid, categories: “tourists,” “travellers,” “ex-pats.” As Laura Agustín has argued, the category of migrant “is nearly always used about the working class, not about middle-class professionals and not about people from the first-world, even if they also have left home and moved to another country. Instead, the word rings of a subaltern status.” 13
             Because of the way we label, define, and categorize people who move, we obscure and make invisible their actual lived experience. In Colombia, for instance, hundreds of people leave their homes every day, fleeing the war that has ravaged their country for almost four decades. Families are torn apart, their members often facing different futures, all uncertain. Some will become part of the very large internally displaced population. One or two family members will cross the border and become recognized as refugees by the United Nations High Commission for Refugees (UNHCR). One person might even make it to Canada. But most will move quietly and covertly in-country and across the border as “migrants” in order to avoid being visible targets in the conflict; under the cloak of invisibility, they are often exploited or murdered, raped, enslaved or “disappeared.” Same family, same history of violence, different categories, different futures. A significant proportion of Colombia’s population – or Burma’s, or that of any other country devastated by conflict – are dispossessed, dislocated, and made vulnerable by war, ignored because they have been categorized as “migrants” and not “refugees” or “displaced persons.” 
            The reality in the global south is that the majority of people fleeing violence remain trapped within the borders of their own countries. In 2003, it was estimated that there were 25 million internally displaced persons in 52 countries, over half (13 million) located in Africa.14 In most cases, the mobility of populations affected by violence is severely curtailed. In recent years in Colombia, armed actors have changed their strategy with regards to the civilian population. Instead of forcing people to leave, they are now often forcing them to stay. Sometimes it is because they want people to work on the coca plantations they control. Sometimes it is to maintain the population as a human shield. Frequently, one side feels that villagers are supporting the other side, and by preventing them from leaving their community they prevent them from assisting the enemy. Whatever the reasons, the consequences are the same – people are trapped in what have come to be known as “confined communities.” 15
           Categorization is a means of control, designed to confine people within rigid boundaries and contain what possibilities they can have. Once a person is a “migrant,” their identity is weighted with signifiers – illegal, undocumented, stateless. 
           There is also an implicit hierarchy in the categorization of migration. When someone becomes an “immigrant,” they have access to membership within the nation-state and the rights of citizen-ship. A “migrant” on the other hand has no such rights. The category of “migrant” is integrally identified with the status of “worker.” “Migrants” are most often “migrant workers,” their labour integral to the economy, but the rest of their selves are not deemed integral to society. As one analyst has argued, migrants are “the eternal throwaway workers.”16  Who become “immigrants” and who become “migrants”? What assumptions and values underlie these categories? And what imperatives?
            There is also a hierarchy between the categories of “refugee” and “migrant,” based upon a forced distinction between “political” and “economic” displacement. This differentiation denotes that “refugees” are forced (politically) to move, fleeing violence and war, while “migrants” choose (economically) to move, in search of a better life. 
            The forced/voluntary dichotomy needs to be examined. The widespread implementation of neo-liberal economic policies throughout the globe has resulted in a diminished capacity of national governments to develop economic policies in the interests of the majority of their own citizens. The people García Benito described at the beginning of this paper who died in the Strait of Gibraltar trying to reach Spain did choose to risk their lives, but they also had few other options. As John Berger says in his essay, Ten Dispatches About Place, people who emigrate “leave because there is nothing there, except their everything, which does not offer enough to feed their children. Once it did. This is the poverty of the new capitalism.”17 
            In the Mexican state of Chiapas, a “low-intensity” armed conflict was waged for over a decade between the Mexican army and the insurgent Zapatistas, with no peaceful resolution. There is a continued heavy military presence, and local groups report ongoing human rights violations. Chiapas is also rich in natural resources, and there is a growing presence of transnational corporations hungry for its water, gas and minerals. Many people are being forced to leave their homes to make way for hydroelectric dams and mining. And for many others, there is no longer a local economy to support livelihoods. Busloads of people leave Chiapas every week, bound northward. Are they economic migrants or refugees? Does the distinction matter? Their situation of vulnerability remains the same. The violence of poverty and the violence of war are intricately interrelated in ways that these categories cannot begin to address, and therefore we lose the context and any possible solution.
            The agency and actual lived experiences of women on the move are obscured or even removed within the paradigm of categorization. The focus within the international arena is most often on the abuse of women’s bodies, through trafficking and sexual slavery. The dilemma for those of us working in the human rights and social justice sectors is how to highlight and bring an end to the systematic and horrific forms of abuse that women on the move do suffer, without ourselves contributing to their objectification and disempowerment. As Alice Miller argues, we need to avoid “the perpetual retelling of the story of the sexually abused victim who needs only rescue rather than a demanding woman who needs rights and social justice as a citizen.”18 She also emphasizes the importance of a focus on the conditions of economic exploitation and social marginalization that lead people to situations where they are trafficked:

Attention to trafficking as primarily a crime of male desire and forced sex operates to shut down careful work about the actual objective and subjective interests of the trafficked people and the sectors in which they are exploited, and blocks interventions into the new realities of urban and rural poverty and irregular labour sectors where most people are searching for their livelihoods and are trafficked. In the popular discourse, then, the harms of trafficking become entirely sexual, sometimes racialized but almost always in a way that reinforces gender stereo-types and protects against reflection of Northern economic accountabilities. 19

Miller and others have also expressed the concern that international protection mechanisms that have been drawn up to address the situation of trafficking serve more the interests of states in controlling their borders than to protect women in situations of vulnerability. 20 This “crime-control approach” is one that sees “the state as the victim of trafficking, borders penetrated, and contagion let in.” 21 Sexual harm becomes the reason to restrain women’s movement. 22 Women’s own motivations to move, and their diverse experiences of migration, are lost. They become bodies, victims to be saved and contained.
           We need to ask ourselves who in particular inhabits the categories created to distinguish between people who move, and who creates the categories? There are clear distinctions made between “immigrants” and “refugees,” between “refugees” and “migrants.” And there are other distinctions within the categories themselves. For example, should there be such a category as an “undocumented” refugee? Whose interests are served by this category? If someone is fleeing persecution, they are in need of refuge and protection. An “illegal” migrant no more deserves to die in the Strait of Gibraltar than a “legal” one. We need to understand and highlight the policies that create and maintain these categories, and that define people’s status, their legality, their personhood.

Containment Policies – Strategies and Trends 

In understanding the politics of categorization and its significance, it is important to examine the migration policies that create the categories themselves and the boundaries within and between the categories. We refer to migration policies as “containment” policies, because they define and hold people within particular definitional boundaries.
            One significant trend within migration containment policies is the increasing prevalence of “guest worker” programs. In Canada, the Temporary Agricultural Workers program currently brings 18,000 workers to Canada, 10,000 of whom are Mexican. Under the program, workers are tied to a specific employer, and are not allowed to seek other employment (which has led researcher Tanya Basok, amongst others, to refer to the guest workers program as “unfree labour”). 23 Several organizations and researchers have documented the poor and precarious working and living conditions for workers in this program. 24 Workers’ paycheques are deducted for benefits they are not entitled to receive. And regardless of how much time they spend in Canada, they are not entitled to apply for citizenship. According to Mexican economist Miguel Pickard:

There are Mexicans who have worked in the Canadian Program for over 20 years, during which time they have lived more in Canada than in Mexico and have contributed more to the Canadian economy than to Mexico’s, helping to maintain entire industries competitive with their labour. Nevertheless, given present legislation, they will never be able to be more than agricultural workers, nor be integrated into Canadian society… 25

The growing guest workers programs are indicative of northern states’ desire for legal but “flexible” and temporary labour, contained within categories that would not signify any extended relationship within the host nation. As David Bacon argues with reference to the United States:

U.S. immigration policy doesn’t deter the flow of migrants across the border. Its basic function is defining the status of people once they’re here. Guest-worker programs undermine both workplace and community rights, affecting nonimmigrants as well. They inhibit the development of families and culture, denying everyone what newcomers can offer. 26

Referring to the several bills before the US Congress for guest worker programs at the time, Bob Menéndez, a Democratic congressman for New Jersey, said, “What Bush wants is their sweat and labour [but] he ultimately doesn’t want ‘them.’ The proposal will be a rotation of human capital, to be used and discarded, with no hope of permanently legalizing one’s status.” 27 
            Alongside the guest worker programs, in December 2005 the U.S. House of Representatives approved the Sesenbrennar bill, which included the proposal to build 1,100 kilometres of new hi-tech fences along the 3,200 kilometre border with Mexico.28 The fence would further militarize a border policed by thousands of armed border patrol agents with night vision equipment, trained dogs and unmanned aircraft.29 The bill also makes undocumented migration a federal crime, where previously it was a civil offence, further consolidating and indeed criminalizing the category of “illegal migrant.” 
            The reality is that people cross borders when there is a demand for their labour. They work in construction, manufacturing and service industries, they pick fruit and vegetables, they take care of other people’s children, and they clean homes that they will never be able to own, with few of the protections and none of the benefits afforded to citizens.  

The Right to Asylum 

            Another important trend within current containment policies in the north is the increasing erosion of the right to asylum for those fleeing war and persecution, a challenge to the category of “refugee” itself. 
            Beginning in the second half of the 20th century, the category of forced migration has been protected (albeit to a limited degree) by international humanitarian law. The most comprehensive international instrument for the defence of the rights of forced migrants is the 1951 Geneva Convention Relating to the Status of Refugees (hereto referred to as “the Geneva Convention”). One hundred and forty-six states are signatories to the Geneva Convention and/or its accompanying 1967 Protocol, which provides international standards for the treatment of refugees and outlines their rights and obligations, and those of states towards them.30
            The definition of a refugee entitled to protection under the Geneva Convention is any person who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.” Article 33 of the Geneva Convention asserts the principle of non-refoulement, that is, that signatory states must not forcibly return a refugee to a country where “his life or freedom would be threatened.”
            The Geneva Convention came into effect in a particular context, post-World War II Europe, when northern countries were dealing with largely European-based refugee flows. Today, most countries of the north are actively seeking to undermine, and in fact erase, the right to asylum. Since the early 1990s with the end of the Cold War, there has been a shift from policies committed to resettlement as a permanent solution to refugee crises, as outlined in the Geneva Convention, to policies aimed at containing refugee populations in the regions where crises occur – essentially, the “not in my backyard” syndrome. These containment policies include strategies of diversion and deflection (for example, safe third country agreements and transit-processing zones), deterrence (detention of asylum applicants, denial of access to employment), and, increasingly, prevention of movement altogether.
            In December 2002, Canada and the United States signed the Safe Third Country Agreement as part of the implementation of the “Smart Border” agreement adopted by the two countries after September 2001. Safe third country agreements assert the principle that refugees should claim protection in the first “safe” country they reach. Under the agreement with the United States, Canada can turn refugee claimants away at its borders  if they have passed through the United States first,  forcing them to claim asylum in the U.S. According to a report released by the Canadian Council for Refugees (CCR) in August 2005 analysing the first six months of the implementation of the Agreement, the number of people who claimed refugee status in Canada in 2005 was lower than at any time since the mid 1980s. There was a particularly dramatic drop in claims being made at the Canada-U.S. border, with only 50 per cent as many claims as the previous year. For some countries, the drop in claims was even more extreme. For example, claims made by Colombians were down 70 per cent as compared to 2004.32 CCR President Nick Summers summed up what is at stake:

It is no exaggeration to describe this Agreement as a silent killer. Out of sight of Canadians, asylum seekers are paying the price of Canada’s “Not in My Backyard Approach” to refugee protection. The fact is that the U.S. is not safe for all refugees and Canada is failing refugees who need our protection. We call on the Canadian government to cancel this Agreement immediately.

The CCR report said that the Canadian government is “turning a blind eye to egregious abuses of human rights by the U.S. government and does not inquire into the fate of those denied access to Canada’s refugee determination system.” The report cites as examples of these human rights concerns “increased demands for documentation of abuse, emphasis on the asylum-seeker’s ‘demeanour’ when making a claim, and barring of those whose families are associated with groups classed as terrorists.” In contravention of the Geneva Convention, thousands of asylum-seekers are also being held for long periods in U.S. jails, where many detainees have reported that they have been abused. In 2005, the CCR, together with Amnesty International and the Canadian Council of Churches, launched a legal challenge in the Canadian Federal Court against the Safe Third Country Agreement, on the basis that the United States should no longer be declared safe for refugees. It should, however, be noted that the detention of asylum-seekers is an issue of concern in Canada too.33
           Because the Geneva Convention prevents signatory countries from returning asylum-seekers to countries where their lives or freedom are in danger, prevention policies adopted by countries of the north are aimed at stopping people from making it to their borders at all. Such prevention policies include visa restrictions, carrier sanctions, and interception. Since 1992, northern states have used the concept of the “safe country,” by which they can send refugees back to their country of origin if that country guarantees their safety. The debate in Europe on the issue of safe country policies has not focused on the concept itself, but rather which countries to put on a common list. To which war-torn countries is it safe to return people? As Alain Morice asks in his examination of these proposals, “What guarantees would a person have if sent back to an unstable or poorly controlled country?” 34 And, who is accountable for their safety?
           In 2004, the United States Committee for Refugees and Immigrants (USCRI) launched a campaign against the increasing practice of “warehousing” refugees, that is, confining people to camps or segregated settlements in situations lasting ten years or more. This is not only a “not in my backyard” migration containment policy, but also an “out of sight, out of mind” containment policy, hiding people behind barbed-wire and concrete walls. The USCRI estimates that more than seven of the nearly 12 million refugees in the world today are warehoused.35 In 2005 for example, as part of the process of “shoring up” its southern borders, the Mexican government was in the process of building the largest migrant detention centre in the Americas in the border town of Tapachula.36  Such “warehousing” also exists across Europe, including in countries such as Holland and Denmark, which are seen by many as among the most progressive and humane societies in the world. As Liz Fekete argues:

The idea that refugees can be ‘warehoused’ – the term is significant – until conflicts are resolved denotes the denigration and reification of asylum seekers. Already set apart from society, they can be more readily expelled; treated as commodities, they can be parcelled up, packaged and sent out of Europe. 37

These containment policies – “safe” countries, ware-housing – make the vulnerable more vulnerable. On the occasion of his retirement, the out-going head of Switzerland’s Federal Refugee Office described European asylum policy as a “competition of misery,” “with each country trying to offer harsher conditions for asylum seekers than its neighbour, in order to discourage arrivals.” 38 
            In implementing their policies, northern governments have both inflamed and exploited racism and xenophobia in their citizenry, highlighting notions of “illegality” and “undocumented”, preying on the fear of the Other. The president of Spain’s Refugee Aid Commission has said: “It’s painful to say so, but Spain is hostile to refugees because of government policy. The democratic Spain of 2003 has forgotten the Spain of 1939, when hundreds of thousands of its children fled Franco’s repressive regime and settled around the globe.” 39
            The role UNHCR in supporting northern containment policies deserves to be highlighted and critically examined. In 2002, UNHCR launched the Convention Plus initiative, which supported the proposal that, as much as possible, refugees should stay close to their country of origin. This has always been an underlying tenet of containment policies, and is now being made more explicit in immigration policy reform. UNHCR also supported European measures aimed at interring foreigners in special camps. 40  

The Securitization of Migration 

The trend toward a politics of containment within migration policies in countries of the north has been reinforced by the “securitization”41  agenda that has emerged in the wake of September 2001. Draconian “anti-terrorism” legislation has been introduced in many countries, including Canada, which undermines democratic freedoms and the rule of law. These include the Patriot Act in the United Sates, the Anti-Terrorism and Security Act (ASTA) in the United Kingdom, and the Anti-Terrorism Act (Bill C-36) and related legislation in Canada. A report from an international conference organized by the Canadian International Civil Liberties Monitoring Group (ICLMG) outlined the nature of the new global order:

Anti-terrorism legislation around the world, along with previously adopted immigration legislation and regulations, has contributed to an increase in racial profiling and institutionalized racism. Guilt by association has had a chilling effect on the fundamental rights of freedom of expression, freedom of association and freedom of movement as well as on the basic democratic rights to protest and to simply assert one’s rights. 42

 The heightened security climate has had particular implications for non-citizens. In Canada, under the new laws, the Minister of Public Safety and Emergency Preparedness Canada (PSEPC) and the Minister of Citizenship and Immigration have the power to issue security certificates to detain non-citizens indefinitely, or deport them (in the prior legislation, this power was held by the Security Intelligence Review Committee). When detained, non-citizens have no right to challenge, or even hear, the evidence against them, or to appeal the decision. In contravention of international law, they may be deported to a country where there is a strong likelihood they will be tortured. As Sharryn Aiken and Andrew Brouwer argue:

The right to be free from arbitrary detention, the right to a fair hearing, as well as the absolute prohibition of torture, are pillars of democracy and the rule of law. We are gravely concerned that the security-certificate process denies to non-citizens the due-process rights to which they are entitled as equal human beings.43

Aiken and Brouwer also point out that under the former Immigration Act there were procedures within the Security Intelligence Review Committee for ensuring individual rights and freedoms while effectively carrying out the state’s security responsibilities. And there are other options available that make the new laws unnecessary, and unnecessarily excessive:

For example, on apprehending a non-citizen believed to have committed terrorist acts, Canada may be able to prosecute the person under the anti-terrorism provisions of the Criminal Code. Alternatively, where an extradition request has been made, Canada may extradite the person to face charges elsewhere, providing the person’s fundamental human rights will not be violated in that country. Both options meet the important goals of avoiding impunity and protecting the public. 44

Some (mostly non-white) non-citizens are increasingly subject to arbitrary detention, including asylum seekers.45 Article 31 of the Geneva Convention recognizes that refugees may have to use illicit means to enter a safe country, and requires that host countries “shall not impose penalties on that account.” However, in the post September 11 climate, one Canadian border guard has been quoted as saying, “Before, we were expected to release, now we’re encouraged to detain.” 46 
            These “securitization” measures have further objectified people on the move, as the Other. They are increasingly being identified as potential terrorists, especially if they come from Islamic countries, despite no public evidence to support such an assertion. Louise Arbour, the current UN High Commissioner for Human Rights, and former head of the International Criminal Court in The Hague, as well as a former justice of the Supreme Court of Canada, sums up what is at stake in this issue of security:

When we are asked to decide how much liberty we are willing to abandon for our security, we are asked, in reality, how much of the liberty of others we are willing to sacrifice for our own security. How many of my compatriots am I willing to allow to be transferred to countries where they will likely be tortured in order for me to feel secure? How many foreigners am I willing to allow to be detained indefinitely without charges if that is what it takes for me to feel secure? Obviously, we will never hear the question to be: am I willing to subject myself to arbitrary detention or to the risk of torture so that my neighbour feels safer? 47

Migration policies set the boundaries between “us” and “them,” and tell us much about who we are as a nation. We are defined by our treatment of non-citizens, and the extent to which the protection of the rights of some comes at the expense of the rights of others. As Louise Arbour has argued, “human rights are fundamentally recognition of the rights of others.” 48 In addressing the injustice of migration containment policies outlined in this paper, we must confront the racialized politics of fear and exclusion that sustain these policies. We must challenge the “space of indifference” between citizens and non-citizens that is resulting in the death or exclusion of so many people on the move. 

