THE ROHINGYA
REFUGEES: IN EXILE WITH
THE HOPE TO RETURN
A Legal Analysis of Their International Human Right to Freedom ofMovement
Heleen Curwiel
He.curwiel@gmail.com 12946931 Public International Law (LLM Track) Master thesis University of Amsterdam Supervisor: Prof. dr. M.Y.A. Zieck 11 January 2021 Word count: 12971
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Abstract
This research aims to analyse and evaluate the international human right to freedom of movement of the Rohingya refugees during their exile in Bangladesh and the return to Myanmar. The Rohingyas currently face significant restrictions on their freedom of movement. Within the territory of Bangladesh, they are obliged to stay in designated areas. The Rohingyas have expressed their desire to return to Myanmar, however, due to the degrading conditions in Myanmar, they justifiably refuse to return. This study aims to analyse the bases on which the Rohingyas can legally invoke the international human right to freedom of movement and evaluates whether Bangladesh and Myanmar violate their obligations regarding this right. In this context, the right to freedom of movement is approached primarily using the International Covenant on Civil and Political Rights and customary international law because both Myanmar and Bangladesh are not a party to the 1951 Convention Relating to the Status of Refugees nor the 1967 Protocol Relating to the Status of Refugees.
To analyse the international right to freedom of movement of the Rohingyas, various documents by organs of the United Nations are considered. Especially reports by the United Nations High commissioner for Refugees, the United Nations Human Rights Council, and the United Nations Human Rights Committee substantiate the application of articles used and give a comprehensible representation of the legal issues. Articles written by non-governmental organisations represent the conditions the Rohingyas live in, for example, by interviewing the Rohingyas staying in the refugee camps in Bangladesh. Academic articles comment on how international law should be interpreted and applied. Together this provides support for unambiguous argumentation. It shows that the Rohingyas can invoke the international human right to freedom of movement. This result suggests that, under the current measures enforced, the government of Bangladesh has violated the international right to freedom of movement and the right to liberty of person of the Rohingyas. Furthermore, the Rohingyas may not forcibly be returned to Myanmar because of the principle of non-refoulement. That said, the Rohingyas want to return to Myanmar if the environment is considered conducive to voluntary, safe, and dignified returns. Based on international agreements and state responsibility, Myanmar is obliged to halt the persecution of the Rohingyas and consequently create a safe return.
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Table of contents
Abstract ... i
Table of contents ... ii
List of abbreviations ... iii
1. Introduction ... 1
1.1 Background ... 1
1.2. Problem statement ... 2
1.3. Research question and sub-questions ... 4
1.5. Research method ... 5
2. Plight of the Rohingya refugees ... 7
2.1. Root causes of the plight ... 7
2.2. Determination of genocide ... 9
2.3. Current state of affairs ... 10
3. Right to freedom of movement in the country of refuge... 12
3.1. Introduction ... 12
3.2. Legal status ... 13
3.3. Lawful presence ... 14
3.3.1. Recognised refugees ... 14
3.3.2. Forcibly displaced Myanmar nationals ... 15
3.4. Legal restriction grounds ... 16
3.5. Liberty of person ... 18
3.5.1. Cox’s Bazar ... 18
3.5.2. Bhasan Char ... 19
3.6. COVID-19 ... 20
4. Right to return home ... 22
4.1. Introduction ... 22
4.2. Principle of non-refoulement ... 22
4.3. Voluntary repatriation ... 24
4.3.1. Legal context ... 24
4.3.2. Specification of the criteria ... 26
4.4. State responsibility ... 27
4.5. Right to return ... 29
5. Conclusion ... 31
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List of abbreviations
1951 Convention 1951 Convention Relating to the Status of Refugees 1967 Protocol 1967 Protocol Relating to the Status of Refugees
ARSA Arakan Rohingya Salvation Army
ARSIWA Articles on Responsibility of States for Internationally Wrongful Acts
CAT 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
COVID-19 Coronavirus Disease 2019
Genocide Convention 1948 Convention on the Prevention and Punishment of the Crime of Genocide
GoB Government of Bangladesh
GoM Government of Myanmar
HRW Human Rights Watch
ICCPR 1966 International Covenant on Civil and Political Rights
ICJ International Court of Justice
ICoE Independent Commission of Enquiry
IIFFMM Independent International Fact-Finding Mission on Myanmar
ILC International Law Commission
MoU Memorandum of Understanding
OHCHR Office of the United Nations High Commissioner for Human Rights
UDHR 1948 Universal Declaration for Human Rights
UN United Nations
UN Charter 1945 Charter of the United Nations
UNDP United Nations Development Programme
UNGA United Nations General Assembly
UNHCR United Nations High Commissioner for Refugees
UNHR Committee United Nations Human Rights Committee
UNHRC United Nations Human Rights Council
UNOCHA United Nations Office for the Coordination of Humanitarian Affairs
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1. Introduction
1.1 Background
International human rights law provides people with a prescribed degree of protection.1 To guarantee the protection envisioned, states are explicitly bound to certain obligations towards the people on their territory.2 In other words, international human rights obligations deal with the obligations of states towards the rights of individuals.3 The obligations urge states to respect, protect, and fulfil those rights.4 However, the extent to which international human rights are enjoyed depends heavily on the treaties to which the states concerned are parties,5 or which provisions have become part of customary international law.6 During the stay of the Rohingyas in Bangladesh and their return to Myanmar, difficulties regarding the enjoyment of the international human right to freedom of movement arise.
The Rohingyas are a Muslim ethnic minority group living in the northern part of Rakhine, a state within Myanmar.7 As a Muslim minority in Myanmar, the Rohingyas face various forms
of persecution.8 These forms of persecution range from physical ill-treatment to discrimination
by domestic law. The Rohingyas are excluded from the list of races eligible for full citizenship in the domestic 1982 Citizenship Law which leaves them stateless.9 Seen as illegal Bengali immigrants by the Government of Myanmar (GoM), they experience denial of international human rights, which could amount to genocide.10 As a consequence, approximately one million Rohingyas took refuge in Bangladesh over the years.11 The influx of Rohingya refugees
1 N.S. van der Have, The Prevention of Gross Human Rights Violations under International Human Rights Law (T.M.C. Asser Press 2018) 38.
2 Ibid.
3 F. Mégret, ‘Nature of Obligations’ in D. Moeckli, S. Shah and S. Sivakumaran (eds), International Human Rights
Law (3rd edn, OUP 2018) 88. 4 Ibid 97.
5 M.N. Shaw, International Law (8th edn, CUP 2017) 703-704. 6 Ibid 704.
7 Formerly known as the Arakan State; L.N. Kingston, ‘Protecting the World’s Most Persecuted: The Responsibility to Protect and Burma’s Rohingya Minority’ (2015) 19.8 The International Journal of Human Rights 1663, 1663.
8 UNHRC ‘Detailed Findings of the Independent International Fact-Finding Mission on Myanmar’ (16 September 2019) UN Doc A/HRC/42/CRP.5 [58].
9 Ibid [63]; A.H. Milton and others, ‘Trapped in Statelessness: Rohingya Refugees in Bangladesh’ (2017) 14.8
International Journal of Environmental Research and Public Health 942, 943.
10 UNHRC (n 8) [666]; A.H. Milton (n 9); Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (The Gambia v. Myanmar) (Request for the Indication of Provisional Measures: Order) General
List No. 178 [2020] ICJ.
11 UNGA ‘Report of the United Nations High Commissioner for Refugees: Covering the Period 1 July 2019 – 30 June 2020’ (20 August 2019) UN Doc A/75/12 [46].
