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Only Bilateral Repatriation is not Part of the Solution


By Aman Ullah

The much-awaited Rohingya repatriation is set to begin on August 22, around 10 months after the first attempt failed as the refugees didn’t choose to go back.

A list of 3,450 Rohingyas, who have been cleared by the Myanmar government for return, was shared with the UN Refugee Agency (UNHCR) in Bangladesh earlier this month so that the agency could assist in checking whether the refugees wished to return voluntarily.

The first attempt of Rohingya repatriation was made on November 15, 2018, a year after Bangladesh and Myanmar signed a bilateral repatriation deal following the influx of nearly 750,000 Rohingya since August 25, 2017.

On November 23, 2017, Bangladesh hastily signed the deal with Myanmar in the first place and again on January 16. Though it is international crisis and UN has a mandatory role to find solution to such problem, no international organizations were involved in this deal.

The deal was not properly made and the refugee representatives were not allowed to participate. Even their demands had not been considered. The MOU provided for involvement of UNHCR on the Bangladesh side in the repatriation process.

The fate of the Rohingya repatriation deal was bound to falter from the beginning.

The repatriation was scheduled to start from January 23 as per the latest arrangement signed with Naypyitaw on January 16, but it did not start as officials pointed out incomplete process and a lot more need to be done to ensure safe return on voluntary basis. Bangladesh official said it has been delayed but virtually none can say when the process will complete; because the agreement with Myanmar can’t deliver the much needed guarantee in absence of guarantee for safety.

So the repatriation did not start on the stipulated date, but Myanmar government blamed Bangladesh for failing to start the repatriation. It said they have all preparations to receive the refugees; they have set up rehabilitation centers but it is Bangladesh government failed.

The fact is that despite the hurriedly signed agreement, Rohingyas are not willing to return to face the same persecution and the international community is equally supportive to Rohingyas denial to move to uncertain future once gains. Many of them returned to Rakhine state on earlier occasions only to be killed or flee again to Bangladesh to escape from the ethnic cleansing.

In June 2018, Myanmar signed a tripartite deal with the UNDP and UNHCR, allowing the agencies to undertake assessment work and propose and implement community-based projects to create conditions conducive to Rohingya repatriation.

The UN has maintained many times that it does not believe the current situation is ready for large-scale repatriation.

Many refugees said they were happy to know that Myanmar cleared the names of 3,450 Rohingyas. However, they still have doubts about their safety in Rakhine. They said they are always ready to return to their houses. But the Myanmar government will have to fulfill Rohingyas’ demands.

They want strong undertaking now from the Myanmar government and the international community about  the  restoration of their citizenship, right to free movement and access to health, education , livelihood and the  most  important  thing-  their  security and safety in   homeland.

This is not the first time that Rohingya had to flee into Bangladesh but it was occurred at several occasions since the late eighteenth century. Thousands of Rohingya fled to what is now Bangladesh in four main periods: the late 1700s and early 1800s and the 1940s.  The most recently exodus were in 1978 and 1991- 1992 that were after emergence of Bangladesh.  Both time the Bangladesh Government repatriated through bilateral agreements.

The 1970s Exodus

Shortly after General Ne Win and his Burma Socialist Programme Party (BSPP) seized power in 1962, the government began to dissolve Rohingya social and political organizations. In 1977, Burma began registering citizens and screened out ‘foreigners,’ primarily to target the Rohingya. The Rohingya alleged that the Burmese military used forced evictions and widespread rapes and murders against the Rohingya. By May 1978, approximately 200,000 Rohingya refugees had entered Bangladesh and settled into 13 U.N. refugee camps near the border. The Burmese authorities publicly claimed that the fleeing refugees showed the Rohingya’s illegal residence in Burma. But Bangladesh urged Burma to accept the refugees back, and the U.N. used economic carrots and sticks to encourage Burma to agree.

The figures on the number of refugees presented by Bangladesh and Burma varied considerably. The Bangladesh government claimed 252,000 persons sought refuge in Bangladesh, while the Burmese sources stated that 143,900 persons ‘absconded to Bangladesh in order to escape the Nagmin Operation’.

