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September 21, 2018
In August 2017, the Myanmar military began a campaign of ethnic cleansing against the Rohingya ethnic minority. The military burned Rohingya villages in the Rakhine state and murdered thousands of civilians. As a result, over 723,000 Rohingya refugees have fled to neighboring Bangladesh in search of protection.
This campaign of ethnic cleansing is the latest in a history of Rohingya persecution in Myanmar. The Rohingya are a Muslim minority in Myanmar, a predominantly Buddhist country. The Myanmar government does not recognize the Rohingya as citizens of Myanmar and subjects them to violence, economic exclusion, limitations on travel and denial of educational and medical services. Modern state-sponsored violence against the Rohingya has been documented since at least 1942 and has caused the Rohingya to flee the country on numerous occasions.
On 6 June 2018, Myanmar signed a Memorandum of Understanding with the United Nations High Commissioner for Refugees (UNHCR) and the UN Development Program (UNDP) to create the conditions necessary for voluntary and dignified refugee returns. While few formal details have been released, this agreement will grant UNHCR and UNDP access to Rakhine where they can assess conditions and provide protection services. Additionally, Myanmar will agree to work with the UN agencies and review the recommendations of the Advisory Commission on Rakhine State to implement a sustainable solution for the Rohingya population.
The memorandum’s focus on facilitating voluntary returns reflects a primary concern with avoiding violations of international law, including non-refoulement, the principle that refugees shall not be forcibly returned to a country where they may face persecution or risk to their lives. Although Myanmar is not a signatory to either the 1951 Convention or the 1967 Protocol, certain principles codified in these laws, such as non-refoulement, are now regarded as customary norms by which the entire international community, including non-signatories like Myanmar, must abide.
Violations of non-refoulement have been a noted issue for the Rohingya in the past. During a UNHCR operation to repatriate Rohingya refugees in the 1990s and early 2000s, Bangladesh forcibly returned thousands of refugees to Myanmar who faced widespread persecution upon their return, including violence from Burmese law enforcement, forced labor and land confiscation.
Given this history, establishing the physical safety and full legal rights of the Rohingya, as well as a path to legal citizenship, are essential pre-conditions to voluntary repatriation. The right to return under conditions of “personal security and dignity” was first elaborated in the 1969 OAU Convention and 1984 Cartagena Declaration and has since formed the basis for UNHCR policy guidance on voluntary repatriation. In order to ensure safe return, UNHCR policy asserts the necessity of ensuring physical safety at all stages of a return process in which UNHCR holds the leading role and the country of origin respects international standards of human rights.
Additionally, UNCHR’s Policy Framework and Implementation Strategy regarding the return and reintegration of refugee populations highlights the need to “erode” legal and socioeconomic differentials between returnees and other members of the community, in addition to assessing and filling protection gaps, in order to enable sustainable repatriation. As a stateless community with few legal rights and subject to state-sponsored violence, the Rohingya will therefore need robust protection mechanisms and clear processes by which to access the same legal rights as Burmese citizens, including a path to citizenship.
The particular importance of a credible path to legal citizenship for the Rohingya was affirmed by the Advisory Commission on Rakhine State in its final report detailing recommendations for repatriation. Indeed, the report emphasizes that resolving the legal status of the Rohingya within Myanmar, which necessitates the revision of a 1982 citizenship law, is essential to avoiding a repeated exodus of Rohingya from the state in the future. If the Rohingya remain stateless and therefore, without legal rights, they will likely be forced to flee again.
While the memorandum offers the prospect of a truly sustainable solution, Myanmar may not fully abide by its tenets. The public recommendation of the Advisory Commission for the establishment of a clear and voluntary path to citizenship for Rohingya refugees seems a particularly difficult subject on which to be assured of Myanmar’s cooperation. For many years, successive Burmese governments have maintained that Rohingya refugees are illegal Bengali migrants and Rohingya refugees have been made stateless on this basis. Indeed, as recently as June 2018, Myanmar officials have stated their unwillingness to grant citizenship to the Rohingya despite their documented presence within Myanmar beginning in the 7th century. Therefore, it is worth questioning whether Myanmar is now actually willing to make such a concession and, thereby, truly ensure the success of repatriation efforts.
Already, it seems that doubts about Myanmar’s willingness to create conditions conducive to voluntary repatriation have, unfortunately, been validated. On 21 August 2018, Human Rights Watch issued a report that Rohingya refugees returning to Myanmar have been detained and tortured by Myanmar authorities and prosecuted on charges of crossing the Myanmar-Bangladesh border illegally. This report further alleges that returned refugees were subject to unfair trial conditions, such as a lack of legal representation and no translation of the trial into a language they could understand.
If these allegations are true, it seems that the memorandum’s future – and, therefore, any near-term chance of repatriation – is anything but assured. In order to uphold the principle of non-refoulement and accord Rohingya refugees the rights and protection to which they are entitled under the 1951 Convention Relating to the Status of Refugees because their government fails to acknowledge and protect them as citizens, making them de facto refugees, local integration and resettlement measures may need to be fully explored to provide a truly durable solution to the crisis.
As of September 2018, the Bangladeshi government opposed local integration of Rohingya refugees in Bangladesh. Bangladesh is party to neither the 1951 Convention or 1967 Protocol and there are no laws governing the protection – or legal presence – of refugees within the country. While thousands of Rohingya currently live in camps along the Bangladesh-Myanmar border, the government does not provide any path to legal residency in Bangladesh. The Bangladeshi government has stated that it does not have the capacity or resources to integrate the large numbers of refugees and has been working towards a repatriation solution since November 2017 when a framework agreement was reached.
Resettlement of Rohingya refugees has been limited over the past few decades, and resettlement programs have not included the latest refugee movement. Canada has expressed interest in resettling some Rohingya refugees within its borders, but Bangladesh has not issued the exit visas necessary for their legal departure to Canada.
Because integration and resettlement remain limited, it will be imperative for the UN and Myanmar to establish a durable and truly voluntary path to repatriation in order to end the crisis.
 Article 33, 1951 Convention Relating to the Status of Refugees.
 Protection gaps in refugee returns are typically assessed as the returns are underway. During the last protection gap assessment of Rohingya populations, UNHCR found the lack of identification documents, shortage of medical services and involvement of human traffickers in border crossings left Rohingya refugees particularly vulnerable given their lack of legal status in either Bangladesh or Myanmar.
Suggested Citation: Catherine Tyson, The Plight of the Rohingya, RefLaw (Sep. 21, 2018), http://www.rdxindia.xyz/reflaw/the-plight-of-the-rohingya/.