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increased pressure on the already densely populated territory of Bangladesh.12 Despite the relief efforts of the United Nations High Commissioner for Refugees (UNHCR), Bangladesh struggles with hosting the refugees and the consequences of the mass influx.13 The influx of Rohingya refugees has resulted in complications regarding, e.g., the reception facilities in Bangladesh.14 Unfortunately, the situation in Myanmar has not improved and therefore a safe and dignified return cannot be guaranteed.15 As to date, the domestic 1982 Citizenship Law has not been amended and brutalities against the Rohingyas continue.16
1.2. Problem statement
The Rohingyas encounter issues regarding the enjoyment of the international human right to freedom of movement in Bangladesh and respectively in their return to Myanmar. Both their internal freedom of movement in Bangladesh and their right to return to Myanmar are covered by this overarching right.
The first subject is the internal movement in Bangladesh. Under the 1951 Convention Relating to the Status of Refugees (1951 Convention) and its 1967 Protocol Relating to the Status of Refugees (1967 Protocol), the Rohingyas satisfy the international requirements to obtain the formal refugee status and thus fall under the mandate of UNHCR.17 Be that as it may, Bangladesh is not a party to the 1951 Convention and its 1967 Protocol,18 as a result the government of Bangladesh (GoB) is only bound by the provisions that have developed into customary international law,19 such as the principle of non-refoulement.20 A small percentage of Rohingyas in Bangladesh enjoy refugee status through a temporary executive order granted
12 A. Azad and F. Jasmin, ‘Durable Solutions to the Protracted Refugee Situation: The Case of Rohingyas in Bangladesh’ (2013) 1.4 Journal of Indian Research 25, 26.
13 UNHCR ‘Joint Response Plan: Rohingya Humanitarian Crisis’ (January-December 2020) <https://reporting.unhcr.org/sites/default/files/2020%20JRP%20-%20March%202020_0.pdf> accessed 24 November 2020, 14.
14 Ibid 54.
15 UNHRC (n 8) [667]-[668].
16 Ibid [3]-[4]; HRW ‘Myanmar/Bangladesh: Halt Rohingya Returns: Ensure Refugees’ Security, Basic Rights, Equal Access to Citizenship’ 20 August 2019 < www.hrw.org/news/2019/08/20/myanmar/bangladesh-halt-rohingya-returns> accessed 27 September 2020.
17 See J. Alam, ‘The Status and Rights of the Rohingya as Refugees under International Refugee law: Challenges for a Durable solution’ (2020) Journal of Immigrant & Refugee Studies 1, 3-4.
18 Convention Relating to the Status of Refugees (adopted 29 July 1951, entered into force 22 April 1954) 189 UNTS 137 (1951 Convention); Protocol Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267 (1967 Protocol).
19 M.N. Shaw (n 5) 703-704.
20 UNHCR ‘Advisory Opinion on the Exterritorial Application of Non-Refoulement Obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol’ 26 January 2007 <https://www.unhcr.org/4d9486929.pdf> accessed 23 September 2020 [14]-[16]; G. Goodwin-Gill and J. McAdam, The Refugee in International Law (3rd edn, OUP 2007) 211- 229.
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by the GoB and live in designated relief camps.21 However, numerous Rohingyas are considered illegal migrants and live in makeshift camps.22 Following the influx of refugees in 1992, the GoB aimed to restrict the movement of the Rohingyas to the designated areas.23 Since the most recent mass influx of refugees in 2017, the restrictions on the freedom of movement have been enforced more intensively; refugees must stay in designated areas and Rohingyas arrested outside the designated areas are at high risk of being sent to prison.24 The GoB is a party to the 1966 International Covenant on Civil and Political Rights (ICCPR),25 so the requirements laid down in Article 12(1) ICCPR,26 regarding the right to freedom of internal movement, apply. Most Rohingyas in Bangladesh have no official status.27 This raises the question of whether these Rohingyas can invoke the international human right to freedom of movement, as this right is status-bound.28 Besides, the GoB has taken several questionable measures that fall outside the scope of Article 12(1) ICCPR and potentially violate the right to liberty of person under Article 9(1) ICCPR.29 The question is whether these measures are
compatible with the obligations of the GoB under international human rights law.
The subsequent problem concerns the return of the Rohingyas and any corresponding obligations of Myanmar. The right to return to one’s own country, provided by Article 13(2) of the 1948 Universal Declaration for Human Rights (UDHR) and 12(4) ICCPR, allows individuals to return to their country.30 Having said that, Myanmar is not a party to the ICCPR,31 and the UDHR is not a legally binding document.32 In addition, if it can be established that the Rohingyas can rely on the right to return, the question remains whether Myanmar violates any
21 H.F. Al Imran and N. Mian, ‘The Rohingya Refugees in Bangladesh: A Vulnerable Group in Law and Policy’ (2014) 8.2 Journal of Studies in Social Sciences 226, 235; A. Azad, ‘Legal Status of the Rohingya in Bangladesh: Refugee, Stateless or Status less’ in The Equal Right Trust (ed), Confined Spaces: Legal Protection for Rohingya
in Bangladesh, Malaysia and Thailand (December 2016) 73.
22 A. Azad, ‘Foreigners Act and the Freedom of Movement of the Rohingyas in Bangladesh’ (2017) 5.2 Griffith
Journal of Law & Human Dignity 183, 186; HRW ‘Bangladesh Is Not My Country: The Plight of Rohingya
Refugees from Myanmar’ August 2018
<https://reliefweb.int/sites/reliefweb.int/files/resources/bangladesh0818_web2.pdf> accessed 24 September 2020, 41-42.
23 A. Azad (n 22) 193. 24 Ibid 196-197.
25 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), Bangladesh acceded 6 September 2000.
26 Ibid Article 12(1). 27 HRW (n 22) 14 and 42.
28 HRW (n 22) 4; UNHR Committee ‘CCPR General Comment No. 27: Article 12 (Freedom of Movement)’ (2 November 1999) UN Doc CCPR/C/21/Rev.1/Add.9 [4].
29 ICCPR (n 25) Article 9(1); See paragraph 3.5. Liberty of person.
30 ICCPR (n 25) Article 12(4); Universal Declaration of Human Rights (adopted 10 December 1948 Res 217 (A III)) (UDHR) Article 13(2).
31 ICCPR (n 25).
32 E. Bates, ‘History’ in D. Moeckli, S. Shah and S. Sivakumaran (eds), International Human Rights Law (3rd edn, OUP 2018) 19.
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obligations by not providing a conducive environment upon return for the Rohingyas. It could be argued that a safe return is a prerequisite for the right to return, as someone cannot be expected to exercise the right to return to an unsafe situation.33 Myanmar argues that the Rohingyas are free to return and participates in repatriation missions.34 Regardless, the Rohingyas refuse to exercise their right to return as long as they are persecuted.35 Bangladesh cannot force the Rohingyas to return, under the prohibition of refoulement, as long as there are substantial grounds to believe that they are at risk of persecution.36 The enjoyment of the right to return home by the Rohingyas currently is impossible. The question, therefore, is whether the GoM has an obligation to create a conducive environment for the return of the Rohingyas. In addition, does the GoM have international obligations to the GoB to ensure that the Rohingyas can return, as the influx of the Rohingyas has caused damage for Bangladesh?
1.3. Research question and sub-questions
This legal research analyses the rights and obligations which are linked to the international human right to the freedom of movement. The main research question is formulated as follows:
“Are the formally stateless Rohingya refugees entitled to the international human right to freedom of movement and if so, what are the corresponding obligations for Bangladesh and Myanmar pertaining to respectively their exile and return?”
The chapters answer the following subquestions to formulate a well-considered answer to the main research question:
1. Can both the formally recognised Rohingya refugees and the Rohingyas without formal status in Bangladesh rely on the right to freedom of internal movement in Bangladesh? 2. How does the restriction of movement to designated areas relate to the international
human rights obligations of Bangladesh?
3. In what way does the principle of non-refoulement in the case of the Rohingyas relate to their international human right to freedom of movement?
