Bangladesh's Claim for Reparation from Myanmar due to Rohingya Influx

SocioEconomic Challenges, Volume 4, Issue 1, 2020 ISSN (print) - 2520-6621, ISSN (online) - 2520-6214 65 Bangladesh's Claim for Reparation from Myanmar due to Rohingya Influx: Options and Challenges Md. Ayub Ali, ORCID ID: LL.M., DU, Assistant Professor, Department of Law & Justice, Southeast University, Bangladesh Abstract The article summarizes the arguments and counterarguments within the scientific debate on the application of the principles and practices of international law to assess the compensation of a State's damage as a result of the illegal acts and / or inaction of another State. The main purpose of the study is to analyze the causes of the crisis against the Rohingya ethnic group and to assess its likely devastating effects on Bangladesh. The systematization of literary sources and approaches to the settlement of international disputes of this kind indicate that in practice there are two approaches that can be used to file and pursue a claim for redress for Myanmar. The urgency of solving this scientific problem is that, as a neighboring country, Bangladesh has faced the need to resolve the issue of refugees from the region and accordingly takes an active part in resolving this protracted conflict caused by Myanmar's actions against the Rohingya ethnic group, the persecuted ethnic minority in the world. According to the Office of the United Nations High Commissioner for Refugees, the unlawful and brutal actions of the Myanmar army have forced more than a million Rohingya refugees to flee their homes and migrate to Bangladesh, causing enormous negative effects on its economy, the environment and the rule of law. The study confirms that, under international law, Bangladesh has the right to sue Myanmar for unfair and cruel oppression of Rohingya rights. During the course of the study, the author has used such sources as periodicals, UN reports and documents from Rohingya human rights organizations. The principles of international law on state liability are used as a methodological tool for assessing Myanmar's liability. The results of the study may be useful for policymakers exploring the strategy of addressing the challenges of Myanmar's compensation claims, as well as for international organizations that are addressing the Rohingya crisis. Keywords: cruelty, international wrongdoing, imperative norm, compensation, state responsibility, Myanmar, Bangladesh, Rohingya national migration, refugee rights, ethnic minorities, damages lawsuit. JEL Classification : K33. This work is licensed under a Creative Commons Attribution 4.0 International License. Cite as: Ali, Md. Ayub (2020). Bangladesh's Claim for Reparation from Myanmar due to Rohingya Influx: Options and Challenges. SocioEconomic Challenges , 3 (4), 65-74. 74.2020 . © The Author, 2 020. This article is published with open access at Sumy State University. Introduction The Rohingya refugee crisis is one of the complex issues the present world is currently facing. Having commenced in the middle of the 18 th century with the Burmese invasion of the ancient Arakan, the problem has taken a serious turn in 2017 leaving thousands of Rohingya families in Rakhine landless and homeless. The step-motherly and hostile attitude of the military backed autocratic government of Myanmar towards the Rohingyas is mainly responsible for such humanitarian disaster. The people who have been living in Arakan, the present day Rakhine state, maintaining roots and family bondage through their ancestors with the soil, have been rendered stateless with the enactment of the disputed Citizenship Act in 1982. Taking stand against international obligation, Myanmar is adopting the persecution, genocide and other crimes as the means to deport or eliminate the Rohingya people from the country. The UN Fact Finding Committee reported that it found the elements of genocide committed on Rohingya community since 2017 in Myanmar. Such kinds of large-scale human rights abuses and heinous crimes are the flagrant violation of international law posing prejudice to the interest of the neighbouring countries. Bangladesh is the direct victim as a result of the
