The small state of Bangladesh is overburdened by a migrating population of the Rohingya, thus, since 2020 they have begun sending the Rohingya people to Bhasan Char, an Island close to their coast but considered uninhabitable by experts. Bangladesh intends to shift around 1 lakh of them, though so far, thousands have been shifted. They have also with the help of Chinese and British companies built concrete establishments such as flood embankments, hospitals, Masjids etc. To what extent are these structures habitable and for how long will people actually be able to live on this Island is a big question.

Also, while the Bangladeshi Government claims that the shifting of the Rohingyas is totally voluntary, some of the sources outside and within the nation claim otherwise. This contrary view shows that there is an immediate need for transparency so that workable solutions can be discussed. This article is an attempt to analyse the acts of Bangladesh from an International Criminal Law perspective.

A case of ‘Crimes against Humanity’ against Bangladesh

Article 7 of the Rome statute provides for a list of offences which constitute ‘Crimes against Humanity.’ Also, for the sake of a more objective analysis, a simultaneous reading of the Appeals Chamber decision in Kunarac provides the following elements-

Widespread or systematic attack directed against the Rohingyas

The Tadic case suggests that the number of the victims is of immense importance when considering the aspect of ‘widespread’.[1] Further Tadic suggests that there should exist a premeditated plan. However in terms of numbers, of the approximately one million refugees living in the refugee camps at Cox’s Bazar, only a few thousands have so far been transferred to Bhasan Char which itself has been provisioned to accommodate up to a lakh people. On the point of a premeditated plan, a subsequent fact, though just an assertion, would be the fire devastation in Cox’s Bazar refugee shelter, which in March 2021 can be viewed with a suspicious lens as it may add fuel for the need to shift to Bhasan Char.

Further, for the specific offences, Article 7 of the Rome statute, in paragraph 1, provides for a list of attacks which can constitute Crimes against Humanity. Accordingly, the following attacks-

Attack by ‘deportation or forcible transfer’?

• Are the Rohingyas being transferred by expulsion or other coercive acts?

Article 7 Paragraph 2(d), emphasises on the words ‘expulsion’ and ‘coercive acts’ as the means of executing the attack. In the case of the Rohingyas, while the Bangladeshi government claims that they are being transferred on a voluntary basis, it is necessary to determine for sure whether it is actually on a voluntary basis or not, especially when there are countering claims of the voluntary nature of the transfer.

• Are the Rohingyas lawfully present in Bangladesh?

The requirement of a lawful presence in the state, poses a challenge when refugees are involved, as the state may at all such instances take the defence of ‘unlawful presence’. While the Rohingyas are not lawfully staying in Bangladesh, they have a right of non-refoulement. This is despite Bangladesh not having acceded to any international instrument, as ‘non-refoulement’ is majorly considered as a part of customary international law.

However, Bhasan Char is the territory of Bangladesh itself, thus the transfer of refugees is merely a relocation. Yet however, the crime conceived in Article 7 is that of ‘deportation or forcible transfer’ and both the terms do not hold the same meaning. While ‘deportation’ is the transfer of persons across borders, ‘forcible transfer’ is within the border of the same state itself. This difference was noted by the ICTY in the Stakic case which based its reasoning on the fact that the crime of ‘deportation’ saw its roots in ‘war crimes’ while ‘forcible transfer’ is a product of ‘crimes against humanity’.

Also, if we look at the situation from a purely refugee perspective, the intention behind refoulement principles is to prevent the refugees from being put back in a place where they would be threatened. Hence, if the stay at Bhasan Char can be proven to be persecution or a human rights concern, then the charge of ‘Crimes against Humanity’ may be applicable.

Attack by Persecution

• Is there any deprivation of fundamental (international) rights?

Bangladesh has often seen the creation of such islands post monsoon seasons due to the sedimentation occurring over the Ganges-Brahmaputra-Meghna river system. Thus, these landforms pose the greatest risk to human life by being flooded or submerged underwater during monsoons, making the location fragile.

Some ‘Human Rights Watch’ authorities noted that the Refugees “believed – falsely – that they would receive money or gain Bangladeshi citizenship if they volunteered to move to Bhasan Char.” Moreover, the Rohingyas once shifted to Bhasan Char are prohibited to leave the Island, unless it is to go back to their natural homeland, Myanmar. So, the facts show that the Rohingyas are basically being restricted from their freedom of movement.

It must be noted that Bangladesh, having ratified the ICCPR, is bound by Articles 9 and 10, which provide that, “. . . No one shall be deprived of his liberty. . . All persons deprived of their liberty shall be treated with humanity and with respect,” and in the instant facts, the Rohingyas are deprived of their liberty despite the safety concerns related to the stay at Bhasan Char.

• Is the deprivation merely because they are Rohingyas?

Bangladesh is a host to refugees of 70 different nationalities. But from what the reports show so far, the plan is to shift only the ‘Rohingyas,’ the greatest proportion of the refugee population.

Thus, by and large, it can be said that a case of persecution and forced transfer may also arise for charging the Bangladeshi authorities.

A case ‘for’ Bangladesh

A large population is undoubtedly a huge burden on the resources of a nation, especially for a territorially small nation like Bangladesh, which is already burdened by its own rising population. In such circumstances, the influx of Rohingyas proves to be extremely burdensome. Moreover, the currently occupied camps, where the refugees are based, are extremely congested and could pose security and health concerns for the people living there.

Also, Joblessness is common among the Rohingyas in Bangladesh and that is a major reason for a push towards extremism, especially among the Youth. Resource scarcity and safety concerns are the basis on which Prime Minister Sheikh Hasina justified the shifting of the Rohingyas to Bhasan Char at the UN General Assembly.

Prime Minister Hasina while addressing the UN General Assembly noted that Bangladesh is suffering a refugee crisis which is Myanmar’s doing. And rightly so, while the crisis finds its roots in Myanmar, the focus has now shifted onto Bangladesh and the latest events have made the latter the ‘bad guy’ in the Rohingya crisis.

Conclusion

While Bangladesh has just reasons for the Bhasan Char shift, shifting Rohingyas to an unstable land with restricted freedom of movement is not humane. In the early 2000s, a similar situation was seen in Nauru, which had agreed to settle asylum seekers to Australia, at detention centres. While Australia seemed to be convinced by its methods, people there have attempted numerous suicide attempts on account of the poor mental health induced by the life of detention. Such a fate for the Rohingyas in the near future would not be surprising if the international community does not take mitigating steps immediately, especially by targeting the original offender- Myanmar.

[1]Prosecutor v. Tadic, Case No. IT-94-1-7.

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ABOUT THE AUTHOR

Rhea E. S. Abraham

Rhea is a law graduate from NLU Nagpur with an interest in world affairs.