Blog by Kanak Kanti Karmakar and Pritom Kanti Karmakar *
On 25 August 2017, Rohingya living in Myanmar’s Rakhine State were the target of an indiscriminate onslaught by Myanmar’s security forces that included rape, murder, and burning and looting of property. The goal of the Myanmar Government’s ‘Operation Clearance’ was to eradicate the Rohingya, who had endured years of prejudice and persecution in their own country. Following this, over 750,000 Rohingya fled across the border to Bangladesh in search of shelter. Since 2022, Bangladesh has commemorated August 25 as ‘Rohingya Genocide Remembrance Day’.
The Non-recognition of Rohingya as Refugees in Bangladesh
Bangladesh has demonstrated humanitarian solidarity by opening its borders and hosting millions of Rohingya in stages. However, hosting such a huge displaced population for a long duration of time has put Bangladesh under economic and political strain owing to rising population pressure, environmental degradation, economic hardship, and criminal activity in the Cox’s Bazar and Chittagong areas.
Despite this, the Government of Bangladesh has not publicly recognized the Rohingya community as refugees, instead referring to them as ‘Forcibly Displaced Myanmar Nationals’. This non-recognition has a variety of political, legal, and diplomatic reasons which have impacted the possible resolution of the crisis.
The 1951 Refugee Convention obliges States to grant certain rights to those seeking asylum. Since Bangladesh is neither a signatory to the 1951 Refugee Convention nor the 1967 Protocol, it has no direct legal duties under the Convention towards the Rohingya who arrived in 2017. However, the Bangladeshi Government still has some obligations under customary international law, including the obligation of non-refoulement. In light of this, Bangladesh has allowed the Rohingya to live as temporary asylum seekers instead of taking the decision to grant refugee status.
Despite its obligations under customary international law, the Bangladeshi Government may not want to provide the impression that it has certain legal duties towards the Rohingya by naming them as ‘refugees’. These could include higher living standards, education, freedom of movement, and work rights, which Bangladesh’s economy and infrastructure could not easily provide. Furthermore, it is possible that the Bangladeshi Government considers that by not providing refugee status to the Rohingya, it has communicated to Myanmar that the Rohingya’s permanent address is in Myanmar and that the Myanmar Government must accept responsibility for their return, regardless of how long it takes. Providing refugee status may undercut the argument that the Rohingya must return to Myanmar, implying that Bangladesh approves their long-term stay.
However, despite several attempts by the Bangladeshi Government, Myanmar’s refusal to take back the Rohingya has made repatriation impossible. Thus, Bangladesh’s transitory method has failed, and the population have become de facto permanent residents without formal recognition or long-term remedies.
Geopolitics over Humanity: The Role of India and China in the Non-Recognition of Rohingya Refugees:
China and India consider Myanmar as an important partner in growing their influence in Southeast Asia. Myanmar is one of the routes for China’s Belt and Road Initiative. India, on the other hand, wishes to use Myanmar as part of its ‘Act East Policy’. China is one of Myanmar’s top investors and has made significant investments in Myanmar’s ports, minerals, gas, and infrastructure. On the other side, India is making investments in Myanmar through the Kaladan Multimodal Project and the Road-Linkage Project. Furthermore, both nations view Myanmar’s geographical location as strategically crucial. As a result, China and India have prioritized their geopolitical, economic, and other interests over humanitarian concerns regarding the Rohingya crisis, thinking that pressure might undermine their respective interests.
The geopolitical rivalry between China and India in Myanmar is directly related to Bangladesh’s refusal to acknowledge the Rohingya as refugees. India’s Act East Policy and China’s Belt and Road Initiative both have close political and economic ties to Myanmar, which makes these governments reluctant to denounce Myanmar’s involvement in the Rohingya crisis. Bangladesh has therefore taken a careful approach, referring to the Rohingya as “Forcibly Displaced Myanmar Nationals” instead of refugees in order to maintain positive relations with these powerful neighbors and to ensure ongoing diplomatic and economic assistance.
ICJ Proceedings on the Rohingya Genocide Case
In 1956, Myanmar ratified the Genocide Convention, paving the way for the Gambia, in 2019,to bring a lawsuit under Article 9 of the Act, which permits the International Court of Justice (ICJ) to hear cases involving disputes between parties ‘relating to the responsibility of a State for genocide’.
On January 23, 2020, the International Court of Justice issued a ‘provisional measure’ in the Gambia v. Myanmar case. It urged Myanmar to avoid genocide against the Rohingya, put an end to unlawful behavior by security personnel, and preserve evidence of assaults on the Rohingya. Despite being a significant legal acknowledgement, this is not the case’s ultimate decision. The initial phases of the lawsuit are still ongoing. Following the completion of the written submissions by both parties, the court will hear the matter orally, during which Gambia and Myanmar will present their arguments.
After that, the court will provide a final decision, which may take several more years. Even while ICJ proceedings are between two states and lack the authority to investigate any criminal charges, they can nonetheless advance justice and serve as a deterrent to future offences.