SocioEconomic Challenges, Volume 4, Issue 1, 2020 ISSN (print) - 2520-6621, ISSN (online) - 2520-6214 66 Rohingya crisis in Myanmar as it shares a 170 mile long border with Myanmar where in Myanmar side, 80 percent of the population is Rohingya. As of 2018, more than 1 million Rohingyas crossed over from Myanmar to Bangladesh mounting burden on the economy, environment as well as creating menace to the territorial integrity and law and order of Bangladesh. According to international law, Myanmar bears the state responsibility for causing harm to Bangladesh through its acts or omission. This is the cardinal principle of international law that every violation of law generates an automatic obligation on the wrongdoing state to remedy the breach. Literature Review The Rohingya are a Muslim ethnic group residing in the Buthidaung and Maungdaw Town ships of the northwestern part of the Arakan State, Burma. They live here as the majority together with the Buddhist Arakanese and Burmese (Smith, 1991.). Now-a-days, Rohingya community is the most persecuted one in the world. Though the Rohingya minority group has been living in Rakhine State for ages, they have apparently been stateless since the military government passed the 1982 Citizenship Act denying their equal access to citizenship (BROUK, 2014). The genesis of Rohingya problem may be traced in the conquest of Arakan in 1785 by the Konbaung Dynasty which compelled as many as 35,000 people of the Rakhine state to flee to the neighbouring Chittagong region of British Bengal in 1799 to escape persecution to seek protection under the British Raj (Chan, 2005). It triggered a long guerrilla war in which the Burmese army allegedly killed more than 200,000 Arakanese (Ahmed, 2010). This resulted in the exodus of almost two-thirds of the Muslim Arak anese population into the Chittagong area, today's Cox's Bazar in Bangladesh. When the British incorporated Arakan and the rest of Burma into its empire by 1885, many refugees returned to Arakan (New Mandala, 2014). During the Japanese occupation, the Rohingyas expressed loyalty to the British (Slim, 2009) and claimed autonomy in the northern part of the state which was viewed by the Burmese administration as betrayal and territorial undermining, fueling their attitude of suspicion and estrangement toward the Rohingyas that lingers today. In the independent Burma, the Rohingya community was recognized as an indigenous ethnic nationality and a number of Rohingya people were elected as the representatives in the Burmese parliament as well as held the very prestigious position in the government like ministers, parliamentary secretaries (Radio Free Asia, 2010).But since Burma's military junta took control of the country in 1962, the Rohingya have been systematically deprived of their political rights. The 1974 Emergency Immigration Act stripped the Rohingyas of their nationality, rendering them foreigners in their own land. The denial of citizenship inarguably remains the root cause of the Rohingyas' endless cycle of forced migration. In 1977, the Burmese military government launched an operation to register the citizens and prosecute the illegal entrants. The nation-wide campaign started in Rakhine State, and the mass arrests and persecution, accompanied by violence and brute force, triggered an exodus in 1978 of approximately 200,000 Rohingyas into Bangladesh (Abrar, 2010). Within 16 months of their arrival, most were forced back after bilateral agreements were made between the governments of Burma and Bangladesh. Since theArakan Rohingya Salvation Army (ARSA) attacks on 25 August 2017, more than ten lakhs of Rohingya have been taking shelter in Bangladesh The movement of hundreds of thousands of Rohingya into Bangladesh in a short period, driven by the cruel, sadistic Myanmar army, is causing grave damage to Bangladesh (Cookson, 2017). The Rohingya refugees are generating conflict, dilemma, and insecurity in their host country, Bangladesh (Rahman, 2010). As such, the Rohingya crisis is no longer only a humanitarian calamity but a potential threat to Bangladesh's internal stability. As the huge influx of Rohingya is the aftermath of a premeditated ethnic cleansing carefully designed by the Myanmar government, the author draws the following hypothesis: i. That Myanmar has committed internationally wrongful acts and as such incurs state responsibility towards Bangladesh for damages caused to it; and ii. That Bangladesh as a host country is entitled to raise a claim of reparation to and against Myanmar for creating the Rohingya refugee crisis. The Rohingya crisis between Bangladesh and Myanmar is almost identical with the Palestinian refugee problem that arose between Israel and Jordan as a result of Arab-Israel wars of 1949 and 1967. Bisher Hani Khasawneh (2007) examined the right of Jordan as a host country, under international law, to bring