4. Does Myanmar have an international obligation to create conditions conducive to refugee returns and if so, on what legal bases?
33 G.J.L. Coles, ‘Voluntary Repatriation: A Background Study’ (1985) UNHCR 194. 34 UNHRC (n 8) [195]-[196]; UNHCR (n 13) 24.
35 UNHRC (n 8) [247]; UNHCR (n 13) 24.
36 This refers to the principle of non-refoulement, See K.H. Arif, ‘The Rohingya Refugees in Bangladesh:
Non-refoulement and Legal Obligation under National and International Law’ (2020) 27 International Journal on Minority and Group Rights 855, 871.
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1.4. Limitations and perspective
The main aim of this study is to clarify the rights and obligations closely related to the international human right to freedom of movement. The specific rights and obligations will be discussed in regard to the stay of the Rohingyas in Bangladesh and their return to Myanmar. Non-legal issues will be left aside. Moreover, only human rights issues that arise concerning the international right to freedom of movement will be taken into consideration. The framework will consist of international human rights law, especially the ICCPR, and corresponding customary international law. This does not preclude citing international refugee law since this field of law is closely related to international human rights law,37 or state responsibility related to the right to return. This research primarily focuses on substantive rights rather than procedural rights. Focussing on this delineated area will allow for an unambiguous study. Although the Rohingyas fall within the definition of Article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons,38 their refugee status occupies a more prominent
place in this research. This research will evaluate the following phases: (1) the right to liberty of movement in the country of refuge; and (2) the right to return home to Myanmar.39 The
reason why only these phases are considered is that they are the most relevant during the writing of this research.
1.5. Research method
To analyse the international human right to freedom of movement, the study will refer to primary and secondary sources. Primary sources, particularly international human rights instruments, will set out the objectives of the discussed provisions. Secondary sources, such as academic journals, contribute to the clarification regarding the interpretation of a provision. These legal sources are applied to work towards an answer to the main research question.
The study is evaluative. Aside from describing the law, a normative approach is adopted. The normative approach prescribes what the actors involved ought to do or ought not to do.40 This approach is connected to the evaluative nature of the research regarding rights and obligations. The study assesses whether the Rohingyas can invoke the international human right
37 J.C. Hathaway, The Rights of Refugees under International Law (CUP 2005) 75.
38 A.H. Milton (n 9); The question regarding signatory states can be omitted as the definition of a stateless person is a customary international law norm, see UNHCR ‘Guidelines on Statelessness No. 1: The Definition of “Stateless Person” in Article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons’ (20 February 2012) UN Doc HCR/GS/12/01 [2].
39 For a more comprehensive picture, see M. Zieck, ‘Refugees and the Right to Freedom of Movement: From Flight to Return’ (2018) 39.1 Michigan Journal of International Law 19, 24.
40 A. Kharel, ‘Doctrinal Legal Research’ (2018) SSRN Electronic Journal <www.researchgate.net/publication/323762486_Doctrinal_Legal_Research> accessed 14 August 2020, 5.
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to freedom of movement as well as whether the GoM and the GoB have corresponding obligations. To answer evaluative questions, a normative framework must be established so the normative point of view can be considered academically justified.41 Such a framework provides a set of norms and values that supports the concluding judgement.42
The subquestions are categorised under research methods as well. The first subquestion concerns the applicability of the right to freedom of movement laid down in Article 12(1) ICCPR. The legal requirements of this article are applied to the two different groups of Rohingyas in Bangladesh. It is analysed whether the Rohingyas meet the requirements under the definition of ‘lawful presence’. Subsequently, the approach of the GoB is evaluated. The second subquestion is evaluative as well. When analysing the situation in Bangladesh with regard to limiting the freedom of movement to designated camp areas, it is assessed whether this limitation is in line with the obligations of Bangladesh under international human rights law. The situations before and during the Coronavirus Disease 2019 (COVID-19) virus are discussed. The third subquestion descriptively sets out the principle of non-refoulement. It reviews the applicability and discusses what the principle entails in relation to the situation of the Rohingyas. The fourth subquestion regards the possible preconditions of the right to return and the applicability of the right to return itself. It is analysed whether the GoM has international obligations to create a conducive environment for the return of the Rohingyas. This is complemented by possible international obligations to the GoB under state responsibility. If the GoM has obligations, it is evaluated how they can be fulfilled.
41 S. Taekema, ‘Theoretical and Normative Frameworks for Legal Research: Putting Theory into Practice’ (2018)
Law and Method <www.lawandmethod.nl/tijdschrift/lawandmethod/2018/02/lawandmethod-D-17-00010.pdf> accessed 14 August 2020, 6-7.
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2. Plight of the Rohingya refugees
2.1. Root causes of the plight
Myanmar has been governed by military regimes for years.43 The military, called Tatmadaw, is unquestionably influential as high-ranking officers occupy important positions in the GoM and can amend laws without civil consideration.44 The Tatmadaw is seen as the protector of Myanmar by some nationals.45 The soldiers conduct harsh actions against the Rohingyas, who are in Myanmar known as ‘illegal Bengali migrants’.46 These actions include compulsory labour, detention, and sexual violence.47
Violence has been ongoing for years, however, in 2012 it reached a peak following the rape of an ethnic Arakan Buddhist woman by three Rohingya men.48 As a reaction, Arakan villagers killed ten Rohingya men, which resulted in escalating violence.49 Following the violence, the governmental Rakhine Nationalities Development Party implicitly initiated an eradication campaign against the Rohingyas, which resulted in different Rakhine groups attacking and killing Rohingyas.50 Security forces were deployed to suppress the violence,
however, they soon joined the Rakhine groups in killing the Rohingyas.51 Rohingyas displaced
by the violent actions were confined in camps, in the course of which they were deprived of their freedom of movement in Myanmar.52 The GoM maintained the restrictions through local orders and verbal instructions.53
The violence exacerbated again between 2016 and 2017. Following attacks of the Arakan Rohingya Salvation Army (ARSA) targeting three Myanmar police outposts on 9
43 UNHRC ‘Report of the Independent International Fact-Finding Mission on Myanmar’ (12 September 2018) UN Doc A/HRC/39/64 [11].
44 Ibid; R. Egreteau, ‘Embedding Praetorianism: Soldiers, State, and Constitutions in Postcolonial Myanmar’ in M. Bünte and B. Dressel (eds), Politics and Constitutions in Southeast Asia (1st edn, Routledge 2017) 128-129. 45 UNHRC (n 43) [13]-[14].
46 H.K. Mohajan, ‘History of Rakhine State and the Origin of the Rohingya Muslims’ (2018) 2.1 The Indonesian
Journal of Southeast Asian Studies 19, 38.
47 UNHRC (n 43) [23].
48 S.S. Mahmood and others, ‘The Rohingya People of Myanmar: Health, Human Rights, and Identity’ (2017) 389.10081 The Lancet 1841, 1842.
49 HRW “The Government Could Have Stopped This” Sectarian Violence and Ensuing Abuses in Burma’s Arakan State’ 1 August 2012 <https://reliefweb.int/sites/reliefweb.int/files/resources/Full%20Report_879.pdf> accessed 23 September 2020, 18.
50 UNHRC (n 43) [25]; See A.K. Tay and P. Ventevogel, ‘Culture, Context and Mental Health of Rohingya Refugees: A Review for Staff in Mental Health and Psychosocial Support Programmes for Rohingya Refugees’ (2018) UNHCR <www.unhcr.org/5bbc6f014.pdf> accessed 24 September 2020, the different ethnic groups accepted each other, but since 2012 tensions have been mounting.
51 S.S. Mahmood (n 48); HRW (n 49) 24-25.
52 UNOCHA, ‘Global Humanitarian Overview 2020’ (4 December 2019)
<www.unocha.org/sites/unocha/files/GHO-2020_v9.1.pdf> accessed 24 September 2020, 33. 53 UNHRC (n 8) [144].
