Md. Razidur Rahaman

1. "Protection of the Rohingya refugees in
Bangladesh : Non-Refoulement and the
accountability of Bangladesh under
International law“
By- Md. Razidur Rahaman

2. Introduction
• Total population of Myanmar is around 55 million of
which 3.5 millions are Rohingyas (including both at
home and the places of refugee) of Arakan.
• there are around one hundred and forty (140) ethnic
races and Rohingya is one of them.
• Rohingyas are the people with distinct culture and
civilization of their own. Their ancestry is trace to
Arabs, Moors, Pathans, Moghuls, Bengalis and some
Indo-Mongoloid people.

3. • They settled in Arakan in 7th century AD. They are
ethnically also related to the Bengali people living in
neighbouring country Bangladesh's Chittagong
district.
• Rohingyas were systematically deprived of their
political rights after the military take over the
country. The military power adopted a new, most
controversial and discriminatory citizenship law in
1982. In the 1982 citizenship law declared that the
Rohingyas are as "Non-National" or "foreign
residents“.

4. • The military power insisted to the Rohingyas to de-
Islamization. They also did the "physical extermination
through genocide and ethnic cleansing of Rohingya
Muslims of Arakan and cultural assimilation of Muslims
living in other parts of Burma“.
• The main objective of the military Junta was to turn
strategic Muslim Arakan into a Burmanised Buddhist
region by reducing the Muslims.
• The Rohingya Muslims are now facing genocidal
campaign by the Rakhaine terrorists.
• According to the Burma Campaign UK, “There is a
reliable body of evidence pointing to acts constituting a
widespread or systematic attack against the Rohingya
civilian population….These appear to satisfy the
requirements under international criminal law for the
perpetration of crimes against humanity.

5. • Arbitrary arrests, torture, custodial killings,
rape, forced marriage, dishonouring of
women, restriction on the socio-cultural and
religious activities of the Rohingyas is very
common in Myanmar.
• As a result of this kind of physical
extermination, ethnic cleansing operation,
torture etc; the Rohingyas are started to cross
the international boarder and millions of
Rohingyas has taken the refugee status in
many countries including Bangladesh, India,
Pakistan etc.

6. Refugee status of Rohingyas under
International Refugee Law
• The 1951 convention "is both a status and rights-based
instrument and is underpinned by a number of
fundamental principles, most notably non-
discrimination, non-penalization and non-refoulement
• According to the 1951 Refugee Convention, a refugee is
a person who flees to a foreign country or power to
escape danger or persecution "owing to well-founded
fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or
political opinion, is outside the country of his
nationality

7. • Mainly two system follows to Refugee Status
determination:" Subjective test" and Objective
test".
• Rohingyas must be established the " fear of
persecution" which called the subjective test
and also be established the fear is well
founded which called the objective test.
• In case of Rohingya issue, the elements of
Refugee are exists that is well founded fear of
persecution on the basis of religion.

8. Present Situation of the Rohingya Refugees
in Bangladesh
• According to the UNHCR, total number of the
Rohingya Refugees in Bangladesh is-200,000
• Bangladesh claims 300,000-500,000
• According to the Arakan Rohingya National
Organisation(ARNO) the number is 600,000
• A large number of "unregistered Rohingyas
are not recognized as refugees and are often
labelled economic or illegal migrants

9. • Two Rohingya refugee camp is there which
housing 26,317 refugees till may 2007 without
freedom of movement, permission to work or
access to education.
• Rape is also prevalent both within and outside
the refugee camps with Majees ( unelected
refugee leaders), local villagers and police as
the most common perpetrators.
• Polygamy is practiced in the camps, resulting
in a high level of female heads of households
who are vulnerable to sexual exploitation and
abuse

10. • Food shortage and attendant malnutrition also
there in the camps.
• Health care is the another problem in the
refugee camps. There is no sufficient medical
stuff and also a serious shortage of female
health care stuff. The harassment of the women
refugees by the male health stuff is reported.
• There is a prohibition of the refugee children
from accessing formal education and Refugees
do not have the right to own moveable or
immovable property.

11. • Resettlement of the Rohingya refugees is absence
because Bangladesh is not interested to resettle
the Rohingya Refugees to fear of increase of
Rohingya refugees.
• Bangladesh only prefer the voluntary repatriation
as a durable solution.
• Since 2012 another major problem facing by the
Rohingya refugees in Bangladesh border that is
the refoulement.
• Border guard of Bangladesh is not allowing the
Rohingyas to enter into Bangladesh and "push
back" them to Myanmar. But the problem is if they
go back to Myanmar there is mere possibility to
fear of persecution.

12. Principle of Non-Refoulement as a
Peremptory norm of International Law
• Non-Refoulement is considered as the most
fundamental principle of international refugee
law.
• Non-refoulement shall be considered as
peremptory norm. In the Rohingya issue,
Bangladesh forcefully refoule the Rohingyas to
Myanmar where is the high possibility of
persecution or crime against humanity against
the Rohingyas by the Myanmar security forces or
its citizens.

