Rohingya Repatriation Is Presently Impossible

Introduction

“We do not want to face [atrocities] again. Every Rohingya will refuse to go [back to Myanmar (Burma)].”^[1] This sentiment from a Rohingya refugee refers to the decades of systematic “disenfranchisement, discrimination, and targeted persecution that Rohingya people have faced in Myanmar’s Rakhine State.”^[2] Rohingya refugees have fled to Bangladesh since 1977 due to the Rohingya genocide, with the largest influx beginning in 2017.^[3] Today, 900,000 Rohingya refugees reside in the Bangladesh Cox’s Bazar District receiving humanitarian aid.^[4] Although Bangladesh is the largest Rohingya refugee-hosting country, the country has no refugee laws, which has left the Rohingya without any rights or freedom of movement.^[5] While many governmental organizations condemn Myanmar’s human rights violations, Myanmar has yet to be held accountable for the Rohingya genocide, and no concrete action has been taken with respect to the Rohingya. As a result, Bangladesh has had to expend its limited resources to meet costs and has incurred significant impacts on its “economy, society, and environment.”^[6]

To avoid the irreversibility of such impacts, the Government of Bangladesh, along with the larger humanitarian community, issued the 2022 Joint Response Plan, which seeks to ensure the “sustainable repatriation of Rohingyas to Myanmar.”^[7] This blog analyzes Bangladesh’s compliance with the customary international doctrine of non-refoulement in calling for the repatriation of Rohingya refugees. This blog provides context on the flee to Bangladesh, the current conditions of Rohingya who fled to Bangladesh, and the principle of non-refoulement. Ultimately, this blog considers whether Bangladesh’s present call for repatriation violates the non-refoulement principle.

Background of the Flee to Bangladesh

The Muslim Rohingya are an indigenous ethnic minority who have lived in the northwestern Rakhine State of Myanmar for centuries.^[8] Despite their roots, they are not recognized by the Myanmar government and are denied citizenship due to the Myanmar government’s claims that the Rohingya are “illegal immigrants who have crossed over from Bangladesh and other South-Asian countries.”^[9] This lack of recognition is commonly understood as being due to structural and private Islamophobia in Myanmar, “in particular the powerful Buddhist extremist movement.”^[10] The Myanmar Citizenship Act of 1982 is the “central legal instrument” that imposed statelessness on Rohingya and has reinforced the narrative that they are “unworthy of state protection.”^[11] This lack of protection allowed decades of military-perpetrated systematic violence in the forms of “forced displacement from their homes, establishment of Buddhist settlements on vacated Muslim lands, demolition and burning of mosques, houses and villages, and Islamic religious schools.”^[12] Many Rohingya refugees fled to nearby countries to escape persecution but were left without refugee status or legal rights as the Asia-Pacific region counts the smallest percentage of signatories to the 1951 Refugee Convention and the 1967 Protocol.^[13]

In 1977, the first large wave of Rohingya refugees fled to Bangladesh because of its close proximity to the Rakhine state.^[14] By 1992, a Memorandum of Understanding (“MoU”) was signed by the Bangladeshi Minister of Foreign Affairs and Myanmar’s Foreign Minister to respond to the refugee crisis.^[15] In this MoU, Bangladesh requested that the Rohingya be repatriated to the Rakhine region safely and with dignity and Myanmar agreed to accept repatriated refugees who could prove they previously lived in Myanmar.^[16] Further, Bangladesh requested that Myanmar stop the flow of refugees to Bangladesh and sought joint solutions to prevent the ethnic exodus from Myanmar from recurring.^[17] Finally, Bangladesh requested involvement from the United Nations High Commissioner for Refugees (“UNHCR”) in the Rohingya repatriation process.^[18] However, this MOU’s attempt at repatriation is one of many failed attempts due to the lack of commitment from the Myanmar government in ensuring Rohingya safety in Myanmar.^[19]

