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The lack of formal identification of the Rohingya population
By Letícia Passos (Abreu Passos de Souza) — Legal Counsel, The Randstad, Netherlands.
In recent years, approximately 723,000 Rohingya fled from violence and armed attacks in Myanmar through a sea journey and crossed the border to other Asian countries, especially Bangladesh. The Rohingya are Muslims who speak a specific dialect originating from the Bengalis. Around 1960, the term ”Rohingya” was used to identify this ethnic-religious group and distinguishes them from the Buddhists. They share the place where they live in Myanmar, nowadays called Rakhine state, with the Buddhists, who represent most of the population.
This population has been denied by the Burmese government, among others, the right to an adequate formal identification, implying the impossibility of exercising their civil, political and social rights. Their lack of proper documentation is related to the connection between their ethnicity, the government and the Burmese legislation, especially after Myanmar’s independence. Since then, using ethnic-based nationality laws, governments that succeeded in power do not recognize the Rohingya as Burmese. By not recognizing this population as part of Myanmar nor acknowledging its ethnicity, and consequently its nationality, the Burmese government has imposed on them a process of statelessness. Without documents and without nationality, the Rohingya suffer numerous deprivations and abuses at different levels in Myanmar as well as in the host countries. They are subjected to degrading treatment that includes sexual violence against women, forced to work, and kept in internal encampments. In addition, their properties are confiscated, their children are deprived of education, and they lack access to health care as well as formal work.
Because they have no official documents guaranteeing them civil, political, and social rights, they cannot legally leave the country and typically cross the border into Bangladesh by boat after paying human traffickers.7 Therefore, a history of discrimination and segregation of Rohingya is strongly linked to inadequate identification documents or the absence of these documents.8 For years the Burmese government exploited the stateless Rohingya byconfiscating identification cards and issuing new documents that changed the ethnicity of the Rohingya to Bengali, the result of which presented a huge identification problem.
But why identify and register people? An identification document for an individual is a crucial step for obtaining certain rights as it is a central means for their nationality and citizenship recognized.10 It is also a way to know the population, to provide effective legal and physical protection, and to identify specific needs of a set of people. The lack of a formal identification, therefore, can cause great problems and omit many rights. The importance of identification documents become obvious once there is no access to them. Formal identification can prove an individual’s identity and enables him or her to vote, study, work, travel, move, etc. This is even more relevant once outside the country of origin. The same happens in the case of some benefits, such as retirement or pension payments, that can only be obtained by having a formal identification.
A formal identification is also one of the requirements to exercise the civil and political rights as set out in the International Covenant on Civil and Political Rights (ICCPR) and in the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The Universal Declaration on Human Rights (UDHR) stipulates in article 6 that “Everyone has the right to recognition everywhere as a person before the law”. The states that signed these instruments should guarantee to the people within their territories and under their jurisdictions the rights conceded in the documents. The structure of international law dictates that for an individual to exist from a legal point of view, he or she needs a state to recognize that existence and his/her belonging. This interweaves civil, political, and social rights with a citizen status. Therefore, formal identification contributes to access to civil, political, and social rights. In the case of the Rohingya specifically, a formal identification that recognizes their nationality could allow them to access civil, political, and social rights. If the identity document is imposed on them without establishing their nationality, however, it would confirm the exclusion of the rights of that population.
The absence of documents and citizenship can also be a problem in the host countries. The absence of documents and citizenship can also be a problem in the host countries. An officially recognized formal identification is necessary in order for the Rohingya to have certain rights, such as education and healthcare, and to have access to certain services in their destination countries. It is within this range that the use of blockchain in relation to refugees connects with the issue of lack of identification. New blockchain technologies might present a potential solution for this need for identification: a project aimed at granting a digital identity to the Rohingya outside the Burmese territory has proposed blockchain technology as a solution to the Rohingya’s problem.
Being in possession of an identification document is not synonymous with being identified. For a person to be identified, his or her identity must be recognized when confronted with the elements that constitute an identification document, such as a photograph and/or birth date. This process requires at least two parties, because a person cannot recognize his or her own identity. This identification must be done through a reliable resource, such as a document, set of documents, biometric technology or other forms.48 This resource contains personal data, like name, date of birth, gender, affiliation, fingerprint, photo and/or signature that when combined can identify a person. A birth certificate is usually the first identification document of an individual and, although it is not a guarantee of nationality, it is an important instrument for its recognition. This document proves his or her existence, place and date of birth and the identity of his or her parents. It also allows children to have access to health care, to attend school and obtain other identity documents.
In many situations, a document that was not specifically thought to be a source of identification can become one. For instance, many passports do not contain citizens’ parents’ names, which is important information to distinguish a person. Its purpose is to be a travel document, although it can also be used as an identification document. In other circumstances, an individual obtains several types of identity documents throughout his or her life that individually are not able to identify him or her. This makes it more difficult to identify someone, especially one from a vulnerable refugee population. The sum of what the person claims to be needs to be added to the data set of the formal identification to prove their identity. For example, a Rohingya should have his or her identity formally confirmed when what he or she says is confirmed with his or her identification document. As they do not have an adequate identification document and because their identity is rejected by the government, therefore, they are not properly identified.
