Posted on September 13, 2020
By Amber Smith and Tom Welch
Amber is a PhD candidate at the University of Lincoln Law School and her thesis is on TWAIL, R2P and Regional Organisations. @amberamelismith
Tom is a PhD candidate at the University of Lincoln Law School. His thesis focuses on the relationship between vulnerable and displaced populations and the legal regimes that ostensibly seek to protect their rights. @TomWelch94
On 1st April 2020, the Global Centre for the Responsibility to Protect issued an atrocity alert special issue on COVID-19. This alert noted that COVID-19 would have particularly adverse implications for the ‘70 million people forcibly displaced by conflict, persecution and atrocity’, many of whom currently live in conditions which leave them vulnerable to the coronavirus.
Residing in a refugee or IDP camp is a condition which increases vulnerability to COVID-19, particularly in overcrowded and unsanitary camps which lack medical facilities and the ability to maintain social distancing, much like Cox’s Bazar in Bangladesh. Currently, over 900,000 Rohingya refugees reside in Cox’s Bazar after fleeing persecution and genocide by the Myanmar military. The Institute on Statelessness and Inclusion notes that whilst those living under refugee conditions were already in a crisis before the pandemic, COVID-19 has further highlighted structural inequalities. There are currently no intensive care medical facilities in any of the camps in Cox’s Bazar, nor are there adequate means by which to clean hands or socially distance, both of which are vital for protection from COVID-19.
The Global Centre for the Responsibility to Protect noted two factors in a joint letter to Prime Minister of Bangladesh Sheikh Hasina which are placing Rohingya lives at greater risk. The first factor includes Internet access for Rohingya within the camps, which is currently restricted. This limits the spread of safety information, ultimately causing discriminatory healthcare outcomes. The second factor includes plans to install barbed wire fences around the camps for the purposes of restricting the movements of the Rohingya and confining them, rather than protecting them. The letter states this will create ‘obstructions to humanitarian access’, which is largely counterproductive for refugee protection. This form of structural violence is likely to cause disproportionate death tolls within camps.
Myanmar’s government has also used the pandemic to further discriminate against the Rohingya by closing borders between Rakhine State and Bangladesh, which has resulted in Rohingya refugees being pushed back into the sea. Refugee camps at breaking point, coupled with the lack of responsibility for vulnerable refugees at sea, raise serious questions about the responsibility to protect.
Since its conception, prevention has been cited as one of the most important dimensions of R2P. The Global Centre for the Responsibility to Protect notes that COVID-19 has increased the risk factors for mass atrocity in divided and fragile societies which suffer from identity-based conflict. Therefore, an opportunity to prevent possible future atrocity has arisen: to protect the Rohingya who still reside within Myanmar and to extend prevention efforts through international assistance to Rohingya residing in refugee camps. This could be achieved through pillar two of R2P’s three-pillar strategy, that is to once again encourage Myanmar to recognise its primary responsibility to protect the Rohingya. Using pillar two could improve humanitarian assistance measures through increased aid efforts and improved access to medical facilities within the camps.
A critical barrier to the successful implementation of R2P in these circumstances is the refusal of many Southeast Asian states to engage with protection mechanisms which encourage the greater safety of displaced populations living within their borders. Neither Bangladesh nor Myanmar have signed or ratified the Refugee Convention, its Protocol, nor the Statelessness Conventions, on the ground that the protections and responsibilities outlined within such documents are Eurocentric and irrelevant to the Asian experience of refugeehood.
Whilst such excuses have been largely dismissed as either poor attempts to absolve state responsibility toward vulnerable and indigent populations, or as insidious efforts by oppressive regimes to continue advancing anti-minority agendas, there is some merit to the arguments posed by Southeast Asian governments. The growth of internal Rohingya populations in Bangladesh has already had a severe impact on local unemployment rates and has resulted in considerable environmental degradation. As a densely populated low-income food deficit nation, Bangladesh lacks the infrastructure to successfully integrate its large Rohingya population. Without the guarantee of considerable external assistance, the expectation that Bangladesh should sign and ratify the various Refugee and Statelessness Conventions at this time is largely infeasible.
Therefore, to encourage alignment between the values espoused by the wider refugee protection regime and those of Southeast Asian nations, a responsibility-sharing mechanism must be introduced to ensure greater collective liability for displaced populations amongst global actors.
The Global Compact on Refugees (GCR) is demonstrative of the movement toward a refugee protection regime predicated on the ideals of collective action and international solidarity. Non-binding agreements such as the GCR can play a pivotal role in the development of normative legal concepts in international law by delineating the technical standards by which existing law can be applied or by taking the initial step in the norm-making process. The GCR’s non-binding nature thereby functions as a “nodal point” in the endeavour to link refugee-hosting states, such as Bangladesh, to the wider refugee protection regime.
The GCR presents certain deficiencies, including a failure to examine in detail what is meant by the term ‘responsibility-sharing’ and to delineate the precise ways in which private sector engagement and resettlement opportunities might take shape. Whether the GCR is fit for purpose in a post-Covid environment is a question yet to be answered.
Much work is still required to protect vulnerable populations, an endeavour that is made more complex given current global circumstances. We propose that a response through R2P’s second pillar, with a focus on the need to ensure greater inter-state solidarity, is a means to protect the Rohingya from further abuse and mistreatment.