Trafficking in Rohingya women: The ASEAN perspective

These realities go beyond the issue of statelessness in Myanmar. They indicate that Association of South East Asian Nations (ASEAN) member States have not yet fully and effectively implemented the Convention on Elimination of All Forms of Discrimination against Women (CEDAW), which calls on State parties to take all appropriate national and multinational measures to prevent abduction and the sale of women for any purpose or in any form.

The ASEAN Vision 2020 emphasises the importance of making an inclusive community to promote and protect the human rights of women. However, transnational networks of traffickers in the region have increased the risks of sexual- and gender- based violence for Rohingya women, and the protection of Rohingya women who are victims of trafficking has not yet been given proper attention within ASEAN. 

Sexual- and gender-based violence against Rohingya women

The Rohingya community is an Indo-Aryan ethnic group, considered to be descendants of Bengal migrants who primarily arrived from Chittagong (Bangladesh) during the 19th and 20th centuries. This perception has created an ethnically polarised community in Myanmar. Even though several minorities, including Arakanese, Chin and Kachin, were granted citizenship, the Rohingya community was not recognised as citizens by the 1947 constitution. 

Ethnicity-based conflicts have been taking place between the Rohingya minority and the majority of the country since the outbreak of the Arakan massacre in 1942. More recent eruptions of communal violence in Myanmar have led to Rohingya women being deprived of their human rights, not only as a result of the legal and administrative procedures carried out by the government, but also of ethnicity-based violence in the country. The United Nations (UN) Independent International Fact-Finding Mission on Myanmar reported in 2018 that rape and other sexual violence had been ‘a particularly egregious and recurrent feature’ of the military’s targeting of the civilian population in Rakhine state and elsewhere since 2011, and in 2019 that ‘accountability for these egregious acts remains elusive’.

It is important to note that gender-based violence against Rohingya women is common in every state in Myanmar. In Rakhine state, it is compounded by the process of ethnic cleansing against the Rohingya. With their social status and human dignity thus undermined, Rohingya women, have attempted to leave the country as asylum seekers by undertaking treacherous journeys to countries like Thailand, Malaysia and Indonesia, with the support of smugglers and traffickers. Five to fifteen percent of Rohingya people who undertake perilous boat journeys are women and children. 

As stated in Article 2 of the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (ACTIP), trafficking refers to: 

‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power, a position of vulnerability or the giving or receiving of payments and benefits to achieve the consent of a person having control over another person for the purpose of exploitation’.

Accordingly, trafficking in women involves the recruitment and/or transportation of women within or across State borders for work or service by means of threats, violence, deception or other forms of coercion. In other words, it denotes an exploitation-based movement that is different from smuggling, which gives more freedom to travellers. According to Article 3(a) of the Protocol against the Smuggling of Migrants by Land, Sea and Air, smuggling includes the facilitation of a person’s illegal entry into a State, for a financial or other material benefit. As fees are often paid in advance of arrival, and the contract between smugglers and those they smuggle ends after border crossing. But forced marriages and prostitution are examples of how smuggled individuals can turn into trafficking victims. In this regard, the transferring of women from one abusive situation into another has become a lucrative business for traffickers.

The realities of trafficking for Rohingya women 

Myanmar is bordered by Bangladesh and India to the west, Laos to the East, China to the northeast and Thailand to the southeast. The southern half of Myanmar extends to the Andaman Sea and Bay of Bengal. Southern Thailand is a main transit point from Myanmar to Malaysia and Indonesia, and functions as a shelter for traffickers engaged in transporting Rohingya to neighbouring destinations.  The porous border between Thailand and Malaysia has previously been used by traffickers to transport Rohingya from south Thailand to northern Malaysia. According to Fortify Rights, ‘women have been recruited [for forced marriage] by brokers in Rakhine state, either for free or at very reduced cost because … traffickers were anticipating once they got to Thailand they could then charge men in Malaysia a lot higher fee’. 