Challenging the Boundaries of Belonging 

Most people who are forced to leave their homes in search of safer and better lives are not protected by the Geneva Convention, and they are extremely vulnerable to human rights violations. To address this serious lack in international protection frameworks, the United Nations Convention on the Protection of the Rights of All Migrant Workers and Their Families (hereafter referred to as the “Migrant Workers Convention”) was adopted by the UN General Assembly in 1990, and finally came into force in July 2003 when the requisite number of ratifications had been obtained. However, as of 2006, no northern country had ratified the Convention, and many, including Canada, actively oppose it. 49 
           The Migrant Workers Convention is the only international instrument to specifically address the human rights of migrant workers. It asserts the principle that there are certain basic non-derogable rights that must be held by all human beings – citizens and non-citizens – and covers all parts of the migrant journey, from the time of dislocation to the eventual destination. It guarantees the rights of all migrant workers – documented or un-documented – and their families. “Equality of treatment” is guaranteed for migrant workers with regards to work-related issues such as remuneration and hours of work, but also includes social security, access to employment, trade union freedoms and cultural rights. 50
            A key issue in the debate on migration policies is the question of open borders – if capital, goods and know-ledge flow freely across borders, why not people too? If we are arguing for a common standard of dignity for all, should we not be advocating for open borders? This issue immediately raises the fear of migration “floods” – everyone would want to come in, goes the reasoning. But is this really the case? It is important to emphasize that migration is not indiscriminate. Not everybody moves, despite entrenched situations of violence and impoverishment around the world. Migration flows are structured and intentional. As Saskia Sassen argues:

If it were true… that the flow of immigrants and refugees was simply a matter of individuals in search of better opportunities in a richer country, then the growing population and poverty in much of the world would have created truly massive numbers of poor invading highly developed countries, a great indiscriminate flow of human beings from misery to wealth. This has not been the case. Migrations are highly selective processes; only certain people leave, and they travel on highly structured routes to their destinations, rather than gravitate blindly toward any rich country they can enter. 51

Opposition to a notion of open borders is also rooted in fears concerning the erosion of cultural and national identity, which in turn are rooted in myths of nation. For example, in the American context, theorists such as Samuel Huntington see immigration as a threat to the so-called Anglo-Protestant values which underpin the myth of American nationhood. 52 However, the reality of the American nation, its social fabric, belies its myths. The American nation is as much “latino” as it is Anglo-Saxon, and of course is much more. Culture and identity are not rigid and static categories, nations are much more than the sum of their parts. The myths of nation create, maintain and sustain inequality in the United States, as well as in Canada and every other country in the world. 
            The historical processes of inclusion and exclusion that have constructed the “imagined community” of the modern nation-state, particularly in countries of the north, have led to the definition of who is permitted to belong to, and participate within, the national space. And these processes have always been racialized. This can be seen with the campaigns to prevent Jewish immigration to Britain in the 1880s, the Nativist movement in the United States and Canada in the 1920s to restrict immigration to those of British or Western descent, and the “White Australia Policy” designed to exclude people from Asia, which had widespread support in Australia until as recently as 1980. 53
            Migration policies are as much about “us” as about “them.” We need to assert the principles by which we want our homes, our nations, our societies to live. Our rights are intertwined with the rights of others. 
            Migration is about relationships across borders, it is about the search to belong and create anew what has been lost. When people move, they do not do so in isolation. They follow the paths taken by others before them, and maintain their connections to those they leave behind. As David Bacon states in Communities Without Borders, “the drive for community motivates migration.” 54 Bacon argues for a U.S. immigration policy that “recognizes and values transnational communities”:

A pro-people, anticorporate immigration policy sees the creation and support of communities as a desirable goal. It reinforces indigenous culture and language, protects the rights of everyone and seeks to integrate immigrants into the broader U.S. society.

Acknowledging the transnational communities in migration helps us recognize the fluidity of migration and the category of migrant itself. Becoming and being a migrant should be seen more as “a stage of life” than the definition of everything a person is and can be. As Laura Agustín asks, “At what point does a person stop being a ‘migrant’ and become something else?” 55 And as Agustín proposes:

I suggest that we re-confirm the idea of agency for migrants, with the emphasis on the process they are going through. Although some migrants may experience a (sad) feeling of being permanently uprooted, many others do not, and the whole theory of social ‘integration’ of migrants depends on their desires and abilities to adapt, assimilate and lose not their own identities but their identification with migrancy. 56

Boundaries of belonging – “us” and “them,” “citizens” and “non-citizens” – construct the Other, and deny personhood. “They” are illegal, undocumented, stateless, terrorists. But people who move are not just bodies on a beach or faces in a photograph. They cannot be reduced to categories. They are people, they have agency. They have dreams and aspirations, and contributions to make to home, old and new.
            Putting people who move into categories – refugees, displaced persons, economic migrants – assumes and in fact creates a singularity of experience and opportunity that obscures people’s actual lived experience. The reasons people move are varied and multifaceted, and belie the categories we have constructed. Categorization fragments, segregates, and creates hierarchy. We need to step back and see the wider frameworks, interactions and interconnections that create the context for people who move. 
            Rights are indivisible, intertwined, and non-hierarchical. In challenging migration containment policies that create misery and desperation, and in advocating “pro-people” migration policies, we must not ignore or be indifferent to the rights of some while protecting the rights of others. Our commitment to protecting the rights of those fleeing persecution and who have been recognized as “refugees,” must not be at the expense of those at the mercy of ruthless containment policies as they try to gain access to Fortress North in search of a safer and better life. We must see the bigger picture that has constructed this situation in the first place. “Refugees” and “migrants” are often created by the same dynamics. The erosion of the right to asylum as defined within the Geneva Convention is integrally connected to the refusal of northern governments to sign onto the Migrant Workers Convention. 
           Because of our tendency to categorize – and this applies as much to those of us within the human rights and social justice communities as to anyone else – the solutions we seek most often do not transcend the problematic, but reinforce it instead. We therefore cannot take a piecemeal approach to addressing these issues. We need to move away from a triage approach and instead embrace a construct that allows us to make visible and include all those who are affected and made vulnerable by containment policies. The only way to combat the politics of indifference and challenge the boundaries of belonging is to unite as citizens and civil society in universal common cause in the face of injustice. 
           We have to insist on a common standard of dignity, rights, and security for all who are on the move, regardless of the reason for their dislocation, as well as for all those who live within our borders, regardless of status or categories. The river of migration is part of our human ecosystem. It may ebb and flow, but it remains constant and necessary to who we all are, and who we will become.  

This work was carried out with the aid of a grant from the International Development Research Centre, Ottawa, Canada. The author is indebted to Caroline Boudreau, Alison Crosby, Peter Gillespie, Brian Murphy, and Karen Seabrooke 

  34 Alain Morice, “Foreigners are seen as a danger and their invasion as out of control: Europe blocks right to asylum.” Le Monde diplomatique, March 2004.
35 For a description of the USCRI anti-warehousing campaign, and to view or sign on to the Statement Calling for Solutions to End Warehousing of Refugees, go to www.refugees.org.
36 Michael Flynn, Global Migration Coursing Through Mexico, International Relations Centre Americas Program, December 21 2005 (www.americaspolicy.org).
37 Liz Fekete, Europe: The deportation machine: Europe, asylum and human rights. Institute of Race Relations, 9, April 2005 (www.irr.org.uk/2005/april/ha000011.html). 
38 Quoted in an article by former UNHCR representative to Canada, Judith Kumin, “Can this marriage be saved? National interest and ethics in asylum policy.” In Canadian Issues, March 2004.
39 Ibid.
40 For analysis of the role of UNHCR, see: Jennifer Hyndman, Managing Displacement: Refugees and the Politics of Humanitarianism. Minneapolis and London: University of Minnesota Press, 2000; Alain Morice, 2004 (see note 34); and Liz Fekete, 2005 (see note 37).
41 Stephen Castles, 2004 (see note 11).
42 International Civil Liberties Monitoring Group, Anti-Terrorism and the Security Agenda: Impacts on Rights, Freedoms and Democracy. Report and Recommendations for Policy Direction of a Public Forum. Ottawa, February 17, 2004.
43 Sharryn Aiken and Andrew Brouwer, “The Pen is Too Mighty.” The Globe and Mail, October 14, 2004. See also the report by the Working Group on Arbitrary Detention of the UN Commission on Human Rights (note 33), which expressed “grave concern at the security certificate process.” The report also recommended that “terrorism suspects be detained in the criminal process, with the attached safeguards, and not under immigration law.” 
44 Aiken and Brouwer, 2004 (see above note).
45 The Canadian non-governmental organization Actión Réfugiés Montréal (ARM) works to protect the rights of detained refugees and ‘non-citizens’ held at the Immigration Prevention Centre in Laval, Québec. Concerned with the lack of external monitoring mechanisms that leave these detainees vulnerable to unjust treatment throughout the immigration process, ARM monitors the conditions of their detention, provides information on immigration and refugee law, secures legal aid, raises public awareness, and advocates for people’s rights. Increasingly important is assisting detainees to obtain identity documents and prepare for their refugee hearings. While UNHCR states that the detention of refugees and asylum-seekers is to be avoided, data gathered by ARM in 2005 revealed that over half of the people in the Laval Centre were refugees. 
46 The Globe and Mail, November 28, 2002, quoted in In the Shadow of the Law (International Civil Liberties Monitoring Group, 2003). This was a report prepared by the ICLMG in response to the Department of Justice Canada’s first annual report on the application of the Anti-Terrorism Act (Bill C-36). 
47 Louise Arbour, Human Rights and the Politics of Fear. Presentation to the Canadian Club of Toronto, 13 June 2005, Toronto. 
48 Ibid.
49 For the Canadian government position on the Migrant Workers Convention, see the Canadian Submission to the Global Commission on International Migration (www.gcim.org). 
50 Joan Fitzpatrick, Jeffrey & Susan Brontman, The Human Rights of Migrants. Paper presented at the Conference on International Legal Norms and Migration, Geneva, 23-25 May, 2002.
51 Saskia Sassen, Guests and Aliens. New York: The New Press, 1999. Quoted in Laura M. Agustin, 2003 (see note 13).
52 Samuel Huntingdon, Who Are We: The Challenges to America’s National Identity. Simon and Schuster, 2004.
53 Stephen Castles, 2004 (see note 11). On the concept of “imagined communities’, see Benedict Anderson, Imagined Communities, London: Verso, 1991. 
54 David Bacon, 2005 (see note 26).
55 Laura M. Agustín, 2003 (see note 13).
56 Ibid.

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

Papiya Ghosh, a remarkable scholar of modern Indian history, was a dear friend of CRG and a well wisher of REFUGEE WATCH since the beginning.  She died at the hands of an unknown assailant last December.  We are reproducing here in her memory an article written by her and first published in REFUGEE WATCH in 2000 (No 12)

The Beginning

            In the space of a few months during the Partition of India in 1947, twenty million people were displaced, a million died, seventy-five thousand women were said to have been abducted, raped, and families were, divided, properties lost, homes destroyed and countries (India and Pakistan) exchanged.[i] Excluding the internally displaced, today South Asia has the fourth largest concentration of refugees in the world.[ii] Going back to 1940s,[iii] Partition's refugees/migrants during the last five decades have had a long' and complex history in the course of reaching respective homelands, some of them more than once (in the 1940s-60s and then in 1970s onwards) and some of them found themselves disowned by it in 1971 when Bangladesh came into being. Those who could afford, turned diasporic, those who could not, await repatriation-to Pakistan and still others have decided on lives of constant border crossings.
            By December 1951, 6,597,000 refugees had moved from 'India to West Pakistan, and 7,94,127 refugees moved to what was then East Pakistan.[iv] Of the Indian Muslims headed for Pakistan during 1947­48, 95.9% of the migrants from Assam, West Bengal and Bihar moved to East Pakistan and 3.2% to Karachi;[v] According to the 1951 census, 66.69% of the migrants in East Pakistan came from West Bengal, 14.50% from Bihar, 11.84% from Assam and 6.97% from other places in India.[vi] A passport and visa scheme was introduced only on 15 October 1952. But travel documents were not even required until 1953­54, several years after India and Pakistan became two separate countries. Several government employees opted for Pakistan, although some changed their minds later and returned to India.[vii] Following riots in Khulna and Calcutta in January 1964 and as a reaction, in Jamshedpur and Rourkela in March 1964, there was a yet another spate of migrations in both directions a After the December 1971 India-Pakistan war Pakistan was no longer a migrant destination. Meanwhile the Middle East had emerged as an alternative.
            When the autonomy movement picked up in the 1960s some 'Bihiuis' openly sided with the Pakistan regime. By December 1970, attacks on non-Bengali shops and properties by Bengali mobs were quite common in Dhaka and Chittagong. Many were killed at Chittagong, Jessore, Khulna, Rangpur, Saidpur and Mymensinghin early March 1971, even before the military action.[viii] Subsequently the Bangladesh government declared them to be Pakistanis who should be returned to their home country. Of the 534,792 Biharis who, applied for repatriation only 118,866 were accepted by the Pakistan government.[ix] Since the early 1970s, the, Bihari Muslim diaspora in the U.K. and U.S.A. intervened to salvage the Biharis from their existence in the 66 refugee camps across Bangladesh, initially through voluntary organizations, then the Asian Committee of the British Refugee Council and the Mecca based Rabita al Alam al Islam. In February 1972, Ghulam Sarvar, the editor of Sangam (Patna) floated the Bihari Bachao (Save the Biharis) Committee, which urged the Indian government to allow the uprooted Biharis to return to Bihar. While some of them did, others made Bihar a temporary base, en route to Pakistan, via Nepal, Sri Lanka, Burma and Thailand.[x] 

Across the Shores  

            It may be mentioned that earliest group of immigrants from South Asia to the U.S.A. were Punjabi men who settled mainly in California's agricultural valleys in the 1910s and 1920s and constructed a "Hindu" ethnic identity, which in those days simply meant "from Hindustan or India", even though 90% of the men were Sikhs and 8% were Muslims. They married Mexican and Mexican American women. After Partition, there was a rupture among California's "Hindus". In ethnic representations at county fairs, a "Pakistani Queen" joined the "Hindu Queen" and many Muslim-fathered families renamed themselves "Spanish Pakistanis",[xi] On the east coast, in 1951, the New York based Pakistan League of America intervened against the deportation of "illegal" Pakistanis working as agricultural, factory, hotel and restaurant workers in New York, New Jersey, Michigan and California, and worked for a separate country quota for Pakistanis in the context of "millions" having been rendered homeless and refugees by Partition.[xii]
            Across the Atlantic, in Southall, London, the fallout of Partition was found to be "as intense" as on the subcontinent and had tangible consequences in the public sphere. Thus Pakistani Southallians were only entitled to associate membership in the powerful Indian Workers' Association. Muslims set up their separate community organizations, either: inclusively Muslim or specifically Pakistani or Bangladeshi.[xiii] An anthropological study of London's Punjabi Hindus which did not solicit thoughts on the Partition found its memory underpinning the narratives of both migrants and their British born children.[xiv] Despite the increasing public privileging of an Islamic identity, diaspora Pakistanis continue to valorize their national roots.[xv]
            The Stranded Pakistani General Repatriation Committee [SPGRC], formed in 1977, links the Bihari muhajirs in the 66 refugee camps and has had representatives in London, Chicago and Paris. Its overseas support network comes from the Bihar Muslim, rather than just the muhajir diaspora. The focus has been on working out the funding of their repatriation as a "humanitarian", rather than a "political" project. The SPGRC has during its career authored several, simultaneous recasting of the muhajirs. As 'refugees' threatening to do a Vietnamese, by moving from coast to coast to get across their statelessness to an unmoved UN, which slots them instead as "displaced persons". As 'Muslim Refugees' to get the support of the Mecca based Rabita al Alam al Islam. And trilingually, as Stranded/ Mehsoor/ Aatkay Pora Pakistanis to address their case more widely in English, Urdu and Bengali. While it shares the MQM's perspective that it was migrants from undivided India's Muslim minority provinces who created Pakistan there is a significant difference. It squarely blames the politics of the Muslim League for the uprooting of the Biharis and their being sacrificed three times over: in 1946, 1947 and 1971, and retrospectively idealizes Bihar, the pre-1947 homeland. In this 1980s reconstruction of the Pakistan movement, it is emphasized that the bulk of the railway employees opted for East Pakistan only in response to Jinnah's call to get Pakistan going.[xvi]