“I did not enjoy my life in Myanmar, I was not happy. We lived in constant fear.”^[20] These words from Muhammed Amin, a Rohingya refugee, illustrate a common sentiment of many Rohingya who were unable to flee.^[21] The lack of Rohingya recognition and rights left the population vulnerable to exploitation, sexual and gender-based violence, and military abuse.^[22] After decades of persecution, a group of Rohingya insurgents formed the Arakan Rohingya Salvation Army (“ARSA”) to “stop the mistreatment of the Rohingya people.”^[23] On August 25, 2017, ARSA coordinated an attack for freedom on Myanmar police posts that resulted in the death of twelve Myanmar police officers.^[24] In response, the Myanmar military launched brutal attacks on Rohingya villages and armed conflict escalated until ARSA declared a one-month unilateral ceasefire to allow humanitarian aid to north Myanmar on September 7, 2017.^[25] However, Rohingya accounts of the attacks describe murder, rape, and arson.^[26] Hundreds of thousands of Rohingya were forced to flee to Bangladesh causing the largest influx of Rohingya refugees in Bangladesh history.^[27] Refugees describe walking for days through jungles and navigating the sea – leaving behind the remnants of their villages, family who were murdered, and hope for what the future might hold.^[28]

Current Conditions of Rohingya in Bangladesh

Upon arrival to refugee camps in 2017, the primary focus of Rohingya refugees was survival. The Government of Bangladesh, the United Nations (“UN”) and other host communities provided much of the initial humanitarian assistance and have continued to work to increase international recognition and humanitarian response.^[29] Most notably, the United States is the leading single donor of life-saving humanitarian assistance to those whose lives have been affected by the violence in the Rakhine State, as it has provided over $1.7 billion to assist those affected by the crisis in Myanmar, Bangladesh, and elsewhere in the region.^[30] Five years later, over 900,000 Rohingya refugees reside in and around Kutupalong and Nayapara camps in the Bangladesh Cox’s Bazar region.^[31] These camps have grown to become the largest and most densely populated camps in the world.^[32] To remedy the overcrowding, Bangladesh has also forced 19,000 Rohingya from Cox’s Bazar to Bashan Char – a “remote and cyclone-prone island in the Bay of Bengal.”^[33]

While initially sympathetic to the needs of Rohingya, tensions have grown over time between Bangladeshi host communities and Rohingya refugees.^[34] Bangladeshi community leaders have made it clear that they no longer want Rohingya in their country due to the detrimental impact on their economy and security: higher commodity prices, increased criminal activity, and reduced opportunities for work have caused local residents to lose their livelihoods.^[35] After numerous failed repatriation attempts, the Bangladesh government placed intense restrictions on the Rohingya’s movement and right to work.^[36] Local authorities have cut off all Rohingya access to the rest of the country and forced the Rohingya to show identification cards to ensure they are not leaving their camps – essentially trapping them within the refugee camps.^[37] By late 2019, the Government of Bangladesh started building a barbed wire fence around the camps to further restrict the movement of Rohingya.^[38] In April of 2020, the Bangladesh Foreign Minister told media outlets, “I am opposed to allowing these Rohingya into the country because Bangladesh is always asked to take care of the responsibility of other countries . . . We can no longer allow [in] any Rohingya.”^[39]

Bangladeshi host communities continue to isolate Rohingya people – further instilling a feeling of statelessness. Due to concern of the economy and security, there have been heightened levels of “anti-Rohingya rhetoric,” which has caused violence against Rohingya officials, and intentional killing, kidnapping, and trafficking of Rohingya people.^[40] Overall, the present environment of Rohingya in Bangladesh is becoming “increasingly hostile to the refugees.”^[41] This hostility and isolation from Bangladesh shows that Rohingya are facing lower levels of protection than once before. Rohingya refugees have a right to protection in their host countries, and Bangladesh has a responsibility to guarantee protection and halt its present attempts to return Rohingya to Myanmar.

The Principle of Non-refoulement & Repatriation

The principle of non-refoulement constitutes the “cornerstone” of international refugee protection.^[42] Article 33 of the UN 1951 Refugee Convention states that “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where [their] life or freedom would be threatened on account of [their] race, religion, nationality, membership of a particular social group or political opinion.”^[43] This prohibition is applicable to any form of forcible removal or repatriation to the country of former habitual residence (in the case of a stateless person), but also to “any other place where a person has reason to fear threats to [their] life or freedom related to one or more of the grounds set out…or from where [they risk] being sent to such a risk.”^[44] Article 32 outlines an exception that allows the expulsion of refugees on the grounds of national security or public order but only “in pursuance of a decision reached in accordance with due process of law.”^[45]