Yu Kojima reports that in the middle of this journey, women risked being stranded at sea or held in jungle camps on the Thai-Malaysian border, where traffickers would demand a US$1200-2000 fee to let them continue their journey. If they were unable to pay the required amount, armed traffickers held them in captivity on board vessels or in the jungle camps, without providing basic necessities like water and food. In this setting, women were at a higher risk of sexual- and gender-based violence, and many ultimately ended up in forced marriages or at sex markets where they were sold for higher prices. 

According to Kojima, Rohingya women were sold into forced marriages to Rohingya men in Malaysia for 50,000 baht (US$1,400) after traffickers contacted potential husbands to pay for the release of women held in their captivity. Kojima notes that, according to a study conducted for UNHCR on ‘Child Marriage Among Rohingya Refugees in Malaysia’, a match-making proposal would come from a Rohingya man who already lived in a country like Malaysia, and would often be welcomed by the girl’s family in Myanmar because of the insecurity and violence they faced there.

A Muslim girl below the age of 16 is allowed to marry if she has consent from a Sharia court. But there is no court involvement in the Rohingya marriages in Malaysia, which makes it even harder for enforcement authorities to intervene in issues of domestic abuse. Moreover, Rohingya girls may initially be sold into a forced marriage, but then after a certain period of time be sold to another man by their husbands. Other women are lured into sex work by traffickers promising them higher wages. Some trafficked Rohingya women work in the seafood industry in Thailand, which is highly dependent on cheap labour, and where women are also exposed to life-threatening conditions and deceptive and abusive treatment. Finally, some women remained trapped in Malaysia, where they experience obstacles to legal work or returning home, and hope to get admission into UNHCR’s resettlement process.

These realities clearly indicate that trafficking in Rohingya women is a complex phenomenon which interlinks with extremely sensitive areas, including sexual- and gender-based violence, poverty and human dignity.  

ASEAN member State responses 

The ASEAN Vision 2020 indicates the willingness and commitment of ASEAN countries to formulate co-operative measures to deal with the problems which can only be met at the regional level. ASEAN is the most prominent regional group in East Asia, but it has not yet adopted effective measures to combat transnational trafficking within the region. 

The ineffectiveness of both ASEAN’s and the broader region’s counter-trafficking mechanisms was revealed through the Andaman Sea Crisis in 2015. A special ministerial meeting on irregular migration was organised in May 2015 with the participation of the five most directly affected countries (Bangladesh, Indonesia, Malaysia, Myanmar and Thailand), along with 12 other countries, who came together to discuss the preparedness of the region to face such crises in the future. The participants put forward 17 proposals, affirming the necessity of preventing human trafficking, ensuring protection needs of stranded migrants and addressing the root causes of trafficking. In addition, Bali Process member States adopted the 2016 Bali Declaration on Smuggling and Trafficking in Persons and Related Transnational Crime, which reaffirms their commitments to address the needs of vulnerable groups including women and children. 

However, gender-specific protection needs were not expounded in any of those approaches. Given the tendency amongst ASEAN member States to frame trafficking in women as an infraction of State laws rather than violence against women,1  they have not shown a strong interest in addressing trafficking in Rohingya women. The focus of the problem for States is not that women are forced or exploited, but that they migrate in an ‘illegal’ way. 

ASEAN adopted the ACTIP in 2015 in response to the Andaman Sea crisis, but it lacks a clear and unambiguous definition of trafficking in women. For example, it does not expressly mention forced marriages. 

The ASEAN Intergovernmental Commission on Human Rights (AICHR), formed in 2009, could potentially have provided some solutions. However, it has suffered from the absence of a regional court to examine human rights issues. ASEAN human rights mechanisms are non-binding, and for the most part not included in the domestic legislation of member States, meaning most victims are unable to gain justice against traffickers through domestic remedies. Women are also hesitant to reveal exploitation to the relevant authorities. Given the ‘illegal’ nature of their journey and status, trafficked refrain from seeking law enforcement assistance, fearing both arrest due to their irregular migration status and threats from traffickers. As an example of what many fear, Rohingya women who were victims of trafficking have been detained in reform institutions in Thailand, and labelled as prostitutes or illegal immigrants. Many also experience mistreatment and extortion during their imprisonment.