The New Nation Abroad 

            According to Tariq Meer, an organizer of the MQM in Europe, following the army crackdown in Sindh in 1992, in the space of a couple of months "thousands" had gone underground to escape death and torture, "hundreds" claimed refugee status in Britain alone, and "hundreds" more had gone to the U.S. and Germany. "Much of our work (these days) is dealing with governments across the world checking with us about the claims for asylum and refuge... We are beginning to get inquiries also from countries like Australia, New Zealand, Japan, Thailand and many others". Many also escaped to Afghanistan to look for ways out from there.[xvii] About a year later the MQM protested to the British Home Office, the French and German Interior Ministries, that the refusal to consider the political asylum applications of the MQM cadres was in serious conflict with the UN conventions of 1951 that dealt with the rights of the refugees. The British Home Office, on its part, had turned down the applications because the MQM had become a coalition partner of the government in 1997. The MQM then argued that the army had launched its operation against its cadres in 1992, despite it? Being a coalition partner of the Nawaz Sharif government.[xviii] The U.S. and Canadian governments too have over the years been in touch with the MOM to check out political asylum applications.19 Meanwhile several MOM leaders on the run have been in hiding in the Gulf and the U.S. since 1992. Occasionally, whenever possible, their supporters arrange for them to meet the' diasporic constituency. However, many hold back from coming out in the open as MOM supporters for fear of repercussions on their families back home. There are of course others, who either reject its politics or have come to distance themselves from its "terrorism", after having initially supported it, or are plain indifferent to its career, domestic or diasporic. Significantly, in a couple of cases Pakistani community organizations have split along muhajir/ Punjabi lines in the 1990s.[xix]
            The hardening of ethnic boundaries in Pakistan has over the years tightened the definition of muhajir, to produce "a revised category" which incorporates Urdu-speaking Pakistanis above all, to the exclusion of other ethnic groups who were similarly uprooted at independence". Thus migrants from East Punjab gradually came to be labelled primarily as 'Punjabi' rather than muhajir, a description which was reserved more and more for refugees coming from northern India.[xx] Of the approximately one million muhajirs who settled in Sindh by 1951, 85 % were Urdu speakers from the pre-1947 provinces where Muslims were in the minority. Initially they were dominant in the Muslim League and the government. Not long after however, the party self-destructed and virtually vanished. With the late 1950s domination of the army in the Pakistani polity, the muhajirs came to be" edged out by the Punjabis. Around 1984 when the Muhajir Oaumi Mahaz was formed, it cut into the Jamat e Islami's support among the migrants in Sindh. More recently the MQM has been described as "an excellent example of a movement that is diasporic, transnational and anti-state", with a leadership in exile in London,[xxi] since the army operations began in 1992.
            According to the MQM leader Altaf Hussain, guiding the movement from its international secretariat is expensive but adequately funded by supporters the world over.[xxii] His outreach inside and outside Pakistan is maintained with a combination of telephonic speeches and video addresses, with titles like Hum Door Nahi (I Am Not That Far Away). In 1996 the Overseas MQM had nineteen branches in the U.S.A. (started in 1988 and afresh in 1991) and two in Canada. In its estimate about 15% and 10% of the Pakistani diaspora in Chicago and New York are muhajirs, and some 10% of this strand is post-1992.[xxiii] The introductory comments of the 1994 Chicago annual banquet edition of MQM Vision, described diasporic muhajirs as its "natural constituency", who could provide "decisive" support in restoring human rights in Pakistan.[xxiv]
            Some support has been forthcoming. In 1995 the Coalition of Muslim Organizations of the greater Houston area, an umbrella group of 15 organizations in Texas wrote an open letter signed by 1,821 community members to all Pakistani leaders to resolve the Sindh situation with "an open mind" and passed a resolution against the massacre of citizens in Karachi. The Overseas MQM was on the panel of a seminar organized by the Pak-American Task Force for the Solidarity of Pakistan in 1995, in Detroif.[xxv] Likewise, in June 1995 the United Muslims of America (UMA), together with the Pakistan Association of the San Francisco Bay Area and the American Muslim Alliance, San Francisco organised a forum titled, 'Why Is Karachi Bleeding?" Rifat Mahmood, the UMA chairman, emphasized that though muhajirs had built Pakistan for all Pakistanis, there were still so many of them stranded in Bangladesh. A resolution was passed to involve all political parties, "including the MQM", in a conference to sort things out.[xxvi] A similar resolution was passed by the organizers of the forum on 19 August 1995, at the Pakistan Independence Day Festival at the Golden Gate Park, San Francisco. Around December 1995, the UMA made an offer to send a team of "highly skilled and qualified arbitrators of eminent American Muslims to facilitate and enhance the peace negotiation" in Sindh. The following year too, at the 4th Pakistan Independence Day celebration at the Golden Gate, there was a pointed rewind to the 1940 Lahore resolution and a similar offer was repeated.[xxvii] On the east coast Dr Shafi Bezar, who headed the International Council for Repatriation of Pakistanis from Bangladesh in the 1980s in New York, floated the Mohajir International Forum in 1995. This has links with the community in New York, Chicago and California. The Forum's solution lies in the creation of a muhajir subah in southern Sindh comprising Karachi and Hyderabad. Bezar claims that his cartographic intervention has received "tremendous support" in Karachi, and though there was "no direct answer from Altaf Hussain", there was no opposition either.[xxviii]
            The focus of the overseas MOM has been on making a human rights case of happenings in Sindh. In addition to its website updates, its twin videos, Extra judicial Execution and The Genocide include close-ups of reports of Amnesty International, Asia Watch~ World Organisation Against Torture and excerpts from U.S. State Department reports. Also scenes of tanks rolling on the streets of Karachi, morgue sequences, bereaved families and crowds at the funeral of Altaf Hussain's brother and nephew. In 1996 the MOM published A Catalogue of the Victims (The Mohajir Nation) of State Crime, a 134 pages account detailing state action against MQM supporters, its leaders and rank and file during 1995. Death Warrant was an appeal to "the world conscience" against the persecution of a "22 million strong" nation. Similarly Genocide of the Mohajir Nation and Mohajir Rights Are Human Rights carry supportive copies of reports' of international human rights organisations and western governments and stress that the MOM had been vindicated in national and provincial elections in urban Sindh in 1988, 1990 and 1993.[xxix] However, several of the human rights groups invoked by the MQM have also expressed their concern about its own human rights abuses, all of which is deflected as "concocted" preludes to legitimizing state repression. More recently the MQM organized protests in London, the U.S. (New York, Washington and Chicago), Canada, Germany, South Africa, Australia, Belgium and a couple of other countries to "internationalize" government atrocities against muhajirs, "16,000" of whom had been killed since 1992, in a terrain that it compares with Bosnia and Kosovo. Altaf Hussain added that he was only emulating the Pakistani government trying to internationalize the Kashmir issue through its action in Kargil.[xxx] The MQM tracks muhajirs as being crushed by the state right from the assassination of Liaquat Ali Khan, but is more focused against the post-1992 operations.[xxxi]
            A major demand made by the MOM in 1987 was that muhajirs be recognized as the fifth nationality (panchvi qaum), along with the Punjabis, Pathans, Balochs and Sindhis and that non-Sindhis and non­muhajirs should not be allowed to buy property in Sindh.[xxxii] Today its position is that if "national integration" is to be forged it is "imperative to recognize and accept the constitutional rights of Sindhi, Punjabi, Pakhtoon, Mohajir, Baloch, Saraiki, Brohi, Makrani and all other nationalities, fraternities, lingual, cultural and religious units".[xxxiii] Not long ago however, around 1994, the MQM had moved close to creating a province comprising the southern Sindh cities of Hyderabad, Karachi, Mirpur and Thatta.[xxxiv] This "reduced notion of Pakistan", i.e., Urdudesh/Muhajiristan/Jinnahpur has been attributed to second-generation muhajirs.[xxxv] A couple of months ago the MOM had warned of 'another Bangladesh' in case the Nawaz Sharif government extended job quotas on a rural-urban basis to pit the Sind his against the muhajirs.[xxxvi] Simultaneously however, Altaf Hussain stated that if Sindh continued to be "ruled from Punjab" then there would be no choice left but to demand the right to self determination, as written into the 1940 Lahore resolution. But he added that the basic disagreement between the MQM and the Jeay Sindh Oaumi Mahaz (part of the World Sindhi Conference formation to be discussed below) is that "they demand a separate 'Sindho Desh', whereas the MQM aims for full provincial autonomy for Sindh within the (geographical) framework of Pakistan"[xxxvii] A point often made by the MOM leader, Altaf Hussain, not too long ago was that when the muhajirs had a country they sought freedom; now that they have freedom they are seeking a country. ["Watan thaa to azadi dhoondta thaa; Ab azad hoon to watan dhoondta hoon'].[xxxviii]
            The WSC's stand regarding the repatriation of Biharis from Bangladesh has been that of opposing it stiffly. Thus in the late 1980s it sent a backgrounder on the Biharis to Lord Ennals of International Alert and the Asian Refugee Council to put its point of view across. In its recall the Biharis had migrated to East Pakistan "of their own free will in search of a better life". But "instead of merging with the native population they tried to impose their language and culture" on the Bengalis and later established "terrorist organizations called Al Shams and Al Badr which were active in the massacre of Bengalis in 1971 and then went on to become "unwanted parasites". It was ironic, according to its then chairman, Halepota, that the MQM had emerged along similar lines and with the intention of turning Sindhis into a minority, to make them "aliens in their own homeland".[xxxix] This continues to be the WSC position and its meeting in London on 29th August 1999 passed a resolution both against the repatriation of Biharis to Sindh and for the return of "illegal migrants" to their countries of origin.[xl]
            But very recently and perhaps significantly,- the chairman of the WSC, Dr Safdar Sarki noted, that it was a positive sign that Altaf Hussain had for the first time "explicitly and resolutely expressed his views on the injustice and wickedness inflicted upon Sindh and Sindhis after the creation of Pakistan" by Punjabis [see above]. In response, he added that the Sindhis had never trampled the rights of the Urdu-speaking population, nor had they shut their doors to "the new settlers" in 1947. He also recalled that G.M.Syed had seen in the MOM the debut of lower and middle class leadership among the Urdu-speaking people, but regretted that subsequently the MQM was turned against the Sindhis by "Punjabi agents". That, he regarded as the "biggest mistake of the MOM in its history". Was it not time, that the Urdu-speakers called themselves Sind his, fifty years after migration and when all of them were born in Sindh?
            Have we not seen a similar trend all over the world? Especially in the UK and USA, many immigrants have accepted local identities in one way or other, and many people proudly call themselves "British" or "American". The same holds true for immigrants from Africa, China, and Latin America, who made UK or USA their home. They keep their languages and cultures intact and practice their customs. Yet, they are part of the host na1ions. Why don't we accommodate a comparable scheme in the case of Sindh?[xli]  Thus, for Sarki the possibility of retrieving the legacies of Shah Latif afld G.M.Syed towards resolving Partition's migrant history is to be sought in the pedagogy of diasporic formations.[xlii] 

Forefathers 

            Compared to overseas communities of other origins, the total number of people of South Asian descent who' are living outside South Asia is quite small. Exact figures are difficult to come by because of major national differences in census taking. But a decade ago the total number of South Asians living outside Pakistan, India, Bangladesh, Nepal and Sri Lanka was about 8.6 million, i.e. fewer than 1% of the combined populations of these South Asian countries.[xliii] Very briefly, the first wave of migration from the subcontinent started around 1830 and lasted until 1920 and consisted of indentured labour recruited for the plantations and railways that were being established in the British and French colonies. The second wave of emigration from the subcontinent occurred between 1920 and 1939 when small groups of traders and white-collar migrants travelled to British East Africa, South Africa and Malaya. The third period of emigration began after the Second World War and includes the following strands. Workers are in the lowest levels in factories foundries and textile mills in the expanding British economy. Across the Atlantic, South Asian immigration to both the U.S.A. and Canada has been two-phased. One dating from the early twentieth century and more staggered and discontinuous, comprising in the main of the labouring and agricultural class and the second, around the mid­1960s, of mainly middle class professionals.[xliv] Following shifts in the world economy around the mid-1980s, migrants from smaller towns and less privileged backgrounds are now working at restaurants, news­stands and grocery stores or driving taxicabs.[xlv] In addition since the oil price rise in 1973 there has been a wave of migrants to the Middle East,[xlvi] totaling between three and four million South Asian workers. On the whole, South Asians comprise 0.5% of the U.S. population and about 2% of the Canadian population.[xlvii]
            According to one estimate South Asian Muslims in the U.S. add up to between 250,000 and 450,000, with about 160,000 Indians, 80,000 Pakistanis and 10,000 Bangladeshis. Quite the reverse of the U.S., where Muslims from the Middle East are in a majority, it is South Asians who predominate in Canada, as they do in Britain. Early South Asian Muslim immigrants were mostly farm labourers from Punjab and moved to the U.S. from western Canada, settling in California, Oregon and Washington. In the 1920s and the 1930s, sailors, small traders and factory workers from Bengal in particular Sylhet, settled in New York, New Jersey and Connecticut, with a few moving to industrial centres like Boston and Detroit. Several students who enrolled in American universities in the 1950s and 1960s just stayed on. The largest and most "homogeneous group of Indian Muslims belong to Hyderabad. Numerically, Gujratis and Mahrashtrians come next followed by Muslims from Assam, Bengal and Bihar Though widely dispersed in the U.S., there are large concentrations in California, Illinois, and New York, New Jersey, Connecticut and more recently in Texas, Florida and Georgia. 

The Americas 

            Within this formation the emergence of the American Federation of Muslims From India [AFMI] in 1989 was equally a statement on the tokenism faced in the Indian community at large and the non-Indian preoccupations of the umma, despite the fact that Indians add up to 12.5 - 13% of the community. Based in Detroit, it has regional presidents in California, Illinois, Massachusetts, Nebraska, Texas, Washington DC and Canada and an international liaison committee covering USA, Germany, Australia, Saudi Arabia, Kuwait and the UK. Its intervention against the Hindutva project is summed up in its statement submitted to the Indian prime minister, Narasimha Rao in 1993 in which it summed up that India stood torn between "those who want to turn the 46 years old republic into a, Hindu state...and those who are keen to establish secularism". During the 1993 elections, it identified UP as the battleground between fascist and secular forces. In its perception what had sharpened the struggle was the fact that the citizenship of Indian Muslims was "still under suspicion" years after Partition. Together with other Indian American Muslim organisations it campaigned during 1994 for the release of Muslims held without trial after the 1992-3 riots under TADA (Terrorist and Disruptive and Activities Act). In 1994 it forged an alliance with the International Dalit Sena, led by Ram Vilas Paswan of the Janata Dal: It has simultaneously been taking on the Hindutva ensemble in the U.S. through its newsletters and advertisements in Indian American newspapers "to counter the myths and lies propagated by Hindu extremists". Alerted by some Indian leftists it ran a successful campaign against the phone company, AT&T in 1994, for being party to the Vishwa Hindu Parishad (VHP) fund-raising, by pointing out that this would "only lead to the unleashing of more terror and death on minorities in India."
            Between 1994 and 1996 AFMI has organized educational meets in Delhi, Lucknow and Patna to achieve its target of 100% literacy for Indian Muslims by the year 2005. It has also urged the US government to allocate "say 10-15%" of US investment specifically for minority entrepreneurs. However, its response to economic liberalization has been uncritical in its expectation that it will generate immense "opportunities" for Muslims. And though its electoral watch was centred on north India it did not engage with the shifts that have occurred within the community both at the levels of leadership and agenda, in particular the movements for affirmative action among the subaltern Muslim biradaris since the 1990s. These movements have not only challenged the ashraf leadership for having led the Pakistan movement and subsequently focused on "emotive" issues mobilizing around communitarian-identitarian symbols, but emphasized the lower caste pre-conversion roots of 90% of the community. At least in Bihar, the dalit and backward Muslims have intervened to inscribe their agency l5y keeping track of AFMI's projects. Thus the All India Backward Muslim Morcha pointedly gave its literature to its delegation visiting India. And the Amarat e Ahle Ansar associated with the Pasmanda Muslim Mahaz passed a resolution against AFMI for seeking reservation for "all" Muslims.
            Other organizations that have focused on contesting Hindutva and funding relief and legal aid to Muslims arrested in the aftermath of riots of 1992-3 ("about 80%" of the "65,000 TADA detenus" were Muslims) and in general campaigned for the human rights of Indian Muslims include the Indian Muslim Relief Committee of the Islamic Society of North America (IMRC), the Consultative Committee of Indian Muslims in the U.S. and Canada (CCIM), and the Association of Indian Muslims of America (AIM). According to AIM, which represents over "100,000" Indian Muslims in North America, though 60 million Muslims had rejected the two-nation theory and stayed on in India in 1947, they have been victims' of the backlash of the formation of Pakistan during the past several decades. Thus Indian Muslims are stereotyped as being fundamentalist and "intolerant of the Hindu majority" bath in the Indian and North American press. Ever since the making of Pakistan, notwithstanding their having cleared that "agnipariksha", they have been on the receiving end of "unrelenting economic discrimination, injustices, humiliation, intimidation, carnage of violent riots and considerable loss of life and property". AIM intends to forge links with progressive Indians and has been working an establishing links with Pakistani Americans. It supports the search far a "new leadership" among progressive Indian Muslims who. "Should definitely not wage campaigns an symbolic issues like the Shah Bana affair arthe Satanic Verses issue". More importantly it holds that the "state of siege" in the Muslim community needs to be broken. In January 1995 same AIM office bearers on a visit to England held meetings with the Indian Muslim Federation (IMF), the largest organization of Indian Muslims in the UK, and the Union of Muslim Organizations of UK to work on joint campaigns and projects aimed at improving the situation of Muslims in India. However, two years ago, the IMF (which had earlier organized protests against the Bhagalpur riot in 1989) appeared divided aver its approach to the Bharatiya Janata Party, though it was still dominated by pea pie who supported the Janata Dal ar the Cangress.[xlviii]
            The Canadian Council of South Asian Christians, established in 1991, includes Christians from Bangladesh, India, Pakistan and Sri Lanka, and has been working on overcoming their exclusion and discriminatory treatment bath within the South Asian and wider Canadian community. It aims at dialogue with non-Christian South Asian organizations "to create a better understanding between the communities". A representative mention may be made of one of its community service awards in 1996. The recipient was Shadab Khakhar of the International Christian Awaz, far his five-year long campaign against religious persecution in Pakistan under the blasphemy law. Through his initiative protest rallies were launched in Toronto and Ottawa in 1991 and 1993. A memorandum of understanding was signed between the Canadian government and Awaz, as result of which 200 families migrated to Canada by the end of 1996. Last year the National Association of the Asian Indian Christians protested to the UN to increase international pressure and the BJP-led government to rein in right-wing Hindu groups who had made several attacks an the community in India.[xlix]The Bangladesh Hindu, Buddhist and Christian Unity Council, UK, it may be mentioned here is in touch with the World Sindhi Congress which has taken a stand against the rise of religious fundamentalism and called far the immediate abolition of the blasphemy law in Pakistan. [l]
            The elite Indian American organizations include the Association of Indians in America, the Federation of Indian Associations [which split into. the FIA, the Federation of Hindu Associations and the FIA-Indian Origin between 1994-7] and the National Federation of Indian American Associations. They are known to have made efforts to win greater US government support far India (and less favour to Pakistan), an effort that has occasionally made the Indian community support right wing politicians. In general, the leadership of the Indian immigrant community is conservative. It has not sought to farm alliances with other ethnic groups. In the late 1980s, far instance, Chinese and Koreans in the New York area made tentative moves towards a pan-Asian combination against racial discrimination but there was no response from the Indians. In fact mast Indian immigrants express open prejudice against African Americans and Hispanics and non-white migrants. By contrast, many South Asian immigrants in bath Canada and Britain have chosen an alternative strategy, identifying themselves as 'black'.[li] It has been argued the Indian immigrant bourgeoisie -remembers the history of the Indian community in the U.S. largely in terms of its awn history since the mid-twentieth century. This selective memory that deletes the pre- First World War subaltern immigrants (the farmers, railroad builders, workers and political refugees) from its narrative, is seen to flaw from its model minority self-image, one that seriously limits its understanding of racism and its response to other communities, By contrast, the history of the pre-first world war immigrants is summed up as mare' radical in its awareness of the scope of western imperialism and the diaspora generated by it. While this perspective does not mean to devalue the importance of a minority group’s efforts at creating a voice of itself, it paints to its intense racism towards other communities and its denial of the existence of marginalized Indians: the illegal migrants, the ill-paid labaurers and domestic workers, gays, lesbians and battered women. Thus community events became the space in which the bourgeois immigrant centrals the fate of national culture and appropriates Indian immigrant identity.[lii] 

The Right 

            During the past two decades the Hindu right has been doing intensive propaganda among the Indian immigrants in the US, UK and Canada. It is against this backdrop that we documented the intervention of same Indian American Muslims and will, later in this section consider that of some, leftist groups. But first is a look at the Vishwa Hindu Parishad of America (VHP­A). It is registered in thirteen states, mostly on the East Coast and has a membership of around 2000. At the local level it has "contacts" with about 10,000 families.
            Much of its work focuses on children's educational programmes and youth camps. It publishes literature on the "Hindu way of life" and runs its social service projects mostly in India. But its influence extends welt beyond its enrolment. According to one summing up, in the US religious identity becomes a way of evading racial marginality. Moreover, support for a strong nationalist state at home is seen to promise a better status in the terrain migrated to. Unsurprisingly contemporary Hindu nationalism articulates "a genteel multi-culturalist presence in the US with militant supremacism in India".[liii]
            At the "First Dharma Sansad in the Western Hemisphere" organized by the YHP-A in Pennsylvania in August 1998 the achievements catalogued included the setting up of the Hindu University of America in Orlando and the expansion of the Hindu Students Council (HSC) to "almost fifty campuses". It was added that, "it is because of the brilliant work of some of the very bright people of the HSC, (that) the Hindu Dharma has a major presence on the Internet and the World Wide Web". The report of the Sansad detailed the antecedents of the contemporary "Hindu Diaspora" to include the Buddhist dispersal at "the time of Emperor Ashoka" and subsequently that of the Vaishnavs in South East Asia. "Then came the darker time of foreign invasions...then came another. Diaspora was in the nineteenth century the forced one, when the British took Hindus [completely overlooking the 15% of the jahazis who were Muslims] to their colonies". It sees the "most recent", i.e. the second half of the twentieth century one as likely to bring about "more far reaching effects than any other Diaspora". The resolutions passed were unmistakably homogenizing in intent. "The VHP-A should be the voice of Hindus in the western hemisphere. All religious, spiritual, cultural organizations, temples and ashrams should associate, endorse and /or affiliate with the VHP-A, to make the Hindu Voice more effective" (original emphasis). It also resolved to publish "an authentic history book of India and its heritage for the benefit of the young generation of Hindus in the Western Hemisphere". At the same meeting Ashok Singhal regretted that the divisions of sect, caste and language were "unfortunately retained even in the foreign lands" (sic). He stressed that "Unifying Hindus is not sufficient, We must be assertive Hindus. We have always been compromising... [liv]
            "Youth Ready to Induct Time Tested Hindu. Values in Modern Society", reads the title of a report on a youth conference in Boston in June 1998. The Hindu Heritage Day in Houston that May spent "some serious moments at the mention of the more then 40 Kashmiri Hindus" killed around that time, "just for being Hindus". The same issue of Hindu Vishwa carries an e-mail reminding readers that "there may be so many Hindus from Afghanistan, in the US & Europe who are waiting for some help from us" and that the Taliban had imposed jizya on Hindus. It also carried a notice that the Global Hindu Electronic Networks (GHEN) was adding eleven new Amar Chitra Kathas to Freeindia.org, an educational website which is a project of the HSC. The new additions included Shivaji, Valmiki, Vidyasagar, Mirabai, Parshuram, Prithviraj Chauhan, Harishchandra, Ganesha, Kumbakarana, Draupadi and Rana Pratap.[lv] Significantly over the last few years in universities and community centres in Britain, the VHP has been targeting Hindu Asian youth with the slogan, "Better to be a Hindu Asian than a British Asian" and projecting Hindutva as the answer to the Muslim fundamentalism sweeping the college campuses.[lvi] 