“It follows directly from the principle of non-refoulement that the involuntary return, or repatriation, of refugees would in practice amount to refoulement.”^[46] Therefore, “a person retaining a well-founded fear of persecution is a refugee and cannot be compelled to repatriate.”^[47] Therefore, repatriation must be voluntary. Voluntary repatriation is considered in relation to both the conditions of the country of origin and the host country, which cannot “push-back,” or force, refugees to their country of origin.^[48] The UNHCR considers many elements in its determination of voluntariness, one of those being the legal status of the refugees in the country of asylum.^[49] When refugees are not legally recognized as such and are “subjected to pressures/restrictions and confined to closed camps,” they may choose to return to their country of origin, but the UNHCR considers it involuntary since the conditions in the host country are oppressive.^[50]

Although Bangladesh is the largest Rohingya refugee-hosting country, the country is not a signatory to the 1951 Refugee Convention and its 1967 Protocol that form the basis of international law regarding refugees.^[51] Therefore, without breaching any international obligations, the Government of Bangladesh refers to the Rohingya population as “Forcibly Displaced Myanmar Nationals” (“FDMNs”) instead of “refugees.”^[52] However, the prohibition of refoulement of refugees, as described in Article 33 of the 1951 Convention and “complemented by non-refoulement obligations under international human rights law,” satisfies the criteria to be a rule of customary international law.^[53] Therefore, it is binding on all countries, including those that are not signatories to the 1951 Convention and its 1967 Protocol.^[54] The UNHCR specifically notes that the principle of non-refoulement applies to those countries who are hosting “large numbers of refugees, often in mass influx situations,” like Bangladesh.^[55]

Since the 2017 influx, Bangladesh has also implemented a push-back policy towards Rohingya and continually advocates for repatriation negotiations with the Myanmar government.^[56] There are substantiated claims of Bangladeshi officials requiring “registration” in exchange for essential aid and services and admit that it will be used to expedite repatriation.^[57] Bangladesh Foreign Minister Abdul Momen declared in 2020 that Bangladesh would refuse entry to more Rohingya, but push-back policies have placed lives at risk and resulted in death.^[58] In the 2022 Joint Response Plan issued by the Government of Bangladesh and the UNHCR, the primary objective was to “work towards the early voluntary sustainable repatriation of Rohingya refugees/FDMNs to Myanmar.”^[59] As of August 2022, none of those efforts have been completed. In fact, Bangladesh’s Prime Minister Sheikh Hasina told the UN that Rohingya living in Bangladesh must return to Myanmar.^[60]

In applying the principle of non-refoulement to Bangladesh, it is important to note that the intent as listed in the 2022 Joint Response Plan for a voluntary return to Myanmar is not consistent with the rhetoric of Bangladeshi government officials. The immense desire to repatriate Rohingya refugees to Myanmar ignores the fact that Rohingya refugees maintain a “well-founded fear of persecution” in Myanmar. Many Rohingya express that they would rather be killed in Bangladesh than go back to the Rakhine region due to the persecution they fear they will face.^[61] Bangladesh refuses to acknowledge Rohingya as refugees, pressures them into repatriation and confines Rohingya to closed camps. Therefore, any expressed desire to return to Myanmar would be considered involuntary in accordance with the UNHCR.

In practice, the push-back policies and denial of Rohingya asylum-seekers and the present restrictions and confinement of Rohingya in Cox’s Bazar arguably amounts to refoulement. Although many Rohingya express an immense desire to return to Myanmar, they stipulate that it can only occur when safe conditions are guaranteed.^[62] Additionally, the worsening security and conflict in Myanmar following the military coup d’état last year demonstrate that it is not a safe nor sustainable time for repatriation.