However, in the negotiations conducted between Bangladesh and Burma during June and July 1978, an agreement was finally reached on the repatriation of refugees to Burma. The operation commenced on 31st August 1978 and ended on 29th December 1979 and involved repatriation of a total of 187,250 refugees to Arakan.

As with  that agreement the Government of the Socialist Republic of the Union of Burma agrees to the repatriation at the earliest of the lawful residents of Burma who are now sheltered in the camps in Bangladesh on the presentation of Burmese National Registration Cards along with the members of their families …. This constitutes evidence that in 1978, Burma agreed that the Rohingya refugees, most of whose families at one time had national registration cards or other documents, were by and large “lawful residents of Burma.”

However this bilateral solution did not solve the problem and end the exodus to occur again. There was another exodus in 1990s.

The 1990s Exodus

Between December 1991 and March 1992, a total of 250, 877 Rohingya Muslims from Burma’s Arakan state fled to Bangladesh. At the time the refugees reported summary killings, rape, forced labor, forced portering and religious persecution by the Burmese army which had forced them leave their homes. Faced with this new influx of refugees, the Bangladesh government announced that it would not countenance any local integration and that the Rohingya would have to return home. Bangladesh was not then, and is still not, a signatory to either the 1951 U.N. Convention on the Status of Refugees or its 1967 Protocol. The Bangladesh government granted temporary asylum to the refugees and called on the UNHCR to assist in the provision of humanitarian aid.

Although all of the Rohingya who arrived during that period, clearly fulfill the international legal definition of a refugee s someone has ‘a well-founded fear of persecution’ in their homeland, that were being treated as ‘second class refugees’ in Bangladesh camps by the UNHCR.

In April 28, 1992, the governments of Burma and Bangladesh signed a bilateral Memorandum of Understanding (MOU), and the SLORC agreed to accept the return of all refugees that could establish a “bona fide residence” in Burma and that the repatriation would be safe and voluntary.

According to the MOU Myanmar agreed to take measures that would halt the outflow of Myanmar residents to Bangladesh and to accept after scrutiny all ‘those carrying Myanmar identity cards’, ‘those able to present other documents issued by relevant Myanmar authorities’ and ‘all those able to furnish evidence of their residence in Myanmar’. An important lacuna in the Memorandum is the role of the UNHCR – While it was agreed that the Government of Bangladesh (GOB) would fully associate the representatives of the UNHCR to assist the process of safety and voluntary repatriation, the Government of Myanmar (GOM) agreed that ‘the services of the UNHCR could be drawn upon as needed at an appropriate time’.

There in that MOU contained no provisions for impartial screening of the refugees before they went back or for monitoring their well-being afterwards. The agreement was not properly made and the refugee representatives were not allowed to participate. Even their demands had not been considered. The MOU provided for involvement of UNHCR on the Bangladesh side in the repatriation process. The MOU was essential to enable the UNHCR to fulfill its protection mandate and ensure that the refugees were returned voluntarily in conditions of safety and dignity. Thus, it failed to assign any role to UNHCR in Myanmar. Another important limitation of the Memorandum was that it failed to specify that all refugees, without exception, would be taken back.

Repatriations started in September 1992 and exercise to the end of 1993, UNHCR was not present in Burma and had no agreement with the Burmese authorities about providing assistance to refugees to return.  During these period about 50,000 refugees were repatriated most of them were involuntarily and it took over a year to receive any assistance from the UNHCR.

The Bangladesh government’s intransigence to accord the UNHCR its due role in the verification of the voluntary process of repatriation as agreed upon early October 1992, and to continue to coerce refugees to repatriate, ultimately led the agency to withdraw from the repatriation programme on December 22, 1992. This form of repatriation also came under criticism from the US Department of State which viewed it as “coerced repatriations”.

