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Research

On
Rohingya

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Chapter One
Introduction

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1.1 Background of the Study
The Rohingya are an ethnic, religious and linguistic minority in Burma/Myanmar inhabiting
mostly North Arakan bordering Bangladesh. Living over 7.5 million people inside and outside.
Due to widespread persecution, prejudice and ethnic cleansing inside Myanmar, nearly a half
of the population (over 1.5 million) have been compelled to live in exile, particularly in
Bangladesh, Pakistan, Saudi Arabia, U.A.E., Malaysia, and Thailand.
The Burmese military regime has declared the Rohingya non-nationals or non-citizens. The
Burma Citizenship Law of 1982, which violates several fundamental principles of the
customary international law, has reduced them to the status of Stateless.
The Rohingya are recognized neither as citizens nor as foreigners. The Burmese government
also objects to them being described as stateless persons but appears to have created a special
category: Myanmar residents, which is not a legal status. However, on more than one
occasion, government officials have described them as illegal immigrants from Bangladesh.
In 1998, in a letter to UNHCR, Burmas then Prime Minister General Khin Nyunt wrote:
These people are not originally from Myanmar but have illegally migrated to Myanmar
because of population pressures in their own country. And a February 2009 article in the
government-owned New Light of Myanmar newspaper stated that In Myanmar there is no
national race by the name of Rohinja. Deprivation of citizenship has served as a key strategy
to justify arbitrary treatment and discriminatory policies against the Rohingya. Severe
restrictions on Rohingyas movements are increasingly applied. Rohingyas are banned from
employment in the civil service, including in the education and health sectors. In 1994, the
authorities stopped issuing Rohingya children with birth certificates. By the late 1990s, official
marriage authorizations were made mandatory. Infringement of these stringent rules can result
in long prison sentences. Other coercive measures such as forced labour, arbitrary taxation and
confiscation of land, also practiced elsewhere in Burma, are imposed on the Rohingya
population in a disproportionate manner1.

1.2 Statement of the Problem


The Rohingyas are virtually confined to their village tracts. They need to apply for a travel pass
even to visit a neighboring village and they have to pay for the pass. Travel is strictly
restricted to North Arakan. Even Sittwe, the state capital, has been declared off-limits for them.
Their lack of mobility has devastating consequences, limiting their access to markets,
employment opportunities, health facilities and higher education. Those who overstay the time
allowed by their travel pass are prevented from returning to their village as their names are
deleted from their family list. They are then obliterated administratively and compelled to leave
Burma. Some Rohingyas have been prosecuted under national security legislation for travelling
without permission. Rohingyas are also forbidden to travel to Bangladesh, although in practice
obtaining a travel pass to a border village and then crossing clandestinely into Bangladesh has
proved easier than reaching Sittwe. But, similarly, those caught doing so could face a jail
sentence there for illegal entry. Many people, including patients seeking medical treatment in
Bangladesh, were unable to return home when, during their absence, their names were
cancelled on their family list. Once outside Burma, Rohingyas are systematically denied the
right to return to their country2.

1
100 Hurt in RefugeePolice Clash in Bangladesh. (1998, October 22). Xinhua. Retrieved
from http://www.xinhuanet.com/english1998/topnews.htm
2
Ahmed, I. (2009). The Rohingyas: From stateless to refugee. Dhaka, Bangladesh:
University of Dhaka.

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1.3 Research Questions
How can international law intervene in the Rohingya crisis?

1.4 Research Objectives


Broad Objective:
To identify the legal rights of Rohingya given by the international law commission.
Specific Objectives:
To know about the recent scenario of Rohingya in Bangladesh;
To clarify the human rights violation to the Rohingya; and
To identify the possible solutions for recent Rohingya problem.

1.5 Methodology
The current study based on analytical method. An analytical research work must have strong
reference on literature review. This research has followed different books, journals, previous
research work and similar websites to collect secondary data. These collected data have been
analyzed in MS Excel for showing the current status of Rohingyas.

Data Sources:
Data have been collected from various secondary data sources like relevant literature review,
books, journals, articles, previous research work and different websites.

1.6 Research Challenges


A significant research challenge has been the fast evolving situation, driven by political
changes in Myanmar; violence against the Rohingyas since 2016-2017; and the resultant mass
flight of Rohingya refugees. The Equal Rights Trust published an emergency situation report
in June 2016 and a follow-up report in November 20173. Furthermore, the researchers
responded to the changing context by adapting the research focus and conducting additional
research.

1.7 Limitations of the Study


To make an authentic research work is a hard work. Some limitations have executed when done
this research-
Lack of data sources
Lack of previous research work
Lack of time

3
Amnesty International. (1997, September). Rohingyasthe search for safety. London,
England: Author.

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Chapter Two
Conceptual Framework & Literature
Review

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2.1 Conceptual Framework
This study takes as its conceptual framework the unified human rights perspective on equality
which emphasises the integral role of equality in the enjoyment of all human rights, and seeks
to overcome fragmentation in the field of equality law and policies. The unified human rights
perspective on equality is expressed in the Declaration of Principles on Equality, developed
and launched by the Equal Rights Trust in 2008, following consultations with 128 human rights
and equality experts from 47 countries in different regions of the world. According to Principle
1 of the Declaration:
The right to equality is the right of all human beings to be equal in
dignity, to be treated with respect and consideration and to participate
on an equal basis with others in any area of economic, social,
political, cultural or civil life. All human beings are equal before the
law and have the right to equal protection and benefit of the law.
The Declaration proclaims that the right to equality extends to guarantee equality in all areas
of human life normally regulated by law, and should be addressed holistically. This approach
recognises the interconnectedness of inequalities arising in different contexts, which makes it
necessary to take a comprehensive approach to combat manifestations of discrimination arising
in all areas of life.
The unified human rights perspective on equality is central to the Rohingya issue. In Myanmar,
the Rohingya are a stateless, ethnic, religious and linguistic minority and in other countries,
they are stateless irregular migrants, refugees and often undocumented persons. As such, they
are vulnerable to many forms of discrimination, exclusion and human rights abuse.
Another key aspect of the project is its regional focus. The long-term and widespread nature of
the Rohingya crisis means that while recognising the individual responsibility of states to
protect the human rights of all persons within their territories and subject to their jurisdictions,
a just and sustainable solution is only likely if the key states demonstrate a collective
commitment to protect the Rohingya. The regional nature of the issue presents both
opportunities and challenges. The opportunity is that if states act collectively, the burden on
each state will be eased and such an unprecedented process would serve as a blueprint for future
regional cooperation; the challenge is to address the causes of irregular migration flows and
ensure greater coordination among states and an increased willingness to protect the Rohingya4.

2.2 Relevant Review of Literature


The Rohingya
According to Equal Right Trust, Burning Homes, Sinking Lives: A situation report on the
violence against stateless Rohingya and their refoulement from Bangladesh, London, June
2012., "The Rohingya are an ethno-religious minority group from the Rakhine region, which
today is encompassed within the borders of Myanmar and is adjacent to Bangladesh. There is
an estimated population of between one and 1.5 million Rohingya in Rakhine State. Much of
the population is concentrated in the three townships of North Rakhine State Maungdaw,
Buthidaung and Rathedaung where the Rohingya are in the majority. Other smaller minority
communities of Rohingya are scattered throughout Rakhine State.8 To a large extent, Rohingya
have been contained in Rakhine State, through successive government policies. However,
small numbers of Rohingya have settled in Yangon, the capital of Myanmar, and other places
in Myanmar."

4
Barsky, R. F. (2000). Arguing and justifying: Assessing the convention refugees choice of moment, motive
and host country. Aldershot, United Kingdom: Ashgate.

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According to Human Rights Watch, the situation for Rohingya Muslims living in Myanmars
Rakhine State is quickly deteriorating. The widespread violence in Rakhine State in 2012 left
more than 240 people dead and forced 240,000 people to flee their homes, most of them
Rohingya. While the Myanmar government has persecuted the Rohingya since the military
took control in 1962, the current humanitarian crisis has left the internally displaced Rohingya
in refugee camps without access to basic human needs, such as sufficient shelter, medical
attention, safe water, and latrines. The central governments only given solution to the conflict
is to resettle this group with any country that will take them in.
Syeda Naushin Parnini, "The Crisis of the Rohingya as a Muslim Minority in Myanmar
and Bilateral Relations with Bangladesh," Journal of Muslim Minority Affairs 33, no. 2
(2013): 281 2, Academic Search Premier, EBSCO host (accessed February 7, 2014) Stated,
"The Rohingya are denied citizenship by Myanmar, which has left them without state
protection. They are not well organized and lack the necessary means to raise their issues to
the international community for support".
The United Nations has labeled the Rohingya the worlds most ignored and persecuted
minority.

Ancestral Roots
The Rohingya have historical, linguistic and cultural affiliations with the local populations of
Rakhine State, as well as with the Chittagonian people across the border in Bangladesh. The
Rohingya are Muslims. They also draw their cultural heritage from diverse Muslim populations
from the Persian and Arab world that passed through or settled around the important trading
hub along the coast of Rakhine State over the centuries.10 The Rohingya trace their ancestral
roots in the Rakhine region back several centuries since long before Myanmar came into
existence as the clearly demarcated post-colonial nation-state of today. These roots also go
back to long before racial and ethnic categories became settled in accordance with those that
are recognised in todays Myanmar. Despite this, the history of the Rohingya and their Muslim
ancestors is today largely rejected in Myanmar. The Rakhine region and its ancient historical
sites are of important cultural significance to Myanmars Buddhist populations. Historical
analyses have, thus, tended to focus primarily on the Rakhine regions Buddhist past, as
opposed to its multi-faith and multiethnic past.12 Histories of the Islamic influences in Rakhine
State have largely been viewed with suspicion in Myanmar.