Conclusion

With essentially nowhere to go, Rohingya people are split in their hopes for the future. Since there are no international enforcement mechanisms for violating the principle of non-refoulement, Bangladesh could continue treating Rohingya people poorly and continue its push-back of Rohingya asylum-seekers with no consequence. It is of the utmost urgency for the international community to ensure that Rohingya are not neglected by Bangladesh, which is growing impatient after multiple failed repatriation attempts. Additionally, the international community must ensure that Rohingya are not neglected by Myanmar, as its continued genocidal activity and lack of Rohingya recognition that is the primary reason for the failed attempts. The international community must apply pressure to Bangladesh and “deal with the roots of the problem in Myanmar” to ensure the safety and security of Rohingya people.^[63] The primary root of the “problem” in Myanmar is Islamophobia and intense anti-Muslim sentiment that have caused Rohingya persecution and genocide for decades.^[64]

When the conflict in Myanmar stabilizes, the Myanmar government and Bangladeshi government can begin true repatriation negotiations, but both must be fully committed to recognizing the humanity of Rohingya people. Most importantly, Myanmar must promise citizenship and safety in repatriation negotiations. Overall, Bangladesh’s present call for Rohingya repatriation would, in practice, violate the international customary law of non-refoulement.

1. VICE, Myanmar’s Rohingya Genocide, YouTube (Feb. 14, 2020), https://www.youtube.com/watch?v=AnHizRC6S8U. ↑
2. U.N. High Commissioner for Refugees, Bangladesh 2022 Joint Response Plan – Rohingya Humanitarian Crisis, 13, (Mar. 29, 2022), https://reporting.unhcr.org/2022-jrp-rohingya. ↑
3. Mahbubur Rahman, Rohingya Influx and Future of Repatriation, NewAge (Oct. 3, 2022), https://www.newagebd.net/article/182651/rohingya-influx-and-future-of-repatriation. ↑
4. U.N. High Commissioner for Refugees, supra note 2, at 2. ↑
5. Emily Venturi, 70 Years on, the Refugee Convention Still Struggles to Gain Traction in the Asia-Pacific, The Diplomat, (Jul. 2, 2021), https://thediplomat.com/2021/07/70-years-on-the-refugee-convention-still-struggles-to-gain-traction-in-the-asia-pacific/. ↑
6. U.N. High Commissioner for Refugees, supra note 2, at 2. ↑
7. Id.; see generally Akhil Reed Amar, Reports of My Death Are Greatly Exaggerated: A Reply, 138 U. Pa. L. Rev. 1651 (1990). ↑
8. Syeda Naushin Parnini, Mohammad Redzuan Othman, & Amer Saifude Ghazali, The Rohingya Refugee Crisis and Bangladesh-Myanmar Relations, 22 Asian and Pacific Migration Journal 133, 134 (2013). ↑
9. VICE, supra note 1. ↑
10. Naved Bakali, Islamophobia in Myanmar: the Rohingya genocide and the ‘war on terror’, 62 Race & Class 53, 56 (2021). ↑
11. Amal de Chickera, Stateless and Persecuted: What Next for the Rohingya? Migration Policy Institute (Mar. 18, 2021), https://www.migrationpolicy.org/article/stateless-persecuted-rohingya; Statelessness Explained, USA for UNHCR (Nov. 6, 2020), https://www.unrefugees.org/news/statelessness-explained/ (explaining that statelessness means that someone is not recognized as a citizen or a national under the laws of any country and, consequently, cannot enjoy the rights that are associated with citizenship). ↑
12. Parnini, supra note 8, at 137. ↑
13. Id.; Venturi, supra note 5; The 1951 Refugee Convention, USA for UNHCR (last visited Oct. 12, 2022) (explaining that the 1951 Refugee Convention and its 1967 Protocol are the key legal documents that form the basis of the United Nations High Commissioner for Refugees (UNHCR). With 149 [country] parties to either or both, they define the term ‘refugee’ and outline the rights of refugees, as well as the legal obligations of [countries] to protect them) https://www.unhcr.org/en-us/1951-refugee-convention.html. ↑
