UA 151/00 SAFHR’s Appeal 30 November 2000
THE REFUGEE STATUS CASE OF MR.MUIVAH
We are forwarding this following appeal made by South Asia Forum for Human Rights (SAFHR). This is a very important case about which we have drown your attention earlier. We urge you to respond to the latest developments in this case, as mentioned in this appeal.
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I wrote to you on November 4, 2000 about the rejection of the application of Mr. Th. Muivah by the UNHCR. The UNHCR rejected the NSCN (I-M) leader Mr. Muivah’s application for refugee status on the grounds of his alleged involvement in \”war crimes and non-political offenses\”. Recently we have learnt from highly reliable sources in the UNHCR head quarters in Geneva that apparently the High Commissioner’s office and other senior officials concerned with protection at UNHCR’s head office were not aware of this decision. We were told that the decision was taken by the Branch Office of the UNHCR in Bangkok. This is rather strange. We know that Bangkok office of the UNHCR had sent the file containing Mr. Muivah’s application, the interview reports as well as their assessment of the case to the UNHCR head office in the month of July, 2000. The head office took nearly three months to send its advice to Bangkok. After that the Bangkok office communicated the rejection letter to Mr. Muivah without giving any details of the so-called crimes that were committed by him.
In his appeal to the UNHCR, Mr. has pointed out that this rejection on the basis of unsubstantiated charges is a violation of his right to fair trial and public hearing. He also pointed out that the UNHCR has cast aspersions on his reputation as well as that of the National Socialist Council of Nagaland of which he is the General Secretary. I need not emphasis on the seriousness of this development. Under these circumstances, it will be almost impossible to get Mr. Muivah resettled in a third country. There is a urgent need for this as we fear that the Thailand Government would soon deport him to India as he has no passport.
Mr. Muivah’s deportation to India will wreck the ongoing peace process in India’s northeast. It is obvious that the decision of UNHCR was influenced by Indian government sources. Sections of Indian intelligence agencies, corrupt bureaucrats and interested politicians belonging to Naga and Manipuri indigenous communities were opposed to the peace process from the very beginning. They have tried to wreck the three year old cease-fire in the Naga areas. Some of these people were responsible for the arrest of Mr Muivah in January 2000 in Bangkok.
We need to campaign against this decision of the UNHCR which is obviously based on insufficient information and evidence. The UNHCR’s Bangkok office and the head office have refused to explain as to why and how this decision was taken. They also seem to indicate that the \”evidence\” on the basis of which this decision was taken shall not be disclosed as it was a part of \”internal process\”. This is very strange. The UNHCR is an organ of the UN. Yet it refuses to abide by some of the norms of justice set by the treaties of the UN.
I enclose a note which provides background information on Mr. Muivah’s case. We request you to kindly write to appeal to the UN High Commissioner for Refugees to reconsider the decision on Mr. Muivah.
The address of the UNHCR
Mrs. Sadako Ogata
United Nations High Commissioner for Refugees
94 rue Montbrillant
CH 1202 Geneva
Switzerland
Salutation: Madam High Commissioner.
Also send a copy to:
Ms. Ruven Menikdewela
Regional Bureau for Asia and Oceania
UNHCR
94 rue Montbrillant
CH-1202 Geneva
Switzerland
Fax: + 41-22-7397335
Issued by:
South Asia Forum for Human Rights
3/23 Shree Darbar Tole
Patan Dhoka, Lalitpur
Nepal
Tel: + 977-1-541026 Fax: + 977-1-527852
E-mail: south@safhr.org
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Background Information
Mr Thuingaleng Muivah, (66) General Secretary of National Socialist Council of Nagalim (Isak-Muivah).