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October 2016, the Myanmar military launched the first so-called ‘clearance operation’.54 Although the declared aim was to stop the attackers, the army aimed its arrows at unarmed Rohingyas as well.55 Following another attack by the ARSA aimed at a Myanmar military base on 25 August 2017 – meant to attract global awareness regarding the situation of the Rohingyas56 – the Myanmar military initiated a clearance operation more lethal than in 2016.57 Both operations resulted in the deaths of innumerable Rohingyas, which gave rise to immediate terror.58 Due to the ongoing violence, the Rohingya people were forced to flee the country they considered their home and by 2019 approximately one million refugees had fled across the border, predominantly to Bangladesh.59
Besides being physically mistreated, the Rohingyas are discriminated against by law.60 The main legal issue the Rohingyas encounter is their Myanmar citizenship. The domestic 1982 Citizenship Law excludes the Rohingyas from obtaining full nationality, which ultimately results in systematic discrimination and oppression.61 Due to the lack of recognition of
nationality by the GoM, the Rohingyas are stateless.62 This creates disadvantageous situations
since some fundamental rights, such as the right to health care, are granted through the citizenship of a person.63 It is argued by the GoM, that if Rohingyas are in the possession of documents linking them to Myanmar before 1948 or have proof of citizenship applications pending before 1982, they can apply for an associate or naturalised citizenship.64 However, in practice, this is nearly impossible to prove.65 As a result of the various harassments over the years, the Rohingyas often have lost their possessions, among which any official documents.66 Moreover, associate and naturalised citizenship do not provide the holder with the same rights
54 Fortify Rights and Simon Skjodt Center for the Prevention of Genocide, United States Holocaust Memorial Museum ‘“They Tried to Kill Us All”: Atrocity Crimes against Rohingya Muslims in Rakhine State, Myanmar’ 15 November 2017 <https://www.ushmm.org/m/pdfs/201711-atrocity-crimes-rohingya-muslims.pdf> accessed 22 September 2020, 1 and 6-8.
55 Ibid 8.
56 UNHRC (n 43) [32].
57 L. Sida and others, ‘Independent Evaluation of UNHCR’s Emergency Response to the Rohingya Refugees Influx in Bangladesh August 2017 – 2018’ (2018) UNHCR <www.unhcr.org/5c811b464.pdf> accessed 24 September 2020 [37].
58 UNHRC (n 43) [36].
59 UNHRC (n 8) [9]; UNGA (n 11). 60 UNHRC (n 8) [3]; A.K. Tay (n 50) 12.
61 L.N. Kingston (n 7) 1167; UNHRC (n 8) [65] and [101]; The Gambia v. Myanmar (n 10) [72]. 62 A.H. Milton (n 9); UNHCR (n 38); H.K. Mohajan (n 46) 24.
63 UNHRC (n 8) [61].
64 Ibid [63]; European Network on Statelessness and Institute on Statelessness and Inclusion ‘Statelessness in Myanmar; Country Position Paper’ May 2019 <https://statelessjourneys.org/wp-content/uploads/StatelessJourneys-Myanmar-final.pdf> accessed 1 October 2020, 6.
65 UNHRC (n 8) [63]. 66 Ibid.
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as full citizenship.67 In other words, the Rohingyas can only apply for incomplete forms of citizenship and are excluded from full citizenship.
2.2. Determination of genocide
Approximately three years after the clearance operations, many Rohingya refugees remain in relief camps in Bangladesh.68 The Independent International Fact-Finding Mission on Myanmar (IIFFMM) – a mission established by the United Nations Human Rights Council (UNHRC)69 – classified the clearance operations as genocide, within the meaning of Article II of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention).70 To meet this threshold, one of the prohibited acts in the article must have been
committed ‘with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such’.71 The Rohingyas, a racial and religious group, are subjected to prohibited acts
such as killing and serious bodily harm.72 According to the IIFFMM, the genocidal intent has
been proven by the level of organisation behind the mass destruction and the extreme magnitude of the brutalities.73
The Independent Commission of Enquiry (ICoE) is a commission designated by Myanmar with the task to investigate allegations of human rights violations in Rakhine State and seek accountability.74 Anno 2020, the ICoE released its findings to the GoM.75 The final report has not been released publicly, but an executive summary was published.76 The summary concluded that war crimes had been committed by Myanmar, however, these crimes lacked the
67 European Network on Statelessness (n 64).
68 HRW ‘Myanmar: Rohingya Await Justice, Safe Return 3 Years on. Conditions Worsen in Rakhine State, Bangladesh Refugee Camps’ 24 August 2020 < www.hrw.org/news/2020/08/24/myanmar-rohingya-await-justice-
safe-return-3-years#:~:text=(New%20York)%20%E2%80%93%20The%20Myanmar,Human%20Rights%20Watch%20said% 20today> accessed 24 September 2020.
69 UNHRC ‘Resolution adopted by the Human Rights Council on 24 March 2017’ (3 April 2017) UN Doc A/HRC/RES/34/22 [11].
70 UNHRC (n 43) [84]-[87]; Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention) Article II, Myanmar ratified 14 March 1956.
71 Genocide Convention (n 70) Article II. 72 UNHRC (n 43) [84].
73 Ibid [85]; Genocidal intent has only been proven once before in the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)
(Judgment) [2007] ICJ Rep 43 [297], the IIFFMM approached the analysis of the situation in Myanmar considering this case and its reasoning.
74 ICoE ‘Press Release’ (20 January 2020) <www.icoe-myanmar.org/icoe-pr-final-report> accessed 23 September 2020.
75 Ibid.
76 ICoE ‘Executive Summary’ (20 January 2020) <
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intent to commit genocide.77 This would mean that there is no legal basis for Myanmar to be held accountable for genocide.78 Be that as it may, the independence and impartiality of the ICoE have been disputed by the IIFFMM since the commission’s inception, due to the biased selection of commissioners and statements made by these commissioners and the GoM.79 In addition to this, the IIFFMM argues that the commissioners have little to no experience with complicated human rights situations.80
A few days after the publication of the ICoE report to the GoM, the International Court of Justice (ICJ) issued its unanimous order indicating provisional measures against Myanmar in the case instigated by the Gambia regarding the Genocide Convention on 11 November 2019.81 Although the outcome of the order has been discussed critically, 82 Myanmar was (and still is) obliged to take measures to prevent irreparable injury towards the Rohingyas and preserve evidence of atrocities.83 Striking is that during the oral hearings in the case of The
Gambia v. Myanmar the GoM addressed the Rohingyas as ‘Muslims’ and refused to call them
‘Rohingyas’, disregarding their existence.84 The final decision may take a few years, however,
the interim measures should push the GoM in the right direction. 85
2.3. Current state of affairs
Compliance with the provisional measures is instrumental in ending the root causes of the plight. The GoM introduced presidential directives to ensure the protection of the Rohingyas, however, in practice the directives are not enforced by officials or complied with by citizens.86 Moreover, the accountability of high-ranking officers is evaded by deflecting any meaningful
77 Ibid 9.
78 HRW ‘Myanmar: Government Rohingya Report Falls Short. War Crimes Admitted, but Full Findings Not Released’ 22 January 2020 < https://www.hrw.org/news/2020/01/22/myanmar-government-rohingya-report-falls-short> accessed 24 September 2020.
79 UNHRC ‘Report of the Independent International Fact-Finding Mission on Myanmar’ (17 September 2018) UN Doc A/HRC/39/CRP.2 [1619].
80 Ibid.
81 The Gambia v. Myanmar (n 10); See for clarification of the findings P. Pillai, ‘Expanding the Scope of Provisional Measures under the Genocide Convention’ (2020) 79.2 The Cambridge Law Journal 201.