On May 1993, UNHCR and Bangladesh signed a Memorandum of Understanding (MOU) and the MOU   provided GOB to allow “free access to officials of the UNHCR to independent interview of refugees in transit camps… to determine the voluntary character of their decision to return” and “for conducting independent interviews with prospective returnees for certifying the voluntary nature of the repatriation”. It further commits the Bangladesh government that “no refugees…will be coerced into leaving against his/her will”. In addition the Memorandum provided UNHCR to have free access to and presence in all refugees camps at day time. An important provision of the Memorandum is that the UNHCR undertook to carry “promotional activities to motivate the refugees to return home once international presence for observing reasonable conditions of safety for the returnee is established in Myanmar in line with the Agreement of 28th April 1992 between the GOB and the Myanmar”.

A grave limitation of the Memorandum was that it did not clearly spell out that repatriation would be promoted only when an appreciable improvement in the conditions had occurred and the safety of the refugees could be assured. This issue became a major bone of contention between the aid agencies and human/refugee rights groups and the UNHCR on the one hand, and Bangladesh government, on the other, in the later phases of repatriation.

Another important development during this period was the signing of an MOU between Myanmar’s SLORC authorities and the UNHCR on 5 November 1993 to facilitate the voluntary return and to carry out the voluntary repatriation and reintegration of Myanmar residents from Rakhine State who are in UNHCR-assisted camps in Bangladesh. The GOM assured that “the returnees will be allowed to return to their respective places of origin” and “(a)fter necessary verifications … will, with the assistance of UNHCR, issue to all returnees the appropriate identification papers”. The Myanmar authorities also committed that the “Returnees will enjoy the same freedom of movement as all other nationals in the Rakhine State, in conformity with the existing laws and regulations”. Among other things the GOM ensured UNHCR access to all returnees in the Rakhine State in order to enable them discharge their responsibilities.

The signing of the MOU with Myanmar by the UNHCR completed the triad that was felt to be necessary to mount a major repatriation initiative. Accordingly on 19 December 1993 an Operational Plan for mass repatriation was presented by the UNHCR. The objective of the plan was to facilitate voluntary repatriation of approximately 190,000 refugees at the rate of 15-18,000 refugees per month (1,500 every other day). As part of the Operational Plan it was decided to promote confidence among refugees, governments and the NGOs.

Although preparations were being made principally on the GOM-UNHCR MOU, there was no convincing evidence about the situation of the 50,000 refugees who had by then returned to Myanmar prior to the beginning of mass repatriation.

The UNHCR in the first stage followed the standard repatriation procedures in line with its Guidelines on Voluntary Repatriation. However, since July 1994, the UNHCR shift in policy of UNHCR from information sessions to promotion sessions and from private interviewing in transit camps to massive registrations in all camps. This has been officially attributed to the situation in Myanmar being “conducive” and “refugees had shown to be interested to return to Myanmar as evidenced by the large scale interviews conducted in Kutupalong recently”.

This change in policy may have major ramification over the very concept of voluntariness of repatriation. One of the key criteria for voluntary repatriations, as defined by UNHCR, is that refugees have access to objective information about the situation in the country of origin, so that they are able to make an informed choice.

UNHCR’s policy of promoting voluntary repatriation has become one of the contentious issues. UNHCR has actively promoted voluntary repatriation before a substantive change of circumstances in the country of origin had taken place. Here the question arises when can UNHCR get itself engaged in active promotion of repatriation? The 1951 Convention and the 1967 Protocol did not specify under what circumstances UNHCR can promote repatriation.

The basic foundations of refugee protection is that individuals fleeing the country of origin as a result of risk to life and freedom (persecution and/or fear of persecution) due to political, religious belief, and/or membership of social groups (Art 1), should be given asylum. Thus, under no circumstance such individuals should be returned to their country of origin against their wishes (Art 33). However, Article 1.C.5 clearly indicates that UNHCR can apply cessation clause to withdraw refugee status if there is fundamental change of circumstances whereby there no longer exists risk to life and/or freedom of those who fled. Therefore, one can only conclude that UNHCR, in principle, can promote voluntary repatriation if and when it believes that risk to life and/or freedom no longer exists. Thus one can say that if there is a partial change and/or improvement of circumstances in the country of origin, refugees should not be encouraged on group basis. This is important considering the subjective and objective elements of persecution as defined in UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Re. Para 38-45).