Mr. Muivah is a leader of the five decades old freedom struggle of the Naga Indigenous peoples in the northeast of India. The government of India and the NSCN (I-M) has been engaged in peace talks since 1997. Mr. Muivah who is the chief negotiator of the NSCN (I-M) was on his way to The Hague via Bangkok on January 19, 2000 to attend the eight round of the ongoing peace talks. He was arrested at Bangkok international airport on the charge of travelling on a fake South Korean passport. The Thai immigration authority is prosecuting him on a criminal charge possessing a fake document and entering Thailand illegally. Since January 19 he has been in jail in Thailand.
After his arrest, Mr. Muivah appealed to UNHCR office in Bangkok for recognition as a refugee. In his application to the UNHCR he pointed out that at the time of India’s independence the Naga indigenous people had opposed a British decision to include their homeland into the territories of India and Myanmar (then Burma). When the British and the leaders of India refused to accept their legitimate demand, on August 14, 1947 the Nagas had declared the establishment of an independent Nagaland comprising all the Naga inhabited areas in India and Myanmar, then Burma. The Nagas had informed all the major world governments and the United Nations about their declaration of Independence .
He informed the UNHCR that the government of India had declared the Naga peoples struggle for the right to self-determination a secessionist movement. He also told the UNHCR that for nearly five decades the Naga freedom movement was being ruthlessly suppressed by the members of the India armed forces who have been given immunity against prosecution under the Armed Forces Special Powers Act enacted by the Indian Parliament in the early fifties. He informed the UNHCR that as a matter of policy the India government does not grant passport to persons who challenge Indian authority and that as a Naga nationalist who rejected Indian hold over his homeland, he could not have requested the Indian government for a passport. He therefore appealed to the UNHCR to be recognized as a refugee under the 1951 UN Convention on Refugees.
After several rounds of preliminary discussions between the leadership of NSCN (I-M0 led by Mr. Muivah and three successive Prime Ministers of India, Mr. P.V. Narasinghma Rao, Mr. H. D. Deve Gowda and Mr. Inder Kumar Gujral, a cease-fire agreement was drawn up between the NSCN (I-M) and the government of India in July 1997. This was to be followed by peace talks between the leadership of NSCN (I-M) and the representative of the Indian Prime Minister in a third country to find a durable political solution to the Naga issue .
Between May 1998 and November 1999, the leaders of NSCN (I-M) and the emissary of the Indian Prime Minister held seven rounds of ‘peace talks’ in Bangkok, Zurich, Paris and Amsterdam. In the fourth round of talks which was held in Paris on September 30, 1998, the Indian Prime Minister, Mr. A. B. Vajpayee led the Indian side while the NSCN (I-M) was represented by its Chairman Mr. Iask Chisi Swu, Vice-Chairman Mr. Khodao Yanthan and General Secretary Mr. Thuingaleng Muivah. The eight round of Indo-Naga peace talks were scheduled to be held in The Hague from January 19-24, 2000. Mr. Muivah had gone to Bangkok to consult some of his colleagues. He was to leave for The Hague the same evening. His arrest put the entire peace process in Nagaland in jeopardy. The Indo-Naga peace talks remains stalled since his arrest.
That certain elements were out to wreck the peace process became evident, when within weeks of Mr. Muivah’s arrest, his nephew Mr. Grinder Muivah who was acting as a go-between the Indian and NSCN negotiating teams, was framed in a trumped up hijacking case in Calcutta. The Aizwal Bench of Guwahati High Court rejected the case against Mr. Grinder Muivah at the first hearing. On February 10, 2000, nearly a month after the arrest of Mr. Muivah in Bangkok, Mr. Jamir’s government of Nagaland issued a \”non-bail able\” warrant against Mr. Muivah through the court of the Deputy Commissioner of Dimapur. It is being alleged that he was a part of a conspiracy to kill Mr. Jamir. In March this year the NSCN cease fire monitoring office in Kohima was forcibly closed down by the Indian army. Several NSCN political functionaries and activists were arrested on old and new charges in what amounted to a violation of the cease fire agreement. The information about the warrant of arrest issued by a Magistrate in Nagaland was passed on to the Thai government by the Indian side, which cast Mr. Muivah in the light of a dangerous terrorist.