Arbitrary Deprivation of Nationality


The majority of Rohingya in Myanmar today have been deprived of their nationality and are
stateless. The arbitrary deprivation of their nationality and the erosion of their legal rights has
occurred alongside the denial of their ethnic identity and history in the Rakhine region. This
process has taken place over many decades. Following Myanmars independence from Britain
in 1948, the Rohingya were largely allowed to participate in national affairs and contributed
both politically and culturally in the nation-building process alongside other citizens of
Myanmar. In 1962, Myanmar fell under military rule, which was to last 49 years. During this
period, the process of stripping the Rohingya of their identity and rights began. This process
continues in the present day. There were reports of brutalities and atrocities waged against the
Muslim population. The news spread and over 200,000 Rohingya fled the country to newly
independent neighbouring Bangladesh. Mass forced repatriation from Bangladesh followed.
The legal status of the returnees was not reinstated5.

5
Haq, A. M. (1999, July 22). Bangladesh stalls visit of Myanmar minister: Noncommittal
attitude on Rohingyas. Daily Star (Dhaka), p. 4.

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In Bangladesh, the 28,000 Rohingyas still remaining in two camps are recognized as refugees
and benefit from limited protection and assistance by UNHCR but it is estimated that up to
200,000 more live outside the camps. Bangladesh considers them as irregular migrants and
they have no access to official protection. The combination of their lack of status in Bangladesh
and their statelessness in Burma puts them at risk of indefinite detention. Several hundred
Rohingyas are currently languishing in Bangladeshi jails arrested for illegal entry. Most are
still awaiting trial, sometimes for years. Dozens have completed their sentences but remain in
jail called released prisoners as they cannot be officially released and deported, since
Burma refuses to re-admit them.3 Tens of thousands of Rohingyas have sought out
opportunities overseas, in the Middle East and increasingly in Malaysia, using Bangladesh as
a transit country. Stateless and undocumented, they have no other option than relying on unsafe
illegal migration channels, falling prey to unscrupulous smugglers and traffickers, or
undertaking risky journeys on boats.4 In Malaysia or Thailand, the Rohingyas have no access
to protection. They are regularly caught in immigration crackdowns and end up in the revolving
door of informal deportations. Since Burma would not take them back, Thailand has
occasionally deported Rohingya boat people unofficially into border areas of Burma controlled
by insurgent groups.
Malaysia usually deports them over the border into Thailand in the hands of brokers. Against
the payment of a fee, they are smuggled back into Thailand or Malaysia and those unable to
pay are sold into slavery on fishing boats or plantations. In December 2008, Thailand started
implementing a new policy of pushing back Rohingya boat people to the high seas. In at least
three separate incidents, 1,200 boat people were handed over to the Thai military on a deserted
island off the Thai coast and ill-treated before being towed out to sea on boats without an engine
and with little food andwater. After drifting for up to two weeks, three boats were finally
rescued in the Andaman and Nicobar Islands of India and two boats in Aceh province of
Indonesia. More than 300 boat people are reportedly missing, believed to have drowned. The
issuing of a TRC to Rohingyas has been praised as a first step towards citizenship. On 10
May 2008, the Rohingya were allowed to vote in the constitutional referendum but ironically
the new Constitution, which was approved, does not contain any provisions granting them
citizenship rights. There is no political will for the Rohingya to be accepted as Burmese citizens
in the foreseeable future6.

Marriage authorisations
In the late 1990s, a local order was issued in North Arakan, applying exclusively to the Muslim
population, requiring couples planning to marry to obtain official permission from the local
authorities usually the NaSaKa, Burmas Border Security Force. Marriage authorizations are
granted on the payment of fees and bribes and can take up to several years to obtain. This is
beyond the means of the poorest. This local order also prohibits any cohabitation or sexual
contact outside wedlock. It is not backed by any domestic legislation but breaching it can lead
to prosecution, punishable by up to 10 years imprisonment. In 2005, as the NaSaKa was
reshuffled following the ousting of General Khin Nyunt, marriage authorizations were
completely suspended for several months. When they restarted issuing them in late 2005,
additional conditions were attached including the stipulation that couples have to sign an
undertaking not to have more than two children. The amount of bribes and time involved in
securing a marriage permit keeps increasing year after year. The consequences have been
dramatic, particularly on women. Rohingya women who become pregnant without official
marriage authorization often resort to backstreet abortions, an illegal practice in Burma, which

6
Human Rights Watch. (1999, November 25). UNHCR country office. Dhaka, Bangladesh: Author.

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has resulted in many maternal deaths. Others register their newborn child with another legally
married couple, sometimes their own parents. Some deliver the baby secretly in Bangladesh
and abandon their baby there. Many children are reportedly unregistered. Many young couples,
unable to obtain permission to marry, flee to Bangladesh in order to live together.

Education and health care


As non-citizens, the Rohingya are excluded from government employment in health and
education and those public services are appallingly neglected in North Arakan. Schools and
clinics are mostly attended by Rakhine or Burmese staff who are unable to communicate in the
local language and who often treat Rohingyas with contempt. International humanitarian
agencies are not allowed to train Muslim health workers, not even auxiliary midwives. Some
Rohingya teach in government schools, paid with rice-paddy under a food-for-work
programme as they cannot hold an official, remunerated teachers post. Restrictions of
movement have a serious impact on access to health and education. Even in emergencies,
Rohingyas must apply for travel permission to reach the poorly equipped local hospital. Access
to better medical facilities in Sittwe hospital is denied. Referral of critically ill patients is
practically impossible. Consequently, patients who can afford it have sought medical treatment
in Bangladesh but are sometimes unable to return to their village. Likewise, there are few
secondary schools in North Arakan and pupils need travel permission to study outside their
village. The only university is in Sittwe. After 2001, most students could no longer attend
classes and had to rely on distance learning, only being allowed to travel to Sittwe to sit
examinations. Since 2005, however, even that has been prohibited. Not surprisingly, illiteracy
among the Rohingyas is high, estimated at 80%. For the Rohingya, the compounded effect of
these various forms of persecution has driven many into dire poverty and their degrading
conditions have caused mental distress, pushing them to flee across the border to Bangladesh.
The Rohingya in Bangladesh
For decades, thousands of Rohingya, an ethnic and religious minority from Myanmar, have
sought refuge in Bangladesh. Today, despite the well-known situation in their country of origin,
just 28,000 of these are recognised as prima facie refugees by the Government of Bangladesh,
and live in official camps under the supervision of UNHCR. In sharp contrast, an estimated
220,000 others struggle to survive unrecognised and largely unassisted. Despite fleeing the
very same circumstances as their counterparts in the official refugee camps, these people are
forced to live as illegal migrants, vulnerable to ill health, exploitation and abuse. The agreement
between the Government and UNHCR restricts the latter's activities to the 28,000 registered
refugees. And UNHCR, mandated to protect refugees worldwide, makes little visible protest at
the injustice of this situation7.

The majority of Rohingya in Bangladesh reside in Coax's Bazaar, an overcrowded and


resource-poor area bordering Myanmar. While thousands of self-settled Rohingya have lived
in the local community for years, they are largely perceived as a burden on already scant
resources and a threat to the local job market through the provision of cheap labour. Their
unpopularity, fuelled by the local media, makes them an easy punch ball for unscrupulous local
politicians wishing to score political points.

The Kutupalong makeshift camp


In 2009, MSF was alerted to a large number of unregistered refugees gathering in desperate
circumstances on the periphery of the UNHCR supported refugee camp at Kutupalong. When
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Aman-ud-dollah. (1999, July 17). Worrying information in government documents: 150,000 Rohingyas are
permanently residing in the Chittagong region. The Daily Janakantha (Bengali), p. 11.

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MSF made its first exploratory assessment in early March, it found over 20,000 people, 90%
of whom were severely food insecure. Malnutrition and mortality rates were past emergency
thresholds, and people had little access to safe drinking water, sanitation or medical care.

In response, MSF immediately initiated an emergency humanitarian action, treating severely


malnourished children, offering basic healthcare and improving water sources and waste
facilities. Within one month, MSF had enrolled over 1,000 malnourished children in its
therapeutic feeding programme, and treated around 4,000 under five year old children in its
out-patients department. Since then, the project has developed into a fuller basic healthcare
programme, including outpatient and inpatient care and community outreach services, in
accordance with the prevalent medical needs of people in the newly established makeshift camp
and surrounding area.