SocioEconomic Challenges, Volume 4, Issue 1, 2020 ISSN (print) - 2520-6621, ISSN (online) - 2520-6214 67 compensation claims to and against Israel for creating the Palestinian refugee problem. In her thesis, the author scrutinised the legal bases for such a right, under international law in the context of State Responsibility for wrongful acts along with the procedures and mechanisms available for the pursuit of such claims. Methodology This is a doctrinal research based on qualitative approach. The research materials consist of both primary and secondary sources. An extensive review of literature has been conducted in order to establish a conceptual framework. The author has examined existing scholarships, newspaper articles, UN reports and Human Rights Organisations' reports on the Rohingya. The researcher has applied principles of international law with regard to state responsibility for internationally wrongful acts as set out in ILC's Draft Articles (ILC, 2001) and in judicial precedents to determine whether Bangladesh is entitled to raise a claim of reparation against Myanmar for Rohingya influx. Atrocities Committed on Rohingyas The Rohingya are the most persecuted and abused minorities in the earth only owing to their ethnicity and religious ground (OUN, 2012). The atrocities on Rohingyas in Rakhine state has been termed by the United Nations as 'the text book example of ethnic cleansing' (Guardian, 2017).The brutal security operation of Myanmer security forces against the Rohingya in Rakhine state is clearly disproportionate, unjust and indiscriminate. The Patterns of violations committed by Myanmar military and security force include conduct of hostilities in flagrant disregard of civilian life and property, unlawful killings, torture and other ill treatments, sexual and gender based violence, arbitrary deprivation of liberty and enforced disappearance, forced labour and forced recruitment of adults and children, forced displacement, confiscation and destruction of property, and denial of humanitarian assistance (HRC, 2018). Besides, crimes under international law like genocide, crimes against humanity and war crimes have been committed on Rohingya community (HRC, 2018). Because of intolerable persecution, thousands of Rohingya fled into Bangladesh in 1784, 1942, 1978, 1991-192, 2012 and 2017. They flowed from Myanmar to Bangladesh for the ethnic and religious conflicts over the centuries (HRW, 2000). Impact of Rohingya Problem on Bangladesh Considering the humanitarian grounds, Bangladesh has extended all-out assistance towards the Rohingya driven by the cruel, sadistic Myanmar army and is providing them with the protection and other provisions of life. But the huge inflow of Rohingya is causing grave damage to Bangladesh by exerting the huge negative impact on its economy and environment particularly, the effect on the southern part of Bangladesh along the border with Myanmar is devastating. Though the government took initiative to register the Rohingya refugees and keep then within the temporary camps, most of them still remain undocumented posing a serious threat to the security, stability and image of the country through their involvement in serious crimes including drug and human trafficking, smuggling, robbery and other organized crimes. These illegal Myanmar nationals are obtaining Bangladeshi passports to go to Saudi Arabia and other states in the Middle East through fraudulent means, falsification of national ID cards and birth certificates which are causing huge embarrassment for the Bangladesh community living in those states (Islam, 2012). The massive number of rohingya refugees is straining Bangladesh in five ways namely political impact, security challenges, economic effects, social strains and environmental destruction (Alam, 2018). According to a study by Centre for Policy Dialogue (CPD, 2018), the Rohingya crisis is putting an adverse effect on Bangladesh, mostly on the country's economy, society and the environment. Economic impact includes pressure on employment, depression of daily wage and cost of living; the social impact includes loss of school years for locals, health issues among Rohingyas and locals (mortality and morbidity, chronic malnutrition, respiratory illnesses, etc.). Environmental effects are deforestation, loss of biodiversity and ecosystem, and natural calamities like landslides. Around 6,000 acres of land has been deforested by the Rohingya camps which is equivalent to Tk. 741.3 crore or USD 86.7 million (CPD, 2018).Beginning from 25 August 2017 till 25 March 2018, $322 million have been donated for the Rohingyas through international donor agencies. The Bangladesh government has estimated that $434 million has been spent on some 80 million Rohingyas till then. And 74% of that expense
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