82 The ICJ indicated provisional measures to which Myanmar was already obliged by the Genocide Convention,
see M. Milanovic, ‘ICJ Indicates Provisional Measures in the Myanmar Genocide Case’ (EJIL:Talk!, 23 January
2020) <www.ejiltalk.org/icj-indicates-provisional-measures-in-the-myanmar-genocide-case/> accessed 9 September 2020.
83 The Gambia v. Myanmar (n 10) [86].
84 See e.g., the statement by the Agent of Myanmar during the public sitting of 11 December 2019 in The Gambia
v. Myanmar (n 10) 12-21.
85 M. Milanovic (n 82).
86 P. Singh, ‘What Myanmar Is and Is Not Doing to Protect Rohingyas from Genocide’ (2020) Just Security <www.justsecurity.org/71533/what-myanmar-is-and-is-not-doing-to-protect-rohingyas-from-genocide/>
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investigations before court martial convictions.87 Only low-ranking soldiers are brought to trial and are consequently set up as scapegoats to internationally maintain the appearance of targeted investigations into the atrocities.88 As long as these ‘targeted investigations’ remain farcical, the military officers in charge of the atrocities enjoy impunity. One consequence of this is the Tatmadaw’s announcement of new clearance operations in response to recently sparked violence.89 Without sanctions against the aforementioned military leaders, the systematic maltreatment of the Rohingyas remains highly plausible.90 In addition to this, the domestic 1982 Citizenship Law has not been amended and therefore the stateless Rohingyas are still vulnerable to discrimination and other abuse.91 Rather than enforcing violence, Myanmar should lift restrictions on the United Nations (UN) agencies so that they can provide humanitarian assistance in the Rakhine state.92 Providing basic needs through humanitarian assistance is an example of how the GoM can protect the Rohingyas, as indicated in the provisional measures.93
87 HRW ‘Myanmar: Court Martial Latest Accountability Sham. Convictions Obscure Widespread Military Impunity’ 3 July 2020 <www.hrw.org/news/2020/07/03/myanmar-court-martial-latest-accountability-sham> accessed 24 September 2020.
88 Ibid.
89 -- ‘Thousands in Western Myanmar Flee as Army Plans Operations, Monitors Say’ Reuters (27 June 2020) < www.reuters.com/article/us-myanmar-rakhine/thousands-in-western-myanmar-flee-as-army-plans-operations-monitors-say-idUSKBN23Y0Q1> accessed 24 September 2020.
90 P. Singh (n 86). 91 Ibid.
92 Ibid; The Tatmadaw has cut off the Rakhine state from international and domestic humanitarian access. Because the freedom of movement of the Rohingyas is restricted, they are dependent on humanitarian aid to provide them with basic needs, see UNHRC (n 8) [10] and [160].
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3. Right to freedom of movement in the country of refuge
3.1. Introduction
An estimated number of one million Rohingyas crossed the border into Bangladesh, 860,698 of whom live in the Cox’s Bazar District.94 Cox’s Bazar is a Bengali region neighbouring the northern Rakhine state.95 Two refugee camps are established and registered by the GoB: Kutupalong and Nayapara.96 Besides these registered refugee camps, there are several make-shift camps in the area of Cox’s Bazar.97 The camps are heavily overcrowded.98 The GoB has designed the camps for a temporary stay, with a view to voluntary repatriation in the near future.99 The fact that the Rohingyas may stay in Bangladesh for an indefinite period is not acknowledged by the GoB, which is emphasised by discouraging the Rohingyas from making the camps more sustainable.100
Bangladesh is a party to the ICCPR,101 therefore the international human right to freedom of movement may be applicable under certain conditions. In this context, it should be noted that Bangladesh is not a party to the 1951 Convention nor its 1967 Protocol.102 Be that as
it may, Article 12(1) ICCPR contains a general human right to freedom of internal movement. Not everyone on the territory of a state is automatically entitled to this right. The following paragraphs discuss the domestic legal status of the Rohingya refugees in Bangladesh. Based on their legal status it can be determined whether the Rohingyas can rely on the international right to freedom of movement. In addition, it is analysed whether the camps amount to detention under Article 9(1) ICCPR. The starting point is the situation without COVID-19; however, the global pandemic is also discussed.
94 UNGA (n 11); UNHCR ‘Bangladesh/Operational Update 1-31 August 2020’ (13 September 2020) <
https://reliefweb.int/sites/reliefweb.int/files/resources/UNHCR%20Bangladesh%20-%20August_IM%20finck.pdf> accessed 2 October 2020, 1.
95 R.L. Shah, ‘Assessing the Atrocities: Early Indications of Potential International Crimes Stemming from the 2017 Rohingya Humanitarian Crisis’ (2018) 41.2 Loyola of Los Angeles International and Comparative Law
Review 181, 185. 96 HRW (n 22). 97 Ibid 14. 98 UNHCR (n 13) 54 and 58. 99 Ibid 35; HRW (n 22) 59. 100 HRW (n 22) 59. 101 ICCPR (n 25).
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3.2. Legal status
Bangladesh lacks domestic law governing the legal status and protection of refugees.103 Still, there is a division between the Rohingyas in Bangladesh. Some Rohingyas are recognised as refugees by the GoB – even though Bangladesh is not a party to the 1951 Convention – however, the majority of Rohingyas are not recognised as refugees by the GoB and are considered illegal.104
Refugees arriving before 1992 had the opportunity to register with the GoB and acquired refugee status by refugee status determination on a prima facie group basis through an executive order.105 The 1951 Convention and its 1967 Protocol provide the basis for determining whether asylum seekers fall under the refugee definition.106 The Rohingyas are a textbook example of refugees in the sense of the 1951 Convention and its 1967 Protocol.107 As discussed in the previous chapters, the Rohingyas are persecuted in Myanmar on account of their religion and race. The Rohingyas reside outside the country of their former habitual residence and are unwilling to return.108 Concisely stated, this amounts to the definition referred to in Article
1(A)(2) of the 1951 Convention juncto Article 1(2) of its 1967 Protocol.109 The prima facie
approach was applied because of the large-scale Rohingya arrivals.110 To this day, being legally recognised as a refugee by the GoB and living in a registered refugee camp provides the Rohingyas with humanitarian assistance provided by UNHCR.111
Rohingyas who arrived after 1992 are denied formal refugee status by the GoB.112 The government stopped recognising the Rohingyas as refugees to prevent the promotion of a permanent stay of the Rohingyas in Bangladesh and labelled them as ‘short-time arrivals’.113 As a consequence, the majority of the Rohingyas have not acquired refugee status.114 Because these Rohingyas are not formally recognised as refugees by the GoB, the assistance of the
103 K.H. Arif (n 36) 866. 104 Ibid 856.
105 H.F. Al Imran (n 21); A. Azad (n 21); P.P. Phiri, ‘Rohingya and Refugee Status in Bangladesh’ (2008) 30
Forced Migration Review 34, 34.
106 A. Edwards, ‘International Refugee Law’ in D. Moeckli, S. Shah and S. Sivakumaran (eds), International
Human Rights Law (3rd edn, OUP 2018) 539. 107 A. Azad (n 21) 57-58.
108 See J. Alam (n 17) 4.
109 1951 Convention (n 18) Article 1(A)(2) juncto its 1967 Protocol (n 18) Article 1(2).
110 UNHCR ‘Guidelines on International Protection No. 11: Prima Facie Recognition of Refugee Status’ (5 June 2005) UN Doc HCR/GIP/15/11 [9]-[10].
111 S. Banerjee, ‘The Rohingya Crisis: A Health Situation Analysis of Refugee Camps in Bangladesh’ (2019) ORF,
Special Report, No. 91 < www.orfonline.org/wp-content/uploads/2019/07/ORF_SpecialReport_91_Rohingya.pdf> accessed 2 October 2020, 5.