Humanitarian crisis at the makeshift camp


Today, scared and with nowhere else to go, Rohingya are arriving in their thousands at
Kutupalong makeshift camp. Of those arriving at the camp, some are women travelling alone
with children, whose husbands went out to work and did not return. With no way of feeding
their family they risked arrest to travel to Kutupalong seeking protection in numbers.
I used to think I had a home but after two months of constant threats from people I have lived
with for 15 years since leaving Myanmar I had to move. I felt sad and came to the makeshift
camp. I lost my belongings but my life and family comes first, explained one patient who had
recently arrived at the makeshift camp.
Since October the camp has grown by over 25% (almost 6,000 people), 2,000 arriving in
January alone. With a total population of over 28,400, the unregistered Rohingya at Kutupalong
makeshift camp now outnumber the total registered refugee population supported by UNHCR
in Bangladesh. Without official recognition these people are forced to live in overcrowded
squalor, unprotected and largely unassisted. Prevented from supporting themselves, they also
do not qualify for UNHCR-supported food relief. As the numbers swell and resources
become increasingly scarce, the cramped and unsanitary living conditions pose a significant
risk to people's health.

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Chapter Three
Bangladesh Government's Policy for
Refugees

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3.1. Bangladesh Government's Policy on Repatriation
When the refugees first began to arrive from Myanmar the people and the government of
Bangladesh received them with great degree of sympathy and provided them with all forms of
support. The Government of Bangladesh took effective steps in providing relief to the refugees
and provided them temporary shelters, food, medicare and health and sanitation facilities. A
large number of officials were mobilised to shore up the relief efforts. Later international
agencies (the UNHCR and the WFP) and the NGOs (both local and international) were
involved in the relief activities.
However, an important consideration of the policy-makers in Dhaka all along had been the
duration of the refugees' stay in Bangladesh be short and they were to return to Myanmar as
soon as the situation permitted them to do so. It is in this context that one sees Bangladesh's
eagerness to negotiate the return of the refugees with the Myanmar authorities. The GOB held
that the country did not have the capacity and resources to host the refugees over an uncertain
period of time. Added to this perhaps there was a degree of self-confidence in the Ministry of
Foreign Affairs, Dhaka (which later proved to be misguided), that solution to the problem could
be worked out through normal bilateral diplomatic channels, as was done during the 1978
influx.
Bangladesh continued to view the refugee as a short-term problem and repeatedly demanded
the immediate repatriation of all Rohingya refugees. In April 1992 the Bangladesh Foreign
Minister Mostafizur Rahman stated that the repatriation of refugees would be completed in six
months. It is out of that sense of urgency that Bangladesh signed a Joint Statement with the
State Law and Order Restoration Council (SLORC) of Myanmar on April 28, 1992.

3.2. Bangladesh Myanmar Memorandum of Understanding (MOU)


According to the Joint Statement 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 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'(Author's emphasis). Thus, the MOU
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.
An important coincidence was that Bangladesh signed the Memorandum at a time when there
were efforts by the UN to get access to Myanmar by the Mission of Undersecretary General of
the United Nations, Mr. Eliasson. It has been reported that in later negotiations with Bangladesh
SLORC's position, at least for some time, was involvement of UN agencies has become
obsolete, since both countries agreed on the terms of solution and repatriation.
Another important omission for Bangladesh was her failure to point out that most of the
Rohingya refugees were stripped of their Myanmar documents prior to their crossing to
Bangladesh and many of them were not in possession of any identity papers in the first place.
It is difficult to assess the reasons for Bangladesh's rush in signing the Memorandum without
mounting a concerted pressure of international community on Myanmar and particularly at a
time when refugees were still arriving "at the rate of about 1,500 per day".

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3.3 The first phase of Repatriation
The Bangladesh government's attitude towards the refugees underwent a significant change
following the signing of the Memorandum. On 22 September, 1992 the first repatriation took
place on a very limited scale without the UNHCR involvement. It has been suggested that the
UN agency was notified after the repatriation had taken place (US Committee for Refugees,
1995: 5). UNHCR believes that "this movement was accompanied by considerable pressure
(coercion) from the Bangladesh authorities, who insisted that they could not give the refugees
long-term asylum" (UNHCR, 1995:3). This has been further corroborated by non-
governmental organizations who reported that in September 1992 cases of forced transfer to
transit camps by taking away family books, coercion in the form of physical abuse had
increased significantly. In addition, it was alleged that camp officials were given quota to come
up with a number of 'volunteers' per month. That the first phase of repatriation was not
voluntary is evident from the increased outbreak of violence that had occurred in camps, often
resulting in deaths of the refugees (officially stated to be 15). Protest demonstrations in camps
were held in all camps against the repatriation demanding a total halt to all repatriation.

3.4. UNHCR and GOB Relations


On 8 October 1992 an agreement was reached between the UNHCR and GOB which allowed
the UN agency a role in verifying the voluntary nature of repatriation. Following signing of the
agreement two batches of repatriation took place on 12 and 31 October which according to
UNHCR were voluntary. But following this several rounds of repatriation took place without
UNHCR's involvement. A UNHCR Situation Report states that 84 percent (4,814 refugees) of
the total number of repatriation held in months of November and December 1992 took place
without the UNHCR supervision. 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. An additional 11,216
persons were repatriated after the withdrawal of the UNHCR which has been deemed by some
as 'involuntary' (USCR,1995:6; MSF-Holland and France press release). This form of
repatriation also came under criticism from the US Department of State which viewed it as
"coerced repatriations".
Following these criticisms the GOB suspended its unilateral repatriation in late January 1993
and announced its plans to discuss the issue with the UNHCR. Negotiations for a MOU
between the two began soon after.
After several rounds of negotiations and exchange of letters the two sides finally signed a
Memorandum of Understanding on 12 May 1993. The Memorandum 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" (1/a) and "for conducting
independent interviews with prospective returnees for certifying the voluntary nature of the
repatriation" (1/b). It further commits the Bangladesh government that "no refugees...will be
coerced into leaving against his/her will" (4/f). In addition the Memorandum provided UNHCR
to have free access to and presence in all refugees camps at day time (5). 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" (6/c).
Two most important concerns of the UNHCR were taken care of by the Memorandum, (a)
protection of refugees in the camps and (b) voluntary repatriation, guaranteed by private
interviewing of refugees by UNHCR. For Bangladesh government the tying of the
Memorandum to that of Bangladesh-Myanmar Agreement (April 1992) was an important

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achievement. 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.
Discussion with aid agency officials as well as with the refugees suggest that even after the
MOU was signed there was significant degree of coercion in the camps to make refugees
'volunteer' for repatriation. USCR Report cites a high ranking official who reckoned that as
many as fifty percent of the repatriations that occurred prior to August 1994 "were effected
either through overt force or other coercive methods" (1995:7). Threat, intimidation and liberal
use of broad powers of arrest by the camp officials had been resorted to promote repatriation.
In spite of all these problems repatriation process continued and another 50,000 people were
repatriated.

3.5. Refugees' Awareness of their Rights


The NGOs were particularly concerned about the promotional activities of the UNHCR. They
were of the opinion that the repatriation process was not voluntary. The NGOs alleged that
refugees were not well informed on their right of saying 'no' to repatriation and access to full
and proper information on the human rights situation in their place of origin was limited. They
further argued that the situation in Arakan had not changed fundamentally. The NGOs,
particularly MSF/H and MSF/F claimed that at the promotion sessions refugees were confused
and did not know what the registration meant for them. They suggested that UNHCR to
improve its information dissemination and counselling of the refugees. UNHCR accepted the
suggestion to improve the information session and to organise verification sessions through
private interviews with refugees to ascertain that they still wish to repatriate or would have any
problem for their repatriation. The verification session is a meeting between a refugee and
exclusively with a UNHCR staff member whereby the latter communicates to the refugee the
decision of Myanmar authorities on their clearance. During this meeting, the refugee concerned
could still withdraw his/her name or give justification to defer his/her return. The NGOs also
requested an independent survey on the level of information available to refugees. While this
was not forthcoming, the NGOs decided to organise their own survey "to convince ourselves
whether we were right in stating that the repatriation was involuntary" (Personal interview,
Rian van de Braak, MSF/H. 16.7.95). The survey conducted on 15 March 1995 reported that
65 percent of the interviewee claimed that they were not aware of the possibility of saying 'no'
to repatriation and 61 percent stated having concerns regarding repatriation (For detail, see
Awareness Survey: Rohingya Refugee Camps, March 1995, MSF/F and MSF/H). On the
question of concern expressed by refugees, UNHCR statistics (March 1995) also showed that,
of the camp population of 55,000, 19,000 were on hold by UNHCR, this does not differ much
from the figure indicated by MSF. UNHCR analysed the reasons for these 19,000 persons who
chose not to return. It was found that family reunification, medical care, change of mind etc
were the principal factors. At this stage UNHCR also geared its information dissemination
programme towards the female population of the camps.

