There has been an unwarranted rise in the number of refugees globally in the last decade, but a huge part of the crises we face today is refugee return. Despite the principle of non-refoulement—a law that protects refugees and asylum seekers from being deported back to their country where they may face persecution, torture, or other serious harm—has been recognized as customary international law and hence is binding on all state, governments of many countries worldwide are taking exhaustive measures to send refugees back.
Some countries like the United States have blatantly flouted non-refoulement with plans to send Central American asylum-seekers back into the clutches of violence they fled from. Subtle approaches were taken up by other countries such as Germany and Lebanon—offering to pay refugees who opt to go back to Syria or by simply making their life so miserable to the point where they feel they have no alternative but to return.
Monitoring the lengths to which some countries go to coerce the refugees to return might give people the misconception that sending refugees back to their countries of origin is the solution to the issue of mass displacement. Indeed, voluntary repatriation is one of the “three durable solutions” endorsed by the United Nations to refugee situations, and so is safeguarding the right to voluntary return. However, refugee repatriation today is seldom voluntary or stable.
Several reports have been submitted to the United Nations refugee agency (UNHCR) since mid-August 2022 regarding the deportation of asylum seekers back to Myanmar by the Malaysian authorities. The UNHCR, on October 25, 2022, urged Malaysia to abide by its international legal obligations and to stop deporting refugees. The deportations, which included former navy officers seeking asylum, expose them to harm and danger and are against the principle of non-refoulement, which is a cornerstone of international law.”In the last two months alone, hundreds of Myanmar nationals are reported to have been sent back against their will by the authorities,” UNHCR spokesperson ShabiaMantoo told a Geneva press briefing. “People cannot be returned to places where they face threats to their life and liberty and face harm and danger.”
“Malaysia has become the preferred destination for a number of threatened minority groups from Myanmar, including the Rohingya, the Chin, and the Kachin,” says Phil Robertson from Human Rights Watch. Even though Malaysia is not a signatory to the 1951 UN Convention and its 1967 Protocol on Refugees and does not recognize refugee status accorded to asylum seekers assessed by the UN Refugee Agency, it is home to around 185,000 registered refugees and asylum seekers, which includes about 100,000 ethnic Rohingya Muslims. In addition, over 17,500 are held in the 21 immigration detention centers across Malaysia, including 1,500 children. A discussion between the officials from the junta-aligned Myanmar embassy in Kuala Lumpur and the Malaysian immigration officials took place on September 2 regarding the deportation of Myanmar nationals in immigration detention and have since coordinated three chartered deportation flights, returning 149 Myanmar nationals on September 22, 150 on October 6 and 150 on October 20. According to the Myanmar embassy and junta media, about 1,500 Myanmar nationals were returned between April and mid-September from immigration detention centers on Myanmar Airways International flights.
Reports from Reuters claim that the October 6 flight included six officers who had defected from the Myanmar navy. The men were arrested in September by the Malaysian authorities. Three of them sought to have their asylum claims reviewed by the UNHCR, and one of the officers and his wife were detained by the Myanmar Junta officials upon their arrival in Yangon.
Human Rights Watch said that Malaysia’s failure to provide fair asylum procedures or allow UNHCR to determine refugee status violates the government’s international legal obligations. Since the February 2021 military coup, there has been a nationwide campaign of mass killings, torture, arbitrary arrests, and indiscriminate attacks carried out by the Myanmar junta that cumulate to crimes against humanity and war crimes. According to Assistance Association for Political Prisoners, more than 2,300 people have been killed by the security forces, and nearly 16,000 were arrested. On October 20, the UNHCR stated that it “is urgently appealing to countries in the region to immediately stop forced returns of Myanmar nationals seeking safety from serious harm. Sending them back to the country is placing countless lives at risk.”
A High Court order was violated by the Malaysian immigration authorities in February 2021 that granted a temporary stay of deportation for 1,200 Myanmar nationals, and the majority were transferred to the Myanmar navy’s custody hours after the order. A group of UN experts expressed that they were “appalled” by the decision and that Malaysia’s “defiance of the court order breached the principle of non-refoulement … which absolutely prohibits the collective deportation of migrants without an objective risk assessment being conducted in each individual case.”
The Malaysian government has effectively admitted to depending on diplomatic assurances to ensure the safety of returned Myanmar nationals from being wrongfully treated in Myanmar. In response to a UN communication on the February 2021 deportations, the Malaysian government stated, “The Government of Malaysia reiterates that the repatriation of immigration detainees has been a regular and ongoing effort.… The Myanmar Embassy in Kuala Lumpur had given assurance on the safety of all Myanmar immigration detainees who were returning to Myanmar voluntarily.”
The government of Malaysia cannot abandon its obligations towards deportees by relying on promises of safety provided by Myanmar’s junta, which has been implicated in numerous summary executions, torture, and other forms of abuse. Human Rights Watch said that the Malaysian government should take a step forward in ratifying the international Refugee Convention and establishing asylum procedures compliant with international standards for stateless people and foreign nationals who are at risk of persecution in their home countries and should develop regulations ensuring that any future returns are in full compliance with international law.
“While some Malaysian leaders are calling out Myanmar’s junta for crimes against humanity, immigration authorities are forcibly returning asylum seekers directly into harm’s way, where they have real fears for their lives,” Bauchner said. “At the ASEAN summit in November, Southeast Asian leaders should commit to protecting people fleeing the junta’s atrocities and ensuring all parts of their governments do the same.”
In sending refugees back to Myanmar, Malaysia would not only be putting refugees and asylum seekers in violent but possibly fatal situations. In addition, the process of repatriating refugees itself is known to create a new spark of conflict in many post-conflict societies. Take, for example, the case of Iraq between 2008 and 2009; the Internally Displaced People (IDP) and refugees who were actively encouraged to return home by the Iraqi government were met with violent backlash in their home communities, forcing them to flee yet again. Another case is that of the deportation of Salvadorans living in the United States back to El Salvador in the 1990s, which led to the creation of transnational gangs from whom thousands of people are still fleeing today.
Melody Khuoltaikim Singson is a law student from Campus Law Centre, Faculty of Law, the University of Delhi, who often delves into research, content writing, and editing with a profound interest in international law, refugee law, human rights law, and peace, conflict & security studies and intends to pursue a Masters of Law degree in the same to further her knowledge and contribute meaningfully to what she considers her purpose.