112 A. Azad (n 21) 62. 113 J. Alam (n 17) 2. 114 HRW (n 22) 42.
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UNHCR is less prominently involved.115 Moreover, the lack of refugee status makes them susceptible to denial of the international human right to freedom of movement.116 Their status is regulated by the 1946 Foreigners Act.117 In accordance with Article 2(a) juncto Article 3(2)(a) 1946 Foreigners Act, the Rohingyas are identified as ‘illegal foreigners’ due to not following prescribed official entry requirements for foreigners.118 Since the last exodus, the GoB labelled these illegal Rohingyas as forcibly displaced Myanmar nationals.119
3.3. Lawful presence 3.3.1. Recognised refugees
The minority group of Rohingyas in Bangladesh has formally been recognised as refugees by the GoB.120 Since Bangladesh is not a party to the 1951 Convention, the freedom of movement
is considered under Article 12(1) ICCPR.
Article 12(1) ICCPR regards the freedom of internal movement and requires ‘lawful presence’.121 With the indirect help of the 1951 Convention the lawful presence of the
recognised Rohingyas can be established. Due to the formal refugee status recognised by the GoB, this group of Rohingyas has acquired a regularised status.122 This is in accordance with Article 12(1) ICCPR. The Rohingyas have entered Bangladesh illegally which would indicate that their presence is unlawful under the ICCPR.123 However, because their status has been regularised through their formal refugee status their stay is considered lawful.124 So, the recognised Rohingya refugees are lawfully present in Bangladesh and therefore can invoke Article 12(1) ICCPR.125
115 HRW (n 22) 14; L. Sida (n 57) [65]-[75]; S. Banerjee (n 111) 5-6. 116 HRW (n 22) 4.
117 A. Azad (n 22) 190-191; P.P. Phiri (n 105) 34; Foreigners Act, 1946 [Bangladesh], XXXI of 1946, 23 November 1946.
118 Foreigners Act (n 117) Article 2(a) juncto Article 3(2)(a).
119 HRW (n 22) 42; N. Uddin, ‘The State, Vulnerability, and Transborder Movements: The Rohingya People in Myanmar and Bangladesh’ in N. Uddin and N. Chowdhory (eds), Deterritorialised Identity and Transborder
Movement in South Asia (Springer 2019) 77.
120 P.P. Phiri (n 105).
121 UNHR Committee (n 28); M. Zieck (n 39) 80; A. Edwards, ‘Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants’ (2011) UNHCR <www.refworld.org/docid/4dc935fd2.html> accessed 2 October 2020, 14.
122 A. Edwards (n 121) 13-15. 123 UNHR Committee (n 28).
124 UNHR Committee (n 28), referring to UNHR Committee ‘Celepli v. Sweden’ (26 July 1994) UN Doc CCPR/C/51/d/456/1991 [9.2].
125 A. Edwards (n 121) 15; See UNHR Committee ‘Samira Karker v. France’ (30 October 2000) UN Doc CCPR/C/70/D/833/1998, the man in this case was a recognised refugee and therefore his lawful presence was presumed.
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3.3.2. Forcibly displaced Myanmar nationals
The majority of the Rohingyas in Bangladesh are so-called forcibly displaced Myanmar nationals.126 At first instance, countries have the liberty to decide whether aliens are permitted to enter their territory.127 Nevertheless, this discretionary power can be limited. States may not refuse entry if the alien were to be returned to a situation that poses a risk of persecution.128 The GoB is obliged to not return the Rohingyas because they are being persecuted in Myanmar.129 However, before the forcibly displaced Myanmar nationals can invoke the freedom of movement as laid down in Article 12(1) ICCPR, they must be lawfully present on the territory of Bangladesh.130 If the forcibly displaced Myanmar nationals could have entered Bangladesh through the proper entry proceedings, they would be lawfully present.131 However, this is not the case. The forcibly displaced Myanmar nationals may still fall within the scope of Article 12(1) ICCPR if Bangladesh regularises their status.132 Unfortunately, the GoB has expressed
that it considers the forcibly displaced Myanmar nationals as short-time arrivals.133 This
suggests that the GoB does not have the intention to regularise the status of the forcibly displaced Myanmar nationals.
So, the question remains, whether the temporary refuge of the forcibly displaced Myanmar nationals in Bangladesh is enough to constitute lawful presence. In this regard, account should be taken of Article 14(1) UDHR, which states that people have the right to apply for and enjoy asylum in other countries if persecuted.134 As a state party to fundamental human rights treaties, such as the ICCPR,135 I believe that the GoB can be expected to do its utmost to comply with the UDHR.136 Following the UDHR, The GoB should offer the Rohingyas a possibility to apply for asylum.137 Subsequently, the Rohingyas would fulfil the requirements of Article 12(1) ICCPR when registering for an asylum application, as registered asylum
126 HRW (n 22) 42.
127 UNHR Committee ‘CCPR General Comment No. 15: The Position of Aliens under the Covenant’ (11 April 1968) UN Doc HRI/GEN/1/Rev.1 [5]; P.M. Taylor, A Commentary on the International Covenant on Civil and
Political Rights (CUP 2020) 332-333.
128 UNHR Committee (n 127), this concerns the principle of non-refoulement, which will be discussed in the next chapter.
129 UNHRC (n 8) [244]; K.H. Arif (n 36) 869.
130 ICCPR (n 25) Article 12(1); UNHR Committee (n 127) [8]. 131 UNHR Committee (n 28).
132 Ibid.
133 J. Alam (n 17) 2.
134 UDHR (n 30) Article 14(1). 135 ICCPR (n 25).
136 The UDHR itself is not binding, see E. Bates (n 32). 137 UDHR (n 30) Article 14(1).
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seekers are considered to be lawfully present.138 Unfortunately, this is not implemented by the GoB, however, it is a strong incentive for the GoB’s obligations. In addition, it seems de facto that the GoB tolerates the temporary stay of the Rohingyas. The acceptance of their stay is substantiated by the fact that the GoB is providing temporary shelters for the forcibly displaced Myanmar nationals until they can be repatriated to Myanmar.139 For this reason, Celepli v.
Sweden is an interesting case.140 Mister Celepli, a Turkish citizen, was considered lawfully present within the meaning of Article 12(1) ICCPR as he was allowed to remain on the territory of Sweden until he could be deported.141 Notable is that mister Celepli could not be returned by Sweden due to the risk of persecution in his country of origin.142 Likewise, the forcibly displaced Myanmar nationals may not be returned by the GoB due to persecution in Myanmar.143 Taking into account Article 14(1) UDHR and the case of Celepli v. Sweden, the forcibly displaced Myanmar nationals are in my view temporarily lawfully present on the territory of Bangladesh as they are temporarily allowed to stay and cannot be returned.
3.4. Legal restriction grounds
The international human right to freedom of movement of both the recognised refugees and the forcibly displaced Myanmar nationals has been restricted. Article 12 ICCPR does not prohibit restrictions as such, however, the restrictions must be legitimate.144 Thus, the restriction to designated areas may be in line with the freedom of movement. Article 12(3) ICCPR provides a substantive delineation.145 The restriction must protect one of the following legitimate aims: 'national security, public order, public health or morals, or the rights and freedoms of others’.146
First, the restriction must be provided for by domestic law.147 The 1946 Foreigners Act may serve as national law for both the recognised refugees and the forcibly displaced Myanmar nationals as it contains the restriction of the freedom of movement of non-citizens.148 However, the conditions for the restriction of the international right to freedom of movement must be
138 J. Hathaway (n 37) 179-180; A. Edwards (n 121) 13-15; O. Field, ‘Legal and Protection Policy Research Series: Alternatives to Detention of Asylum Seekers and Refugees’ (2006) UNHCR
<https://www.refworld.org/pdfid/4472e8b84.pdf> accessed 29 December 2020 [14] and [34].