The Indian government has refused to intervene in this case or in the arrests of NSCN functionaries on the grounds that \”law and order\” was a state subject under India constitution. It was argued that the state governments were fully empowered to take actions against which they have criminal charges. The Indian Home Ministry has told a representative of NSCN that since there were no cease-fire agreements between the NSCN and the governments of the states of Nagaland, Manipur and Assam, these arrests did not constitute a violation of the cease-fire agreement.
Nagaland and Manipur states have been under the Armed Forces Special Powers Act for the last four decades. The Central forces exercise absolute powers in these states. Since these states have been declared as \”Disturbed Areas\” the Central government maintenance of \”law and order\” is also a responsibility of the central government. Further, under the Indian constitution any agreement between the central government and another party is applicable to the entire territory of India unless an area is specifically excluded from the purview of the agreement. In this case to argue that Nagaland and Manipur states are excluded from the purview for the cease-fire agreement between government of India and NSCN would make a mockery if the entire exercise. Yet, Mr. Jamir, the Chief Minister of Nagaland State who is opposed to the peace talks, has publicly claimed that there is no cease-fire in Nagaland state. Currently, negotiations are on between the Indian government representative Mr. Padmanabhaiah and the NSCN (I-M) to extend the area of the cease fire to cover the Naga populated areas of Manipur and Assam states in the northeast. However the contested interpretations of the cease fire by the relevant state governments, puts into doubt the commitment of the Indian government and its willingness and ability to bring state governments in line with the larger objectives of the peace dialogue.
The Indian government had persistently declined to intervene and officially communicate to the Thai government that Mr. Muivah was a political figure required for the peace talks. Three former Indian Prime Ministers, Mr. V. P. Singh, Mr. Chandra Sekhar and Mr. Deve Gowda, recognizing the reasons for which Mr. Muivah had to travel on a fake passport, appealed to the government of India to intercede with the Thai government if the peace process was to be sustained and the cease fire to be extended after July. After nine months Muivah was finally released on bail in September in Bangkok, as a result of mobilization by peace groups from the Naga areas, various parts of India and abroad.
Mr. Muivah is the chief negotiator with the Indian government in a peace dialogue to end postcolonial India ‘s longest running conflict. Unless Mr Muivah is given asylum in a third country, he risks being deported from Thailand to India where he faces a ‘non bail able’ warrant issued by a district magistrate Nagaland for allegedly being part of a conspiracy to kill the Chief Minister of Nagaland state in the Indian Union. His deportation to India would place him personally at risk, and decisively set back the peace process, in support of which there has been substantive democratic mobilization on the part of civil society groups. The breakdown of the four year old cease fire would again plunge the Naga populated areas of the North East states in India into violence and state repression which over the last forty years has laid waste the land and devastated the people.
NSCN (I-M) is the dominant armed Naga nationalist group struggling for the independence of the Naga peoples from the Indian state. Since 1997 cease fire, three successive India governments and the NSCN (I-M) have been engaged in a peace dialogue. The Naga people comprise more than 20 Indigenous peoples (tribes). Colonial and postcolonial divisions have spread them across four states of India’s North East and Myanmar. They claim their right to self-determination on the basis of their pre- British distinct political, cultural and ethnic identity. They reject the Indian state’s claims to sovereignty over the Naga peoples. On the eve of India’s independence, in August 1947, leaders of Naga Indigenous peoples had declared independence, and legitimated it through a plebiscite in 1951. The last fifty years of struggle has seen militancy and state repression, resulting in suspension of fundamental rights for the peoples as the area has been brought under Draconian laws like the Armed Forces Special Powers Act.