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Chapter Four
Legal Solution of Recent Rohingy Issue

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4.1 International Refugee Law: Definitions and Limitations of the 1951
Refugee Convention8
International Refugee Law (IRL), International Human Rights Law and International
Humanitarian Law are considered complementary bodies of law, which possess a common
objective: the protection of lives, freedoms and dignity of human beings. IRL, in turn, arose
during the twentieth century and aims to develop and implement mechanisms for the protection
of forcibly displaced persons owing to well-founded fear of persecution.
Initially, during the first half of the twentieth century, IRL was country-specific i.e. its
instruments only targeted those persons forcibly displaced from certain states. It is only in the
aftermath of World War II, within the new United Nations context, that states have put into
place the current system for the protection of refugees. This system is universal in its scope and
composed of two pillars: the United Nations High Commissioner for Refugees (UNHCR),
created in December 1950; and the 1951 Convention relating to the Status of Refugees (the
1951 Convention), defining those who can benefit from the refugee status and containing the
rights attached to it.
According to the article 1(A)(2) of the 1951 Convention, the term refugee shall apply to any
person who [] as a result of events occurring before 1 January 1951 and 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 and is unable
or, owing to such fear, is unwilling to avail himself of the protection of that country; or who,
not having a nationality and being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling to return to it.
Despite its universal vocation, it is worth noting that this refugee definition contemplates a
temporal and a geographic limitation one being recognised as a refugee only in relation to
events occurred in Europe and before 1 January 1951. Such limitations were removed sixteen
years later with the adoption of the 1967 Protocol Relating to the Status of Refugees. Therefore,
it is only with the 1967 amendments that the 1951 Convention has indeed become a valuable
universal instrument for the protection of refugees.
However, truth must be told: the amended refugee definition contained in the 1951 Convention
still presents some shortcomings that become evident during its application. Such shortcomings
can be viewed from three angles9.
The first is 1951 Conventions lack of a precise definition of the term persecution, key
element of the refugee definition. In 1979, the UNHCR published the Handbook and
Guidelines on Procedures and Criteria for Determining Refugee Status, where persecution
was defined as any threat to life or freedom, whose existence had to be assessed on the basis
of both objective and subjective criteria. However, this definition of the term persecution
remains unsatisfactory: on one hand, because it is still very broad and therefore difficult to be
implemented; on the other, because it is contained in a non-legally binding document.
Another shortcoming regards the five grounds of persecution (race, religion, nationality,
membership of a particular social group and political opinion), categorically listed in the

8
Leila Nasr, This post is one of four articles to be published as part of this weeks intensive series on refugee
and migration rights. Stay tuned for tomorrows article on the principle of non-refoulement.
By Andr de Lima Madureira* [i]
9
Based on JUBILUT, Liliana Lyra; MADUREIRA, Andr de Lima. The Challenges of the Protection of Refugees
and Forced Migrants in the Framework of Cartagena + 30. REMHU, Revista Interdisciplinar da Mobilidade
Humana, vol 22, n 43, p. 11-33, Braslia, july/dec 2014.

16
refugee definition. These five grounds considerably limit its scope: indeed, only the presence
of at least one of them can determine the application of the 1951 Convention. Hence it is worth
mentioning the lack of reference to economic, social and cultural rights for the purpose of
refugee status determination: for example, people who leave their countries of origin or
residence due to the lack of education and/or work are not considered as refugees. Additionally,
there is also a lack of gender perspective, not only as a ground of persecution but also as a
limitation to the protection of women and homosexuals.
The third limit concerns the lack of a broader integration between the refugee definition and
other human rights, as only violations of civil and political rights are considered for
determining the refugee status. In light of this, the integration between the three
generations10 of human rights is little considered when it comes to the concept of refugee. An
example of this fact can be seen in the possible approximation with environmental issues,
considering that the right to a healthy environment is a human right of third generation and
people who flee climate change and/or natural disasters cannot benefit from the refuge
protection.
Over the years, states have sought to address the shortcomings of the 1951 Convention,
although on a regional level. The decolonization process and several civil conflicts in the
African region brought the Organization of African Unity now African Union to formulate
a broader definition of refugee contained in the 1969 Convention Governing the Specific
Aspects of Refugee Problems in Africa (OAU Convention). Similarly, owing to the increasing
numbers of refugees coming from dictatorial regimes, the Latin American states expanded the
definition of refugee via the 1984 Cartagena Declaration on Refugees11[iii]. Thus, these
regional instruments have both expanded the traditional definition of refugee[iv],
including, inter alia, external aggression, generalized violence and massive violation of human
rights as possible reasons for determining the refugee status.
It is undeniable that the international refugee regime is currently well structured and has over
the years guaranteed the protection of millions of refugees. However, the gaps in the 1951
refugee definition have impeded to address the protection concerns of even many more forcibly
displaced persons. The current protection challenges require that the 1951 refugee definition
be reconsidered.

[iii] Although the 1984 Cartagena Declaration on Refugees is a non-legally binding document,
it has influenced several domestic legislations in the Latin American region to adopt its
expanded refugee definition.
[iv] According to the Article I (2) of the OAU Convention, refugee is also any person
compelled to leave his/her country owing to external aggression, occupation, foreign
domination or events seriously disturbing public order in either part or the whole of his/her
country of origin or nationality. In turn, according to the 1984 Cartagena Declaration, Third
Conclusion, the term refugee should also apply to those persons who flee their countries
because their lives, safety or freedom have been threatened by generalized violence, foreign
aggression, internal conflicts, massive violation of human rights or other circumstances which
have seriously disturbed public order.

10
For further information on the three generations of human rights, please refer to:
<http://unchronicle.un.org/article/international-human-rights-law-short-history/>.
11
*Masters of Law from Universidade Catlica de Santos (UniSantos), MSc Human Rights candidate at LSE,
and former Lawyer/RSD Officer at Caritas Arquidiocesana de So Paulo (Brazil) UNHCR implementing
partner.

17
4.2 Rohingya crisis: Invoking international law against Myanmar12
The dreadful sufferings of Rohingya Muslim population in Myanmar have set a 'textbook
example' of 'Ethnic Cleansing'. The world has not seen such large-scale exodus of people (more
than 0.5 million as of now) in less than two months' time in recent history. These people are
victims of the most awful human rights violations for quite some time. Killings, arson, rape,
torture and worst kind of degrading treatment to women and children have gone beyond
imagination. The inaction of the powerful states and international organisations has shaken the
conscience of men and women around the globe. The powerful states and even the responsible
persons of our government are yet to dub it 'Genocide' in loud and clear terms.

Although it is denied by the rulers of Myanmar, there is hardly any doubt from objective
evidence that the military in Myanmar are systematically and forcibly removing ethnic
Rohingyas from their homeland. These actions have been widely condemned by many
international organisations and renowned personalities of the world.

Most observers ponder on the role of international law - especially international human rights
law against such atrocities. But there are problems as regards the applicability of international
law. International law in this regard comprises some separate laws like international criminal
law, international humanitarian law and international human rights law and so on, and these at
times overlap one another.

Though the phenomenon of 'ethnic cleansing' is not rare, international law doesn't seem to have
brought it under its legal purview. Actually, the term is not a legal one. The term came into
being during the civil war in the former Yugoslavia in early 1990s. In essence, 'ethnic cleansing'
is the idea that a minority population is persecuted, killed or forcibly removed from its territory.
However, this is prohibited by many international human rights treaties such as the 1965 Race
Convention. It clearly prohibits activities done on the basis of race or ethnicity. The 1984 UN
Convention against Torture (UNCAT) prohibits acts of torture, inhuman and degrading
treatment. The threshold crosses where persons are forcibly expelled from their homes and
their possessions/properties are destroyed.

The general treaties such as the International Covenant on Civil and Political Rights (ICCPR)
and International Covenant on Economic, Social and Cultural Rights (ICESCR) may be found
relevant. Under these, the State may be held responsible for violation of the rights of people in
such high magnitude.

'Ethnic cleansing' entails the violation of the right to life, the right to housing and food, etc. and
it falls under the terms of specific rights protected by these treaties. Here international human
rights law is clearly engaged but the problem is that Myanmar is not a signatory of the ICCPR,
ICESCR, UNCAT, the Race Convention, although aspects of the rights in question can be
considered as part of the customary international law. It can hardly be denied that what is
currently going on in Myanmar goes way beyond what human rights treaties entail.

The 1948 Genocide Convention makes genocide a crime and according to Article II, genocide
includes killing or causing serious bodily/mental harm to members of a large section of the
population. The Convention, however, does require that this is done with the 'intent to destroy,

12
S M Abu Nayem Ahmed | Published: October 26, 2017 20:30:58, The writer is Senior Deputy Secretary,
Institute ofChartered Accountants of Bangladesh (ICAB).

18
in whole or in part, a national, ethnical, racial or religious group.' To find 'intent' and what it
entails has not been an easy task for the prosecutors so far. In a case involving Serbia and
Croatia at the International Court of Justice, the UN required a 'specific intent' which was a
difficult task for the prosecutors to conclusively and unanimously agree upon.

Again, if it is the state, it cannot be tried other than merely blaming it under international law
for policies and actions. But the individuals can be netted and held for their role. We thus enter
the realm of international criminal law. The 1948 Genocide Convention requires genocide be
made a crime in domestic law. Though, Myanmar is a party to the Convention, chances that
members of the military of Myanmar would be prosecuted for atrocities committed against the
Rohingyas appear remote.

Myanmar has clearly breached its obligations under the 1948 Geneva Convention, but there is
no treaty-specific mechanism which can measure non-compliance.

Other options can be explored. Genocide is a crime of universal jurisdiction. Any State can try
any individual if the State considers that individual guilty of acts of genocide. But evidential
burdens and also the motive and determination for prosecution are difficult to achieve for
unconnected States. Undoubtedly, there are instances of such trials. The statute of the
International Criminal Court (ICC) also prohibits genocide in Article 6 and the court can try
individuals responsible for it. In case of Myanmar, they are not a party to the ICC. As such, the
likelihood of the Court exercising its jurisdiction with regard to the Rohingyas does not hold
out much prospect. However, if the Security Council of the UN decides to refer the case to
ICC, things may take a different turn. This has not happened so far. One can only look up to
such a bold move.