The Left 

            In response to the spread of the Hindutva movement in North America, the Forum of Indian Leftists (FOIL) was formed in 1995 as an organization of overseas Indians to intervene "in the crisis generated by neo-liberal economics and communalism - crises that find expression in the diasporic Indian community and in the Indian nation". It collaborates with other progressive individuals and groups active on similar issues in Europe, North America and the South Asian subcontinent. The focus on India was explained by drawing attention to the fact that "there are certain issues that are bound by the nation-state and its products overseas, which are not identical with those of South Asia as such". It feels that if other South Asians later want to become a part of it it would "change accordingly". Its pamphlet series include subjects like structural adjustments, new capital flows into South Asia Area Studies and the Indian left's support for liberalization. Among its projects are the coordination of a speaker’s bureau of intellectual-activists, putting together a cultural collective and a progressive South Asia exchange web project. Also a media project to appear in specific centrist newspapers such as India Abroad, India Tribune and India West. It envisages summer school internships to link second-generation students with radical non-governmental organizations and leftists in India. In 1997 it organized a Youth Solidarity" Summer programme in Atlanta, on the occasion of fifty years of Indian independence and Pakistani nationhood, to offer progressive perspectives on South Asian history, identity and politics. This was to address a "growing" and "stark need" for "alternative engagements with South Asia" so that the second generation can learn about contemporary South Asia as' well as the complexities of the diaspora. As it summarizes, on the one hand reified notions of South Asian "tradition" and "culture" are transmitted by immigrant parents. On the other, the only South Asian studies offerings on the university circuit are most often informed by orientalizing perspectives or erasures of the knowledge of popular struggles for economic, religious and gender equality in South Asia.[lvii]
            A few days after the destruction of the Babri Masjid, the Coalition Against Communalism (CAC) was formed in the Bay Area in 1992. According to one of its members, the right-wingers in the South Asian community are among the most effective organizers. "At the drop of a hat they can get 40 people into a room to sit writing letters expressing outrage about something or the other. So the idea was to form something to counter that. And to say that there is an alternative point of view". The group has Indians and Bangladeshis and some Pakistanis. But its focus was mainly on India, "because Indian communalism was, at that point" the problem that bothered them "the most".[lviii] In 1998 a BJP Government Watch group emerged in the US to monitor the HSC.[lix] The recent right wing take over of institutions of research like the Indian Council of Historical Research and the withdrawal of two volumes of the "Towards Freedom" documents series from the publishers evoked web­site interventions such as "Akhbar" and "South Asia Documents". There was an appeal to take up the matter in academic associations and area studies centres to express concern on this subject to the Indian government.[lx] There are several bibliographical resource pages against communalism on the Internet. Significantly the web site of the BJP is in fact operated from the US.[lxi]
            Based in the US, SAMAR (South Asian Magazine for Action and Reflection) is published twice a year. The term "South Asian", it elaborates, is chosen "to bring attention to the fact that South Asians are. a group of people with a shared history and that this history provides a common basis for understanding of our place in the contemporary world". It's statement goes on to add that "whereas most other South Asian, magazines are based on differences of region, religion and nationality within South Asia", it has chosen to base itself "on a South Asian collectivity that is now spread out across the globe" (emphasis added). Ranged against the contemporary rightward political drift, it sees its basic commitment as social and economic justice both in North America and South Asia. In 1998 it began producing a regular radio programme as part of the Asia Pacific Forum in New York (WBAI 99.5 FM). Subjects covered included the Indian elections and nuclear test explosions in the subcontinent and the taxi workers' mobilization and strike (see below) in New York.[lxii] 

Taxi Drivers and Others 

            The Lease Drivers Coalition (LDC), a community-based organisation of the Committee Against Asian Violence (CAAAV, 1986), which grew out of feminist and leftist Asian American politics, was formed in 1992 and organizes South Asians who form 50% of the New York's 30,000 yellow cab drivers.[lxiii] Subsequently called the New York Taxi Workers Alliance (NYTWA), the focus is on negotiating the racialized police force, the exploitative garage owners, the Taxi and Limousine Commission (TLC) inspectors and courts. Most drivers work about 84 hours a week in 12-hour shifts. In 1997 some drivers invested in citizens band radio networks to bond themselves linguistically (about 31/40 are Punjabi networks and around 5 Bengali). The organizing committee members meet two or three times each month, and general members meet once in every two months. Initially the bulk of the roughly 700 members were Pakistanis. On 13 May 1998 the NYTWA co-organized a taxi strike in New York, during which 97% of the drivers are believed to have been off the streets against 17 new anti- worker laws proposed by the TLC. The LDC profiled itself as being different from other unions and driver organizations in that it had "equal respect for Bangladeshi, Indians and Pakistanis". This solidarity making is conceptualized as a prelude to linking up with drivers of "all other communities", such as African Americans, Latinos, Europeans and non-coloured Americans.
            The Canadian counterpart of the South Asian movement is said to have "a somewhat older history" than the American one. Thus for example, the proliferation of South Asian materials emanating from Canada (films, music, cultural events, journals, anthologies) has yet to be matched in the US. This has been attributed to two factors. The significantly larger concentrations of South Asian populations are in large Canadian metropolitan centers such as Toronto, Vancouver and Montreal. And the unconscious promotion of ethnic identities through Canada's declared "mosaic" policy in multicultural affairs.[lxiv] In Toronto, the post-1960s South Asian diaspora has recently expanded with the arrival of 100,000 Tamils, many of them asylum seekers. Here progressive activists, some of whom belong to the South Asian Committee of the New Democratic Party have been forging a collective. This includes the Progressive Pakistani Committee, the North American Sikh League, the Tamil Eelam Society, the Canadian Council of South Asian of South Asian Christians (mentioned earlier) and the Scarborough Muslim Association .The agenda is to think through participation in Canadian politics as well as to intervene against racism both among South Asians and other metropolitan communities.[lxv]
            The South Asia Solidarity Group (SASG) supports people's struggles against exploitation and oppression in South Asia and strengthening the links between these struggles and those of Asian communities in Britain. In Britain its activities have included supporting Asian women workers demanding basic rights, organizing against racist attacks and opposing racism in health and education policies, as well as fighting repressive immigration and asylum laws. It also produces and distributes written material. One of the events in its -campaign of saying no war and fascism in India and Pakistan included distribution of leaflets on mass scale and collecting signatures at the World Cup final at Lord's cricket ground two years ago. Its quarterly, Inquilab, carries articles takes on debates among the left in South Asia and Britain. Its conference on "Globalization, Identity and Resistance" in October 1997, to mark 50 years of the end of British rule in South Asia drew nearly 200 participants, both activists and academics from South Asia, Britain and Canada. The workshops examined themes such as workers' struggles and globalization; cultural production and globalization; gender and nationalism; nationalism and refugees; communal/fascist parties rooted in the denominational politics of Partition; and national liberation struggles in Kashmir, Baluchistan, Sri Lanka and of the Jumma people in Bangladesh. "In' a period when erstwhile progressive writers and intellectuals are becoming apologists for imperialism", the organizers highlighted the significance of bringing together a coherent critique of globalization. As a follow-up the SASG is "beginning to examine the growth of communalism in the Asian community in Britain It is also working on developing a coherent left perspective on workers' struggles in Britain. As it see it, "this will involve working with a wide network of groups and identifying possibilities for unity".[lxvi]
            A random look at the letters to the editor columns of newspapers in the Gulf and a couple of interviews indicate that ethnic and communal politics flowing from the Partition experience and the nation states defined by it, avidly engage the South Asian community and explain fund-raising initiatives and political affilitations.[lxvii] What became sharply evident, since the early 1990s in particular, at several levels and in different ways, both in the subcontinent and the South Asian diaspora is that the denominational nation making projects of the 1920s -1940s are still around…and are being worked on/ bypassed/questioned/ transcended. It is a contested field, but given the combination of transnational practices and transborder technologies, as also the different, gendered layers of the Partition diaspora itself, it is imperative for social scientists and activists to track events, trends and debates in the subcontinent as well as in the diaspora.[lxviii]
            Thus for example, the South Asia Citizen's Web has emerged as an "independent space on the net to promote dialogue and information exchange between and about South Asian citizens' initiatives [located in Bangladesh, India, Pakistan, Sri Lanka and in their diasporic communities]" (emphasis added).[lxix]…Likewise, the web site of the Bombay based journal Communalism Combat notes that its subscribers include anti-communal Indian groups in the US, Canada and UK.[lxx] Similarly, more and more non­governmental organizations in South Asia are beginning to forge regional networks to tackle issues like mass movements of refugees and cross-border migration. In 1994 the South Asian Human Rights community acquired a profile to work on discrimination against minorities, women's rights, torture and extra judicial killings.[lxxi] It should be added that one of the resolutions of the six year old Pakistan-India Peoples' Forum For Peace and Democracy at its 1995 session in New Delhi decided that "future such people to people meetings should include Indian and Pakistani diaspora."
            The Pakistan-India People's Forum is an attempt at making the constituency for a sub continental peace movement visible. It is ranged against state sponsored ideologies of demonizing the other that inform the "national security" agendas of the post Partition nation states. Its five joint conferences in Delhi, Lahore, Calcutta, Peshawar and Bangalore in 1995-2000 attended by representatives of trade unions and mass organizations, academics, artists and activists got support from members of the Pakistan-Indian Diaspora. Regarding Kashmir, it aims at getting past the assumption that post-colonial nation-state boundaries are sacred and that it is just a territorial I dispute. This is seen as basic to reducing communal and ethnic tension in the subcontinent and scaling down defence expenditure and militarism Its re-definition of political nationhood contests the minimizing of contact between the people by governments that impose restrictions on travel between the two countries and on the duration of each stay. The Forum is therefore working for the granting of visas with greater ease, the reduction of costs of telecommunications and postal exchange and facilitating the free exchange of journals and information. It also proposes the joint preparation of resource books and pamphlets and literature alternate people-to-people television channels and joint cultural productions and securing the rights of cross­ border migrant labour. Given the connections that are made between the "border question" and the "communal question" this is going to be uphill going. Significant headway has however been made in linking up the women's movements in Pakistan and India. This will expand to include drawing up a charter of women's rights, The expectation is that Muslim women in Pakistan, Bangladesh and Sri Lanka supporting this charter will support Muslim women in India and women in Pakistan will get support in their demands for women's rights beyond the present focus on marriage, divorce and personal laws.

A Report by Women's League of Chinland on Hidden Crime Against China Women 
by Women’s League of Chinland

A Report by Uddipana Goswami on Muslim IDPs in Western Assam
by Uddipana Goswami (An Independent Researcher of Assam)

            On National Highway 31, a few kilometers before reaching Bongaigaon - which hosts the Bongaigaon Refinery and Petrochemicals Limited - is Goroimari village. On either side of the highway that passes through Goroimari are visible a number of small hutments, most of them hardly four feet by seven. Beyond the hutments, the Aie river can be seen flowing by. A signboard identifies this settlement as the Goroimari Relief Camp. 
            Driving towards the camp from Bijni which is the closest town and subdivisional headquarter - Goroimari falls under the Bijni subdivision of Chirang district - what strikes one the most is the presence of children playing or running around dangerously close to speeding vehicles. The author was told, though exact dates have been forgotten, that a small girl from the camp was run over on the highway[i] a year or two back. The hutments also seem too close to the highway. In November 2005, a loaded coal truck fell on one of the huts killing a newly wed couple on their first night of marriage (Barman & Ahmed 2005: 7).
            Driving past, one can see a few shops, interspersed with the hutments, lining the highway. If one is observant, in winter months one would also see, on bamboo bars placed horizontally between vertical poles, rugs of a kind. Closer inspection shows intricate embroidery on these rugs made out of old saris. These are kathas and they are as strong an indicator of the identity of the camp inmates for the casual observer as other cultural markers such as attire - they are Muslim peoples of East Bengali origin in Assam. And East Bengal, which in 1947 became East Pakistan and in 1971 Bangladesh, is famous for its embroidered quilt called nakshi katha which forms part of the repertoire of folk skills of East Bengalis, especially women[ii].

Muslim IDPs in Kokrajhar and Chirang

            The Goroimari relief camp, like seven others in the contiguous districts of Kokrajhar and Chirang, houses Muslim people of East Bengali origin in Assam, a community also commonly called the Sar-Sapori Muslims or Miyas. These camps include Sandlartari, Nangalbhanga, Bengtol, Bangaldoba, Hapachara, Sidalsati and Tapatari, besides Goroimari. Following the signing of the Memorandum of Settlement on Bodoland Territorial Council (BTC) in 2003[iii], many administrative boundaries were reshuffled to create the four districts under BTC and the district of Chirang was carved out of portions of Kokrajhar and Bongaigaon. It is a poignant pointer towards the chaos in BTC today that even after two years of demarcation of its territory, there is much confusion regarding which district these camps fall under. For instance, the Goroimari camp which falls within Chirang is, even in recent representations identified as coming under the charge of the Bongaigaon district administration. In fact, all official demands for relief and rehabilitation by inmates of this and most other camps of Chirang district are placed before the Bongaigaon district administration. Others, which before the Memorandum of Settlement had fallen under Kokrajhar (Bengtol for instance), approach the Kokrajhar district administration. Indeed, inmates of an Adivasi camp[iv] at Bengtol claimed never to have even seen their Sub-Divisional Officer[v]. 
            Further, there is no one voice in the district administrative departments regarding the status of relief and rehabilitation, one of the forty state subjects purportedly transferred to BTC, though BTC officials claim it is under their charge[vi]. The Memorandum of Settlement of 2003 however clearly states 
            The special Rehabilitation Programme (SRP) for the people affected by ethnic disturbances in Assam, who are at present living at relief camps in Kokrajhar, Bongaigaon etc. shall be completed by the Government of Assam with active support of BTC. Necessary funds for the rehabilitation shall be provided by the Government on India and lands which are free from all encumbrances required for such rehabilitation shall be made available by the BTC iii
            Inspite of this, confusion prevails over areas of intervention by both BTC and Government of Assam which has at many times led to neglect of certain areas of relief on the one hand, and on the other, caused overlapping and utterly wasteful expenditure under the same heads.[vii] 

East Bengali Muslim Settlement in Western Assam 

            The Muslim people of East Bengali origin are a people who immigrated to the colonial province of Assam after the state sponsored or facilitated their settlement here since the first decade of the twentieth century, though in some cases they migrated even earlier[viii]. There were various routes the immigrants took to come and settle in land-abundant Assam during the colonial period, but one of the most favored routes was through Western Assam, most of which till 1983 comprised the undivided Goalpara district. Through this western frontier - Kokrajhar and Chirang are the westernmost districts of Assam on the north bank of the Brahmaputra river - flow of goods and peoples had been taking place in all periods of history. Indeed, Western Assam has been the connection between Northeast India - most of which once comprised the province of Assam - and mainland India through Bengal, both Eastern and Western. 
            The Muslim immigrants in Western Assam came into contact with the indigenous populations there when they entered this sub-montane belt where the indigenous peoples, especially the Bodo, had been living. In many cases this happened during the first waves of immigration when particularly the railways[ix] running across the sub-montane tea belt provided the immigrants easy transport to these sparsely populated areas. There have also been instances however, of very recent migration - as recent as 20-25 years ago[x] - into Western Assam from the neighbouring districts of Dhubri, Goalpara, Barpeta, Bongaigaon as also from the further off districts of central and southern Assam. There are also those who came from neighboring Jalpaiguri in West Bengal (DC Kokrajhar 2000). Allegations - not entirely unfounded as first hand experience on the Indo-Bangladesh border would manifest - are also often raised of infiltration of illegal immigrants from neighboring Bangladesh and this has proved to be one of the greatest hurdles towards creating social consensus in Assam with regard to this community. In fact, on many occasions this has been used as a justification for wholesale persecution of the entire community in Assam. 

The History of Discord 

            When the immigrants initially came to Assam, they had a definite economic advantage over the indigenous peoples. Elsewhere the present author has detailed (2005c)

These indigenous peoples at the time were at various stages of development from swidden to settled cultivation. The Bodo especially were swidden cultivators traditionally and had only recently taken to settled cultivation (Guha 2000: 33). Again, they were used to barter economy and when the settlers came, were still struggling to cope with the money economy introduced by colonial rule[xi]. 
The migrants, on the other hand … were not only adept at settled cultivation but also more enterprising and commercially inclined. They had much scope for using their advantages to the disadvantage of the indigenous people, which they did if oral accounts collected during the course of field interviews are anything to go by. To cite one of these accounts, brinjals and potatoes were vegetables introduced by immigrant Muslims in many Bodo areas. Cases of unequal exchange between the two communities of small numbers of these novelties against huge quantities of foodgrain form part of childhood recollections of a few elderly Bodo individuals[xii].

