In August 2017, following the killings of nine border security personnel, described by the government as perpetrated by ‘armed Rohingya fighters’, military forces flooded the Rakhine state under the guise of a security crackdown, and proceeded to unleash a campaign of violence on the inhabitants of its villages. Since then, security forces have allegedly been engaged in all sorts of egregious human rights abuses, including rape, arson, and extrajudicial killings.
This has led to approximately 626,000 Rohingya fleeing Myanmar to Bangladesh in search of refuge.
Now, Bangladesh, which has scarce resources, has concluded what appears to be an agreement to return the Rohingya refugees to Myanmar. While repatriation of the refugees might seem like a good idea, there are reasons to suspect its legality and feasibility in the long run.
First, under international refugee law, it is a well-established principle that no refugee or asylum seeker can be returned to the place of his/her persecution, or where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion. This is referred to as the principle of non-refoulement . It is codified in Article 33(1) of the Convention on the Status of Refugees, 1951, and is also recognised as a principle of customary international law.
The latter obliges Bangladesh to abide by this rule, even though Bangladesh is not a party to the 1951 Convention.
The Importance of Non-Refoulement
As early as 1971, the UNHCR stressed the importance of non-refoulement by encouraging more states to accept this principle formally as a treaty obligation under the Convention, even though it was already recognised almost universally because of its “fundamental human importance”.
And for the purposes of this principle, the UNHCR has clarified that even though a person is not formally recognised as a refugee, he/she is protected by it.
There is also a very strong argument to be made in favour of non-refoulement being a jus cogens norm. Jus cogens norms are peremptory norms of international law from which no derogation is permitted, to the extent that any act in violation of it is automatically invalidated. It would appear then, that Bangladesh’s stance to return Rohingya refugees to Myanmar would also derogate from a jus cogens norm.
Bangladesh’s Minimal Support to Rohingya Cause
While Bangladesh may be within its rights to protest such a massive influx of refugees, the support it has lent to them has been minimal. Those who do make it to Bangladesh are forced to live in squalid and over-congested camps without any formal documentation until they choose to return to Myanmar, if they ever do so.
And the prospect of returning to their homeland is not a pleasing one: in Myanmar, the Rohingya are treated as legal and social pariahs, something that derives from the Buddhist majority’s staunch refusal to recognise them as part of the native citizenry. In fact, the very use of the term ‘Rohingya’ is widely regarded as taboo and a political invention amongst the Buddhist populace, who refer to the inhabitants of the Rakhine region as “illegal immigrants.’
When Pope Francis recently visited the nation, he was cautioned against using the term ‘Rohingya’, lest it result in undesirable consequences being visited upon the country’s minority Christian population.
Instead, he stressed the importance of ‘unity in diversity’ while deftly avoiding the issue of the mass exodus of Rohingya Muslims from Myanmar to escape persecution at the hands of the military.
What Awaits the Repatriated Rohingya?
Even if ‘voluntarily repatriated’ as planned, what awaits the Rohingya? Firstly, there is a complete absence of sustainable conditions for the return of refugees. There are no monitoring mechanisms in place, nor are there adequate provisions for humanitarian aid.
Without adequate precautions to ensure their safety, and strong enforcement policies to supplement them, there is a strong possibility of the returning Rohingya being subjected to extortion, arbitrary taxation, forced labour and even extra judicial killings – a grim future.
One option is to invoke the Responsibility to Protect doctrine (R2P), to enable an international intervention on humanitarian grounds in cases where states have manifestly failed in their responsibility to protect their own population from genocide, war crimes, crimes against humanity, and ethnic cleansing.
Justice Delayed is Justice Denied
This can be accomplished by a UNSC Resolution under Chapter VII of the UN Charter, as a part of the Pillar 3 approach to R2P, as articulated by the then UN Secretary General Ban Ki Moon in 2009. However, such interventions are rare, and the only one to occur without a state’s consent was in Libya in 2011.
But this approach is fraught with political complications. First, China is unlikely to actively support any intervention in Myanmar, and has been content with merely encouraging the international community to support the efforts of the Myanmar government in resolving the issue.
Next, history indicates that the Security Council is slow to take action where there is only a large scale displacement, as opposed to large scale killings. Its usual response is to condemn the displacement, reserving action for rare situations where the refugee flow is large enough to threaten regional or international security.
More Respect for International Laws Needed
Another view suggests that one way forward is through a reference to the International Criminal Court. In this view, forced displacement and deportation constitute international crimes, and since they necessarily entail the crossing of borders, Bangladesh could argue that the Court possesses jurisdiction over the matter.
If the Court accepts the argument, it would be an important precedent for the future, and even if it does not, the very referral of the case by Bangladesh could have immediate deterrent effects upon the security forces which have been hitherto acting with impunity against the Rohingya.
Ultimately, one is tempted to wonder if the international community’s collective lethargy and reluctance is reflective of a larger, more sweeping, if possibly unwitting systemic prejudice against the world’s marginalised people.
This is not the first time that a people have been disenfranchised and sacrificed at the altar of the political machinations of a more powerful majority while the world has stood idly by.
Unless there is a seismic shift in the States’ willingness to follow through on their international obligations under international law and demonstrate a greater respect for it, it will almost certainly not be the last.
(The writer is academic engaged in teaching and researching International Law. He is a graduate of the National Law School of India University, and the UC Berkeley School of Law. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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