14. Yordan Gunawan, Abdullah Teguh Thamrin Rettob, & Kevin Kalagita, The Analysis of Non-Refoulement Principle Towards Rohingya Refugees In Bangladesh, 5 Lambung Mangkurat L.J. 13, 20 (2020). ↑
15. Id. ↑
16. Id. at 21. ↑
17. Id. ↑
18. Id. ↑
19. Id. ↑
20. VICE, supra note 1. ↑
21. Katie Arnold, Rohingya refugees: Why I fled, CNN (2022), https://www.cnn.com/interactive/2017/09/world/myanmar-rohingya-refugee-stories/. ↑
22. Rohingya Refugee Crisis Explained, USA for UNHCR (Jul. 13, 2022), https://www.unrefugees.org/news/rohingya-refugee-crisis-explained/. ↑
23. VICE, supra note 1. ↑
24. Id. ↑
25. Jacob Judah, Myanmar: Rohingya insurgents declare month-long ceasefire, The Guardian (Sept. 17, 2017), https://www.theguardian.com/world/2017/sep/09/arakan-rohingya-militants-watch-refugees-myanmar. ↑
26. Id. (persecution still occurs in the Rakhine State against Rohingya). ↑
27. Arnold, supra note 21. ↑
28. Id. ↑
29. ACAPS, Needs and priorities of Rohingya refugees and host communities in Cox’s Bazar since 2017: What has changed? (Aug. 30, 2022), https://www.acaps.org/sites/acaps/files/products/files/20220830_acaps_thematic_report_cxb_needs_and_priorities_of_rohingya_refugees_and_host_communities.pdf. ↑
30. Press Statement, Antony J. Blinken, Secretary of State, Marking Five Years Since the Genocide in Burma (Aug. 24, 2022), https://www.state.gov/marking-five-years-since-the-genocide-in-burma/ (demonstrates that this crisis receives the largest amount of humanitarian aid from the U.S. government than any other country or crisis). ↑
31. Nichanun Puapattanakajorn, Investigating Host Countries’ Refugee-Related Policies and Its Effect on Lived Experiences of Rohingya Refugees, 16 Penn Journal of Philosophy Politics and Economics, 0, 4 (2020); Syed S Mahmood, Emily Wroe, Arlan Fuller, & Jennifer Leaning, The Rohingya people of Myanmar: health, human rights, and identity, 389 The Lancet, 1841, 1842 (2017) (explaining that there is an estimated 2 million total Rohingya). ↑
32. USA for UNHCR, supra note 22. ↑
33. Hanh Nguyen & Themba Lewis, Bhasan Char and Refugee ‘Warehousing,’ The Diplomat (Feb. 8, 2022), https://thediplomat.com/2022/02/bhasan-char-and-refugee-warehousing/. ↑
34. ACAPS, supra note 29, at 3. ↑
35. Gunawan, supra note 14, at 21. ↑
36. ACAPS, supra note 29, at 3. ↑
37. VICE, supra note 1. ↑
38. ACAPS, supra note 29, at 3. ↑
39. Bangladesh: Prevent Push-Backs of Rohingya Refugees, Investigate and Prosecute Human Trafficking, Fortify Rights (Apr. 30, 2020), https://www.fortifyrights.org/bgd-inv-2020-04-30/. ↑
40. Bangladesh tells UN that Rohingya refugees must return to Myanmar, Al Jazeera (Aug. 17, 2022), https://www.aljazeera.com/news/2022/8/17/rohingya-refugees-have-to-be-taken-back-bangladesh-pm-says. ↑
41. Id. ↑
42. UNHCR – Geneva, Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, Advisory Opinion, 2, (Jan. 26, 2007), https://www.unhcr.org/4d9486929.pdf. ↑
43. Id. ↑
44. Id. at 3. ↑
45. Gunawan, supra note 14, at 18. ↑
46. UNHCR – Geneva, Handbook on Voluntary Repatriation: International Protection, (1996), https://www.unhcr.org/en-us/publications/legal/3bfe68d32/handbook-voluntary-repatriation-international-protection.html. ↑
47. Id. ↑
48. Id. ↑
49. Id. ↑
50. Id. at 11. ↑
51. Gunawan, supra note 14, at 19. ↑
52. U.N. High Commissioner for Refugees, supra note 2, at 2. ↑
53. UNHCR – Geneva, supra note 42, at 7. ↑
54. Id. ↑
55. Id. ↑
56. Bangladesh: Rohingya Refugees Stranded at Sea, Human Rights Watch (Apr. 25, 2020 12:00AM), https://www.hrw.org/news/2020/04/25/bangladesh-rohingya-refugees-stranded-sea. ↑
57. VICE, supra note 1. ↑
58. Human Rights Watch, supra note 56. ↑
59. U.N. High Commissioner for Refugees, supra note 2, at 2. ↑
60. Al Jazeera, supra note 39. ↑
61. VICE, supra note 1. ↑
62. Id. ↑
63. Al Jazeera, supra note 39. ↑
64. Naved Bakali, supra note 10. ↑