Finally, while human rights are inherent to all human beings, irrespective of race, nationality, ethnicity, language, religion, or any other status, Article 2 of the ASEAN Charter reaffirms the principle of ‘non-interference in the internal affairs of ASEAN Member States’. As Khoo notes, this principle has been ‘a significant impasse to the further development of human rights in the region’.  

Conclusion

Despite ASEAN’s counter-trafficking efforts and international agreements such as the CEDAW (which, relevantly, has been ratified by Myanmar and thus binds it to combat and suppress all forms of traffic and exploitation of women, regardless of their ethnicity), Rohingya women continue to find themselves in vulnerable situations which have yet to be adequately addressed by ASEAN countries. 

The absence of a clear regional authority to identify victims of trafficking is a major pitfall in the fight against trafficking in Rohingya women, exposing women to violence and denying them access to justice both in their country of origin and during their search for safety. Social and economic factors also come into play. As the levels of risk for women differ from men, it is essential that ASEAN introduces a woman-centred response plan that identifies protection needs of Rohingya women, and gathers, shares, and analyses relevant information on transnational traffickers from a gendered perspective.

Critically, as long as the Myanmar government fails to establish mechanisms to end communal violence in that country, the adoption of counter-trafficking agreements at the regional level will not be fully effective in guaranteeing protection against exploitation for Rohingya women. Policy makers and human rights activists must appreciate that counter-trafficking efforts are futile without the effective participation of Myanmar, where the issue first arises. In 2019, the US Department of State’s annual Trafficking in Persons report classified Myanmar as a ‘Tier 3’ country in 2019. According to the three-tiered ranking system, Tier 1 States have acknowledged the existence of human trafficking and made efforts to address the problem; Tier 2 States do not comply with the minimum anti-trafficking standards but are making significant efforts to bring themselves into compliance; and Tier 3 States do not comply with the minimum standards and are not making significant efforts to do so. The 2019 Trafficking in Persons report noted that the military in Myanmar ‘continued to dislocate thousands of Rohingya and members of other ethnic groups, many of whom were vulnerable to trafficking in Burma and elsewhere in the region as a result of their displacement’. As a result, ASEAN member States must put collective regional pressure on Myanmar to end ethnic-based violence and implement the necessary administrative measures to prosecute brokers and suppress trafficking networks currently operating within the country. 

Finally, at this moment in time we should not forget that women face heightened risks of being trafficked during a pandemic situation. Border closures and restrictions on movement create a higher demand for trafficking. For example, the closure of the border between Myanmar and Thailand due to the COVID-19 pandemic has left many migrants stranded at sea. Because the social norms and gender roles in Rohingya communities have restricted women’s access to information on the risk of undertaking journeys during a pandemic, women often become easy targets for traffickers.2

Although UN agencies and Amnesty International have called on Southeast Asian governments to show compassion for vulnerable Rohingya women, men and children stranded in the Bay of Bengal and Andaman Sea during the COVID-19 pandemic, Thailand and Malaysia have blocked or prevented from landing boats carrying Rohingya, including women and children, ostensibly as a protective measure driven by COVID-19 concerns. 

The COVID-19 pandemic does not provide justification for risking the lives of asylum seekers on overcrowded boats, and in addressing the issue of maritime migration it is vital that States pay greater attention and demonstrate sensitivity to the specific needs of women. For example, while border officials are currently engaged in screening migrants for signs of COVID-19, steps must be taken to ensure the good mental and physical health of trafficked Rohingya women held at transit points and in quarantine centres, so as not to expose them to further human rights abuses.