Undoubtedly, there is a complex web of international law where responsibilities and


obligations are at crossroads. All are parts of international law but the application and the role
of actors, at the end of the day, will be the key. Politics and economic interests, not surprisingly,
determine what would happen. Nevertheless, international law in its different manifestations
may pave the way, if it is rightly called upon to do the needful.

4.3 An International Law Perspective on Indias Response toward the


Rohingya Refugee Crisis13
In the opening statement made in the Human Rights Councils 36th session on 11th September
2017, the United Nations High Commissioner for Human Rights Zeid Raad Al Hussein
observed the appalling state of affairs concerning the security operations underway in the
Rakhine state of Myanmar, exacerbated by the Arakan Rohingya Salvation Army (ARSA). He
pointed out the likelihood of the governments systemic operations against the Rohingya
Muslim community constituting a crime against humanity and a textbook example of ethnic
cleansing.
The Rakhine Advisory Commission that was appointed by Aung San Suu Kyi who has
been criticised for having maintained a stoic silence throughout has reported the trend of
successive governments progressively stripping the Rohingyas of their political, civil and
citizenship rights. The Burma Citizenship Law of 1982 provided that only those who could
trace their residence in the country to before 1823, or those who belonged to the majority ethnic
groups of Burman, Kachin, Kayah, Karen, Chin, Mon, Rakhine and Shan, were eligible for full
citizenship. A further list of ethnic groups who qualified under the law did not include the
13
Vidushi Sanghadia, 22nd September 2017, Migration Asylum and Trafficking

19
Rohingya. The discriminatory treatment toward their ethnicity and religious affiliation by their
own state has been contemplated to stem from largely three issues: the belief that the Rohingya
came to Rakhine state as part of the British East India Companys expansion into Burma after
it defeated the Burmese King in 1826; geopolitical considerations of land grabbing in the name
of development; and preservation of regional interests with India and China for development
projects.
The military counter-offensive by the ARSA has resulted in almost 370,000 Rohingyas fleeing
into Bangladesh, with 27,000 displaced in the Rakhine state. Indias response has been dismal
at best. Even as the conflict rages on, prominent politicians have argued for the deportation of
the Rohingya, citing the strain created by the 40,000-odd refugees, 16,500 of whom have
received identity cards which were issued by the UNHCR, but paid for by India. The possibility
of terror groups exploiting porous borders to infiltrate India has also been mentioned. the
Supreme Court of India is slated to hear a petition challenging the governments decision to
deport the Rohingya Muslim refugees, on 18th September 2017.The government argues that
their plan to deport the refugees, despite their registration with the United National High
Commissioner for Refugees (UNHCR), is lawful because India is not a party to the 1951
Refugee Convention, and it is therefore not bound to adhere to the obligation of non-
refoulementand the response toward the situation is a matter of policy.
Refugee law in India is therefore domestic, stemming from provisions under Article 21 and
Article 51 of the Constitution, the Registration of Foreigners Act 1939, the Foreigners Act
1946, the Foreigners Order 1948, the Passports Act 1967, and the Illegal Migrants
(Determination by Tribunals) Act 1983. It is on the basis of these provisions that applications
for asylum by refugees are determined. India follows a dualist approach to international law,
and so adheres to international law principles only insofar as they are incorporated into
domestic law.
Even if the deportation is lawful in domestic law, the question remains whether the deportations
would be lawful as a matter of international law. While India is not a party to the Refugee
Convention, and so is not bound by treaty to adhere to principle of non-refoulement, such an
obligation stems from customary international law, as recognized by the UNHCR.
Additionally, it is also bound by obligations stemming from international treaties and
conventions it is a party to, namely, the International Covenant on Civil and Political Rights,
the International Covenant on Economic and Social Rights, the International Convention on
the Elimination of All Forms of Racial Discrimination, and the Convention against Torture and
Other Cruel and Inhuman or Degrading Treatment or Punishment. The expulsion of the
Rohingya to Myanmar where they risk certain torture and a violation of their human dignity
based on their ethnicity and religion is violative of basic human rights tenets embodied in all
the above treaties.
India distancing itself from its obligations is wrongful in international law and violative of
basic precepts of human rights protection. The Rohingyas are among the most persecuted in
the world, and are in need of humanitarian protection now more than ever. India would do well
to lead by example14.
THELAWS

14
Vidushi Sanghadia, An International Law Perspective on Indias Response toward the
Rohingya Refugee Crisis (OxHRH Blog, 22 September 2017) <http://ohrh.law.ox.ac.uk/an-
international-law-perspective-on-indias-response-toward-the-rohingya-refugee-crisis> [Date
of Access- 11-12-2017]

20
THEREFUGEECONVENTION
Seeking asylum for protection from persecution is legal.
The United Nations 1951 Convention relating to the Status of Refugees (The Refugee
Convention) was drafted in response to the many thousands of displaced people in Europe after
the Second World War (1939-1945).
Under the Refugee Convention a refugee is a person who is:
outside their own country and
has a well-founded fear of being persecuted due to his/ her race, religion, nationality,
member of a particular social group or political opinion, and is
unable or unwilling to return.
Many countries, including Australia, have signed and ratified (legally implemented) the
Refugee Convention. This means that countries are obliged to help individuals who are
dislocated from their home country because of the threat of persecution.
By signing the Refugee Convention each country shows their intention to implement the
legislation and policy that is required in order to support the refugee protection process. In
Australia the law is implemented through the Migration Act 1958 (Cth).
Countries that are not signatories to the Refugee Convention have no international obligation
to accept people seeking asylum, although many still do.
DEFINITIONS
REFUGEES
A refugee is a person who has fled his or her own country and cannot return due to fear
of persecution, and has been given refugee status. Refugee status is given to applicants by the
United Nations or by a third party country, such as Australia.
According to the United Nations Convention relating to the Status of Refugees [PDF], as
amended by its 1967 Protocol (the Refugee Convention), a refugee is a person who is:
outside their own country and
has a well-founded fear of persecution due to his/ her race, religion, nationality, member
of a particular social group or political opinion, and is
unable or unwilling to return.
The United Nations High Commission for Refugees (UNHCR) estimated that at the end of
2012 there were 15.4 million refugees in the world.

4.4 Forging a new Rohingya strategy


Absent any national refugee laws in Bangladesh, the legal status of the Rohingyas as foreigners
impedes efforts to garner much needed international cooperation and financial assistance.
Beyond this legal limbo, a viable Rohingya solution for Bangladesh rests on placing the
Rohingya problem in the context of dynamics inside Myanmar and the geopolitical and
economic interests of some large stakeholders. This piece proposes a Rohingya strategy for
Bangladesh in this regard.
First, the Rohingyas are discriminated against in Myanmar partially because of their ethnicity,
not just their religion. All Rohingyas, including the Hindus, are denied Myanmar citizenship
with their ancestral abode in Bangladesh used as justification. The characterisation of the
minority as a religious one serves the political purpose of the anti-secular forces and hampers
international assistance. The government of Bangladesh should thus actively deflate such
characterisation.

21
Second, research15 indicates that more Buddhist small landowners than Rohingyas have been
forcibly expelled from their land. This expulsion program gathered steam in 2012 when the
Miyanmar parliament revised the Farmland Law and Vacant Land Law and annulled the 1963
Peasant Law to accompany a new Foreign Investment Law allowing 100 percent foreign capital
and 70 year lease in crucial sectors such as mining. Not only do the corrupt military and
political personnel of Miyanmar stand to make personal fortunes from future sale of the looted
land and waters to foreign investors, the rural mercenaries and armed groups are also vying for
the fortune by means of violence against the small landowners.
Importantly, unlike other victims, the Rohingyas do not have a viable migration and livelihood
option within Myanmar. Southeastern Bangladesh will continue to be their sole refuge. Thus
any sustainable solution requires the Bangladesh government to build an international coalition
to initiate and enforce the stoppage of the land grab.
Third, crucial to any such effort is to navigate the varying and often conflicting interests of
large stakeholders in Myanmar and the neighbouring region. The three elephants in the room
are China, India and the US. Bangladesh and Myanmar offer attractive prospects for
multimodal links between South East Asia to the rest of Asia, over both land and sea. It is a
cost-effective shipping alternative to the Malacca Strait, which is second only to the Strait of
Hormuz for the oil and gas shipments16, and handles one quarter of global merchandise
trade17 and half of seaborne trade18. Further, their maritime waters offer naval manoeuvring
through the Indian Ocean to water bodies in the east amdthe west, and are ideal for stationing
military capabilities in striking vicinity of an economically mighty region that is home to many
ongoing conflicts.
Realising the potential, China has secured access to and transportation of Myanmars natural
resources, most notably oil and gas, from fields near the Rakhine capital of Sittwe, not too far
from the southeastern tip of Bangladesh. To this end, two pipelines (and a parallel rail track)
to Chinas Kunming are to be used, one from the Maday Island deep water port for oil, and the
other from the sea port of Kyaukpyu for methane gas19. Sensing archrival Chinas growing
presence in Myanmar, India has also been cozying up to the regime. For a cost-effective
alternative to the Shiliguri corridor, it is pursuing a transportation route (Kaladan Multi-Modal
Transit Transport Project) from the Sittwe area, which will connect landlocked northeastern
India to the rest of the country through the Bay of Bengal. A gas pipeline from the Sittwe gas
field (in which Indian companies have a large stake) is also being contemplated by India.