139 See the Bhasan Char refugee camp in paragraph 3.5.2., although the implementation of Bhasan Char is questionable, the GoB does provide places of residence for the forcibly displaced Myanmar nationals.
140 Celepli v. Sweden (n 124).
141 J.C. Hathaway (n 37) 182-183; Celepli v. Sweden (n 124); O. Field (n 138) [35]. 142 Celepli v. Sweden (n 124) [2.1]; O. Field (n 138) [35].
143 UNHRC (n 8) [244]; K.H. Arif (n 36) 869. 144 A. Edwards (n 121) 15.
145 M. Zieck (n 39) 87.
146 UNHR Committee (n 28) [11]. 147 P.M. Taylor (n 127) 337-339.
148 Foreigners Act (n 117) Article 3(2)(i) and (ii), the government may require foreigners to stay in a particular place and impose restrictions on the movements.
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established by the domestic law, with the requirements laid down in Article 12(3) ICCPR as the minimum standard.149 The 1946 Foreigners Act allows restrictions without any (legal) substantiation, which is not in accordance with Article 12(3) ICCPR.150 Therefore, the 1946 Foreigners Act cannot serve as the national law as meant under the condition of ‘provided for by law’.
Furthermore, the restrictions must serve one of the aforementioned aims and be necessary to protect them.151 To evaluate whether a restriction is necessary, the restrictions must, among other things, comply with the principle of proportionality.152 This requires balancing the right to freedom of movement against the protection of the legitimate ground.153 At the Universal Periodic Review at the UNHRC in 2018, the delegation of Bangladesh declared that the primary reason for restricting the freedom of movement of the Rohingyas was the negative effect on the area.154 For example, local people were losing jobs to Rohingyas
because they accepted lower wages.155 Be that as it may, restricting the movement of all
Rohingya refugees because their arrival has had a negative effect on the area does not clearly serve one of the aforementioned aims.156 The ground for restriction brought up is too broad.
Therefore, the restriction cannot be considered proportionate.
Finally, the restriction must not infringe on other rights provided by the ICCPR, especially the right of non-discrimination.157 People should not be discriminated against based on their race, origin, or other status.158 The limitation of the freedom of movement to designated areas, imposed only on the Rohingyas, raises the question whether this is discriminatory.159 Since it has been established that the Rohingyas are lawfully on the territory, they should be treated in the same manner as other people lawfully on the territory.160 De facto, however, the restrictions are only imposed on the Rohingyas.161 The GoB seems to differentiate between the
149 UNHR Committee (n 28) [12]. 150 Ibid.
151 Ibid [11]; A. Edwards (n 121) 44; P.M. Taylor (n 127) 337.
152 UNHR Committee (n 28) [14]; N. Maple, ‘Rights at Risk: A Thematic Investigation into how States Restrict the Freedom of Movement of Refugees on the African Continent’ (2016) UNHCR New Issues in Refugee Research,
Research Paper, No. 281 <https://reliefweb.int/sites/reliefweb.int/files/resources/57ee60d57.pdf> accessed 5 October 2020, 10.
153 P.M. Taylor (n 127) 339-340.
154 HRW (n 22) 44-45; UNHRC ‘Draft Report of the Working Group on the Universal Periodic Review Bangladesh’ (25 May 2018) UN Doc A/HRC/WG.6/30/L.10 [63].
155 HRW (n 22) 44-45. 156 Ibid 45.
157 UNHR Committee (n 28) [18]; A. Edwards (n 121) 44. 158 ICCPR (n 25) Article 2(1).
159 N. Maple (n 152) 10. 160 P.M. Taylor (n 127) 332-333.
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Rohingyas and other lawfully present persons, which amounts to discrimination in violation of Article 2(1) ICCPR.
Article 4 ICCPR provides a more broad and radical limitation ground in a state of emergency.162 Nevertheless, in this case there are no indications of a proclaimed state of emergency. Thus, none of the requirements are satisfactorily fulfilled by the GoB, clearly indicating that the measures are not compatible with the GoB’s obligations under international human rights law.
3.5. Liberty of person 3.5.1. Cox’s Bazar
The international human right to freedom of movement is indisputably limited. Having said that, the movement of the Rohingyas is even more restricted by the ongoing construction of barbed-wire fences around the camps.163 The construction of barbed-wire fences around the
designated areas demonstrably leads to a violation of the right to liberty of person under Article 9(1) ICCPR.164 This right is not bound to an individual’s legal status, thus the right to liberty of person can be invoked by everyone.165 There is a fine line between the right to freedom of movement and the right to liberty of person. Closed camps, such as those currently being built in Cox’s Bazar, amount to detention since it is not physically possible to leave the designated areas.166 Restricting the right to liberty of person with detention is not always prohibited, for example imprisonment after a conviction.167 Be that as it may, arbitrary or unlawful detentions are prohibited.168
Arbitrariness is a broad concept and one of the legal elements to decide on this concept is the principle of proportionality.169 I believe that building fences and the resulting detention is disproportionate to the aim the GoB wants to achieve. The Prime Minister of the GoB has stated that the barbed-wire fences are primarily intended to prevent the Rohingyas from
162 ICCPR (n 25) Article 4.
163 Fortify Rights ‘Bangladesh: Remove Fencing That Confines Rohingya to Refugee Camps’ 9 October 2020 <www.fortifyrights.org/bgd-inv-2020-10-09-2/> accessed 12 October 2020.
164 S. Persaud, ‘Protecting refugees and asylum seekers under the International Covenant on Civil and Political Rights’ (2006) UNHCR New Issues in Refugee Research, Research Paper, No. 132 <https://www.unhcr.org/4552f0d82.pdf> accessed 8 October 2020, 20.
165 UNHR Committee ‘CCPR General Comment No. 35: Article 9 (Liberty and Security of Person)’ (16 December 2014) UN Doc CCPR/C/GC/35 [3].
166 Ibid [5]; S. Persaud (n 164). 167 UNHR Committee (n 165) [5].
168 P.M. Taylor (n 127) 251-254; UNHR Committee (n 165) [10]. 169 P.M. Taylor (n 127) 253; UNHR Committee (n 165) [12].
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blending in with the locals.170 Less intrusive manners are more suitable to ensure that the Rohingyas do not join the local community, such as a duty to report. Moreover, barbed-wire fencing reflects the conditions in Myanmar, causing unnecessary suffering to the Rohingyas in Bangladesh.171 The detention is arbitrary and therefore the right to liberty of person has been violated.
3.5.2. Bhasan Char
The GoB plans to move 100,000 Rohingya refugees to Bhasan Char from Cox’s Bazar.172 Bhasan Char is a silt manmade island near the Bengali coast, which did not exist before 1999.173 The GoB expressed that the relocation of Rohingyas to the island would solely be on a voluntary basis.174 However, practice has shown otherwise. In September 2020, the 306 Rohingya
inhabitants of Bhasan Char expressed the desire to return to Cox’s Bazar to reunify with their families, however, this was not allowed.175 As of early December 2020, the GoB has begun
relocating more than 1,640 Rohingyas to Bhasan Char to combat the overcrowded camps in Cox’s Bazar.176 Although the intent of the GoB to ease the pressure on the camps is valid, the
implementation is questionable.