            Growing political awareness and nativist sentiments among the Bodo since mid-twentieth century, however, brought the two communities into confrontation. The immigrants already had an articulate political leadership that drew on the rhetorics of humanitarianism, economic and political rights and advantages, and so on to justify continued influx and settlement of landless East Bengalis in Assam. 
            In postcolonial Assam, the scenario took a slightly different turn in that the binary oppositions of indigenous and settler rights now overtly had another dimension added to it as the Axamiya-speaking - largely Hindu - people assumed the role of the ‘mainstream’. The opposition(s) could now be identified between the ‘ethnic’ Axamiya – the Axamiya-speaking dominant community, indigenous peoples of Assam and settler communities, with the ‘ethnic’ Axamiya enforcing a policy of assimilation - an example of which was the Assam Official Language Act of 1960 that declared: ‘Assamese shall be used for all or any of the official purpose, of the State of Assam’[xiii] - on the others as a precondition of inclusion[xiv]. The settler communities, most notably the Muslims of East Bengali origin had already recognized the necessity of such an assimilative approach if they were to avail of the opportunities that were open to the mainstream; the indigenous communities, on the other hand, attempted a reversal of the assimilation that had already occurred. The anti-Axamiya slogans of the Bodo movement have their genesis in this attempt that has proved to be a very potent tool of political resistance. 
            As identities thus continued to be reconstructed or remodeled in relation to the mainstream, changes also continued to take place in the equation between the Bodo and immigrant Muslims of Western Assam. The Bodo agitation for a separate homeland that was launched in 1987 initially directed most violence and vituperation towards the ‘ethnic’ Axamiya and Koch-Rajbongshi people[xv] in the proposed Bodo homeland which initially comprised of the entire north bank of the Brahmaputra valley - or roughly half the territory of the current geo-political extent of Assam[xvi]. The year 1989 especially saw large scale violence against Rajbongshi people in Bodo areas, and sporadic incidences of violence against ‘ethnic’ Axamiya so much so that till date, Axamiya officers consider being transferred to Western Assam as ‘punishment posting’. This was the time when the walls of Kokrajhar town, the heartland of the Bodo agitation, wore graffiti proclaiming Bodo-immigrant Muslim unity. One such graffiti read: Bodo-Muslim bhai-bhai/Marwarir taka chai/Asamiar matha chai: Bodos and Muslims are brothers/We need the Marwaris’[xvii] money/And the Axamiya’s head[xviii].
            The scenario changed somewhat with the coming of the new decade, a change of ruling party in the state government - which same ruling party was in power at the centre - and a new approach at the level of the central government in New Delhi that sought to conclude the agitation it had allegedly fuelled and sustained in an effort to destabilize the state government that was so far ruled by a regional party[xix]. A three member expert committee - the Expert Committee on Plains Tribes of Assam (ECOPTA) - was appointed to 
(i) to determine the area of Bodos and other plains tribes to the north of river Brahmaputra and
(ii) make recommendations as to the autonomy, legislative, administrative and financial powers that may be given to them.[xx]
            It had become evident to the leaders of the Bodo agitation by now that a separate state was not on offer, and a conscious effort was noticeable on the part of the leadership to garner the support of mainstream Axamiya intellectuals towards their right to self-determination even within the geo-political ambit of Assam. Expressions of solidarity from the intellectual and political leaderships of both communities became especially noticeable in the years leading up to the signing of the first Memorandum of Settlement signed with the Bodo leadership headed by the All Bodo Students Union (ABSU) and its political front Bodo Peoples’ Action Committee (BPAC) Bodo in 1993[xxi].
            This accord[xxii] provided for the creation of a Bodo Autonomous Council (BAC) but it was a much watered down version of autonomy than the one suggested by the ECOPTA which submitted its report in 1992 favoring large scale devolution and decentralization of power. The report was shelved. Though providing for an autonomous council, the Bodo accord of 1993 did not delimit the territory for the proposed Bodo homeland and merely laid fifty percent Bodo population in an area as the criterion for inclusion within Bodoland. Settler influx having been immense and sustained since the colonial times, and resource alienation among the Bodo an inescapable reality, there were many areas in the proposed homeland where the Bodo were a minority. The only way to create majority then was to exterminate some of the settlers, and the first victims of a massive ethnic cleansing drive after the signing of the Bodo accord of 1993 were the Muslims of East Bengali origin. The fact that they were the bete noir of every other community in Assam - especially of the ‘ethnic’ Axamiya who live under the constant fear of minoritisation and Islamisation through the sizeable presence of this community in Assam[xxiii] - might have prompted, however subtly, their selection as targets. 

The Carnage 

            The first attacks began in the wee hours of October 7, 1993 and continued till October 11 in parts of the districts of Kokrajhar and Bongaigaon (these areas of Bongaigaon since 2003 fall under Chirang). Eyewitnesses tell horrific tales of human slaughter and suffering[xxiv]. Despite resistance put up by a small group of people forewarned by recent sporadic incidents of violence against the community, the heavily armed Bodo militia managed to kill and displace thousands of people. Officially 3658 families or about 18000 people were affected (DC Kokrajhar 2000). Some fled to nearby areas within Assam, others fled to Bhutan from where they were herded out unceremoniously[xxv]. It took days and weeks for some people to locate their family members who were alive, had run helter-skelter and were now housed in temporary relief camps. Meanwhile, arson continued in their villages and homes in a phased manner. Barman and Ahmed (2005: 7) have identified three phases of the militant attacks in October 1993 as: ‘First phase by killing peoples (sic), second phase by looking (sic) and third phase by arsoning’. According to a memorandum submitted to the Chief Minister of Assam by the Kokrajhar and Bongaigaon Saranarthi Committee in 1996, there were more than 20,000 Muslims living in 18 relief camps in the two districts by that year (Hussain 2000). 

Interim Relief 

            Many ad hoc measures were taken immediately after the violence erupted. Local educational institutions and government buildings became relief camps till makeshift shelters were built elsewhere in Jamunaguri, Ananda Bazar, Patabari, Kailamoila, Tulsidangi, Amteka, Bhawraguri, Baghmara, Janata Bazar, Balajani and Chechapani (Bongaigaon and North Salmara Districts Minority Students’ Union 1997). Gratuitous Relief (GR) in the form of rice, lentil and oil were provided to the camp inmates - and according to inmates of some camps, these were supplied for as long as 5 years after the attacks[xxvi]. By 2000, there were 8 relief camps in the Kokrajhar district alone and they housed 988 families, and a total of 10,481 inmates (DC Kokrajhar 2000). 
            As on December 2005, however, there are 8 camps - not established by the government - in both Kokrajhar and Chirang the inmates of which allege that around the year 2000, they were forced to vacate the camps established by the government in both districts as their GR had been stopped and all sources of livelihood had dried up; they could not stay in the camp and go looking for work outside as they were not allowed to move out of the camp by the security personnel under whose protection they lived. Instances of aggression and oppression by these security personnel inside the camp have also been recounted to the author. Further, they saw no hopes of rehabilitation by the government. Therefore, through the agency of a few leaders and local dewans or matabbars[xxvii], the inmates of most of the camps took land on lease and set up camp in the areas they now live in and which have been named above.[xxviii]
            The camp at Goroimari is on a piece of land leased out by a school teacher, Ismail Hussein. The Hapachara camp is located on land owned by a local Gaon Panchayat President whose son now acts as middleman and recruiter for political parties like the United Democratic Front (UDF), an political party purportedly representing the minorities. The camps have proved a fertile ground for political proselytizing for many political parties. Further, for the land that would otherwise cost a nominal revenue payment to the state, these landowners now earn an annual rent of about Rs. 20,000 from the camp inmates, the difference being calculated in terms of income lost due to leasing out of agricultural land for habitation. The case of the Goroimari camp is particularly interesting - the camp was initially on the banks of the Aie river some distance from the highway. But in 2004, the river rose during the monsoon and the people unused to cultivating or living in floodplains - having lived on kayem or non-riverine land throughout[xxix] - were forced to move yet again, this time to their current location beside the highway. The section relating to ‘Road side land’ in the Assam Land and Revenue Regulation Act 1886, which governs all matters relating to land in Assam clearly states that:

23. (1) Nothing in these rules shall entitle any person to obtain a lease in respect of land within 75 feet of the centre line of a public road. Any person occupying or encroaching on such land shall be liable to ejectment under Rule 18 of the Rules.
Explanation – The expression “public road” includes (I) any road maintained by the State Government or by a local authority and (II) any other road declared by the State Government to be a public road for the purpose of this rule.[xxx]

Legally therefore, the IDPs are now on government land, the original owner’s land having been submerged by the river in 2004. This submerged land for which he had a patta or land deed has since resurfaced but the IDPs continue to live beside the highway and what is more, continue to pay rent to him for land that is not his. 

(Non) Rehabilitation 

            Most of the money received as RG was used for acquiring leases such as the ones the Goroimari and Hapachara camp inmates pay. When the ethnic cleansing and arson took place in 1993, the state announced immediate compensation on the basis of loss as reported by the afflicted and one-time grants of up to Rs. 2000 - 3000 were given to people displaced from certain areas[xxxi]. Subsequently however, this policy was revoked and a Relief Grant (RG) of Rs 10,000 per family was announced for all. Though government sources deny any overlap in grant disbursement, allegations are raised that some people were benefited under both schemes of compensation. Some others allege they were given only part of the RG while the rest was given in the form of tin sheets for roofing[xxxii]. In some cases, middlemen both from within the community and without, have also siphoned a certain percentage of the RG as payment for services rendered towards expediting the release of the grant. There was also an instance when the Sub-Divisional and Circle Officers of Bijni reportedly misappropriated Rs 400,000 by entering fictitious names as beneficiaries (Bongaigaon and North Salmara Districts Minority Students’ Union 1997). 
            The continued burden of paying the land rent rests heavy upon the inmates most of whom have no sustained means of earning a livelihood. As one inmate at the Hapachara camp told the author: “We are like birds who leave their nests in the morning in search of food and livelihood and return home in the evening, sometimes empty handed’[xxxiii].
            Touching and true though this is in the case of most inmates, it however only tells half the story. The other half is of those people who have left the camps and settled elsewhere to alternative livelihoods. Some of them are quite affluent, and the author has met a displaced family that paid a disclosed amount of Rs. 150000 to Bodo insurgents who had kidnapped a kin[xxxiv]. There are also those who maintain establishments outside the camp and live there in the hope that whatever benefits come to the inmates from the state sooner or later will also be made available to them. Thus there are school teachers and other professionals in the camps who live there but occasionally. Otherwise comfortably off, these people however actively participate in the occasional activism that the camp inmates are roused to by various leaders and political parties from time to time[xxxv]. 
            One such event was organised by the sitting MP Golam Osmani in November 2005, where a large group of displaced people from the Goroimari camp were taken to new Delhi for a sit in demonstration. After a meeting with and petition to the president of the ruling party at the centre, the agitators were assured of quick action and early rehabilitation. A few thousand rupees have reportedly been sanctioned thereafter and a plot of land identified for building houses for the camp inmates at Salabila under the Indira Awas Yojana[xxxvi]. After the initial enthusiasm however, the project has been reportedly abandoned and all that remains are the remnants of the police outpost constructed at the site. This has been the fate of most other rehabilitation projects that have been undertaken from time to time. Though 201 families out of 269 at Tapatari were given houses constructed under the IAY (Barman & Ahmed 2005: 16), elsewhere the projects have come to a halt owing to various reasons - most often opposition from local populations in the proposed rehabilitation sites who feel their accessibility to the grazing fields and other resources will get limited or blocked altogether if these non-local people are settled in their localities. In the case of the Salabila rehabilitation scheme, resistance came from the displaced people themselves who objected to the selection of a site on the riverbank where there was obvious imminent danger of erosion and further displacement in subsequent floods.[xxxvii]
            It is also not possible, according to the administration, to resettle these people in the areas from which they were displaced in the first place. Though an initial effort was made, resistance from militant Bodo organizations forced people to flee yet again. Almost all the villages that had been attacked in 1993 were encroached villages and the people who lived there had no land deeds. They had migrated from nearby districts of Assam and West Bengal to these areas since the 1960s when the administration had denotified these areas from the list of reserved forests. They however, had not been given rights to the land. Therefore, when the question of rehabilitation arose, it was easy for the administration to initially dismiss most cases as not being under their jurisdiction. Many of the afflicted people were told to approach their respective district administrations rather than the administrations of Kokrajhar and Bongaigaon (now Chirang) for relief and rehabilitation. There were also instances when police personnel alleged these people were Bangladeshis, illegally living in Assam[xxxviii] who had no right to avail of state sponsored relief.  

Allied Problems 

Loss of Political Voice 

            Displacement has created many other problems for the camp inmates. Among them is the deprivation of their voting rights. Erin Mooney and Balkees Jarra (2004), in their proposals for safeguarding IDP voting rights, for instance, urge that elections are an important means by which IDPs can have a say in the political, economic and social decisions affecting their lives. As citizens of the country in which they are uprooted, IDPs are entitled to vote and participate in public affairs, a right which is af­firmed in the Guiding Principles on Internal Displacement.
            But since India does not even recognise IDPs as a category, it is impossible for the IDPs of Assam to avail of this right. The displaced of Kokrajhar and Chirang allege that because they cannot return - for fear of life and limb - to their places of settlement from which they were displaced by Bodo militants, and because they are enlisted in the electoral lists there, they have not been able to vote since 1993. Again, because they are enlisted as belonging to those villages from which they were displaced, benefits which they could have otherwise availed of - like the facilities under the Below Poverty Line (BPL) schemes of the state - are closed to them. 

Closed Livelihood Options 

            The Below Poverty Line (BPL) census is conducted by the Ministry of Rural Development to identify and target the BPL persons under various programs of the ministry. In the absence of any livelihood options, most of the camp inmates demand they be extended the benefits of these programs. Divorced from their land that was their mainstay, most camp inmates are neither equipped nor inclined towards any other trade. Most of them have thus turned daily wage laborers with no guarantee of a regular income. A few enterprising ones among them have taken to petty trade - the shops inside and along the Goroimari camp are an instance of this. Others work in nearby fields and fisheries. Some of the women also earn their bread by working in neighboring hotels and households. Within the camp itself, a gifted few stitch kathas and earn between Rs. 80-100 from this labor. There has however been no effort to use this or any other skills of the women of the camps commercially. No governmental or non-governmental agency has reportedly aided the inmates in this direction. Issues like skill enhancement and livelihood options that could have enabled the inmates have not been addressed at all.
           Interestingly however, there are a few non-governmental organizations (NGOs) working with and among the Adivasi population displaced in subsequent ethnic violence in 1996 and 1998. The Lutheran World Service - India (LWS-I) for one has adopted a number of villages and its initial proposal was
·          to facilitate the resettlement of the families, who are still in the camps and support the resource poor families who have left the relief camps this year.
·          to provide/facilitate necessary infrastructure support to be successful in the life in a new settlement
·          to facilitate the formation and sustainability of inclusive self help groups and community based organizations
·          to improve resource and knowledge base, managerial skills and local expertise within the communities to address socioeconomic challenges
·          to facilitate application of sector specific knowledge, skills and capabilities to enhance quality of life
·          to facilitate access to resources and services from relevant organizations to improve livelihood, health, education and social status.[xxxix]
            Under such an approach then, both Bodo and Adivasi displaced in the violence of the said two years have been benefited; the religious factor has no doubt played a very important role in attracting organizations like LWS - I to the work among these communities a sizeable proportion of which are Christians with more being converted through the subsequent evangelization.  

Issues of Education and Health 

            In the case of the Muslim IDPs however, with no prospects of proselytizing, such NGOs have stayed away. Muslim organizations like the Jamiat Ulema-ul-Hind have reportedly intervened from time to time through occasional grants and gifts but no sustained efforts have been made on their behalf. Perhaps the only visible sustained intervention by the Jamiat has been the setting up of a madrasah[xl] at the Goroimari camp for educating the boys in the camp. It is a residential madrasah to which boys from neighboring districts also come. The salary of the school teachers is paid by the Jamiat; local Muslims also make regular donations. 
            At the Goroimari camp itself is a primary school set up under the state sponsored Axom Sarbashiksha Abhijan Mission, which aims to extend education to all. Compared to the madrasah it is in a pitiable state with only one room with a roof and three walls, no furniture and just one teacher who gets a pittance of Rs. 1000 per month as salary. Since the madrasah levies a nominal admission fee, some parents send their children to this school, though girls for the most part remain uneducated. Many of the young girls are sent to towns and cities to serve as household maids. As often as not, early marriage and pregnancy ruins their health and there is no medical care available to them. Indeed, state health services are received only sporadically. Medicine Sans Frontiers (MSF), which has a base in nearby Bongaigaon, is the only NGO that brings medical aid, again only occasionally. 

Conclusion 

            Thus ad hocism marks everything about the displaced people in the two districts under study. Everything from their habitation to health care is ad hoc, and since this is the best way to retain control over them, the leaders, local patrons and administration prefer to keep them that way. Prolonging the situation means lengthening the possibility of gains from all sides for certain sections - be the gains monetary, political or religious. The administration’s approach to ameliorating the condition of IDPs is typified in its adoption of a coherent action plan - contingent plans had so far been in implementation - for the Muslim people displaced in 1993 only as late as 2000. Then too, it was a combined action plan, without any consideration for differing situations and standpoints, for all peoples whether Muslims, Bodo and Adivasi, displaced in ethnic violence in 1993, 1996 and 1998. And by the time the action plan had been put in place, it was already impressed upon the displaced people that it was time to move on out of state patronage. 
            The state’s attitude is perhaps best expressed by Justice Safiqul Haque, chairperson of the Assam Minority Commission: how can the state take responsibility for the offsprings of people affected by the riots when it takes so much effort and time to rehabilitate their parents who were the ones actually directly afflicted?[xli]  

References 

All Bodo Students Union (ABSU). 1987. Divide Assam Fifty Fifty. Kokrajhar: ABSU.
Barman, Dhiresh & Tajuddin Ahmed. 2005. A Cry for Rehabilitation of Saranarthi Affected by the Bodo Agitation. Assam: Citizens’ Right Preservation Committee.
Bongaigaon and North Salmara Districts Minority Students’ Union. 1997. Memorandum to the Hon’ble Deputy Commissioner, Bongaigaon District. Bongaigaon: Bongaigaon District Minority Students’ Union.
Dev, Bimal J & Dilip K Lahiri. 1985. Assam Muslims: Politics and Cohesion. Delhi: Mittal Publications.
Deputy Commissioner, Kokrajhar. 2000. Action Plan for Rehabilitation of the Refugees 1993, 1996 & 1998 Ethnic Violence. Kokrajhar: Office of the Deputy Commissioner.
Goswami, Uddipana. 2005a. Indigenous Settler Conflicts In Western Assam. Unpublished case study submitted to the Department of Social Anthropology, University Of Zürich, as part of its comparative study of Indigenous Communities and Settlers: Resource Conflicts in Frontier Regions of South and Southeast Asia.
-----------------------. 2005b. Miyā Or Axamiyā?: The Politics of Assimilation in Assam. Unpublished research paper submitted to the Centre for Northeast India, South and Southeast Asia Studies, OKD Institute, Assam.
----------------------. 2005c. Redefining Inter-Ethnicity: Mitigation of Settler-Indigenous Conflicts in Assam. Unpublished paper presented at the workshop on Rethinking Northeast India's Conflicts and the Roads to Peace, organized by the Centre for Policy Research, New Delhi (Nov 30 - Dec 2 ’05).
----------------------. 2006. ‘Folklore of Bangladesh’ in the Greenwood Encyclopedia of World Folklore and Folklife. (ed) William Clements. Connecticut: Greenwood Press.
Guha, Amalendu. 1977. Planter Raj to Swaraj: Freedom Struggle and Electoral Politics in Assam 1826- 1947. New Delhi: People’s Publishing House.
-------------------. 2000. Jamidarkalin Goalpara Jilar Artha-xamajik Abastha: Eti Oitihaxik Dristipat. Guwahati: Natun Xahitya Parixad. (in Axamiya)
Hussain, Monirul. 2000. ‘Postcolonial State, Identity Movements and Internal Displacement in Northeast India’. Economic and Political Weeekly. December 16.
Kar, M. 1990. Muslims in Assam Politics. New Delhi: Omsons Publications.
Mooney, Erin & Balkees Jarrah. 2004. ‘Safeguarding IDP Voting Rights’. www.brook.edu/fp/projects/idp20041105_osce.htm. Brookings Institution - University of Bern Project on Internal Displacement.

