Repatriation under False Pretenses: The Right of Return and Non-Refoulement for Rohingya Refugees
In the past decade, the Rohingya people of Myanmar have been subject to a sustained campaign of state violence. In just 2017, over half of the entire Rohingya population of Myanmar fled or were expelled to neighboring Bangladesh in the face of government violence, including genocidal acts of massacres, rapes, and destruction of villages throughout Rakhine state. Alarmingly, this occurred during a time in which Myanmar was a democracy. But despite media attention dying down in the following years, the situation remains desperate.
The Rohingya have been subject to a decades long campaign of denationalization. Crucial in this step was a 1982 citizenship law that limited birthright citizenship to ‘national races’, from which Rohingya were excluded. This change was an ‘arbitrary deprivation of nationality’ in violation of Article 15 of the 1948 Universal Declaration of Human Rights.
The dividing line for this determination was that only ethnic groups whom the government claimed had been present before 1823 were deemed ‘national races’. This fed off false government propaganda that the Rohingya were ‘illegal immigrants’ that arrived after the British colonial period, even though research shows that the Rohingya had been present in the area for thousands of years. For years the military has worked to create the assumption that those who were Muslim (which is the religion of vast majority of Rohingya) are foreign by definition. This made it all the easier for the state to begin its genocidal campaign in 2017.
The Rohingya remaining in Myanmar are now exposed to a civil war after the military’s 2021 coup against the democratic government. There are reports now of forced conscription of the Rohingya men by their former tormentors in the Army to fight against the advances of the Arakan Army, an ethnic Rakhine militia opposed to the military government (often referred to as a junta). The military government has exploited tensions between the Rohingya and Rakhine communities (the Rakhine are also indigenous but are majority-Buddhist) and this current cynical action is simply another step.
Unfortunately, the situation on the other side of the border in Bangladesh isn’t any better. Rohingya refugees live indefinitely in poorly provisioned camps. The vast majority of Rohingya refugees are without any sort of legal status, leaving them vulnerable to violence by armed groups and criminal gangs that Bangladesh’s authorities fails to prevent. This also leaves them vulnerable to abusive actions by the government itself, which range from forcible relocation at government whim, restrictions on educational and economic activities, and other forms of harassment.
A ’Repatriation’ Plan
In this situation, one particularly critical right held by Rohingya refugees in Bangladesh is the right of return. The Right of Return-that is, for any human being to return to their country from abroad, regardless of the circumstances of their exit- is generally considered a fundamental human right[1] under Article 12 of the International Covenant on Civil and Political Rights, Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, and Article 2 of the Apartheid Convention. Indeed, the International Criminal Court’s Pre-Trial Chamber I held in 2018 [2] that the prevention of the return of the Rohingya to Myanmar by its government constituted a crime against humanity under Article 7(1)(k) of the Rome Statute as a violation of these provisions.
Without context, it might seem that Bangladesh’s plan to carry out ‘repatriation’ through a pilot program in cooperation with Myanmar authorities in 2023 might be a step toward fulfilling this right as it seems to be a reversal of the previous attitude of disallowing return. Indeed, protests by tens of thousands of Rohingya, demanding to return to Myanmar ,broke out previously in the same year. Is it possible that programs like this are a sign that Myanmar’s government is now serious about fulfilling this fundamental right for the Rohingya?
The answer is undoubtedly no. What is the right to return if return means exposure to the same violence and persecution from which the Rohingya fled? It’s likely that most of those protesting for such right to return would not be eager to return under the present conditions of war and conscription. As one refugee interviewed said, “We want to go back home with all our rights, including citizenship, free movement, livelihood, safety, and security.”
The implementation of the program has been marked by confusion, deception, and resistance, suggesting the fulfillment of these rights were not on the minds of the relevant government officials. Human Rights Watch reports that those in the camps selected to participate were not informed or were deceived as to the end goal of the process, with some participants being told it would involve a chance for resettlement to a third country.
Rohingya refugees who were ‘interviewed’ by Myanmar officials who visited the camps as part of the pilot ‘repatriation’ program reported that the latter refused to answer any questions regarding the return of land or the guarantee of their rights. Apparently, the authorities are not even pretending that the refugees would be returning to a situation any better than the one from which they had fled. It is clear why the officials were evasive.
The conditions in Rakhine state are not conducive to return, conditions which must be safe and voluntary to be consistent with international law. In terms of safety, the principle of non-refoulement, enshrined in Article 33 of the 1951 Refugee Convention prohibits the return of refugees when conditions threatening their ‘life or freedom’ still exist. While neither Bangladesh nor Myanmar are states parties, this principle has been widely accepted as customary international law that applies to all States regardless of whether they have ratified the Convention. Such return must also be voluntary, according to the practice of the United Nations High Commissioner for Refugees. Given the level of deception and obfuscation involved in this program, participation could be said to be involuntary, as the real goals are coerced return to conditions of danger, and would risk the lives and safety of those returning.
The pilot program must be stopped. The ‘return’ of the Rohingya to Myanmar in this scenario would not fulfill the right of return of the Rohingya, given that return would be neither safe nor voluntary. Thus, it would be a clear violation of the principle of non-refoulement, under which both Myanmar and Bangladesh could be held accountable under international law.
It is worrying that the last updates regarding this program are from many months ago, when the implementation of the program already seemed imminent. Currently, the only official statement against this plan was that of Tom Andrews, the UN Special Rapporteur on the situation of human rights in Myanmar. The fact that no other UN bodies nor countries have spoken out against this plan suggests that the global community has all but forgotten about this crisis. At this point, States should condemn this plan and, through UN action, authorize an inquiry into its current status.
Difficult Questions and the Future for Rohingya Refugees
Of course, if the repatriation plan is stopped and the Rohingya stay in Bangladesh, many pressing problems remain. As one refugee puts it, in their current situation of economic deprivation, legal uncertainty, and harassment by both criminal groups and the government itself, “What future do we have here?”
One thing is clear- a choice between ‘return’ and ‘non-refoulement’ when both options are unjust is no choice at all. No refugee should be forced to choose between remaining in a host country with no future or returning to a country of origin while still exposed to the same threats they fled or the places from which they were forcibly expelled.
Whoever wishes to return should be able to do so under conditions in which can have their rights, freedoms, and properties restored and guaranteed. They should also have clear economic and educational paths available such that they can rebuild their shattered communities.
For those wishing to remain, their right to do so must be clearly respected, and where Bangladesh and Myanmar might collude to violate this either by force or by offering false promises, the international community should act against it. The Rohingya should be offered a pathway to formal legal status in Bangladesh so that their rights are protected, and they are not discriminated against civilly or economically.
Unfortunately, in recent years, the situation in Myanmar has only become more violent and unstable. This should not be an excuse to simply give up. The global community must commit to supporting Rohingya refugees so that choosing between remaining and returning is not a desperate choice of the ‘lesser of two evils,’ but a dignified choice between two equally viable options that guarantee their fundamental rights.
Bio
Nathan Liu is a third-year law student at Boston University School of Law. Before law school, he attended Bennington College where he received his bachelor’s degree with a focus on environment and anthropology, and Lewis and Clark Law School where he studied environmental law and policy. He is interested in working in the fields of environmental and human rights law in an international context.