My impression is that the circumstances on the island amount to detention, since the Rohingyas are mostly confined indoors in prison-like facilities.177 Besides, the island is remote and off-limits to unauthorised persons, such as humanitarian organisations.178 In addition, the Rohingyas cannot leave the island, which makes it a closed camp.179 Moreover, it is highly possible that the Rohingyas agreed to the relocation because they were persuaded by false
170 A.R. Rabbi, ‘Home minister: Barbed wire fencing underway around Rohingya camps’ DhakaTribune (Dhaka, 25 February 2020) < https://www.dhakatribune.com/bangladesh/rohingya-crisis/2020/02/15/home-minister-barbed-wire-fencing-underway-around-rohingya-camps> accessed 19 December 2020; HRW ‘Joint Letter: Re: Restrictions on Communication, Fencing, and COVID-19 in Cox’s Bazar District Rohingya Refugee Camps’ 2 April 2020 < https://www.hrw.org/news/2020/04/01/joint-letter-re-restrictions-communication-fencing-and-covid-19-coxs-bazar-district> accessed 16 October 2020
171 HRW ‘Human Rights Watch responses to questions on the Rohingya from UK Parliament International Development Committee’ April 2020 <https://committees.parliament.uk/writtenevidence/2104/pdf/> accessed 19 December 2020.
172 UNHCR (n 13) 27; K.H. Arif (n 36) 869. 173 HRW (n 22) 55.
174 UNHCR (n 13) 28.
175 HRW ‘Bangladesh: Reunify Rohingya Refugee Families. Return Detainees on Bhasan Char Island to Cox’s Bazar Camps’ 15 September 2020 < https://www.hrw.org/news/2020/09/15/bangladesh-reunify-rohingya-refugee-families> accessed 8 October 2020.
176 H. Beech, ‘From Crowded Camps to a Remote Island: Rohingya Refugees Move Again’ The New York Times (New York, 4 December 2020) < https://www.nytimes.com/2020/12/04/world/asia/rohingya-bangladesh-island-camps.html> accessed 19 December 2020.
177 HRW (n 175) 178 H. Beech (n 176).
179 Fortify Rights ‘Bangladesh: Free Rohingya Refugees Detained on Bhasan Char Island’ 5 August 2020 <www.fortifyrights.org/bgd-inv-2020-08-05/> accessed 8 October 2020.
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promises or because they faced other forms of intimidation as the GoB is keen on moving the Rohingyas.180 This leads to the Rohingyas not having a free and informed will with concern to their relocation.181 Therefore, the current realisation of Bhasan Char as a substitute camp amounts to arbitrary deprivation of liberty of person under Article 9(1) ICCPR.
3.6. COVID-19
On 11 March 2020, the World Health Organisation declared COVID-19 as a global pandemic.182 The known COVID-19 cases in the refugee camps are relatively low, however, it is more than likely that these low numbers are due to the negligible number of tests administered.183 In many states it is mandatory to quarantine if infected or if there is a
substantial reason to fear that you are infected.184 Be that as it may, it is a moot point whether
the restriction of movement of the Rohingyas is justified based on COVID-19. Primarily, the question arises whether the restriction of movement is compatible with the principle of proportionality.185
Confining the Rohingyas to the designated camps puts them more at risk due to overcrowding,186 and limited access to health facilities or hygiene items.187 Leaving the designated areas in search of appropriate healthcare is nearly impossible due to the construction of barbed-wire fences,188 and police checkpoints.189 The GoB’s reason to protect its citizens
180 H. Beech (n 176); HRW ‘Bangladesh: Halt Rohingya Relocations to Remote Island. Transfers Need Independent Assessment, Refugees’ Informed Consent’ 3 December 2020 <https://www.hrw.org/news/2020/12/03/bangladesh-halt-rohingya-relocations-remote-island> 19 December 2020; V. Thoopkrajae, ‘Bangladesh moves more Rohingyas to remote island despite rights concerns’ The
Guardian (London, 28 December 2020) < https://www.theguardian.com/global-development/2020/dec/28/bangladesh-moves-more-rohingyas-to-remote-island-despite-rights-concerns> accessed 2 January 2021.
181 V. Thoopkrajae (n 180).
182 D.G. McNeill Jr, ‘Coronavirus Has Become a Pandemic W.H.O. Says’ The New York Times (New York, 11 March 2020) <https://www.nytimes.com/2020/03/11/health/coronavirus-pandemic-who.html> accessed 12 October 2020.
183 Inter Sector Coordination Group and others ‘In the Shadows of the Pandemic: The Gendered Impact of
COVID-19 On Rohingya and Host Communities’ 14 October 2020
<https://reliefweb.int/sites/reliefweb.int/files/resources/in_the_shadows_of_the_pandemic_gendered_impact_of_ covid19_on_rohingya_and_host_communities_october2020.pdf> accessed 19 December 2020, 4.
184 See e.g., China and South Korea adopted strict quarantine measures, Z. Wang and others, ‘Active Quarantine Measures are the Primary Means to Reduce the Fatality Rate of COVID-19’ (2020) Bulletin of the World Health
Organisation <www.who.int/bulletin/online_first/20-255844.pdf> accessed 12 October 2020, 7. 185 UNHR Committee (n 28) [14]-[15].
186 Inter Sector Coordination Group (n 183) 4; UNHCR ‘Amid coronavirus, a Rohingya Refugee Reflects on Camp Life under Lockdown’ 21 July 2020 < www.unhcr.org/asia/news/stories/2020/7/5f16b01a4/amid-coronavirus-a-rohingya-refugee-reflects-on-camp-life-under-lockdown.html> accessed 12 October 2020.
187 Inter Sector Coordination Group (n 183) 4 and 10.
188 Fortify Rights ‘Bangladesh: Protect Rohingya Refugees and Host Communities from Coronavirus’ 16 March 2020 <www.fortifyrights.org/bgd-inv-2020-03-16/> accessed 12 October 2020.
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against possible infections is understandable as more countries have introduced movement restrictions.190 In my view, however, the Rohingyas are unnecessarily put at risk and discriminated by the current measures. Due to the closed camps the measure is no longer proportional, as it hinders access to appropriate healthcare. Moreover, although the nationals of Bangladesh are strongly advised to stay at home,191 it is not made physically impossible for them to go out. Restricting freedom of movement of the Rohingyas may be necessary to protect public health under Article 12(3) ICCPR, provided it is implemented in the same way as for the citizens of Bangladesh. However, the detention is disproportional.
As briefly mentioned, Article 4 ICCPR provides a more broad and radical limitation ground in a state of emergency.192 COVID-19 could serve as a reason for a state of emergency.193 However, one of the preconditions is that the government must officially declare a state of emergency.194 In March 2020 three Bangladeshi Supreme Court lawyers requested
the President to declare a state of emergency.195 In this context, the government has
implemented laws that seem to indicate a state of emergency.196 Be that as it may, the GoB has
not officially declared a state of emergency.197 Therefore, Article 4 ICCPR is not applicable.
190 See e.g., Z. Wang (n 184).
191 J.D. Hamadani and others, ‘Immediate impact of stay-at-home orders to control COVID-19 transmission on socioeconomic conditions, food insecurity, mental health, and intimate partner violence in Bangladeshi woman and their families: an interrupted time series’ (2020) 8.11 The Lancet 1380, 1380.
192 ICCPR (n 25) Article 4.
193 OHCHR ‘Emergency Measures and COVID-19: Guidance’ 27 April 2020 <www.ohchr.org/Documents/Events/EmergencyMeasures_COVID19.pdf> accessed 12 October 2020.
194 P.M. Taylor 110-112 (n 127).
195 M. Rahman, ‘SC Lawyers to president: Declare state of emergency over Covid-19’ DhakaTribune (Dhaka, 19 March 2020) < https://www.dhakatribune.com/bangladesh/2020/03/19/sc-lawyers-to-president-declare-state-of-emergency-over-covid-19> accessed 20 December 2020.
196 R. Hoque, ‘Bangladesh’s Unofficial Emergency: Managing the COVID-19 Crisis by Notifications’ (6 May 2020) Verfassungsblog < https://verfassungsblog.de/bangladeshs-unofficial-emergency-managing-the-covid-19-crisis-by-notifications/> accessed 20 December 2020.