Bangladesh Minorities Increasingly at Risk of Displacement
by Internal Displacement Monitoring Centre (IDMC)

Background of Internal Displacement in Bangladesh 

            Conflict-induced internal displacement in Bangladesh is primarily the consequence of post-colonial nation state-building. The partitioning of the Indian sub-continent in 1947 and the war between East and West Pakistan, which ended with the emergence of Bangladesh in 1971, alienated and uprooted millions among the non-Muslim population. The emergence of a homogenous Bengali nationalism was reflected in the 1972 Constitution, which defined a citizen of Bangladesh as “Bengali” (SAFHR, April 2000)1. Later, in 1988, Islam was proclaimed the state religion by constitutional amendment, strengthening Islamic culture as a central symbol of nationalism. Centralisation of power by a government whose vote bank is primarily the Bengali Muslim population has increasingly led to discrimination and the exclusion of religious and tribal minority groups in the country. Conflict-induced displacement in the Chittagong Hill Tracts and persecution of religious minorities should be placed in this historical perspective (Amena Mohsin, 2003, p.16).
            Forced migration in Bangladesh must also be seen in the context of its demographic profile, being one of the most densely populated countries in the world with strong population growth. The population is overwhelmingly Muslim with minorities of Hindus (10.5 per cent), Buddhists (0.6 per cent), Christians (0.3 per cent) and other religions (0.3 per cent)2. The Buddhists are largely concentrated in the Chittagong area while the other religious communities are spread across the country. There are 27 indigenous groups, accounting for 1.13 per cent of the population, concentrated in the Chittagong Hill Tracts and northern Bangladesh. However, several analysts have argued that the population of ethnic minorities may be higher than the official figures. Conflict is also fuelled by the scarcity of land in Bangladesh due to chronic flooding, river erosion and environmental degradation. Competition for land combined with poor governance has disproportionately affected the poor and marginalised, including the minorities. 

Internal Displacement in The Chittagong Hill Tracts 

            The largest occurrence of conflict-induced displacement is found in the Chittagong Hill Tracts in South-East Bangladesh. The region occupies a physical area of some 5,000 square miles (13,000 square kilometres) or ten per cent of the total land area of Bangladesh and is divided into three districts: Rangamati, Khagrachari and Bandarban. This mountainous frontier region lies at a strategic location between India and Burma, where South Asia meets South-East Asia. It is also rich in natural resources; 60 per cent of Bangladesh forests are located in the region. Despite its natural resources, the Chittagong Hill Tracts region is poorer than the rest of the country. In 2000, per capita income was 40 per cent lower than the national average (ADB, 26 October 2000).
            The region is inhabited by 13 different groups of indigenous people, collectively referred to as “Jumma” due to their traditional practice of shifting cultivation. The three largest ethnic groups are the Chakma, Marma and Tripura. They also differ in religion and customs from the majority population of Bangladesh.
            The region has seen a phenomenal increase of the Bengali population. Governmentsponsored resettlement of more than 400,000 landless Bengalis from the plains between 1979 and 1984 dramatically altered the demographic balance as well as amplified resource constraints. According to a 1991 population census, the total Chittagong Hill Tracts population then amounted to approximately one million, the tribal population making up a little more than 51 per cent and the remaining 49 per cent being overwhelmingly Bengalis. The latest population census conducted in 2001 showed a total population of 1.3 million, but a breakdown by ethnicity is still not available. While the tribal population might have been understated in 19913, the massive influx of Bengali settlers since then has probably made the tribal population a minority in the region. Migration of Bengalis from the plains continues unabated (CARE 2004, pp. 8, 10; 2005, p.6). 

Building of The Kaptai Dam 

            In 1860, the British colonial rulers annexed the Chittagong Hill Tracts to the then province of Bengal. They granted a certain degree of autonomy to the region and limited access to outsiders. The Pakistani administration abolished this special status and started encouraging migration of non-tribals and exploiting its natural resources. The Kaptai dam was built during the Pakistan period and its reservoir submerged over 400 square miles (1,000 square kilometres) of land and flooded at least 54,000 acres (22,000 hectares) mostly farmed by Chakmas, or 40 per cent of the region’s arable land. Some 100,000 people lost their homes and prime agricultural lands. Compensation was largely inadequate. Some 5,600 families were resettled in the state-owned Kassalong Reserve Forest on an area of 23,000 acres, but with limited possibilities for farming (Shapan Adnan, pp. 44-46). By 1964, over 40,000 Chakma had migrated to Arunachal Pradesh in India, where the majority remain today as stateless persons (AI, 2000). The construction of the Kaptai dam led to the first crisis of internal displacement in the Chittagong Hill Tracts and, combined with loss of control over natural resources and threats of assimilation with the majority culture of Bangladesh, provided fuel to the armed conflict that ensued. The devastating effect of the building of the Kaptai dam is still deeply felt as an alienating factor among the tribal population.  

Outbreak of Civil War Causes Large Scale Displacement 

            Tensions intensified after the independence of Bangladesh in 1971, when tribal demands for constitutional safeguards and recognition as a separate community were rejected (Amena Mohsin, 2003, p. 22). The tribal population reacted by creating the Parbatya Chattagram Jana Samhati Samiti or Chittagong Hill Tracts People’s Solidarity Association (PCJSS) in 1972. Its armed wing, the Shanti Bahini, was formed in January 1973. In August 1975, Prime Minister Mujibur (Sheikh Mujib) Rahman was assassinated in a bloody coup led by General Ziaur Rahman. Under his military regime, Bangladeshi nationalism incorporated Islamic ideals which excluded the cultural identities of the Chittagong Hill Tracts (Amena Mohsin, 2003, p. 24). In 1976, Shanti Bahini started an armed insurgency with the support of India, which in turn led to a sharp increase of government forces in the Hill Tracts. Thus began a 25-year-long armed conflict. As the conflict escalated, the government began relocating Bengalis in the Chittagong Hill Tracts as a counter-insurgency strategy. Between 1979 and 1983, over 400,000 poor and landless Bengalis from the plains were settled in the region and provided with land, cash, rations and other incentives (AITPN, April 1998, p. 20-21). At the height of the conflict, almost one third of the Bangladesh army was deployed in the region and Bengali settlers were also mobilised against the tribal population. Official figures indicate that more than 8,500 people were killed during two decades of insurgency, including some 2,500 civilians (AI, February 2000). Although access to the Chittagong Hill Tracts was denied during the conflict, the international community was regularly informed of human rights abuses by international NGOs, such as the Anti-Slavery Society, Survival International, the International Working Group for Indigenous Affairs, the Minority Rights Group and Amnesty International. In 1990 the international Chittagong Hill Tracts Commission carried out an independent investigation in refugee camps in Tripura, India, and also managed to get into the Chittagong Hill Tracts. The ensuing report documented widespread human rights abuses and displacement of the indigenous population (Aarens and Chakma, 2000). Forced evictions, atrocities in the conflict between the Shanti Bahini and government forces, confiscation of land to establish military camps, the population transfer programme and clashes between tribals and new settlers compelled tens of thousands of tribals to leave their homes. After 1980, ten major massacres by Bengali settlers and the security forces led to a refugee exodus of about 65,000 tribals to the neighbouring Indian state of Tripura (AI 2000, UN GA, August 2000, para. 69). An even larger number were internally displaced. 

Patterns of Displacement 

            The 1991 report of the Chittagong Hill Tracts Commission “Life is not ours” identified two types of conflict-induced internal displacement: People either fled to the nearest forest or went into hiding for a few days, sometimes even for several years, or they were forcibly relocated to cluster villages. Many tribals from the Rangamati and Bandarban districts attempted to find safety in the Mizoram State of India but were pushed back by Indian border forces in 1986. Instead, they settled in reserve forests along the Indian border. Today, many are still living illegally in the Kassalong and Rheinkhyong Reserve Forests where they currently face threats of eviction. School for tribal IDP children – Photo JRWA Forcible relocation to cluster villages became a part of the military’s counter-insurgency  strategy from 1979 onwards. Conditions in these villages were reported to be worse than in the relief camps in Tripura (CHT Commission, 1991). Shortage of land and limited assistance from the government led to widespread starvation. Furthermore, loss of land and restricted movement made traditional agricultural activities impossible. Many therefore started working as day labourers in plantations or as share-croppers in afforestation projects. Today, the cluster villages have been dismantled but many displaced remain in these sites with nowhere else to go. 

Repatriation of Refugees from India: from Refugees to IDPs 

            As early as February 1994, a rehabilitation package was agreed between the Bangladesh government and the Jumma Refugee Welfare Association (JRWA) for the repatriation and rehabilitation of refugees sheltering in camps in India’s Tripura State. According to figures supplied by the Returnee Jumma Refugees’ Welfare Association (RJRWA), some 5,100 people from 1,000 families were subsequently repatriated. Most became internally displaced as they could not return to their original villages, but had to take shelter with relatives. This early repatriation exercise subsequently stalled because the rehabilitation package was not implemented. A new agreement was signed in March 1997 which was followed by the return of the remaining refugees within three months of the signing of the peace accord. By the end of February 1998, all of the tribal refugees had returned to the Chittagong Hill Tracts. Almost all were originally from the Khagrachari district with the majority from Dighinala (4,200 families) and Panchari (3,400 families). The rest (just over 50 families) hailed from the Rangamati district, mostly the Baghaichari sub-district. While most returnees were provided with some economic rehabilitation and food rations, many did not recover their lands which were now occupied by Bengali settlers. The RJRWA claims 80 per cent of the refugees, did not get back their land, orchards or homesteads while official statistics say this was the case for only 25 per centes (Daily Star, 23 October 2003). Furthermore, according to the RJRWA, 40 villages, all in Khagrachari District4, are still illegally occupied by settlers. An issue of contention is also the fact that settlers have built markets on land claimed by repatriated tribal families (RJRWA and PCJSS information). 

The 1997 Peace Accord and Provisions for IDPs 

            After 25 years of conflict, a peace accord came into effect on 2 December 1997, signed by the then ruling Awami League and the main indigenous political party, PCJSS. The peace accord grants a higher degree of autonomy to the indigenous people through the creation of a regional council. The accord also provides several mechanisms directly aimed at addressing and resolving the problem of internal displacement. The most important provisions are the establishment of a task force to coordinate rehabilitation for the internally displaced, the launching of a land survey in consultation with the regional council and the settling of land disputes by a land commission with a minimum tenure of three years to ''resolve the disputes in consonance with the law, custom and practice in force in the Chittagong Hill Tracts'' (AI, 2000). However, the task force to facilitate the rehabilitation of the displaced has failed to function effectively. Two of the main problems blocking its work have been disagreement as to whether the Bengali settlers (non-tribals) should be considered IDPs, and secondly, the proposed rehabilitation package for the internally displaced population. Disagreement about the criteria for the definition of an IDP caused the main schism between tribal and non-tribal members of the task force. Originally, the peace accord stipulated that the term ‘internally displaced’ referred to the tribal population of the three hill districts (Clauses D.1 and D.2), thus excluding the Bengali population. In June 1998, the task force agreed on a working definition of “internally displaced people in the Chittagong Hill Tracts” as “all tribal peoples from the three districts who had been compelled to leave their village, land or house during the conflict from 15 August 1975 (date of Sheikh Mujib’s assassination) to 10 August 1992 (date of PCJSS unilateral ceasefire) and forced to take shelter in other areas of the Chittagong Hill Tracts” (JWRA, December 2005). Local authorities were then instructed to identify and compile a list of the internally displaced in their area in accordance with the agreed definition. On this basis, tribal leaders today restrict the definition of an IDP to the specification of the peace accord. Conflict arose when the task force reportedly received sudden instructions from the Prime Minister’s Office5 to include the non-tribal population in the IDP population, thus including Bengali settlers who had been forced to move when tribal refugees returned from exile in India. This point was then included without consulting the tribal representatives. Fierce debate ensued on whether or not settlers should be considered internally displaced and, in November 1999, the two tribal representatives from the RJRWA and the PCJSS walked out and refused to attend any subsequent task force meetings. The official list of IDPs, published in 2000, was immediately rejected by the tribal task force members who called for the removal of non-tribal settlers from the task force IDP list and their transfer outside the Chittagong Hill Tracts. They also requested the inclusion of thousands of tribal IDPs whom they said had not been counted. Tribal leaders also refused to accept the proposed task force rehabilitation package because it did not make guarantees for property restitution, a main requirement by PCJSS when the negotiations started. After the task force chairperson resigned in August 2001, the task force did not function for more than two years. In October 2003, the BNP-led government finally appointed a new chairperson, but his official status is unclear, no financial support has been allocated for the work of the committee and its ten employees have not been paid since October 2001 (New Age, 27 March 2005). he Land Commission was to function as a special tribunal for property restitution for the tribal people. By May 2003, some 35,000 cases had been filed involving land disputes between indigenous people and state-sponsored settlers (Daily Star, 5 May 2003).
            However, it had not even started its work as of March 2006. After years of delay, the commission met for the first time on 8 June 2005. One of the outcomes of the meeting was a suggestion by the chairperson to set up a tribunal rather than a commission to resolve land disputes (Daily Star, 9 June 2005).
            Apart from the land question, other parts of the peace agreement remain to be implemented, such as the closure of temporary army bases. Reportedly, only 31 of the estimated 520 temporary military camps at the time of the signing of the peace agreement have been withdrawn (ACHR, 26 August 2004). Furthermore, several temples and schools which were destroyed during the conflict have not been rebuilt on their original locations as stipulated in the peace agreement (RJRWA and PCJSS information). In general, implementation of the peace accord has been completely on hold since the BNP-led coalition came to power following its 2001 election victory. The agreement was condemned from the outset by the BNP, which was then in opposition, as a “sell out” of Bangladeshi sovereignty. It has also been rejected by a section of the tribals who want all Bengali settlers removed from the Chittagong Hill Tracts. In 1998, the tribal United People’s Democratic Front (UPDF) was formed to this effect and has occasionally been involved in armed clashes with PCJSS supporters. The accord has also been denounced by the Bengali settlers who have launched a movement called Sama Adhikar Andolon (CHT Equal Rights Movement) against the peace agreement which they see as discriminatory and favouring the tribal population (Daily Star, 1 December 2004). 

Number of Internally Displaced in The Chittagong Hill Tracts 

            Estimates over the number of internally displaced in the Chittagong Hill Tracts vary between 60,000 (AI, 2000) and 500,000 (Government task force, 2000). Another estimate says the conflict displaced 100,000 people, and of these between 30,000 and 50,000 took shelter in reserve forests (Adnan, p.52). The compilation of a list of IDPs became one of the most controversial issues in the post-conflict years, and is still a major issue of contention today. 

Districts Tribal Families Non-Tribal Families Total 

Rangamati 35,595 15,516 51,111
Khagrachari 46,570 22,371 68941
Bandarban 8,043 269 8,312
Grand Total 90, 208 38,156 128,364
(Source: Government task force on internal displacement, 2000) 

            The 2000 task force report stated that 128,364 displaced families (90,208 tribal and 38,156 non-tribal), or 500,000-550,000 people, were displaced due to the conflict. This means that up to half of the total population of the Chittagong Hill Tracts were internally displaced that year due to the conflict. However, there is a general consensus between tribal representatives, NGO workers and Bangladeshi academics that the task force list is inaccurate.The list was compiled by members of local union councils6 without any involvement of the internally displaced themselves. Furthermore, no proper survey was carried out and remote areas were often not taken into account. The RJRWA claims that up to 10,000 tribal IDP families were not counted, nor were the refugees who had become internally displaced after repatriation. On the other hand, there are also claims that the local lists were inflated on both sides. A former tribal union chairman from the Rangamati district for example, said Bengali union members included an exaggerated number of displaced settlers in the lists in order to secure a larger share of the rehabilitation package. However, it should be noted that the tribal protests in general are not targeting the original Bengali population of the Chittagong Hill Tracts who also became victims of  displacement during the conflict. One tribal union chairman from the Bandarban district for example, stated that he included in his IDP list Bengali permanent residents who were displaced in 1989 when the army confiscated their land.
            The debate about the IDP definition is still ongoing. No recent information exists about the current number of displaced, nor are there any reports of reintegration or rehabilitation of the internally displaced population, although many might have integrated in their place of refuge since the time of the survey. Some have started a new life in urban centres. It should also be noted that villagers around the Kaptai reservoir who lost their land due to construction of the Kaptai dam maintain that they also are internally displaced who are entitled to rehabilitation. 

Living Conditions of IDPs in The Chittagong Hill Tracts 

            Information on the conditions in which internally displaced currently live in the Chittagong Hill Tracts is not available. Most humanitarian and NGO reports generally assess or analyse the overall needs of their targeted beneficiaries, tribal and non-tribal, without making specific references to those who have been displaced. However, it is widely acknowledged that a large number of tribal internally displaced live illegally in reserve forests which are administered by the Bangladesh Forest Department and fall outside the scope of the An internally displaced woman from the Chittagong Hill Tracts peace accord7. IDPs in reserve forests face an extremely difficult situation as agricultural practices, use of forest products and even collection of firewood is officially prohibited. Access to livelihood is the most critical issue affecting the IDPs. According to a World Food Programme (WFP) study, unresolved resettlement issues are one of the four main causes of food insecurity in the Chittagong Hill Tracts. Furthermore, reserve forests and other areas believed to house the most vulnerable IDPs have a very high level of relative food insecurity8. The same areas also appear to have the highest primary and adult education needs, with no access to health services and adequate sanitation and safe drinking water. High prevalence of malaria is also a serious health concern (WFP, March 2005, pp. 10, 25, 26, 30). To date, food aid has been supplied only to the families who returned from exile in India, while the remaining internally displaced population has been unassisted. In 2003, a government decision to stop all food assistance to the tribal returnees while continuing to provide it to 28,000 Bengali settler families led to strong protests from tribal organisations. Rice distribution eventually resumed, but only at half of the original quantity. Full rations were not reinstated before 2004, but have since then been distributed on a regular basis (Daily Star, 14 June 2004). Around 10,000 IDPs, plus some returnees from India, are known to live in the Kassalong Reserve Forest, situated in the Rangamati District near the border with the Indian State of Mizoram (JIDRWA, February 2006). Their main sources of income are swidden (slashand-burn) cultivation, small vegetable gardens and illegal logging of teak timber and bamboo. According to the Jumma Internally Displaced Rehabilitation and Welfare Association (JIDRWA), the IDPs have never received any rehabilitation nor have they benefited from any development programme carried out in the Chittagong Hill Tracts. For medical treatment, their only option is to approach the Médecins sans Frontières NGO clinic in the area as well as basic public health facilities based in the main local centre, Baghaihat, a remote hill village which is far from where they live. In 2005, 20 children died due to lack of health care and clean drinking water.
            Only 40 IDP children attend the government school in Baghaihat (JIDRWA, February 2006). The IDPs have established some selfsupported schools for their children, but receive no subsidies from the government as schools in the reserve forests are illegal. Inhabitants of these forests are therefore denied their basic right to education (CARE 2004, p. 43). 
            IDPs in the Bandarban district face similar conditions and hardship. Many displaced from various indigenous communities were gathered by the army into cluster Rudimentary school for tribal IDP children in the Hill Tracts villages during the conflict and have continued to live on these sites in mixed groups as they have lost their original lands. Other IDPs such as the Khyang10, who were all displaced during the conflict, have scattered in the Rheinkhyong Reserve Forest. 

