"Protection of the Rohingya refugees in Bangladesh : Non-Refoulement and the

accountability of Bangladesh under International law“

By- Md. Razidur Rahaman

Introduction

• Total population of Myanmar is around 55 million of which 3.5 millions are Rohingyas (including both at home and the places of refugee) of Arakan.

• there are around one hundred and forty (140) ethnic races and Rohingya is one of them.

• Rohingyas are the people with distinct culture and civilization of their own. Their ancestry is trace to Arabs, Moors, Pathans, Moghuls, Bengalis and some Indo-Mongoloid people.

• They settled in Arakan in 7th century AD. They are ethnically also related to the Bengali people living in neighbouring country Bangladesh's Chittagong district.

• Rohingyas were systematically deprived of their political rights after the military take over the country. The military power adopted a new, most controversial and discriminatory citizenship law in 1982. In the 1982 citizenship law declared that the Rohingyas are as "Non-National" or "foreign residents“.

• The military power insisted to the Rohingyas to de-Islamization. They also did the "physical extermination through genocide and ethnic cleansing of Rohingya Muslims of Arakan and cultural assimilation of Muslims living in other parts of Burma“.

• The main objective of the military Junta was to turn strategic Muslim Arakan into a Burmanised Buddhist region by reducing the Muslims.

• The Rohingya Muslims are now facing genocidal campaign by the Rakhaine terrorists.

• According to the Burma Campaign UK, “There is a reliable body of evidence pointing to acts constituting a widespread or systematic attack against the Rohingya civilian population….These appear to satisfy the requirements under international criminal law for the perpetration of crimes against humanity.

• Arbitrary arrests, torture, custodial killings, rape, forced marriage, dishonouring of women, restriction on the socio-cultural and religious activities of the Rohingyas is very common in Myanmar.

• As a result of this kind of physical extermination, ethnic cleansing operation, torture etc; the Rohingyas are started to cross the international boarder and millions of Rohingyas has taken the refugee status in many countries including Bangladesh, India, Pakistan etc.

Refugee status of Rohingyas under International Refugee Law

• The 1951 convention "is both a status and rights-based instrument and is underpinned by a number of fundamental principles, most notably non-discrimination, non-penalization and non-refoulement

• According to the 1951 Refugee Convention, a refugee is a person who flees to a foreign country or power to escape danger or persecution "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality

• Mainly two system follows to Refugee Status determination:" Subjective test" and Objective test".

• Rohingyas must be established the " fear of persecution" which called the subjective test and also be established the fear is well founded which called the objective test.

• In case of Rohingya issue, the elements of Refugee are exists that is well founded fear of persecution on the basis of religion.

Present Situation of the Rohingya Refugees in Bangladesh

• According to the UNHCR, total number of the Rohingya Refugees in Bangladesh is-200,000

• Bangladesh claims 300,000-500,000• According to the Arakan Rohingya National

Organisation(ARNO) the number is 600,000• A large number of "unregistered Rohingyas

are not recognized as refugees and are often labelled economic or illegal migrants

• Two Rohingya refugee camp is there which housing 26,317 refugees till may 2007 without freedom of movement, permission to work or access to education.

• Rape is also prevalent both within and outside the refugee camps with Majees ( unelected refugee leaders), local villagers and police as the most common perpetrators.

• Polygamy is practiced in the camps, resulting in a high level of female heads of households who are vulnerable to sexual exploitation and abuse

• Food shortage and attendant malnutrition also there in the camps.

• Health care is the another problem in the refugee camps. There is no sufficient medical stuff and also a serious shortage of female health care stuff. The harassment of the women refugees by the male health stuff is reported.

• There is a prohibition of the refugee children from accessing formal education and Refugees do not have the right to own moveable or immovable property.

• Resettlement of the Rohingya refugees is absence because Bangladesh is not interested to resettle the Rohingya Refugees to fear of increase of Rohingya refugees.

• Bangladesh only prefer the voluntary repatriation as a durable solution.

• Since 2012 another major problem facing by the Rohingya refugees in Bangladesh border that is the refoulement.

• Border guard of Bangladesh is not allowing the Rohingyas to enter into Bangladesh and "push back" them to Myanmar. But the problem is if they go back to Myanmar there is mere possibility to fear of persecution.

Principle of Non-Refoulement as a Peremptory norm of International Law

• Non-Refoulement is considered as the most fundamental principle of international refugee law.

