Rohingya repatriation: Uncertain dynamics crosses five years

Published : 06 Sep 2022 08:22 PM

The month of August for the people of Bangladesh has been one filled with sorrow and uncertainty. On 25 August we have also recalled the five-year commemoration of the genocide committed against the Rohingya in 2017. This was done by civil society organizations and many countries all over the world to reaffirm their commitment to continue to stand in solidarity with and seek justice for the Rohingya, to ensure the full restoration of their rights in Myanmar, and to end the impunity of the Myanmar military. This brought to the forefront once again the plight of the Rohingya which must not be forgotten.

Five years ago on 25th August, the Myanmar military launched a terror campaign in Rakhine State against the Rohingya and massacred, tortured, raped, and burned villages. They forced three quarters of a million people to flee to Bangladesh where they remain today alongside a quarter of a million Rohingya who fled earlier persecutions in Myanmar. Around one million Rohingya are struggling to survive in crowded refugee camps in Bangladesh, waiting to return to their home and their country in dignity with their full rights restored.

Relevant bodies associated with the United Nations have drawn attention to the following figures. In 2017 there were 7, 73,997 Rohingyas in Cox’s Bazar camps. In 2022, this figure rose to 9, 36,733. In addition, there are about 2, 50,000 Rohingyas who are living outside these camps. There are also another approximately 30,000 who have been transferred to Bhasan Char. While the Rohingya population figures have grown, necessary funding to support them has continued to decline. For obvious reasons, this is putting Bangladesh into serious difficulties.

It may be recalled that on 21 September, 2017, Prime Minister Sheikh Hasina had placed a five-point proposal in the United Nations General Assembly in New York calling upon the government in Myanmar to unconditionally stop violence and ethnic cleansing in the Rakhine State in Myanmar. On 6 October, 2017 the UN Security Council also issued a statement demanding an end to the crisis. This was followed by Chinese Foreign Minister Wang Yi visiting Bangladesh and assuring that Beijing was ready to support Dhaka. On 23 October, 2017 Bangladesh and Myanmar signed an MOU on Rohingya repatriation- with Myanmar assuring that they would take back 200 Rohingyas each day. The Bangladesh government, to facilitate this process, handed over a large list of Rohingyas.

Since then, many important visitors have come to Bangladesh and visited the different Rohingya camps and also the facilities created to help in their return through Bhasan Char. There have been many declarations and comments but nothing has transpired whereby one could say that the repatriation paradigm has been initiated. Their return has remained a distant dream.

Rohingya in Myanmar continue to live under genocidal policies in apartheid-like conditions, systematically denied citizenship, with severe restrictions on fundamental freedoms including freedom of movement, access to health, education and other essential services. They are arbitrarily arrested, detained and treated as criminals for traveling outside of confined areas and further dehumanized for attempting to flee appalling conditions within Rakhine State. The over 130,000 Rohingya that remain in open air prison camps in Rakhine State face new restrictions on movement and aid blockages since the coup through which the Myanmar army has taken over the country.. Emboldened by the lack of international, concerted action to hold the military accountable, the world has also been bearing witness to the military’s atrocity crimes, amounting to war crimes and crimes against humanity, that are now being perpetrated against the wider population in Myanmar Five years on, words have not turned into robust action as more statements of “grave concern” have only continued to pile on to the condemnation of military’s atrocity crimes. Actions need to speak louder.

Consequently, many countries of the world who believe in human rights and accountability have welcomed the recent ruling by the International Court of Justice (ICJ) on the preliminary objections lodged by the military junta in the case of Rohingya genocide brought forward by The Gambia, which has paved the way for the court to adjudicate the merits of The Gambia’s case.  This ruling should assist in sending a strong message to the Myanmar military that they will be held accountable for their crimes.

Rushanara Ali British MP and Anna Roberts, Executive Director of Burma Campaign UK have played a crucial role in highlighting the case of genocide that has taken place in Myanmar. In the meantime the positive development that has also drawn attention is that the British government has finally announced its intention to join the Rohingya genocide case at the International Court of Justice

It may be mentioned here that on 22 July 2022, the International Court of Justice (ICJ) dismissed all preliminary objections raised by Myanmar against a claim brought by The Gambia alleging violations of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The judgment has thereby confirmed that the ICJ will go on to rule on the merits of ‘The Gambia v. Myanmar’ case. The ICJ’s judgment also provides guidance on key issues in international dispute settlement, particularly in relation to Claimant State standing and establishing a “dispute” for jurisdictional purposes.