Obstacles to Return and Reintegration 

            The land issue remains the key obstacle for the return and reintegration of the internally displaced as well as for the implementation of the peace accord. Land-related conflicts between tribal people and settlers are also the greatest threat to peace and stability in the region. According to customary law, the tribal population practised communal ownership of land used for slash-and-burn cultivation and for cattle grazing, which is not registered in public records. The situation is different for the Bengali settler population, who received landownership documents after having been relocated to the Chittagong Hill Tracts by the government. One of the main issues to be resolved by the Land Commission or another body is therefore to balance customary rights and usages prevailing in the Chittagong Hill Tracts against ownership by Bengali settlers which is backed by documents (CARE 2004, p.47). In accordance with the peace accord, some Bengali settlers did lose their ownership rights to land belonging to returning tribal refugees. They were subsequently required to relocate several times, and in some cases made landless altogether. But many Bengali settlers, backed by the military and the ruling political party, refused to give up the land to the returning tribal people. More than 40 villages formerly inhabited by the tribal population are still occupied by government-sponsored settlers.  In view of the scarcity of land available, especially after the reclassification of 220,000 acres of forest as reserve forests, it is difficult to understand how the government will be able to return land to the hill people while accommodating the Bengali settlers within the Chittagong Hill Tracts (Amena Mohsin, 2003, p.51). At the same time, it is unlikely that either of the two mainstream political parties, whether the BNP or Awami League, would ever consider removing the settlers even though the PCJSS claims their rehabilitation outside the Chittagong Hill Tracts was an “unwritten” part of the peace accord. 

Developments in 2005 

            Violent incidents have occurred in the Chittagong Hill Tracts since the signing of the 1997 peace accord, occasionally causing further displacement of civilians. There are reportedly ongoing cases of land deprivation as Bengali settlers continue to move into the region, especially in Khagrachari District where the settlers constitute a vote bank for the ruling BNP (CARE, 2004, p.46; ACHR, 26 August 2004). Several violent clashes which occurred after the peace accord are directly related to land grabbing.
            No major episodes of violence leading to displacement were reported in 2005. However, tensions between Jumma and Bengali settlers, political and criminal attacks, abductions, “anti-terrorist” military operations, and clashes between PCJSS and UPDF militants have continued unabated and continue to create a general climate of insecurity. In Khagrachari district in January 2005, Bengali settlers started clearing and building houses on land belonging to tribal people. This time, the army stepped in and ordered the dismantling of the houses (PCJSS, January 2005). In August 2005, another serious incident was reported. PCJSS says more than 100 settlers attacked eight tribal villages, damaging trees, paddy and orchards, and threatened to expel the tribal population. The main motivation behind the attack was allegedly to seize 600 acres of land (PCJSS, August 2005).11 There have also been reports of destruction of houses of tribal cultivators by Bangladesh border security forces accusing them of being terrorists (PCJSS, June 2005). Threats of eviction are widespread and could result in future displacement for local villagers as well as for those already uprooted.
            In the course of 2005, the tribal communities in the Chittagong Hill Tracts faced new restrictions and harassment by government officials aimed at limiting their freedom of 11 The reported incident took place in the Latiban union of Panchari sub-district, Khagrachari district on 17 August 2005 expression, something which indirectly affects the internally displaced. Tribal representatives experienced official intimidation due to statements they made in UN for a such as the UN Permanent Forum on Indigenous Issues in New York in May 2005 where they demanded the full implementation of the peace accord. Members of the Jumma communities in the Chittagong Hill Tracts also faced harassment when at least two meetings were stopped by the authorities (PCJSS, March and April 2005). Leaders of the Permanent Bengali Welfare Council, which represents the Bengali permanent residents in the Chittagong Hill Tracts who had land titles before 1979 and who support the peace accord, were prevented from organising a meeting on 3 June 2005. Some of the leaders have reportedly been mistreated by the authorities (AI, 13 October 2005; New Age, 16 June 2005; Daily Star, 18 June 2005). On the other hand, the Sama Adhikar Andolon (Equal Rights Movement) representing the Bengali settlers has been particularly vocal and did not appear to face any hindrance during 2005 (Daily Star, 4 May 2005).
            Humanitarian access to the Chittagong Hill Tracts continues to be difficult. Information gathering and monitoring about internal displacement are complicated by the fact that communications with the outside world are extremely poor. In August 2005, for example, the government closed down all the commercial mobile phone networks in the three hill districts on security grounds (PCJSS, August 2005). Internet connections are slow and often disrupted. The movement of foreign visitors is restricted to the urban centres of the three district headquarters and permission to enter rural areas is only granted exceptionally and with armed escorts, keeping internally displaced areas off limits to foreigners. 

Thousands Under Threat of Eviction 

            The tribal population of the Chittagong Hill Tracts remains under serious threat of displacement as a result of evictions from existing reserve forests, acquisition of land by government agencies for the creation of additional reserve forests, expansion of military facilities and lease of land by the government for commercial plantations. . After 1992, the government reclassified 220,000 acres of forest as reserve forests, thus unavailable for use by inhabitants in the CHT. The tribal population suspects that the government is planning to resettle Bengalis in these areas (CHTC, 2000). IDPs who have been living illegally in reserve forests since the conflict are especially vulnerable and have faced the threat of evictions for several years. In 2001, the army filed charges against more than 830 families for illegal occupation of land in the Kassalong reserve forest in the Rangamati district. The IDPs responded by creating the Jumma Internally Displaced Rehabilitation and Welfare Association which demanded the restitution of their lands and proper rehabilitation before leaving the forest. The charges were dropped, but in June 2005, the army again threatened to burn down the houses of IDPs in several areas if they did not return to their original locations. Similar threats have been repeated on several occasions (JIDRWA, 16 November 2005). While no forced eviction has yet taken place, the IDPs fear that the authorities will compel them to leave by curtailing their access to their livelihood.
            While tribal IDPs are threatened with eviction, the government allegedly plans to move several thousand Bengali families – 65,000 according to available sources – to the Kassalong reserve forest (Daily Star, 4 June 2005). In addition to the eviction of tribal IDPs, such a major influx of Bengali families risks displacing Pankhua Christians who live in the Machalong area of the Kassalong reserve forest (PCJSS, April 2005).
            The creation of additional reserve forests has increased the pressure on the tribal population further. The Bangladesh Forest Department has earmarked a total of 218,000 acres for new reserve forests in the three hill districts. Under this scheme, some 2,000 people, mostly from the small Khyang community, were evicted from their land in the late 1990s without any compensation (Feeny, 2001; SEHD, 1999). Most of these Khyang IDPs went to live illegally in the Rheinkhyong reserve forest of the Bandarban district. They have not yet received eviction orders but face an increasingly difficult situation as forest guards have stopped them from collecting firewood and, since late 2005, they are no longer allowed to practice shifting cultivation. Many families have reportedly moved deeper into the forest away from the control of forest rangers.
            Acquisition plans proposed by the military to enlarge their facilities has led to and could result in future displacement of villagers. Bandarban district is the most affected, with a total of more than 65,000 acres of land assigned for the construction of military training centres and the extension of existing facilities. More than 230 families were already displaced in 1989 due to the creation of a new artillery training centre (ACHR, 25 June 2005 and Daily Star, 14 March 2005).
            Another problem for the tribal people is the government’s leasing of land for commercial projects such as rubber plantations, endorsed by the Chittagong Hill Tracts Development Board (CARE, 2004, p. 48). The government also plans to create a 5,000-acre Eco  Park12 in the Chimbuk Range of the Bandarban district which could displace at least another 5,000 Mro people (Daily Star, 14 March 2005). A local civil society group advocating for the protection of forests and land rights in the Chittagong Hill Tracts, confirmed that the Bandarban District would be badly affected by internal displacement if the government plans were implemented.
            Land acquisition plans also threaten the minority population in other parts of Bangladesh. While there is little information about displacement due to such policies, a few episodes have been reported by local NGOs and the media. In northern Bangladesh, the Garo tribe in the Modhupur Forest of the Tangail district were reportedly displaced when they protested against the creation of an eco-park project announced by the government. The eco-park, allegedly supported by the Asian Development Bank, will cover an area of  3,000 acres to be encircled by a 20-kilometre-long concrete wall. The project will affect 21 Garo and Koch villages and threatens to displace 1,500 families (Rahman, February 2006; 
            SEHD, Earth Touch Magazine, 2004). During demonstrations in 2004, police opened fire on the protesters and BNP supporters allegedly later attacked their villages. During both incidents, indigenous villagers fled their homes but it is not known whether they have  since returned (Daily Star, 9 January 2004). Tribal villagers in northern Bangladesh have also reportedly been victims of evictions because they live in reserve forests. In 2002, forest guards and local Bengali villagers looted and destroyed a Khasi village in the Maulvi Bazar district for the purpose of evicting 20 Khasi households from forest reserve land (The Daily Nayadiganta, 23 and 24 July 2005).
            Another issue which has increased the risk of displacement of the tribal population is the introduction of social forestry.13 Critics have objected that these new laws only promote commercial and industrial plantations, do not acknowledge the participation of the indigenous people and vest the decision-making powers solely upon the Forest Department, thereby reinforcing state control over forests and a policing approach to  forest management. Social forestry practices in Bangladesh have proven to be detrimental to the environment and have led to land alienation when afforestation programmes have been implemented on lands traditionally owned by the local villagers (SEHD, 2001). 

Religious Minorities at Risk of Displacement 

            The national elections of October 2001 brought a massive victory for the Bangladesh Nationalist Party (BNP) which established a four-party coalition government including two Islamic parties. Religious minorities only hold seven seats in the 300-seat Parliament. In the aftermath of the elections, attacks against the minority population who traditionally support the defeated Awami League party, escalated dramatically. Assaults are generally carried out by Islamist militants with alleged links to the ruling party. No survey is available on the number that may have been internally displaced due to violence targeting minorities, nor is there any information about assistance to the affected population. However, as religious intolerance has grown throughout Bangladesh, this has resulted in massive migration out of Bangladesh. Also, an increasing number of people targeted by violence in rural areas have left their homes to stay with relatives in safer places or to go to urban centres. The deteriorating political and security conditions in Bangladesh in 2005 as well as the culture of impunity have significantly increased the vulnerability of religious minorities. Threats, attacks and hate campaigns have created an unprecedented climate of fear which increases the risk of displacement.
            However, there is no monitoring of displacement related to attacks on religious minorities. Collecting information about internal displacement is also complicated by the fact that media and human rights organisations are increasingly victims of attacks by extremist groups. Although local media report human rights violations, journalists are vulnerable to repression, intimidation, brutal attacks, torture and even murder (IFJ, 2003-4). There have also been incidents where human rights workers have been jailed and reportedly mistreated in detention. 

The Hindus 

            Since the partitioning of India in 1947, the Hindu share of Bangladesh's population has steadily diminished. Although the government has officially promoted religious freedom, the Hindu population has lived in a climate of repression since the partitioning, especially through the deprivation of land, forests and other property. Hindus lost a large part of  their lands during the communal riots in 1947, and continued to do so as a result of land reforms while the territory formed part of Pakistan (1947-1971). According to a local NGO, 30 per cent of Hindu households have been affected by a Vested Property Act which functioned as a tool to dispossess and displace Hindus and other minorities. The Act was only abolished under the former Awami League government. Millions of Hindus have emigrated or fled to India, some have been dispossessed while in India. According to a 1991 census, the Hindu population decreased from 25 per cent of the population in 1947 to an estimated 10.5 per cent in 1991. It is estimated that 5.3 million Hindus, or 535 people per day, left Bangladesh between 1964 and 1991 (HRF, 12 December 2001; Rehman, May 2003; SATP 2003; OneWorld, 14 June 2004). Approximately 1 million or 40 per cent of the total Hindu households in Bangladesh have been affected by the Vested Property Act, and the Hindu population has been dispossessed of land equivalent to 5.3 per cent of the total land area of Bangladesh (Abul Barkat, 2000, p. 441).
            The BNP victory in 2001 started a massive wave of violence against the Hindu population. Their homes were looted and burned, temples desecrated and women raped (HRW, World Report 2003). Post-election violence compelled up to 200,000 Hindus to flee to safer areas or to migrate to India (USCR 2003). The intensity of the violence diminished after the first weeks following the elections, but spates of violence against Hindus have continued unabated since then. Violent assaults have been particularly frequent along the Indian border, mostly targeting Hindus but also other minorities (Griswold, 23 January 2005).
            Attacks against Hindus, their properties as well as their places of worship, have led to the requirement for guards to be present at temples and at religious ceremonies. Although this has not been verified independently, two local NGOs, the Bangladesh Hindu Buddha Christian Oikya Parishad (BHBCOP) and the Human Rights Committee for Bangladeshi Minorities (HRCBM) have documented systematic intimidation and human rights violations against Hindus, suggesting that many continue to be displaced. Most of the reported incidents are directly related to land grabbing.
            According to Human Rights Watch, there were persistent reports of abductions and forced conversions of minorities, and destruction and desecration of religious sites throughout 2005 as well as many reports of forced evictions of Hindus from their properties. In some cases of reported rape of Hindu girls, the police refused to pursue investigations (HRW World Report, 2005). The government has generally failed to investigate the crimes and prosecute the perpetrators (USDOS, Religious Freedom Report 2005; Daily Star, 16 September 2005). 

The Ahmadis 

            Under the BNP-led government, the Ahmadis, an Islamic sect numbering 100,000 in Bangladesh, have been subject to new waves of threats, attacks and hate speeches from Islamist groups. Ahmadis profess to be Muslim but, because of their belief in the prophethood of Mirza Ghulam Ahmad, many Muslims have ostracised them for subverting a fundamental tenet of Islam, namely the “finality of the prophethood of Mohammed”. Intimidation campaigns have been organised by the Khatme Nabuwat, an umbrella of extremist groups with alleged links to the BNP’s two Islamist coalition partners, in order to pressure the government to declare them non-Muslims and ultimately to change Bangladesh to an Islamic republic.
            On 8 January 2004, the government declared a ban on Ahmadiyya publications, although this was overruled in December 2004 by the Bangladesh High Court. Throughout 2005, the Khatme Nabuwat have continued to threaten the Ahmadiyya community and campaigned for Ahmadis to be declared non-Muslims. Human Rights Watch released a comprehensive report in June 2005 documenting abuses against Ahmadis ranging from mass rallies inciting violence, attacks on mosques, lootings of houses and incidents in which Ahmadis were evicted, ostracised, beaten, injured or even killed (AI, 16 February 2006; HRW, June 2005). The international community has on several occasions raised concerns about the situation of this group. As with the Hindu population, no survey exists to verify whether members of the Ahmadiyya community have experienced displacement. 

Other Minorities 

            In the sectarian atmosphere currently prevailing in Bangladesh, other minorities have also been targeted. One local NGO, Hotline Human Rights Bangladesh, compiled a list of assaults against the Christian community from 2001 to 2004. Their report documents rape and harassment of Christian women, the killing of a Christian priest and attacks on a church, and looting of Christian villages. The reported incidents generally involved local miscreants connected to BNP activists and most are related to land grabbing (HHRB, September 2004). 

National Assistance: Political will is Missing 

            The government of Bangladesh has done little to assess and respond to the rights and needs of people who have been forced to flee their homes due to conflict. A national strategy and political will are lacking to address the needs of the internally displaced in Bangladesh. This is also reflected in the Poverty Reduction Strategic Plan (PRSP) of Bangladesh, released in November 2005, which only mentions internal displacement once, in relation to trafficking (“Unlocking the Potential”, October 2005, p. 151). In relation to the Chittagong Hill Tracts, one of the stated objectives of the PRSP is full implementation of the peace accord and operationalisation of the Chittagong Hill Tracts Refugee Task Force and Land Commission, but again there is no mention of IDPs.
            In the Chittagong Hill Tracts, the government continues to discourage involvement in the political situation by donors and international organisations due to the “sensitivity” of the issue. On 23 November 2005, a high profile two-day workshop on land issues organized among others by the Chittagong Hill Tracts NGO Forum and supported by DANIDA, was stopped by the Rangamati Deputy Commissioner following a memo from the Prime Minister’s Office14. Internal displacement was among the items on the agenda (Daily Star, 24 November 2005).
            Since 1997, larger Bangladeshi NGOs have started programmes in the fields of health, education, water and sanitation, as well as microcredit activities. National NGOs are also intervening in diverse areas such as agriculture, horticulture, forestry, fisheries, poultry farming, microcredit, education, women in development, income generation, the environment, and training and development in general (Aarens and Chakma, 2002). Civil society organisations in the Chittagong Hill Tracts insist that external development initiatives should only be implemented with the informed consent and participation of the communities involved. Furthermore, they also demand development policies to be  respectful of their cultural identities and be environmentally sustainable. In 1998 they reaffirmed those principles in the Rangamati Declaration released at a conference involving all development actors, including government and donors’ representatives. The Hill Tracts NGO Forum was established in 1999 to strengthen the activities of local NGOs and improve coordination with development planners. Only a few of the 61 members have targeted internally displaced people with rehabilitation assistance. However, IDPs are likely to be among the beneficiaries of some ongoing development projects. A serious obstacle for the Hill Tracts NGO Forum as well as for a significant number of local NGOs is the difficulty of obtaining official registration at the government NGO Bureau, without which they cannot receive any foreign grants. As a result some local NGOs complain that they are excluded from the internationally-supported development initiatives. 

Only Ad-Hoc International Assistance 

            The international community has largely played a passive role when it comes to addressing the situation of internal displacement in the country. In the Chittagong Hill Tracts, the improved security situation has allowed for the start-up of relief and development activities. However, aid programmes have been suspended on some occasions, notably in 2001 after the abduction of aid workers and a generally deteriorating security climate after the elections. While some donors made implementation of the Chittagong Hill Tracts peace accord a precondition for starting programmes, many have started funding development projects. Bilateral and multilateral donors have given external assistance largely focused on development and disaster response (ADB 2001-2003, p.28). However, there are several signs of increasing impatience among the donor community. Widespread allegations of corruption and inefficiency together with the deteriorating security situation and the blocked political situation led to a sharp decrease of foreign aid to Bangladesh during 2005 compared to the previous year. In early 2005, donors also met in Washington D.C. without the participation of the Bangladeshi government to discuss the country’s failure to meet conditions imposed by the main aid actors (COE-DMHA, 14 March 2006).
            There is no official UN strategy to address conflict-induced displacement in the country. On 15 December 2005, the government approved the largest ever development project in the Chittagong Hill Tracts, led by the United Nations Development Programme (UNDP). This ambitious multi-sectoral programme will invest $50 million over the next five years (from 2005 to September 2009) to promote development and confidence-building and  will be implemented through local NGO partners and the Chittagong Hill Tracts institutions. The programme aims at overall development for both the indigenous population and the settlers, which will also benefit IDPs. One of its 32 components will specifically target “returned refugees, internally displaced people and ex-combatants” and comprises two activities: (a) an assessment of the situation of these groups to determine their location, current socio-economic status and priority needs, and (b) activities to improve social services and economic opportunities through a special fund. UN activities in the Chittagong Hill Tracts region also include development projects by the children's agency UNICEF and a food security programme by the World Food Programme (WFP). UNICEF initiated its programmes in the Chittagong Hill Tracts in the early 1980s and assisted activities related to pre-school education, health and nutrition awareness as well as small water and sanitation projects. In 1998, WFP expanded its activities in the Chittagong Hill Tracts to respond to the influx of returning refugees from India. Its current food aid selection criteria include IDPs, women and the ultra-poor. Although not formally mandated, UNHCR monitored the return of refugees from camps in Tripura to the Hill Tracts after the signing of the peace agreement. In general, local NGOs have pointed out that education is a development sector, which appear to be disregarded as no budget has been earmarked for education in the UNDP programme and UNICEF education projects are restricted to pre-school activities.
            Several international NGOs are also present in the Hill Tracts. Médecins Sans Frontières has been combating malaria and delivering basic health in the region since 2000 with a team of expatriates and Voluntary Services Overseas (VSO) makes volunteers available to provide technical assistance to local NGOs. In the aftermath of the violence in the in Mahalchari Sub-district of Rangamati in Chittagong Hill Tracts in August 2003, the government provided humanitarian assistance and also invited international agencies to assist the tribal displaced. Various government departments, local and international agencies provided relief assistance to the displaced population. The government approved a UN needs assessment mission and UNDP launched an appeal for one million Euros, largely funded by the European Commission's humanitarian aid department ECHO, covering food, health, water and sanitation, housing, agriculture, education, non-food items and rebuilding livelihoods for the displaced (EC, 6 October 2003). According to donors and international agencies all the affected people have now been adequately rehabilitated. WFP also assisted with food relief families displaced after an incident between PCJSS and UDPF supporters in September 2004. No information has been found regarding assistance to the Hindu, Ahmadi or Christian religious minorities, as well as indigenous communities in Northern Bangladesh, either by national authorities, or by the international community. The EU Parliament passed a strong resolution15 on 14 April 2005, expressing concerns at violence against religious minorities. 

