IHAVE spent the past two days pouring over the real-life horror stories that have come out from the Rohingya camps in Cox’s Bazar. A hundred of them, to be precise. Incidents of young women and girls being carried off to army camps and being found raped and dead later on. Of men being slaughtered in front of their families, of families being locked inside homes that were set on fire, of infants being snatched from their mother’s and killed, of homes being searched for arms and ‘terrorists’ and being looted and burnt instead. Men and women being separated and ‘selected’ for torture, death, enforced disappearances and rape. Testimonies from young widows, orphaned children, old men and women weeping over dead children and grandchildren. Lamentations of those who left families, husbands and sons behind. Much has been written about the tragedy of being born Rohingya. Of being rooted in a state that does not recognise your roots. With Bangladesh bursting at the seams hosting the Rohingyas fleeing further persecution, will the agreement between Bangladesh and Myanmar, called the ‘Arrangement on Return of Displaced Persons from Rakhine State’ provide any solace — if the most persecuted of the persecuted even wish to cross back?
Non-refoulement is a fundamental principle of international law which forbids a country receiving victims of human rights violations from returning them to a country in which they would be in likely danger of persecution. The principle is found in several international treaties and conventions, including the Convention against Torture, the Convention against Enforced Disappearances and the Refugee Convention. Have any measures been included in the said document that will ensure that the Rohingya wishing to return will not face further persecution?
The document states that Myanmar will not criminalise returnees for their illegal exit and return unless there are specific cases of their involvement in terrorist or criminal activities. It also states that both governments, Bangladesh and Myanmar, will refrain from implementing any policy that is discriminatory to a particular community and that violates ‘universally agreed principles on human rights as enshrined in the international human rights instruments to which they are parties’.
Let us tackle the last issue first. Bangladesh and Myanmar have both ratified the Genocide Convention, the latter ratifying it as early as 1956. They have also ratified the Convention on the Rights of the Child and the CEDAW. Neither is state party to the convention dealing with enforced disappearances nor is Myanmar a party to the Convention against Torture, the ICCPR and the ICESCR. Despite such shortcomings, Myanmar and Bangladesh are both obliged under the basic principles of international human rights to respect fundamental rights. However, the fact that Myanmar has seemingly very little obligations, as it is not a party to some major conventions, makes it slightly easier for it to argue that it is not bound by any relevant international norms. In fact, a majority of the international human rights instruments Myanmar has ratified deal with trafficking, women, children and persons with disabilities. The human rights violations it has committed, as based on the testimonies of the Rohingyas and the investigations carried out by the United Nations all fall under the conventions that Myanmar has not signed or ratified. So, where the document between Bangladesh and Myanmar reads that both will refrain from implementing any policy that violates human rights enshrined in international instruments to which they are both a party — it is easy to see the glaring gaps.
Testimonies and reports have shown that both the Myanmar military and members of the civilian population took part in the burning of houses, torture, looting and rape of the Rohingyas. Given the circumstances of the whole issue, the continuing persecution and the eye-witness accounts, it might be safe to say that none of the civilians who took part in these crimes have been arrested or prosecuted. Furthermore, homes were robbed, vandalised and burnt under false pretexts of ‘arms searches’ and Rohingya men were arrested for being terrorists or for aiding criminals, by soldiers, with no evidence and with obviously ulterior motive. The document states that Myanmar will not criminalise returnees for their illegal exit and return unless there are specific cases of their involvement in terrorist or criminal activities. It is obvious that given the persecution faced by the Rohingyas in the name of ‘terrorism’ and the arrests made with no evidence or grounds, as soon as they start returning there is the very real fear that the persecution and witch-hunt will start again. Under a repressive state, there is no need for evidence or proof to persecute the dissenters and the defenceless.
The criteria for eligibility for return, contained in this document, also raise questions. The first criterion is that the returnees must be residents of Myanmar. When a people have no citizenship they do not have passports or national identity cards either. When they are fleeing in fear, how many are in the frame of mind to remember documents relating to property, home or some form of identification? Old or expired citizenship cards, legal documents, might well have gone up in flames as homes and villages were burnt or are in homes now taken over by others. The agreement does mention that other documentation or information indicating residence in Myanmar such as addresses, reference to household or business ownership, school attendance or other relevant information would also be accepted but if the papers/written proof is not there, it will be easy to dismiss claims and not allow entry. The document clearly states that ‘bona fide evidence of residence in Myanmar’ is a must. The document does not give any alternative solution if such papers or documentation is unavailable. It does state that UNHCR-issued refugee documents will also be verified but since proof of bona fide evidence is made mandatory, such a UN document does not have much use alone.
Where are the checks and balances and security measures to ensure returning Rohingyas that they will be safe in Myanmar? That the agreement will not be breached? The document states that the UNHCR and other mandated UN agencies as well as ‘interested international partners’ would be invited to participate in the return and resettlement process ‘as appropriate’. But nowhere does it state that in order to prevent further human rights violations, there will be in place UN mechanisms or any form of checks and balances to ensure effective implementation of the contents of the ‘arrangement’ that apply to resettlement, return of property and households and legal recognition of Rohingys in Myanmar.
The language of this document, on a whole, is disappointing. The fact that it states that ‘Myanmar will not criminalise (ie prosecute or penalise) returnees for illegal exit and return…’ reeks of denial of atrocities perpetrated on the Rohingyas. Did the latter have any other choice but to flee the horrors? Even when they fled and hid in the jungles in Myanmar, they were chased down. There is no mention of the persecution. There is no mention of measures to identify, arrest and prosecute those who have committed crimes against the Rohingyas. This is not an agreement to save lives and put an end to atrocities against human rights. It is not an agreement to recognise the Rohingyas as citizens of Myanmar. It is a scheme to push back a terrorised population. There are no measures or guarantees in place to prevent further violations against the Rohingyas who return.
The fact that this document is called an ‘arrangement’ and not an ‘agreement’ shows that it is for a political and not a humanitarian purpose. There is high possibility that Bangladesh might be taking an awful risk and breaching the principle of non-refoulement if, by some miracle, the Rohingyas are convinced into going back based on this arrangement. After hosting a huge number of sacred, defenceless and violated people and giving them shelter and assistance, does the Bangladesh government want to see these people persecuted again and return? It will seem as if it is contributing to the human rights violations on the Rohingyas. The United Nations can no longer sit back and let Bangladesh and Myanmar ‘deal’ with the issue. Human rights violations are not regional or ‘cross-border’. They are international. The plight of the Rohingyas has shaken the whole world. They safety, security, dignity and rights must be of international concern too.
Saira Rahman Khan teaches law at BRAC University.
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