March 20, 2018

Myanmar’s actions reflect its insincerity in fulfilling the repatriation agreement as Bangladesh’s hands seem to be tied.

Almost seven months into the latest round of influx of Rohingyas into Bangladesh— around 700,000 have arrived since August 25 of last year—Myanmar has done next to nothing to show that it is serious about the implementation of the repatriation deal signed with Bangladesh and the safe return of the Rohingya. Just looking at the developments that have come to light in the last month alone will suffice. Myanmar has: (i) deployed troops near the Bangladesh border—where Rohingyas have taken shelter—calling it an “anti-terrorism” operation, (ii) moved ethnic Rakhine Buddhists to villages cleared of and once dominated by Rohingyas, and (iii) verified less than 400 Rohingya refugees for repatriation, blaming Bangladesh for the delay. Myanmar’s actions at a time when a million of its nationals are stranded in ramshackle camps on our soil speak volumes about its actual intentions of never taking them back.

Beyond the formation of a joint working group after the signing of the repatriation agreement in November 2017, there have been no concrete results. It is not clear as to how the agreement negotiated behind closed doors was reached. But the fact that the basic conditions of the agreement are based on the 1992 deal was ample proof of Myanmar’s insincerity—experts have called it a “trap”. There was never any chance of the Rohingya refugees ever fulfilling the impossible-to-meet criteria that we signed off on in the deal. And with the control of the verification process in Myanmar’s hands, is it surprising that only 374 refugees have been verified out of the 8,000 names submitted by Bangladesh?

Although last year’s Rohingya influx was not the first, it was by far the largest one. During the previous waves of movement in 1978 and 1992, over 200,000 Rohingyas entered Bangladesh each time. But there’s one more little known fact.

Myanmar’s about-turn

Anders Corr, founder of Corr Analytics, an organisation which provides strategic analysis of international politics, wrote an article for Forbes titled “Secret 1978 Document Indicates Burma Recognized Rohingya Legal Residence,” in which he sheds light on the secret 1978 repatriation agreement between Myanmar and Bangladesh. In the agreement signed 40 years ago, Myanmar had actually recognised the Rohingya minority as lawful residents—something which they vehemently deny today and this denial is, of course, what provides the basis for the persecution of Rohingyas. The 1992 repatriation agreement too—signed after the 1982 Citizenship Law stripping the Rohingya off citizenship was passed—had acknowledged the legal residence of Rohingyas, calling the latter “Myanmar residents” and “members of Myanmar society.”

The refusal of the Myanmar government today, denying the Rohingya their rights by branding them “illegal migrants,” is a far cry from the Myanmar government’s own stance on the legal status of Rohingyas clearly encapsulated in the previous repatriation agreements. So why this about-turn now? What has caused the hardening of Myanmar’s stance? Whatever it is, one thing is clear and that is the fact that the Myanmar government is more resolute than ever in implementing the military’s broader strategy of social engineering of the landscape and remove the demographic threat that the Rohingyas pose. It is also very likely that public opinion against the Rohingya in Buddhist-majority Myanmar has peaked, thanks to decades of nourishing and promoting the deep-seated hatred at all levels of the political and social hierarchy.

The question of ICC’s jurisdiction

Referring the atrocities committed against the Rohingya to the International Criminal Court (ICC) seems to be the talk of the town. The UN High Commissioner for Human Rights, Zeid Ra’ad al-Hussein, has advocated such a move as well. But in this case too, Bangladesh’s hands seem to be tied.

Challenges arise from the fact that Myanmar is not a state party to the Rome Statute. Hence the ICC Prosecutor acting proprio motu, one of the ICC “trigger mechanisms” via which a referral can come about, is not an option. In cases where non-state parties are involved, the United Nations Security Council (UNSC) can refer such situations but as we already know, China would no doubt veto such a resolution.

According to Just Security, an online forum based at the Center for Human Rights and Global Justice at New York University School of Law, ICC may be able to exercise territorial jurisdiction on the basis of cross-border activity because “the Statute leaves unanswered whether the ‘territory’ on which ‘the conduct in question occurred’ covers the territory of multiple states in which the crimes occur, some of which may not be state parties. No ICC case has addressed this issue either. Thus, there is an open question of whether the Court could assert territorial jurisdiction over unlawful deportation from Myanmar into Bangladesh.”

Complicating this further is the interpretation of “conduct in question”—it could be interpreted more narrowly to only include the crimes committed on Myanmar’s (non-state party) soil and not the effects the crimes have had on Bangladesh, a state party, in which case ICC would not be able to wield territorial jurisdiction.

Furthermore, in international law, there are two kinds of territoriality: subjective territoriality which refers to the place where “the underlying actions of a crime occur” and objective territoriality which refers to the place where “the crime has its effects.” The ICC could assert objective territoriality on the grounds that Bangladesh has been affected by Myanmar’s crimes but this “would undoubtedly be controversial given that the ICC has not done so before and the Rome Statute does not specify whether “conduct in question” includes the effects of a crime,” explains Just Security.

So even if Myanmar were to be hauled to the ICC, Bangladesh will likely find itself in the midst of a legal quagmire—with definitional issues, the absence of legal precedents and whatnot. And whether or not Bangladesh has the political will of taking such a step is a whole other issue.

A grim picture

All facts paint a depressing picture. Nothing has come out of the repatriation agreement yet. Myanmar had agreed to take back 1,500 refugees each week (at this pace it would take 10 years for the more than 700,000 Rohingya refugees who have sought shelter in Bangladesh since October 2016) but no such thing has happened. Donor and compassion fatigue on this side of the border has already begun to show its signs. Myanmar continues to carry out its resettlement plan in northern Rakhine in full throttle. And from the looks of it, regional blocs such as the Asean can do very little.

With every passing day, any hope of the safe return of Rohingyas, who have endured the most horrific of experiences, gets dimmer. Their fate hangs in the balance as Bangladesh continues to grapple with a monumental humanitarian burden and Myanmar does as it pleases with no one to question them.

(This article was written by Nahela Nowshin and originally appeared in the Daily Star)