Needs for Addressing Conflict-Induced Displacement in Bangladesh 

            In the Chittagong Hill Tracts, available information indicates that those who returned from India only to be displaced again are especially vulnerable and in need of assistance.  But little is known about the remaining internally displaced population: to what extent they have reintegrated and restarted a livelihood, or whether they have special needs for material or legal assistance. There is no estimate of to what extent minorities were or are internally displaced due to religious persecution in Bangladesh. An assessment of numbers of IDPs, the degree of vulnerability and the risk of future displacement/eviction faced by these groups would be essential towards creating an adequate response to the human rights abuses faced by the minority population. The component in the UNDP joint programme with the Bangladesh government specifically targeting IDPs in the Chittagong Hill Tracts is an important first step. Also, there is a need to raise awareness of the phenomenon of conflict-induced displacement in Bangladesh among aid actors. Forced displacement is, for example, not mentioned in any of the main donor strategy documents and in general information about people displaced by conflict in Bangladesh is virtually non-existent. 
            The UN Guiding Principles on Internal Displacement are an essential tool for resolving contention over the definition of IDPs and should be incorporated into national strategies and legislations. They should also serve as a guideline to international humanitarian agencies, local institutions and local NGO partners. To this effect, broad-based training is recommended to include civil society, aid agencies and government officials. The capacity-building components of the UNDP-funded project could offer a platform for awareness-raising. In-depth and independent surveys are also needed to identify the number of displaced people, their living conditions and the specific challenges they face.  It is essential that the government, UN agencies, NGOs and the donor community cooperate to monitor and address the needs of the internally displaced in Bangladesh. 

Sources 

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About the Internal Displacement Monitoring Centre
The Internal Displacement Monitoring Centre (IDMC), established in 1998 by the Norwegian Refugee Council, is the leading international body monitoring conflictinduced internal displacement worldwide. 

Note

1 In a 1979 amendment to the Constitution, “Bengali” was replaced by “Bangladeshi”.
2 According to the 1991 population census.
3 For example, a Mro community leader indicated that 22,167 Mro were recorded in the 1991 census while their own count revealed a figure of 59,000.
4 Among the 40 villages still occupied in Khagrachari District, 15 were in Dighinala, 20 in Matiranga, three in Khagrachari Sadar and two in Panchari sub-districts.
5 Special Affairs Division: Order No. [Spe. A. B. (Document)-78/98/185 dated 19-07-98]
6 The union council is the lowest local government administrative unit. Each district is divided into subdistricts (or upazila) and each sub-district is divided into unions. Each union has a council with a chairman, a secretary and union members representing villages. Many unions have a mixed population of tribals and Bengalis (mostly settlers), so union members are composed of both Bengalis representing Bengali settlers and tribal representatives.
7 Reserve forests, which cover a little less than a quarter of the Chittagong Hill Tracts, were created for the purpose of conservation in the 19th century and were then sparsely populated. Today, large parts of these areas contain settlements of hill people. Control over the reserve forest is formally under the Bangladesh Ministry of Environment and Forests (MOEF), but in practice administration of the reserve forests is carried out by the Bangladesh Forest Department headed by the Chief Conservator of Forests (CARE 2004, p. 18).The 1997 peace accord specifies that the three Hill District Councils exercise control over land, including forests in the Chittagong Hill Tracts. The reserve forests, however, fall outside the scope of the peace accord, and therefore outside the authority of the Hill District Councils. 
8 See Map in Annex, p. 27
9 In Bandarban district, most of the cluster villages were set up by the Army in Rowangchari, Ruma and Tanchi Sub-districts during the conflict.
10 The Khyang are one of the 13 Jumma groups in the Chittagong Hill Tracts. The 1991 census counted 1,980 Khyang, but they estimate their number at 3,000 (SEHD, Earth Touch, March 2005, p. 17). Almost the entire population of this small ethnic group were evicted from Rajasthali in Rangamati district and part of Bandarban district.
12 The government has created several ecological parks to develop eco-tourism in Bangladesh.
13 Social forestry is defined as the sustainable management of forests and trees by local communities for their own benefit. But social forestry policies in Bangladesh remain substantially state-oriented, mostly promoting commercial plantations of exotic tree species.
14 Memo ref. 2016/Joint Oper (A)/1304 dated 21-11-2005
15 European Parliament Resolution P6_TA(2005)0136 passed on 14 April 2005.

Book Review 
by Anita Sengupta(Researcher at Maulana Abul Kalam Azad Institute of Asian Studies)

Steve Swerdlow “Understanding Post Soviet Ethnic Discrimination and the Effective Use of U.S. Refugee Resettlement: The case of Meskhetian Turks of Krasnodar Krai”, California Law Review 2006. 

Aysegul Aydingun, Cigdem Balim Harding, Matthew Hoover, Igor Kuznettsov, Steve Swerdlow, Meskhetian Turks: An Introduction to Their History, Culture and Resettlement Experiences, Culture Profile No 20, September 2006.   

            Meskhetia was an imperial borderland located on trade and migration routes and disputed by different empires through the centuries. This region in southwestern Georgia is now known as Samtskhe Javakheti. Changing borders, empires and names, a variety of historical narratives and policies of classification has meant that the historical origin and ethnic identity of the Meskhetian Turks remains disputed. Repeated displacement in the recent past and the fact that both their ancient homeland and the place to which they were deported are now claimed by independent states has meant a perpetual status of statelessness for the group. The case of the Meskhetian Turks brings together the entire gamut of questions that the diaspora debate has thrown up: Who qualifies as a refugee? Can the right to return be legalized and enforced? In case resettlement is the only option, does the status of permanent exile necessarily allow for special considerations?
            The first question that most writings on the Meskhetian Turks address is the fundamental one of who are these people whom Stalin deported away from sensitive borders to the more secure heartland of Central Asia during the Second World War. Here, the basic issue revolves around the question: Are Meskhetian Turks in fact ethnic Turks or are they ethnic Georgians who at some stage in history converted to Islam? Connected to this debate is the equally charged issue of terms used to define the group; Meskhetians (or Meskhi in the Georgian language) Ahiska Turks and Meskhetian Turks each carrying its own implications about the group’s ethnic identity and historical origin and therefore crucially connected to questions of right to return and repatriation. The term Meskhetian is commonly used by those who view the population as ethnic Georgians who converted to Islam and learnt to speak Turkish during the period when the region of Meskhetia was under Ottoman rule. The second term refers to Akhaltsikhe the largest city in the Meshketian Turk’s native region of southern Georgia and refers to the Turkish element of the identity and de-emphasizes the Georgian one. The third and most commonly used term emerged only in the 1960’s but came into wide use only after attention was focused on the group after they were forced to flee from Uzbekistan following violent pogroms in 1989. It is interesting that in the past they have been variously referred to as Meskhetian Muslims, Georgian Muslims or Soviet Turks.  Policy shifts meant that for a period after 1935 they were called Azeris and recorded as such in their internal passports. Retained to this day these records further complicate an already problematic issue. 
            As a group the Meskhetian Turks survived mass deportation from Georgia, inter ethnic pogroms in Uzbekistan and ethnic cleansing in southern Russia before becoming beneficiaries of the an extremely selective remedy of resettlement in the US in 2004. Integration, repatriation and resettlement are the three themes that are examined in the writings in the course of a search for a durable solution. For the Meskhetian Turks a policy of resettlement is generally accepted as the most probable option. Integration within the Central Asian states, where they have lived for the last nearly half decade or the Russian Federation has not proved to be successful. In particular the discrimination that the group has faced in Krasnodar Krai where they have been rendered de facto stateless people has been highlighted as a classic case of state sponsored discrimination in practice. Similarly, while the voluntary right to return was formally recognized, in the context of the dissolution of the Soviet Union and the emergence of independent states the definition of the term “country of origin” itself became problematic. The dilemma is compounded by the fact that the state from where they were deported, i.e., the Soviet Union no longer exists. The question then was could the Meskhetian Turks claim Georgia as their country of origin even though Georgia did not exist as an independent state at the time of their deportation? International standards have been shown to suggest that the Meskhetian Turks’ links of nationality with Georgia allows for the right of repatriation. In contravention of these norms Georgia refuses to recognize the link of nationality on the ground that the Meskhetian Turks were not Georgian residents in 1991 even though this was the result of their forced deportation and denial of their right to return.  
            With the recognition that resettlement is the only viable option there is then a debate on the criteria of who qualifies for permanent resettlement. Here the need to draw clear lines around the group to be admitted, the quest for what is defined as a “finite” group has meant the identification of a number of criteria that has raised questions about categorization as well as inclusiveness. Unfortunately, categorization has involved not just humanitarian concerns but also foreign policy interests. There is also the question of what Steve Swerdlow calls “the unintended consequences” of intensifying the problem of xenophobia and endangering the rights of other minorities in Kransnodar Krai, from where most of the Meskhetian Turks were resettled. The need to ensure a “human rights” approach to the resettlement effort would therefore necessarily need to involve authorities in Moscow and the Krasnodar Krai. While there is optimism about the successful resettlement of the Meskhetian Turks in the US, the inevitability of resettlement also highlights the tragedy of a transnational group whose right to return to what is considered to be “homeland” has been denied. As permanent exiles with a history of repeated displacements there is in their narratives reflection of a tragic reconciliation to the fact that there is no country for them to return to. While the success of resettlement policies in the US is elaborated on there remains the need to reflect on international norms for determining who qualifies as a permanent exile. There is also the need to bring to the forefront the question of similarly situated ethnic groups such as the Hemshins and the Batumi Kurds who were also victims of deportation and now face discrimination.

Book Review
by Samir Kumar Das(Professor of Calcutta University, Department of Political Science)

(Atin Bandyopadhyay (2006), Nilkantha Pakhir Khonje (a Bengali novel) [In search of the bird nilkantha]. Kolkata: Karuna, First published 1971.) 

            The term ‘rights’ is used in two very different senses: first, in the sense in which rights are legally recognized or conferred on us - whether by the Constitution, law of the land or by international law. I do not propose to focus on the legality of rights while reviewing this widely read Bengali novel, although such studies have their own merit. I prefer to use the term in the second sense in which these are claimed in any society and the rights claims - because of their very nature - continuously push the world of law to redefine and expand its horizon. Rights claims have historically produced many a social movement and it is through the dynamic of these social movements that legality gets continuously redefined and reconfigured.
             It is interesting to explore why people by and large submit and give themselves to the newly emergent reality of partitioned existence in the Indian subcontinent (1947) and eventually resettle themselves in spite of it being an extraordinarily traumatic experience. The book portrays with incredible detail how the reality that emerged was omnipotent and affected the village life without being affected by it. While there were sporadic cases of resistance confined only to certain localities and regions, such micro assertions of people’s right to home and as in many cases, their simple refusal to move never culminated in any organized political enterprise and were always overshadowed by the euphoria of fulfillment of the grand political project of homeland. At a time when a significant portion of world’s population is on the move and have become footloose, I repropose to read the novel as some form of a counter discourse to our, albeit elusive right to home. Never before in India’s social and political history has the right to homeland been so tragically incommensurate with our right to home.
            Partition breaks states as much as it makes them. The act of making also imposes on the states, which have earlier been one, the onerous obligation of defining their respective national identities in mutually exclusive terms. The logic of state formation forces the states to willfully forget the past history of our ‘joint existence’ and redefine our identities in reflexively binary terms. One’s existence involves another’s negation. Partition refugees accordingly are those who migrate – whether on the eve or in the wake of partition, in response to this imperative of state formation and comply with its logic.
            If the reality of deteriorating living conditions was responsible for mass out-migration from the then East Bengal, there was also – as the novel suggests - the almost seductive utopia of a new land that drew them towards the promised land. Since there was hardly any confusion in the minds of the people about the land they might call as their own, population movements that took place in the wake of partition was only part of what I elsewhere preferred to call, ‘natural selection’. It was indeed a powerful utopia and the people were not bothered by the state of living conditions actually existing in the new land. Most of them were subsequently awakened to the rude reality as they had come to settle there. Bhupendranath for example advises Sachi: “… I know you will suffer. How you are going to earn your living in a foreign and alien land is the main anxiety. But then you should also understand that you still have peace even if you die of hunger by the side of the Ganges (considered as a sacred river in the new land, SKD). You can at least have your (dead) body consigned to the funeral pyre by the side of the Ganges.” The rite - as we know - is considered as sacred by the Hindus. Hunger in India, according to this narrative, is preferable to the bountiful life of East Bengal. Moreover, one may add that many Muslims in India and Hindus of erstwhile East Pakistan thought it ‘unethical’ to remain in these countries after Pakistan and India (Hindusthan) were born as separate and sovereign states. 
            Why does partition necessarily produce ‘partition refugees’? Why does refugee migration become an inextricable part of partition? Is it possible to conceive of partition without the population movement? This of course takes us back to history. Historical records seem to suggest that the almost incessant cracking and splitting of kingdoms and empires in pre-modern India rarely triggered off population movements (with almost the solitary exception of the one that followed Sultan Muhammed Bin Tughlaq’s decision of shifting his capital from Delhi to Daulatabad). It hardly mattered to the ordinary people whether they were ruled by X or Y, for, the cracking and splitting of territories would take place necessarily along a continuous cultural space without substantially affecting its interethnic balance and social equilibrium and the states kingdoms and empires – all were merely called upon to uphold and preserve the given social order – not to change it. The social fabric was strong enough to withstand the cracking and splitting of kingdoms and empires. The state in modern times is not a passive upholder of social order; it is on the contrary an active agent of change and transformation. Never before in Indian history has the State and its politics impinged on social life such intensely and widely as it is now in modern times.
            Hence, it is now important for us to be on the ‘right’ side of the border and governed by a State that we consider as our own. We called it ‘natural selection’ – a process whereby the states and their populations feed on each other. In effect, the State finds its own nation as much as the nation too finds its own State. ‘Partition refugees’ by and large did not even think of weighing the return option under such highly surcharged circumstances. We rapidly entered a world where quest for homeland replaced that for our home. 
            Atin Bandyopadhyay’s Nilkantha Pakhir Khonje aptly captures the suddenness of the moment marked by the unsurpassable breach between your home – where you live for generations and the homeland (desh) – the promised abode of your nation. You discover with great pain that your home is no longer where your homeland is located and vice versa. The breach hardly leaves you with any room for choice. In nationalist times, homeland is always privileged over home and homeland serves as the quintessential archetype of a nation. The following is the conversation that takes place between two teenagers - a boy and a girl belonging to two otherwise mutually rioting communities – who are yet to come to terms with fact that they are in deep love with each other.
 
… Sona says, once the country is partitioned, we will leave it.
- Where will you go?
-  We do not know that. Our private tutor has told us that our homeland will fall in Hindusthan (italics mine). My father, uncle – none of them will be here.
Why won’t you be here? Fatima’s heart quivered as it were (p.374).  
            The words ‘fall in Hindusthan’ are significant. The location of the homeland is an a priori that does not allow its potential inhabitants the freedom of choice. Neither does it call for any critical engagement. The macro political dynamics rule over the micro politics of the hitherto autonomous village life. 
            The utopia had not taken time to fade out even before the dust-storm of partition could settle down. As the partition refugees were faced with the unacceptably hard present, they idealized their past in the old land and transposed their utopia from the starkly disillusioning present to the presently unrealizable past. A good deal of Bengali literature on partition thrives on this transposed utopia – a utopia that moves back and forth along the scale of history to cater to our political requirements. Meanwhile, the partition refugees come to know that it is impossible to return to the places they have long left, for, the present has moved far away from what they idealize as their past and it is now a vastly different world they once left. Many of us in West Bengal come from families that once bore heavily the brunt of partition. It is a common experience that our parents keep telling us all the tinted-glass stories of what life in the then East Bengal was like. The East Bengal of their imagination sounds too idyllic to be real. Yet, present-day Bangladesh looks so alien to them. Their cognitive repertoire does not enable them to make sense of this country. The descendants of their Muslim neighbours do not seem to recognize them. Partition refugees therefore are in a state of permanent exile – ‘rejected’ in their country and ‘unwanted’ in the new land. The Muhajirs of Pakistan and the Biharis of Bangladesh are just two extreme cases. Like all of them, partition refugees are a truly stateless lot and are caught as it were in a bind. Under the circumstances, it is unlikely that they would articulate their claim to the right to return.
            While commenting on the possibilities of return, someone argued that partition had taken place a good 60 years ago and is now a nearly forgotten history. The unsettled population has somewhat settled now in their own ways. None of them wishes to take a plunge into another round of uncertainties by leaving their newly settled locations. Who now wants to return? Why dig out the ghost of partition? In a famous Bengali short story that I read long back, Tarashankar Bandyopadhyay raises a very pertinent question: If a man dies, he turns into a ghost. But, what if a ghost dies? He can only become – as the author quipped, a ghost. The lesson is that the ghosts never die. The spectrality of partition continues and will continue to haunt our minds. Given the state of conditions that exist in India and in the neighbouring countries, no one will ever think of going back and resettle themselves. But does this mean that we need to drop the agenda of this right to return altogether? I think, the value of our claim to this right lies in its ability to set in motion the agenda of making living conditions returnable in the first place and transforming the country of possible return into a country where we may find it actually possible to return.  
            Partition refugees have a right to return, provided states they left long back, are able to transcend the logic of partition. It requires a radical re-imagining of the body politic and the ethical collectives in which minorities do not fall prey to majoritarian democracies. I understand that there is no one way to such re-imagination. And, ironically once this is done across the states of South Asia, which earlier have been one, we are unlikely to claim our right to return and the claim becomes redundant. When every side of the border is re-imagined and is considered as ‘right’ by one and all, it does not matter whether one lives in India, Pakistan or Bangladesh and this shows how borders lose their significance in a situation where every country becomes everyone’s homeland. Claiming this crucial right to radical re-imagination obviously extends the realm of legality bound so far by the given architecture of nation-states.