The ICJ has formally acknowledged the seriousness of the Rohingya crisis and imposed legal duties on Myanmar, including ongoing litigation and provisional measures. This should enhance adherence to international law, facilitate documentation, and support upcoming claims for enforcement or compensation. However, the legal procedure by itself has not resulted in a workable resolution for the Rohingya crisis, since Myanmar has persisted in impeding its execution. Regional powers have not applied enough pressure, and the security, social and humanitarian factors influencing repatriation are still unresolved. In summary, the Rohingya situation remains politically and practically unresolved in the absence of Myanmar’s collaboration, more robust regional and international enforcement, and realistic security, citizenship, and rehabilitation assurances in Rakhine.
ICC’s Role in Prosecuting Rohingya Atrocities
The International Criminal Court (ICC) has the authority to prosecute individual criminals such as heads of state, military leaders, and politicians. However, the ICC has been unable to charge anyone involved with the Myanmar administration. This is because Myanmar has neither signed nor approved the 1998 Rome Statute. Nevertheless, because the forced deportation of the Rohingya occurred in part within Bangladesh – a party to the Rome Statute – the ICC has jurisdiction to examine the crime of ‘forced deportation’.
The ICC has been conducting a preliminary investigation into the claims since 2019, but has yet to produce a final report. In November 2024, the ICC prosecutor submitted an arrest warrant application against a top Myanmar military official. However, whether or not an arrest warrant is issued is up to the judges. It is impossible to predict how many years the investigation will take to compile enough evidence for an arrest warrant or summons to appear in court.
The ICC depends on governments to apprehend and hand over suspects because it lacks a police force. Arrest and transfer are unlikely in the near future because Myanmar’s Government refuses to cooperate and because influential countries such as China have politically supported or sheltered Myanmar in international forums. The ICC’s capacity to bring about rapid, tangible change in Rakhine is therefore constrained by this political reality.
Political and Legal Difficulties to resolve the Rohingya Crisis
The political and legal framework for refugee protection includes a ‘burden sharing’ principle (Paragraph 4 of the preamble of the 1951 Convention relating to the Status of Refugees), which encourages countries to share responsibilities for refugee protection and other challenges in an equitable manner, so that no single country is overwhelmed.
Unfortunately, there is a mismatch in the fair division of responsibilities for resolving the Rohingya situation. For many years, Bangladesh has been the primary bearer of this burden, with the international community failing to give significant or coordinated help for repatriation and humanitarian support.
The Myanmar Government’s persistent refusal to grant citizenship and guarantee the Rohingya’s safe return, the country’s ongoing political unrest, the lack of international funding, and the practical difficulties of handling the lengthy refugee crisis are the primary causes of this unequal allocation of responsibilities.
These problems are putting Bangladesh under long-term political and economic strain and are causing local dissatisfaction to rise. The duty of this sizable community has become difficult for Bangladesh alone to handle in the current situation, particularly as the voluntary repatriation of the Rohingya remains uncertain.
The Way Forward
Bangladesh must maintain productive diplomatic relations with Myanmar and other relevant nations in order to resolve this complicated problem. Since Myanmar is the source of the Rohingya crisis, only Myanmar’s Government and military can solve issues like citizenship denial, security threats, property loss, and persecution. According to international law, Rohingya refugees cannot be repatriated without Myanmar’s participation and agreement. Therefore, constructive diplomacy may promote progressive policy reforms, leverage humanitarian access, and open doors for dialogue. Constructive diplomatic ties may enable Bangladesh and its ASEAN allies to coordinate development security, and humanitarian assistance initiatives that could help stabilize Rakhine State.
Such ties could lead to bilateral or tripartite agreements (for example, Bangladesh-Myanmar-UNHCR) that ensure voluntary, safe, and dignified repatriation. Diplomatic channels could assist in establishing verification processes, citizenship paths, and third-party monitoring in order to increase refugee confidence in returning home. Furthermore, a constructive partnership may persuade Myanmar to allow humanitarian and development organizations such as UNHCR, UNDP and IOM into Rakhine State. This would help with infrastructure repair, livelihoods, and social cohesiveness, creating conditions favorable for repatriation.
Bangladesh can enhance its moral and legal standing internationally by continuing to actively engage in diplomacy rather than engage in conflict. In addition to keeping the lines of communication with the Myanmar Government open, this would improve its capacity to bring together humanitarian aid, UN backing, and international pressure on Myanmar.
Additionally, every effort must be made to draw the attention of human rights organizations and the international community to the ongoing crisis. Without these actions, the Rohingya situation in Bangladesh will become even more precarious.
* Kanak Kanti Karmakar is currently working as a Lecturer in the Department of Law & Justice at North East University Bangladesh. He holds an LL.B. (Hon’s) and LL.M. (Master’s) from the Bangladesh University of Professionals (BUP). He is an early-career Legal Researcher, Article Reviewer, and Editor of International Law Journals. His research interests include human rights, constitutional law, environmental law, family law, refugee & migration, and humanitarian law.
Pritom Kanti Karmakar is a LL.B. Student at Stamford University Bangladesh, Dhaka, Bangladesh
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