Fortify Rights files complaint with U.N. body on arbitrary detention

(Bangkok, June 5, 2024)—The Government of India should immediately and unconditionally release Mohammad Arfat, a Rohingya refugee and human rights defender from Myanmar arbitrarily detained for more than three years, said Fortify Rights today in a new complaint filed with the U.N. Working Group on Arbitrary Detention (hereafter “the Working Group”). Fortify Rights is seeking a ruling from the Working Group on the case of Mohammad Arfat’s indefinite and years-long detention in India and is advocating for his immediate and unconditional release.

“Indian authorities should immediately free Mohammad Arfat and other refugees held under similar conditions,” said Matthew Smith, Chief Executive Officer at Fortify Rights. “The detention of Mohammad Arfat is indefinite and arbitrary and contravenes India’s legal obligations. He is one of hundreds of Rohingya refugees the Indian authorities are detaining in this way.”

The Working Group is a body of independent human rights experts established by the U.N. Human Rights Council to investigate and provide opinions on cases of deprivation of liberty that are arbitrary or inconsistent with international standards.

Fortify Rights filed the 20-page submission to the Working Group on May 30, along with over 90 pages of annexes in support of Mohammad Arfat’s case and his right to liberty. The complaint provides an opinion on the arbitrary detention and urges India to immediately and unconditionally release Mohammad Arfat, among other recommendations.

Prior to filing the complaint with the Working Group on behalf of Mohammad Arfat, Fortify Rights spoke with Mohammad Arfat and his lawyer about his arrest and detention. Also, Fortify Rights obtained copies of official documents relevant to his case, including affidavits, court judgments, and orders of court hearings.

When the Working Group finds a detention to be arbitrary, it issues an opinion stating so and makes recommendations to the government in question, including for the release of the detainee, reparations, and guarantees of non-repetition.

Mohammad Arfat, 31, is a Rohingya refugee, genocide survivor, and human rights defender from Myanmar. Indian authorities arrested him in Assam State on December 23, 2020, physically assaulted him, and convicted him of immigration-related offenses, despite that he is a registered refugee with the U.N. refugee agency. Upon conviction, the Karimganj Additional Chief Judicial Magistrate in Assam sentenced Mohammad Arfat to imprisonment of one year and a fine of INR 1,000 (approximately USD $12).

In the last three years, Indian authorities detained Mohammad Arfat in two jails – the Karimganj District Jail and the Silchar Central Jail – and one detention center – the Goalpara Matia Detention Center – in Assam, India. While he already served the one-year sentence in Indian detention that he received in 2022, in a letter to the High Court of Assam in 2023, which Fortify Rights reviewed, the Government of India claims to be detaining him while it waits for the Myanmar Embassy in New Delhi to confirm Mohammad Arfat’s nationality to facilitate his deportation back to Myanmar. The Myanmar Embassy in New Delhi is controlled by the Myanmar military junta, which is internationally known to have systematically denied the Rohingya the right to nationality and is responsible for genocide against them. The U.S. Government, a U.N. Fact Finding MissionFortify Rights, and others have collected and analyzed evidence of genocide against Rohingya people in Myanmar.

“It’s cruel and absurd to wait for the Myanmar military to confirm a Rohingya refugee’s nationality while that same military continues to deny that Rohingya people exist and continues its efforts to destroy them as a people,” said Matthew Smith. “The Indian government should immediately release all Myanmar refugees detained on immigration-related charges and instead engage the National Unity Government, which includes democratically elected Myanmar officials.”

At the time of writing, the Indian authorities have detained Mohammad Arfat for more than three years and five months—more than 1,200 days—and the Guwahati High Court in Assam has held at least 14 hearings on the matter. After the completion of his one-year court-mandated sentence, Mohammad Arfat has been detained with no charges against him.

Arbitrary detention under international human rights law refers to the deprivation of an individual’s liberty by the state or its agents in a manner that lacks legal basis, is unpredictable, unjust, or disproportionate, and violates fundamental rights and freedoms guaranteed by international human rights instruments.

The U.N. Working Group on Arbitrary Detention considers the deprivation of liberty as arbitrary if it falls into one of five defined categories. In the complaint filed on behalf of Mohammad Arfat, Fortify Rights presents evidence that his detention in India constitutes arbitrary detention under all five categories identified by the Working Group.