An important consideration behind the policy shift of UNHCR has been its new presence in Myanmar and particularly in Arakan from the first quarter of 1994. Such presence has been argued as a key to ensure protection to returnees. The protection of the returnees has been the most important question that has been faced by the UNHCR. Given the fact that very little substantive progress has been made in terms of political and human rights situation in Myanmar and SLORC regime is in effective control, and the military dominated IMPD over Arakan, any possibility for an improvement or deterioration in the situation rests squarely on the wishes and policies of those in authority. In the absence of any move towards a democratic, accountable and transparent institutionalization of the administrative processes in Myanmar the regime’s claim to respect its commitments would always remain suspect.

The US Department of State in its 1994 Report on Status of Human Rights in Myanmar suggests that the Myanmar authorities “took only limited steps to correct long standing serious human rights violations”. The Report confirmed the continued practice of forced labour along with a policy of forced resettlement of civilians by the regime, which is a gross infringement of human rights. Likewise an US official termed the Yangon regime “one of the world’s worst violators of human rights (Hubbard, 1994). In its 1994 report entitled ‘Myanmar: Hunan Rights Still Denied’ the Amnesty International stated that so far “SLORC has failed to make any real progress or sincere attempts to address the issues… and to ensure that its citizens are able to peacefully exercise their rights of freedom of expression and association (1994).

By December 1998, over 229,000 refugees had officially returned, leaving in further about 22, 000 refugees in Bangladesh awaiting repatriation. But the story of Rohingyas was not over; the cycle of exodus has not ended. Fresh batches of refugees have entered Bangladesh since 1996. The new arrivals reported that forced laour, arbitrary taxation and the confiscation of Muslim properties continuing in Arakan. These abuses are part of systematic discrimination against Rohingyas, and amount to persecution according to criteria established by the UNHCR. There are 33,000 registered Rohingya refugees living in Cox’s Bazar and another three hundred thousand  unregistered ones in the same and adjourning districts.

In late December, 13 Nobel Laureates including Professor Muhammad Yunus and 10 global leaders wrote an open letter to the President of the United Nations Security Council (UNSC) and its members decrying the Rohingya carnage in Myanmar as “amounting to ethnic cleansing”, that the crisis has “the potential for genocide” and that it “has all the hallmarks of recent past tragedies – Rwanda, Darfur, Bosnia, Kosovo”. The letter warned that “If we fail to take action, people may starve to death if they are not killed with bullets.”

Criticising Aung San Suu Kyi, Myanmar’s de facto leader, the letter stressed that, “Despite repeated appeals to Daw Aung San Suu Kyi we are frustrated that she has not taken any initiative to ensure full and equal citizenship rights of the Rohingyas” and as a result, “We urge the United Nations to do everything possible to encourage the Government of Myanmar to lift all restrictions on humanitarian aid, so that people receive emergency assistance… we urge the members of UN Security Council to put this crisis on Security Council’s agenda as a matter of urgency, and to call upon the Secretary-General to visit Myanmar in the coming weeks as a priority.”

Indeed, the letter, a much needed step in the right direction, is a reminder that ethics and morality that have been more prominent by their absence than presence in recent times have not completely deserted us and that at a time where most governments have failed to stand up for humanity, the letter has internationalized the Rohingya tragedy.

For a permanent solution to the Rohingya question, we have to dig deep. Indeed, given that Myanmar law has disallowed citizenship to the Rohingyas who have been living in Rakhine state since the eighth century, the lack of citizenship itself is at the root of the Rohingya crisis. The Myanmar Buddhists are not particularly welcoming to Muslim Rohingyas and Aung San Suu Kyi herself is somewhat apathetic towards Rohingyas. This highlights the extent of political and racist alienation the Rohingyas face vis-à-vis the state as well as the society; thus a patchwork solution is no solution. There would be needed a long lasting and sustainable solution that never occurred again.

The persecution of the Rohingya community in Myanmar is a well documented violation of basic human rights of a whole community, with elements of ethnic cleansing and genocide. Moreover it is a crisis that has lasted over half a century with no end in sight. The present approach of Myanmar and Bangladesh to a bilateral means may not be a part of solution and it will be a kind of short time remedy. It will not end the Rohingya exodus rather it will occurred again and again.

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