15
https://www.theguardian.com/global-development-professionals-network/2017/jan/04/is-rohingya-
persecution-caused-by-business-interests-rather-than-religion
16
http://www.maritime-executive.com/article/hormuz-and-malacca-remain-top-oil-chokepoints
17
https://qz.com/348765/watch-the-invisible-patterns-of-sea-cargo-cover-the-earth/
18
Review of Maritime Transport 2011
19
https://www.forbes.com/sites/ericrmeyer/2015/02/09/oil-and-gas-china-takes-a-shortcut/#57699b127aff

22
https://en.wikipedia.org/wiki/Sittwe_Port

China also has a long-established and unshakable influence on the military junta in Myanmar.
It seems the North Korean model is in the making in Miyanmar, where China can help to
develop and install nuclear weapons and ICBMs, and perhaps also establish a naval base near
Sittwe, thereby opening a formidable new war front against India. In return, as in North Korea,
the rogue regime in Myanmar can perpetuate its hold on governance power and constitute a
potent threat to the stability of South and Southeast Asia, the vital maritime channels and the
naval resources and pacific strategy of the US. For these reasons the US, and not only India,
would also be interested in collaborating with Bangladesh to arrest the Chinese onslaught.
Bangladesh should thus use its geographic positioning to elicit strategic collaboration from
India and the US. To reconcile Indias interests, the Bangladesh government may pursue two
connectivity projects paralleling the Indian ones in Myanmar, connecting the on-shore and off-
shore ports of Bangladesh to the northeastern Indian states. Such a route would be much safer
and reliable for India considering the unrest in Rakhine and the China-influenced regimes of
Myanmar. Secondly, Bangladesh may collaborate with India to house the Rohingya refugees
in shelters along the entire borders of Bangladesh and India with Myanmar. The two countries
should then jointly train and possibly arm the Rohingya refugees to fight back the Myanmar
persecution and return to their homeland with dignity. Bangladesh cannot pursue such a
strategy by itself, especially considering the prospect of inadvertently arming insurgents within
India and anti-secular terrorists.
Bangladesh, however, cannot rely on India alone to defend and promote its interests. It is
necessary to gain the collaboration of the US by bringing it close to the borders and shores of
Myanmar. Offering some Bangladesh island territory for a US military or naval base should be
seriously considered to counter the North Korea-like threats from Myanmar. Further, in the
case of escalating tensions with Myanmar due to aggressive posturing, the USs influence at
the United Nations and its veto power can be extremely valuable in fending off punitive
measures against Bangladesh (and India) that China may seek.

23
In conclusion, a long-term and viable solution for Bangladesh to the Rohingya refugee problem
demands strategic collaboration with India and the US to stop the brutal land grab by the
Myanmar regime that is supported by the geopolitical and economic interests of China. To
avert the underlying and larger destabilisation threat of North Korea-like Mianmar, the
Bangladesh government should pursue north-south connectivity projects to benefit
northeastern India and accommodate the naval presence of US in off-shore Bangladesh,
notwithstanding the risk of some loss of sovereignty.

24
Chapter Five
Present Status of Rohingya Refugees in
Bangladesh

25
5.1. Refugees in Bangladesh:
In Bangladesh today there are approximately 20,000 documented Rohingya refugees, out of
a quarter million that had arrived in 1991-2, escaping military persecution in Burma. They live
in two camps of Kutupalong and Nayapara. Most of the original refugees were forcibly
repatriated into the lawless country of Burma, where they continue to face all sorts of human
rights abuse in the hands of Myanmar authority. The remaining refugees have refused to return
because they fear human rights abuses, including religious persecution.
Unfortunately, the condition within those two refugee camps is not great and lack adequate
facilities for a healthy living. Children are deprived of their basic education and healthcare.
Besides, hundreds of thousands of undocumented Rohingya are living outside these two
camps in sub-human condition with all their uncertainty. Many refugees are camped at a
roadside facility at Teknaf, a border town in south-east end of Bangladesh under unpleasant
conditions. Unfortunately, there is no help from any quarter for these refugees.
These refugees are also blocked from nominal opportunities of re-settlement in a third country
or settlement within Bangladesh.
The NGOs, international human rights and humanitarian bodies are not allowed to visit the
areas of undocumented refugees.

5.2. The unregistered Rohingya


An estimated 200,000 unregistered Rohingya refugees have settled among the local population,
in slums and villages mostly throughout Coxs Bazar District but also in smaller numbers in
the Chittagong Hill Tracts, eking out a hand-to-mouth existence without any humanitarian
assistance, vulnerable to exploitation and arrest. While keeping them invisible and portraying
them as economic migrants, Bangladesh has generally tolerated their presence, but anti-
Rohingya sentiments have steadily grown among the local population, manipulated by the local
political elite and the media.

In June/July 2009, local authorities demolished shelters and forcibly removed their inhabitants
in an attempt to clear a space around the perimeter of the official UNHCR camp at Kutupalong.
MSF witnessed firsthand violence against the unregistered Rohingya, and provided medical
care for some of the consequences. At the time MSF treated 27 people who presented at the
clinic with violence-related injuries, the youngest being a five-day old child who had been
thrown to the ground.

Then, last October, MSF again began to receive unregistered Rohingya patients suffering from
violence related injuries in the Kutupalong clinic. This time patient told stories of being driven
from their homes in Bandarban district, many of which were physically destroyed by the
authorities. Some of them spoke of having been forced into the river Naf and told to swim back
to Myanmar. In January of this year, patients started to arrive from Coax's Bazar district with
similar stories. To add to the brutality of the authorities, the Rohingya also suffer at the hands
of the local population, whose anti-Rohingya sentiment is fuelled by local leadersand the
media. Throughout this period, MSF has treated patients for beatings, for machete wounds, and
for rape. This is continuing today.

5.3 Current news of unregistered refugee camp


Three days of heavy rain has destroyed many residential huts in the unregistered Rohingya
refugee camp of Kutupalong ,quoted Kaladan press news (5th July-2011). The unregistered
Rohingya refugees are now facing difficulties to live in their shacks as the roofs of the shacks
have been damaged by wind and heavy rain. When the rain falls inside the shacks, the refugees
cant stay inside. The refugees are also facing food shortages as the rain doesnt allow the

26
refugees to work outside the camp to collect firewood, pull rickshaws, etc. Some huts were
completely destroyed by the heavy rain and wind, so the refugees cant sleep in their huts.
The refugees are not able to rebuild their shacks because of severe lack of finances. There is
no way for them. They will face starvation if they use their only money to rebuild their shacks,
said a refugee committee member. In the rainy season, most refugees are suffering from fever,
cough, and pneumonia.
Rohingya in Bangladesh are currently victim to unprecedented levels of violence and attempts
at forced repatriation. Recent weeks have seen people arrive in their thousands at Kutupalong
makeshift camp, as they flee what appears to be a violent crackdown on Rohingya presence in
the country.
In the name of setting up model villages Rohingya properties are being handed out to
outsiders while the original Rohingya owners are forcibly displaced.
There is also a concerted effort to rename Muslim towns and places with Buddhist names so
that Muslim or Islamic heritage of these places is lost forever to future generations.

De-Muslimization:
Of particular concern is the fact that as of 2004, Rohingya villagers are forced to practice
Buddhism and take part in various Buddhist festivities. As has been confirmed lately by the
US State Department Report on Religious Freedom Report, November 8, 2005, there is a
Burmese Government campaign to convert or Burmanize ethnic minority regions through
coercion or otherwise. The campaign has coincided with increased military presence in the
region. The SPDC troops have intensified their attacks on the Rohingya and Islam. In
particular, they target the Rohingya Ulema (religious leaders), women and youngsters. Last
year, in Maungdaw Township, after a Rohingya girl was reaped by Buddhists, when Rohingya
religious leaders condemned the matter, they were arrested. Subsequently, one of the religious
teachers was tortured to death in detention. Most of the Rohingya-community leaders are now
serving long prison times on false charges, related to citizenship. Others are forced to opt for a
life of uncertainty as refugees outside.
Mosques and Muslim holy shrines have been demolished all over Arakan. All these crimes are
done so as to efface Islamic heritage and Muslim identity of the Arakan.
To expedite this criminal objective, often times Buddhist-Muslim riots are engineered that
invariably result in heavy losses to Muslim lives and properties. Anti-Muslim propagandas are
routinely fed in the government controlled media. As of February 2003, books and taped
speeches, insulting Islam and Muslims, have become quite common and are being openly sold
and distributed.
Even Muslim cemeteries are not immune from desecration and abuses of the government.
Buddhist dead bodies are now routinely buried at Muslim cemeteries, while the Rohingya are
forced to pay the funeral fees.