First, Mohammad Arfat was convicted of and served a criminal sentence for violation of Rule 6 of the Passport Rules, 1950. Rule 6 is no longer in force in India after it was omitted in Passport Rules, 1980, making his detention arbitrary.

Second, Indian authorities deprived Mohammad Arfat’s liberty, violating his right to freedom of movement and the right to leave any country as guaranteed under Article 13 of the Universal Declaration of Human Rights (UDHR) and Article 12 of the International Covenant on Civil and Political Rights (ICCPR). Moreover, the authorities also violated his freedom to seek and enjoy asylum from persecution under Article 14 of the UDHR and his right to equality guaranteed under Article 7 of the UDHR and Article 26 of the ICCPR.

The Working Group has held that “[s]eeking asylum is a universal human right, the exercise of which must not be criminalized.” It stated further that “[t]he irregular entry and stay in a country by migrants should not be treated as a criminal offence, and the criminalization of irregular migration will therefore always exceed the legitimate interests of States in protecting their territories and regulating irregular migration flows.”

Third, Mohammad Arfat is being detained indefinitely without recourse to a fair or timely judicial hearing. Speaking of the judicial delays, Mohammad Arfat’s lawyer issued an affidavit as part of the submission to the Working Group, stating:

The stand taken by the Union of India is that they are in [the] process of deportation for Mohammad Arafat [and] have written to the Myanmar Embassy to verify his details but…they have [not] received a reply. This is a consistent stand taken by the Union of India on the basis of which numerous time extensions are provided to them.

The Assam High Court heard the matter again on May 30, 2024, when the government requested more time due to the ongoing “nationality verification” process.

Fourth, Mohammad Arfat is a refugee being subjected to prolonged administrative custody without judicial review or remedy. This violates customary international law and Article 9 of the ICCPR.

Finally, Mohammad Arfat has been detained for reasons of discrimination based on his Muslim religion and ethnic Rohingya identity. In 2019, the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance emphasized that the Indian authorities’ existing and continuing discrimination against Rohingya people violates India’s legal obligations under the UDHR, ICCPR, and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Indian authorities are confining Mohammad Arfat and other refugees in deplorable conditions, said Fortify Rights. Indian authorities separated Mohammad Arfat from his family and denied him and other detainees proper medical care. Conditions in multiple other similar “foreigner” detention centers in India reportedly lack basic facilities and adequate food.

Customary international law and Article 9 of the ICCPR, to which India is a state party, forbids the arbitrary, unlawful, or indefinite detention of any person, including refugees and migrants. Refugees may only be detained as an exceptional measure of last resort following an individualized assessment and after the exhaustion of all alternatives to detention.

Article 21 of the Indian Constitution protects this right: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

India has also signed the UDHR and the ICCPR, and ratified the CERD, all of which provide protections against arbitrary detention.

While Section 3 of the Foreigner’s Act in India empowers the Indian central government to place restrictions on all foreigners or any class of foreigners, such restrictions should not override its commitments under CERD. Any restrictions also should not violate refugee rights to equality before the law and the equal protection of the law guaranteed under Article 14 of the Indian Constitution.

India has signed but has not ratified the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). As a signatory, India is bound to follow the principle of non-refoulement, which is a peremptory norm of international law. Article 3 of CAT enshrines the principle of non-refoulement, prohibiting states from returning any person on its territory or under its jurisdiction to a country where they face persecution. India’s previous returns of Rohingya to Myanmar, which is responsible for ongoing genocide, war crimes, and crimes against humanity against the Rohingya people, violated this peremptory norm.

India should also sign and ratify the 1951 U.N. Refugee Convention and its 1967 Protocol, said Fortify Rights.

In 2023, Fortify Rights documented Indian authorities similarly indefinitely detaining Rohingya in New Delhi, Jammu, Manipur, and Assam.

India is legally obligated to protect refugees, and such protections bring more security, not less, at the individual and societal levels,” said Matthew Smith. “India should stop indefinite and arbitrary detention of refugees and never deport a refugee to a country like Myanmar where they face violence or persecutionMohammad Arfat has been detained for more than three years for being a genocide refugee from Myanmar.” 

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