A growing civil society peace constituency has actively backed the 1997 cease fire and the peace dialogue between the NSCN (I-M) and the Indian government. For the first time in so many decades Naga civil society organizations have started talking to each other and trying to resolve some of the inter group and inter community conflicts. Any one who visits Nagaland and the Naga inhabited areas of Manipur state is struck by this public articulation for peace. Mr Muivah’s deportation to India and his arrest by the Nagaland state police would derail the peace process and strengthen the hands of those who have been actively working to subvert the peace dialogue.
The UNHCR has rejected Mr. Muivah’s application under Article 1F of the 1951 Convention which means he is alleged to have committed offences which may be characterized as ‘war crimes and serious non-political crimes’. The rejection letter issued by the UNHCR does not give any details of these ‘crimes’ allegedly committed by Mr. Muivah or what evidence the UNHCR has of any such crimes having been committed by Mr. Muivah. This comes as a rude shock as the NSCN has never been accused of terrorist crimes. They are the only armed rebellion group on the India subcontinent who has never threatened civilian population. Mr. J.P. Narayan, the respected Gandhian leader of India had led a Peace Mission to Nagaland in the sixties. He is on record having described the Naga movement as, ‘it is most certainly a struggle for national freedom’. Lt. General F.A. Vyas of the Indian Army who was in charge of the counter insurgency operations in Nagaland has said, ‘Naga insurgents never adopted terror tactics’. (1989, The Search for Security, Dehra Dun, Natraj Publishers, P. 126). Mr. Murkot Ramuny, an Indian security expert in his reports had admitted that, ‘The Nagas do not kill civilians’. Nagaland’s former Director General of Police, Mr. Chaman Lal in an interview with the Kohima based newspaper Naga Banner on November 26, 1994 had commented, ‘In Punjab it was terrorism while in Nagaland it is insurgency. and we have to distinguish between the two. We are here not to end insurgency. Nagaland is a political problem and it has to be solved politically’. In the mid nineties General Shankar Roy Chaudhury, the former Chief of the Indian Army had urged the government of India to with the Nagas.
Therefore, we are faced with several problems -. the most important is the continuation of cease-fire and the peace process. Mr Muivah’s deportation and arrest in India will surely put unbearable strains on the cease fire and peace process, it will also put him at great personal risk. It is critical therefore that Mr Muivah be given asylum in a third country. The UNHCR is the de-facto ‘gateway’ for third country asylum. It is the only UN agency empowered to ‘recognize’ or ‘exclude’ persons from the definition of ‘refugee’ under the 1951 UN Convention Regarding Refugees. We are not aware of the reasons and the evidence on the basis of which the UNHCR has decided to exclude Mr. Muivah. We will like to point out that the NSCN was admitted to The Hague based international body, Unrepresented Nations and Peoples Organisation (UNPO). Government of India had objected to the NSCN’s application to the UNPO on the ground that it is a terrorist organization. The UNPO’s executive committee had rejected the submission of the Indian government for lack of evidence. Many Naga leaders have been incarcerated in jails for long periods by the Indian government under Draconian laws. Indian courts set almost all of them free. The only criminal case that has ever been brought against Mr. Muivah in India is the charge of being a part of a conspiracy to kill Mr. Jamir, the present Chief Minister of Nagaland state. That too was filed nearly a month after his arrest in Bangkok.
It is apparent that the UNHCR has come to the conclusion in Mr. Muivah’s case on the basis of insufficient materials. Excluding him on the basis of alleged war crimes and non-political offences without providing the details of these alleged crimes is denial of justice. In the absence of any specific charge, Mr. Muivah is unable to respond or appeal the decision of the UNHCR. This is also a denial of his right to effective remedy and right to public hearing, which are guaranteed by all the Universal Declaration on Human Rights and the International Convention on Civil, and Political Rights. We therefore, urge the UNHCR to review its decision and reconsider Mr. Muivah’s case.
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AHRC Urgent Appeals Programme
Asian Human Rights Commission
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