Lack of Religious Freedom


The SPDC restricts most Islamic religious services and has frequently abused the right to
religious freedom. Muslim students attending state-run elementary schools are required to
recite Buddhist prayer daily. Authorities often refuse requests for gatherings to celebrate
traditional Muslim holidays and restrict the number of Muslims that can gather in one place.
In 2002, local authorities scheduled demolition of nearly 40 mosques and religious community
centers in Arakan. Thirteen mosques were destroyed before the authorities desisted at the
request of the UNHCR. The Government subsequently gave permission to repair existing
mosques in some area. However, to ensure that destroyed mosques were not rebuilt, they were
replaced with government-owned buildings, monasteries, and Buddhist temples.

27
Rohingyas are not allowed to construct new places of worship. They experience tremendous
difficulties in obtaining permission to repair existing mosques. They cannot import religious
literature into the country. Muslim religious leaders are routinely arrested or harassed. All these
are done meticulously so that within a few years the Rohingya will lose touch with their Islamic
heritage.

Depopulation:
The SPDC authorities have been making efforts to dilute Rohingya population by practicing
what may more appropriately be called genocidal campaigns to ethnically cleanse the
Rohingyas from their ancestral lands. Frequently, they launch drive operation, create
communal riots, and make forced relocation to sweep off the Muslim population. They force
Buddhist-Burmans to relocate into Muslim territories. Certain townships, such as Thandwe,
Gwa, and Taung-gut, have been declared Muslim-free-zones by government decree in 1983.
There are still original-resident Muslims living in Thandwe, but new Muslims are not allowed
to buy property or reside in the township. Muslims are no longer permitted to reside in Taung-
gut and Gwa.
In January of 2005, Government authorities led Buddhist monks to attack Rohingyas in Kyauk
Pyu just before the Muslim Eid holidays. Two Muslims were killed and Muslim homes and
properties were destroyed. In May 2004, local Buddhist villagers in Kyun Su Township
attacked and destroyed properties of 14 Muslim families. Despite a complaint from Muslim
leaders, the Government did not take any action to stop the violence.
Many immoral and deplorable measures (like denying rights to or delaying marriage) are also
routinely applied by the Government agencies against the Rohingya population to reduce and
control their birth rates.
But more appalling is the fact that rape of Rohingya women by Buddhists (civilians and
military alike), committed in public or in detention camps or training centers, is encouraged
and included as an official military strategy to depopulate Rohingyas from their ancestral
homes. Because of the devastating effect rape has on the Rohingya community, rape is
becoming an effective weapon to terrorize the Rohingya community and convince them to flee
or leave Burma. It is the most horrendous and degrading way of Ethnic Cleansing.
Unfortunately, without any international agency to monitor and take effective measures to stop
this crime against humanity, this method of ethnic cleansing is succeeding.

Confiscation of land:
Large tracts of Rohingya farmlands, including Waqf (Endowed) properties, have been
confiscated. The Rohingya villagers are frequently uprooted and relocated from their ancestral
land. Hundreds and thousands of confiscated lands belonging to the Rohingya have been
distributed among the Buddhist settlers who are invited from both inside and outside the
Arakan, including nearby Bangladesh. Some of the confiscated lands are used for military
establishments. These atrocious measures have forced the Rohingya to become increasingly
landless, internally displaced and to eventually starve - forcing them out to cross the border
into nearby Bangladesh for life and shelter.

Militarization:
The North Arakan has turned into a militarized zone with increased violations of human rights.
Forced labor still exists despite increasing pressure from ILO. The armed forces routinely
confiscate property, cash and crop from the Rohingya.
The Rohingya people are exploited as forced laborers into building military establishment,
roads, bridges, embankments, pagodas, schools dispensaries and ponds without earning any

28
wage. They are not only forced to Contribute their farmlands, agricultural tools, cattle, house-
building materials and funds to the new settlers but also forced to pay for Buddhist festivals
held every so often. The forced labor situation has become so excruciating that the Rohingya
have been rendered jobless and shelter-less.

Restriction of Movement:
There is restriction on movement of the Rohingya inside Myanmar. They cannot go outside the
Arakan, nor are they allowed freedom of movement within Arakan from one place to another
without permission from the local authority. This humiliating restriction has further been
tightened by the regime. No Rohingya is permitted to travel to Rangoon or Myanmar (Burma)
proper even on serious medical ground. This inhuman measure has forcibly divided many
Rohingya families. It has seriously affected them in all their national activitiessocial,
cultural, religious and educational.

Deprivation of Rights to Education:


Since promulgation of the new Burma Citizenship Law in 1982, the Rohingya students are
denied their basic rights to education. The Government reserves secondary education for
citizens only. The Rohingya do not have access to state-run schools beyond primary education.
They cannot pursue higher studies while professional courses are also barred to them. It is
important to point out that all professional institutes are situated outside Arakan. Thus, the
Rohingya students are unable to study there because of such travel prohibition. Rohingya
students, who passed the selection tests and got formal admission into various institutions of
learning, located in Rangoon and Burma proper, are unable to pursue their studies as they are
disallowed to travel.
The Rohingya are restricted from even religious learning. Many local Imams (religious leaders)
have been arrested for conducting group classes or prayers.
In recent years, the Rohingya students are prohibited from even going to Akyab (Sittwe), the
capital of Arakan, to attend Sittwe University for their studies. As a result, hundreds of
thousands of Rohingya students face uncertainty with their future studies. These draconian
measures, barring the Rohingyas from attending university and professional institutes, are
marginalizing them as the most illiterate section within the Myanmar population. They cannot
find jobs in civil service, military and most professional areas requiring higher education, and
are, therefore, forced to embrace a very bleak future.
Restriction on Marriage of Rohingya:
Since 1988, the Government has permitted only 3 marriages per year per village in the primary
Rohingya townships of Buthidaung and Maungdaw in northern Arakan State. Later the
Government extended this edict to other townships of the Arakan. In todays Myanmar,
imposition of restriction on marriage between Rohingya couples has further intensified
resulting in human rights violations. For example, not a single marriage contract was allowed
in May 2005. Without huge sums of bribe money, unbearable for most Rohingyas to pay, even
an ordinary permission to get married is impossible to obtain. Yet, after such payments,
thousands of applications for the permission to get married remain pending in Maungdaw and
Buthidaung Townships.
But, today, the condition of marriage is terrifying. The SPDC Government requires that every
Rohingya be registered before they marry. The women applicants are then required to attend a
government-sponsored training program in camps and centers that can last for 3 or more days,
away from their family members. It is in these camps and centers, that Rohingya women are
raped by people affiliated with the camps and centers. These camps have, in essence, become
the slave camps with the only difference that women are then returned to their families. This

29
practice is done in order to humiliate and terrorize these women and their family, and force
them to leave Burma and migrate to Bangladesh.

Arbitrary Taxation:
Traditionally, Rohingyas are a farming community that depends on agricultural produce and
breeding of cattle and fowls as domestic livestock. They are taxed heavily on food grains,
including their main staple food rice, and various agricultural produce. Recently the
authorities have imposed a new taxation that included taxes levied on everything that a
Rohingya may possess from shrimp, vegetable, tree, animal or bird (for cow, buffalos, goats,
and fowl) to roof and house. Even for a minor repair of their homes, they are forced to pay tax.
They are required to report birth and death of a livestock to the authority while paying a fee.
The Rohingya have to pay taxes on everything, from cutting bamboos or woods in the jungle
to fishing in the rivers and breeding of animas at homesteads.

Other forms of Human Rights Abuses:


Widespread violations of human rights against the ethnic Rohingya continue unabated even
in places not out of the sight of the UNHCR. In fact, there is no security of life, property, honor
and dignity of the Rohingya. Extra-judicial killing and summery executions, humiliating
movement restriction, rape of women, arrest and torture, forced labor, forced relocation,
confiscation of moveable and immoveable properties, religious sacrileges, etc., are regular
occurrences in Arakan.
As a result, severe poverty, unemployment, lack of education and official discrimination are
negatively affecting every Rohingya, especially its youths and workforces. The future of the
community remains bleak and exodus into Bangladesh has become a recurrent theme.
Forced Eviction and Refugee Exodus:
Forced eviction of the Rohingya villagers is launched occasionally throughout the year. Many
centuries-old Rohingya settlements have already been uprooted throughout the North Arakan.
The exodus of the Rohingya into Bangladesh constitutes human rights violations. They are
merely branded as economic migrants without realizing their unbearable plights. The new
arrivals often face arrests and/or pushback from the Bangladesh security forces. Due to poor
condition within the refugee camps, sometimes tense situation has surfaced between camp
authorities and the refugees, resulting in the detention, arrest and punishment of many refugees.

30
5.4. Situation in other countries:
There is no international agency to look after the interest of the stateless Rohingya. Because of
their lack of legal identity, they are not allowed to work or hold work permit by any name. An
estimated 15-20,000 Rohingyas work as illegal workers in Thailand. Their children are
deprived of basic human rights. In other parts of the world the situation is not much better
because of lack of their citizenship.