• Non-refoulement shall be considered as peremptory norm. In the Rohingya issue, Bangladesh forcefully refoule the Rohingyas to Myanmar where is the high possibility of persecution or crime against humanity against the Rohingyas by the Myanmar security forces or its citizens.

• According to Sir Elihu Lauterpacht and Daniel Bethlehem, Non-refoulement is a concept which prohibits States from returning a refugee or asylum seeker to territories where there is a risk that his/her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion.

• Non-Refoulement is a non-derrogable right of the refugees. It's ensured by the 1951 refugee Convention. Article 42(1) of the 1951 refugee convention specifically provides that the States can not make reservation on article 33 which deals with the principle of Non-Refoulement.

• Article III(5) of the Cartagena Declaration 1984, provides that the principle of non-refoulement as a "cornerstone of the international protection of refugees” and stated that "this principle is imperative in regard to refugees and in the present state of international law should be acknowledged as jus cogens.”

• General Conclusion of the Executive Committee on the International Protection of the refugee "reaffirmed the importance of the basic principles of international protection and in particular the principle of non-refoulement which was progressively acquiring the character of a peremptory rule of international law"

• Article 53 of the Vienna Convention on the Law of the Treaties 1969 states that, a treaty is void if it conflicts with peremptory norm. Whether a state is a party to a convention or not that is immaterial in case of the peremptory norm.

Non-Refoulement and Obligation of Bangladesh Under International Law

• In Bangladesh, there is no direct law regarding the refugee issue. The constitution of Bangladesh contains some general provision to respect the international law and to promote international peace.

• Article 25 of the constitution of Bangladesh provides that, the obligation ‘base its international relations on the principles and respect for international law and the principles enunciated in the UN Charter.

• Article 32 of the Constitution stated that, "No person shall be deprived of life or personal liberty save in accordance with law".

• Article 18(1) of the Constitution also provides that, the primary duty of the state is rising of the level of nutrition and the improvement of public health. So, constitutionally Bangladesh can not deny to protect the rights of the Rohingya Refugees in the camp by the virtue of the article 18(1), 32 of the constitution.

• Bangladesh is not the signatory of the 1951 Refugee Convention and its Additional Protocol 1967. So, Bangladesh has no obligation under this Convention and Protocol.

• But Bangladesh can not deny its obligation under various international human rights convention and under various treaties.

• Article 14(1) of the UDHR provides that, "Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

• Article 6(1) of the ICCPR ensures that every human being has the inherent right to life and the states shall be protected this right by law. No one shall be arbitrarily deprived of his life.

• Article 7 of the ICCPR also provides that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." As a member of the ICCPR Bangladesh should respect the rules of the ICCPR Article 6(1) of the International Covenant of the Civil and Political Rights (ICCPR)

• Principle-5 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions also provides that " No one shall be involuntarily returned or extradited to a country where there are substantial grounds for believing that he or she may become a victim of extra-legal, arbitrary or summary execution in that country.“

• Article 3 of the Convention Against Torture Provides that, the member states shall not "expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture."

• Article 22(1) of the Convention on the Rights of the Childs provides that, “States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall......receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.”

Conclusion• The Rohingya refugees are most vulnerable in position in

Myanmar. They are facing the fear of persecution in Myanmar because of their religious belief.

• Bangladesh should respect the international law and fulfil its international obligations under various international instruments to protect the Rohingya refugees in its territory and its border. Bangladesh can expel Rohingyas if there is a threat to state security and peace and also if there is an allegation against Rohingyas under Article 1(F) of the 1951 Refugee Convention.

• Bangladesh should not refoule the Rohingyas if there is no security threat on it or if there is no allegation against Rohingyas under Article 1(F) of the 1951 Refugee Convention

• The international community should take measures to protect Rohingyas. Myanmar is a member of the United Nations. Myanmar is violating the principles of the U.N Charter by torturing and forcefully displacing the Rohingyas from the Country.

• According to the preamble of the U.N Charter, the member states of the United Nations determined to "faith in fundamental human rights, in the dignity and worth of the human person“

• The Special Rapporteurs or special bodies of the UN Commission can intervene with the Government concerned to prevent refugees, asylum- seekers or internally displaced persons from being subjected to imminent human rights abuses or in response to allegations of the existence of such abuses.