In May, I attended a keynote speech in Lincoln’s Inn given by Abdulqawi Ahmed Yusuf, the former president of the International Court of Justice. He was the judge who headed the world court when Gambia filed its case against Myanmar under the Genocide Convention. I put forward a question to the judge from Somalia regarding the return of refugees to Myanmar.
Since August, mortar shelling, airspace intrusions, and gunfire have been affecting many parts of the 271 km-long border between Bangladesh and Myanmar. Rohingya villages have been set on fire. Rohingya civilians have been indiscriminately killed.
The junta in Myanmar is trying to retake control of three border townships on the frontier with Bangladesh, including Maungdaw, Buthidaung, and Rathedaung. These townships are the historical centres of the Rohingya population. The last remaining Rohingya in these townships are at grave risk of ethnic cleansing.
I want to juxtapose some of the key options of Bangladesh’s Rohingya policy in line with international law. We need a combination of military deterrence, diplomacy, and legal pressure.
Humanitarian corridor
A longstanding official Bangladeshi proposal has been to create a humanitarian corridor inside Rakhine State. This concept is supported by Article 59 of Protocol 1 of the Geneva Convention.
This will involve a declaration by both countries to create a demilitarized zone in a specified geographic area called “non-defended localities.” The protocol allows the declaration of a non-defended locality in “any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse party.”
In the case of Bangladesh and Myanmar, the three townships of Maungdaw, Buthidaung, and Rathedaung in Myanmar were effectively abandoned during the Rohingya exodus in 2017.
The conditions were rife for Bangladesh to enter into abandoned territory. If Bangladesh and Myanmar agreed on a humanitarian corridor, the three townships could make up non-defended localities.
Repatriation
The term “repatriation” is widely used in the Geneva Convention. In modern international law, the Committee on Civil and Political Rights has elaborated on repatriation in its General Comment 27 on freedom of movement. General Comment 27 lays out that “the right to return is of the utmost importance for refugees seeking voluntary repatriation.”
Despite the desire of refugees to return to Arakan, the junta continues to deny their right of return, as well as their right to full citizenship which was stripped away by the 1982 Citizenship Law. The international community is beginning to rekindle the cause of restoring Rohingya citizenship.
On the fifth anniversary of the Rohingya exodus, the UK Foreign Office reiterated the call for the “abolition of the 1982 Citizenship Law and the restoration of Rohingya citizenship.” The UK, Germany, Canada, the Netherlands, and the Maldives have expressed their intention to intervene in the Gambian case against Myanmar at the International Court of Justice.
The restoration of Rohingya citizenship is fundamentally imperative in creating conditions which will allow refugees to return voluntarily, in safety, and in dignity. It is heartening to see the international community take up the cause of restoring Rohingya civil rights within Myanmar.
A renowned professor of international human rights law told me that the language and lexicon of repatriation also has to change. In human rights law, repatriation is part of the right of return. The term repatriation comes into play during a military conflict. The Rohingya refugees entered Bangladesh due to ethnic cleansing inside Myanmar instead of a war between Bangladesh and Myanmar.
Prudence demands that Bangladesh focuses on the broader right of return than merely repatriation to pre-existing oppressive conditions in Rakhine State. Bangladesh can join the UK, Germany, Canada, the Netherlands, and the Maldives in intervening in support of Gambia at the International Court of Justice.
The court deals with treaty interpretation. Bangladesh can submit its bilateral repatriation agreement to the court for interpretation. The court may decide whether the agreement can be enforced in line with its decision on genocide or separate principles of international law.
The goal would be a decision from the court which orders Myanmar to take back the refugees.
Border security
The recent incidents of cross-border spill-overs can be analyzed in light of the Geneva Convention and its protocols.
Myanmar’s mortar shells have landed near mosques, schools, and refugee camps. It is illegal to damage properties which are places of worship or purely civilian infrastructure, particularly in the absence of a concrete military objective.
The spill-overs have been disproportionate because Myanmar is not gaining any military advantage by attacking Bangladeshi territory. Bangladesh is not in a state of war with Myanmar.
The Bangladeshi government even suggested joint anti-terrorism operations. Bangladesh has its own fair share of counter-insurgency operations against Myanmar’s rebels.
A multi-pronged approach
The foreign ministry is pursuing a multi-pronged diplomatic approach, including a tripartite mechanism with China and Myanmar as well as advocacy through the UN and OIC.
The broader strategy of the government has to step up its game.
This means building a credible military deterrence. Bangladesh should be prepared like India was before the 1971 Indo-Pakistani War and not ill-equipped as India was before the 1962 Sino-Indian War. Deterrence should be combined with diplomacy.
The lexicon of repatriation has to be more expansive and substantive. In addition to referring to the Kofi Annan Commission, Dhaka must call for the repeal of the 1982 Citizenship Law in Myanmar.
Finally, legal pressure can go hand in hand with deterrence and diplomacy.
I had an opportunity to discuss a potential intervention with the director general of legal affairs in the foreign ministry in 2019. The foreign ministry lacks a dedicated department on international law. Bangladesh has an impeccable legal fraternity. The foreign ministry can tap into this fraternity.
In order to present cases before the International Court of Justice, the government has to appoint a delegation. The delegation may include lawyers, diplomats, elected representatives, academics, journalists, and researchers.
Bangladesh is perhaps best placed to articulate on behalf of our Rohingya brethren. A combination of military deterrence, skillful diplomacy, and legal pressure is much needed.
Umran Chowdhury works in the legal field.