13. • According to Sir Elihu Lauterpacht and Daniel
Bethlehem, Non-refoulement is a concept which
prohibits States from returning a refugee or
asylum seeker to territories where there is a risk
that his/her life or freedom would be threatened
on account of race, religion, nationality,
membership of a particular social group, or
political opinion.
• Non-Refoulement is a non-derrogable right of the
refugees. It's ensured by the 1951 refugee
Convention. Article 42(1) of the 1951 refugee
convention specifically provides that the States
can not make reservation on article 33 which
deals with the principle of Non-Refoulement.

14. • Article III(5) of the Cartagena Declaration 1984,
provides that the principle of non-refoulement as
a "cornerstone of the international protection of
refugees” and stated that "this principle is
imperative in regard to refugees and in the
present state of international law should be
acknowledged as jus cogens.”
• General Conclusion of the Executive Committee
on the International Protection of the refugee
"reaffirmed the importance of the basic
principles of international protection and in
particular the principle of non-refoulement which
was progressively acquiring the character of a
peremptory rule of international law"

15. • Article 53 of the Vienna Convention on the
Law of the Treaties 1969 states that, a treaty is
void if it conflicts with peremptory norm.
Whether a state is a party to a convention or
not that is immaterial in case of the
peremptory norm.

16. Non-Refoulement and Obligation of
Bangladesh Under International Law
• In Bangladesh, there is no direct law regarding the
refugee issue. The constitution of Bangladesh contains
some general provision to respect the international law
and to promote international peace.
• Article 25 of the constitution of Bangladesh provides
that, the obligation ‘base its international relations on
the principles and respect for international law and the
principles enunciated in the UN Charter.
• Article 32 of the Constitution stated that, "No person
shall be deprived of life or personal liberty save in
accordance with law".

17. • Article 18(1) of the Constitution also provides that,
the primary duty of the state is rising of the level
of nutrition and the improvement of public health.
So, constitutionally Bangladesh can not deny to
protect the rights of the Rohingya Refugees in the
camp by the virtue of the article 18(1), 32 of the
constitution.
• Bangladesh is not the signatory of the 1951
Refugee Convention and its Additional Protocol
1967. So, Bangladesh has no obligation under this
Convention and Protocol.
• But Bangladesh can not deny its obligation under
various international human rights convention and
under various treaties.

18. • Article 14(1) of the UDHR provides that, "Everyone
has the right to seek and to enjoy in other
countries asylum from persecution.”
• Article 6(1) of the ICCPR ensures that every human
being has the inherent right to life and the states
shall be protected this right by law. No one shall be
arbitrarily deprived of his life.
• Article 7 of the ICCPR also provides that "No one
shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment." As a
member of the ICCPR Bangladesh should respect
the rules of the ICCPR Article 6(1) of the
International Covenant of the Civil and Political
Rights (ICCPR)

19. • Principle-5 of the Principles on the Effective
Prevention and Investigation of Extra-legal,
Arbitrary and Summary Executions also provides
that " No one shall be involuntarily returned or
extradited to a country where there are substantial
grounds for believing that he or she may become a
victim of extra-legal, arbitrary or summary
execution in that country.“
• Article 3 of the Convention Against Torture
Provides that, the member states shall not "expel,
return or extradite a person to another state where
there are substantial grounds for believing that he
would be in danger of being subjected to torture."

20. • Article 22(1) of the Convention on the Rights of
the Childs provides that, “States Parties shall
take appropriate measures to ensure that a
child who is seeking refugee status or who is
considered a refugee in accordance with
applicable international or domestic law and
procedures shall......receive appropriate
protection and humanitarian assistance in the
enjoyment of applicable rights set forth in the
present Convention and in other international
human rights or humanitarian instruments to
which the said States are Parties.”

21. Conclusion
• The Rohingya refugees are most vulnerable in position in
Myanmar. They are facing the fear of persecution in
Myanmar because of their religious belief.
• Bangladesh should respect the international law and fulfil
its international obligations under various international
instruments to protect the Rohingya refugees in its territory
and its border. Bangladesh can expel Rohingyas if there is a
threat to state security and peace and also if there is an
allegation against Rohingyas under Article 1(F) of the 1951
Refugee Convention.
• Bangladesh should not refoule the Rohingyas if there is no
security threat on it or if there is no allegation against
Rohingyas under Article 1(F) of the 1951 Refugee
Convention

22. • The international community should take measures
to protect Rohingyas. Myanmar is a member of the
United Nations. Myanmar is violating the principles
of the U.N Charter by torturing and forcefully
displacing the Rohingyas from the Country.
• According to the preamble of the U.N Charter, the
member states of the United Nations determined
to "faith in fundamental human rights, in the
dignity and worth of the human person“
• The Special Rapporteurs or special bodies of the
UN Commission can intervene with the
Government concerned to prevent refugees,
asylum- seekers or internally displaced persons
from being subjected to imminent human rights
abuses or in response to allegations of the
existence of such abuses.