5.5. Final Words:


There is a very systemic, organized, concerted and criminal design by the SPDC authorities,
which can appropriately be termed as ethnic cleansing, genocide and socio-cultural degradation
of the Rohingya people in Arakan state of Myanmar. If the process of marginalization and gross
violations of human rights against the Rohingya people are allowed to continue there wont be
a single Rohingya left in Arakan within the next fifty years. They will be an extinct community,
much like the fate of the native population of Tasmania.
Since 1999, the USA has designated Burma as a Country of Particular Concern under the
International Religious Freedom Act for particularly severe violations of religious freedom. It
is high time that the world body take appropriate measures so that the basic human rights of
the Rohingya people are protected and guaranteed under the UN supervision.
Stateless Rohingya in Bangladesh are currently victim to unprecedented levels of violence and
attempts at forced repatriation. Recent weeks have seen people arrive in their thousands at
Kutupalong makeshift camp, as they flee what appears to be a violent crackdown on Rohingya
presence in the country. At its clinic in Kutupalong, Coxs Bazaar, medical organisation
Mdecins Sans Frontires (MSF) has treated victims of beatings and harassment by the
authorities and members of the community; people who have been driven from their shelters
throughout the district and in some cases forced back into the river which forms the border to
neighbouring Myanmar.
Since October, the camp has grown by 6,000 people, with 2,000 of these arriving in January
alone. Without official recognition, they are prevented from supporting themselves, and are not
permitted to receive official relief. As the numbers swell, nearly 29,000 people find themselves
camped on a patch of ground with no infrastructure to support them, posing a serious threat to
health. Action is needed now to stop this humanitarian crisis.

31
Chapter Six
Result & Discussion

32
6.1. Refugees outside Burma

Refugees outside of Burma


500000
500000
450000
400000
350000
300000 230000
250000 200000
200000
150000
100000
50000 10000
0
Pakistan Saudi Malaysia Bangladesh

Fig: 1- Refugees Outside of Burma

Today hundreds of thousands of Arakanese Muslims are living as refugees outside Burma due
to pressure of the military regime. There are 200,000 Arakanese Muslims in Pakistan, some
recognized as refugees some not, 500,000 in Saudi Arabia and 10,000 in Malaysia.
Bangladeshi authorities stepped up pressure in May 2003 on refugees in two camps in the
country to force them to return home and it had forcefully deported 230,000 refugees to Burma
by 2005.

33
6.2 The camps in Bangladesh where Arakanese refugees are sheltered

Refugees Camps in Bangldesh

95,000
100,000
90,000
80,000
70,000
60,000
50,000
40,000
30,000 13,000
12,000 10,000
20,000
10,000
0
Kutupalong Nayapara Leda Refugee Kutupalong
Refugee Camp Refugee Camp. Camp. Unofficial
Refugee Camp.

Figure- 2: Refugees Camps in Bangladesh

Kutupalong Refugee Camp. The camp housing 12,000 refugees is officially recognized by the
UN. Nayapara Refugee Camp. The camp where 10,000 refugees has the official UN
recognition. Leda Refugee Camp. The camp is housing 13,000 refugees and is officially
recognized by the UN. Kutupalong Unofficial Refugee Camp. The 95,000 refugees staying in
this camp are not treated as refugees by the UN and the Bangladeshi government. The camp
residents are constantly experiencing food shortages. The Bangladeshi authorities do not allow
entry to the camp which is plagued with frequent deaths from hunger. It is know that more than
100,000 unregistered Arakanese refugees are struggling to survive in woods and villages across
Bangladesh.

DISCUSSIONS
This research has delved into the fact that Arakani minorities have historically been excluded
from the mainstream. Exclusions acted as humiliation, which entailed a number of variables
such as prejudice, discrimination, stigmatization, derision, and deprivation. Humiliation toward
this community reached an extent that it went beyond the level of tolerance. Not that the
international community has been unaware of this pattern of systematic brutality, however the
tyrannical government never paid any heed to the encouragement from the international
community to uphold human rights. Thus, human rights violations continued on the highest
magnitude. On the practical side, Bangladesh might not welcome this mass exodus, however it
showed respect to the Geneva Convention and tried to provide protection with the assistance
of the UNHCR; obviously it was entirely insufficient. This is where the main argument lays
that life before and after was not too much different. However, the exorcism from state-
sponsored brutality was their complacence. This means that two distinctive features in Arakan
and in Teknaf: in Arakan there is state-sponsored persecution to cleanse ethnic minorities, and
in Bangladesh state there is the inability to provide necessary protection.
A number of variables of humiliation and persecution were analyzed both qualitatively and
quantitatively. Interestingly, findings from both analyses coincided well. Case studies have also
supported the argument. Restricted movement has a psychosocial effect on both minors and the
adults. That said, a 10-year confinement can have particularly harmful effects on children and

34
youth. Unlike some of the adults, children could not pay their way out of the camp. So for many
youngsters, especially those born in the camps (i.e., all those under 10, which account for 39%
of the total camp population), the boundaries of the camp are the boundaries of their world.
Also, Rohingya men found their social and economic value degraded, and the capacities and
potential squandered. This type of restriction is equated with some kind of mental torture. There
seems to be no durable solution to the Rohingya refugee problem until Myanmar complies with
its obligations under international law and respects the basic rights of its Rohingya minority.
The refugee regime offers three durable solutions for refugees: voluntary repatriation, local
integration, and resettlement. The principal objective of each durable solution is to restore
national protection to refugees. The suitability and availability of solutions may vary for
different groups of refugees or even for refugees within the same population. This population
knows that they are not wanted in Bangladesh nor in Myanmar. This study, of course, does not
claim to have broken theoretical ground, however, this fills a significant vacuum in the
knowledge how this group of population has historically been minoritized in their own land
and beyond. There is no denying that they are caught between two lions. While this study, along
with many others, talks about the Rohingya refugees from a humanitarian standpoint, growing
concerns looming around the issues of national security threats posed by this population should
also be taken into consideration.

35
Chapter Seven
Recommendations and Conclusion

36
7.1 Recommendations

repeal or amend the 1982 Citizenship Law to ensure compliance of its legislation with
the countrys international human rights obligations, including Article 7 of the
Convention of the Rights of the Child and Article 9 of the Convention on the
Elimination of All Forms of Discrimination Against Women;
take urgent measures to eliminate discriminatory practices against the Muslim minority
in North Rakhine[Arakan] State, and to ensure that no further discrimination is carried
out against persons belonging to this community. In addition, Bangladesh, Malaysia
and Thailand should put in place effective mechanisms to allow Rohingyas access to
protection as refugees.
Burmese military has a systemic program by the ruling Myanmar regime to alter the
demography of Rohingya homeland of North Arakan. This includes extermination of
the Rohingya population, confiscation and demolition of Rohingya properties, and
construction of Pagodas, monasteries and Government buildings on the sites of
demolished mosques and Muslim shrines, and confiscated Rohingya properties.
Hundreds of thousands of stateless Rohingyas have fled brutal oppression in Burma.
Impoverished Bangladesh already witnessed two mass exoduses of 250,000 Rohingya
refugees in 1978 and again in 1991/92, which were followed by forced repatriation.
Today, 28,000 remain in two precarious refugee camps assisted by the UNHCR and a
few NGOs. But the exodus has never stopped and new arrivals do not have access to
the existing refugee camps and there is no mechanism for them to seek protection.

37
7.2 Conclusion
It has been found that in Arakan, deep-rooted religious and ethnically-motivated violence has
been rising and is officially fueled as a policy. Recent clashes in the region have left more than
1,000 Muslims dead and over 90,000 Muslims homeless. The fact that voter lists for the 2012
elections in Burma are scheduled to be published late this year is among the main reasons
behind recent attacks on Muslims. The Rohingya population in Arakan is tried to be reduced
so that Buddhists can gain more political ground. Systematic acts of violence against Arakanese
Muslims by the Burmese government qualify as genocide. Crimes against humanity are being
perpetrated in Arakan. The UN and international human rights organization should call on the
Burmese government to end pressure on Muslims.
Arakanese Muslims are fleeing to neighboring countries to escape spiraling violence they are
facing. There are 28,000 registered and 500,000 unregistered Arakanese refugees in
Bangladesh. Burma is regarded by China, the USA and Russia as a strategic region. China does
not want to allow the USA gain influence in a country it is sharing border with. The USA, on
the other hand, wishes to play an active role in Burma in case of crises with China. Under these
circumstances, the settlement of the problem of Arakanese Muslims is tied to the settlement of
problems of the Burmese opposition and other ethnic groups in the country. This, however, is
dependent on the end of restrictive regime and allowing ethnic groups in Burma a free political
sphere. Otherwise, basic rights of Arakanese refugees in different countries, particularly in
Bangladesh, and Muslims in Arakan will continue to be threatened. Muslim Rohingya, who
are regarded as foreigners in their own land as per the 1982 Citizenship Law and issued
different identification cards as the most striking proof of discrimination, should be reinstated
as citizens of Burma. Forced displacement of Muslims from their villages to be replaced with
Buddhists and forced labor should be ended.

38
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Websites:
[1] https://www.theguardian.com/global-development-professionals-network/2017/jan/04/is-
rohingya-persecution-caused-by-business-interests-rather-than-religion
[2] http://www.maritime-executive.com/article/hormuz-and-malacca-remain-top-oil-
chokepoints
[3] https://qz.com/348765/watch-the-invisible-patterns-of-sea-cargo-cover-the-earth/
[4] Review of Maritime Transport 2011
[5] https://www.forbes.com/sites/ericrmeyer/2015/02/09/oil-and-gas-china-takes-a-
shortcut/#57699b127aff

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