It may be recalled that Gambia initiated proceedings against Myanmar on 11 November 2019, alleging that Myanmar’s treatment of the Rohingya minority group constituted continuing violations of the Genocide Convention. The ICJ indicated provisional measures through an Order issued on 23 January, 2020 which ordered Myanmar to ensure compliance with the Genocide Convention, preserve evidence connected with allegations of genocide, and report regularly to the ICJ on its adherence to the order.

A key issue in The Gambia v. Myanmar case was whether a State party to the Genocide Convention had to be particularly impacted by a breach in order to have standing to bring a claim. Myanmar argued that this was the case, and that The Gambia’s claim was therefore inadmissible because the Genocide Convention did not contemplate claims by States parties which had not been “injured“. Myanmar had contended that The Gambia lacked standing to bring a claim concerning acts affecting non-Gambians, and that any standing The Gambia might possess would have been ancillary to that of Bangladesh. Bangladesh borders Myanmar and was barred in Myanmar’s view from instituting proceedings because of its reservation to Article IX of the Genocide Convention, the compromissory clause which gives the ICJ jurisdiction to decide States parties’ disputes.

Another important aspect of the ICJ’s judgment was its approach to the existence of a “dispute” for the purposes of Article IX of the Genocide Convention. Myanmar argued that the ICJ lacked jurisdiction, or alternatively should hold the case inadmissible, since no dispute existed with The Gambia when it instituted proceedings. Myanmar submitted that establishing a dispute required the parties to have had “mutual awareness” of their opposing legal views. This was said to entail positive opposition from the respondent State. Myanmar also argued that the parties had not previously articulated their positions with sufficient specificity to establish a dispute. The ICJ was unpersuaded by these arguments. The ICJ reaffirmed that the existence of a dispute “is a matter of substance and not… form or procedure“, and that the “mutual awareness” test proposed by Myanmar did not reflect the law. The ICJ was clear that, in certain circumstances, a dispute can be inferred from a respondent State’s silence.

Efforts to hold the Myanmar military criminally accountable must be expedited. In this context, all those countries who are sympathetic towards the Rohingya cause should support universal jurisdiction cases to prosecute the military, in particular the universal jurisdiction case in Argentina. It is vital that the international community continue to explore other avenues for full justice and accountability, including a UN Security Council referral of the situation in Myanmar to the International Criminal Court or to set up an ad-hoc tribunal.

We also welcome the US government’s determination earlier this year that crimes committed against Rohingya amount to genocide. The US must bolster accountability efforts by joining The Gambia case at the ICJ and imposing further sanctions including sanctioning the Myanmar Oil and Gas Enterprise (MOGE) – one of the junta’s main sources of foreign currency revenue. In the meantime US Secretary of State Antony Blinken has been reported to have said that the United States is working to “significantly increase resettlement of refugees so that they can rebuild their lives in the United States”. This will be part of the US humanitarian response towards refugees from several countries including the Rohingya refugees from Bangladesh.

On 24 August the High Representative on behalf of the European Union, and the Foreign Ministers of Australia, Canada, New Zealand, Norway, the United Kingdom and the United States, have also marked the fifth anniversary of the Myanmar military’s attack against Rohingya with the following comment- “These deplorable actions against Rohingya precipitated one of the largest mass exoduses of a minority in recent history. We also recognize other initiatives to hold perpetrators accountable, including The Gambia’s efforts before the International Court of Justice. We also thank the UN relevant bodies and Bangladesh, nations for their generosity and providing lifesaving support to the Rohingya. We remain dedicated to supporting Bangladesh to ensure that the needs and rights of all refugees and impacted host communities. …… At the same time, we call on the international community to help to ensure justice for Rohingya victims and foster conditions that will allow for the safe, voluntary, dignified, and sustainable return to their communities. Rohingya must be meaningfully included in discussions around the future of Myanmar.” Such a view is welcomed by all of us.

Nevertheless, to ensure repatriation, the world needs to see an end to the support of the Myanmar junta in every aspect by Russia and China because of their national interests. Michelle Bachelet, UN Human Rights Commissioner (whose mandate ended on 31 August) has recently visited Bangladesh and also the Rohingya refugee camps. UN Special Envoy of the UNSG on Myanmar has also been to Myanmar and has had discussions in Dhaka. However, their assurances are not enough. The United Nations, the EU, the USA and Canada have to put pressure on China and Russia in this regard.