Bangladesh should incorporate the Rohingya scenario within its forthcoming ICCPR report
Bangladesh submitted its initial state party report to the Human Rights Committee (HRC), the monitoring body for the implementation of the International Covenant on Civil and Political Rights (ICCPR), on 19 June 2015, which was reviewed on 6 March 2017. As per the website of the Office of the United Nations High Commissioner for Human Rights, Bangladesh was supposed to submit its second state party report on the ICCPR on 29 March 2021. Although Bangladesh has missed the stipulated deadline, it is likely that it will submit the same shortly.
Generally, Bangladesh should consider the events that took place after 2017 in its second state party report. One of the remarkable events that occurred during this period was Bangladesh's shelter of an overwhelming number of Rohingya who fled Myanmar to evade persecution, specially since August 2017. The massive presence of the Rohingya in the Bangladeshi territory also raises the issues of human rights being enjoyed by them in Bangladesh.
Bangladesh's initial ICCPR report dedicated a single paragraph regarding the Rohingya. Bangladesh reiterated that despite not being a party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, it hosted the Rohingya population in full compliance with international law. The reference to the non-ratification of the Refugee Convention in its initial ICCPR report implies that Bangladesh is providing the rights under international law to the Rohingya ex gratia, not ex lege.
It is pertinent to mention that the scope of application of the ICCPR extends to "all individuals" within the territory of a state party and subject to its jurisdiction, and it applies to everyone without "distinction of any kind" (article 2.1 of ICCPR). The term "individuals" is broader than "citizens" and includes non-nationals and refugees. Reference to "citizens" in article 25 of the ICCPR reconfirms this position. While reporting under the ICCPR, it needs to be examined whether the Rohingya ethnicity fall within the scope of article 2.1 of the ICCPR regardless of their status under other international law treaties. Additionally, being a party to the Refugee Convention is not an essential condition to the applicability of the ICCPR to non-citizens. Though the Refugee Convention and the ICCPR contain several corresponding rights, and the former may influence the interpretation of the latter, and vice-versa, their nature and scope of applicability are different and to be determined concerning the Convention in question only.
Interestingly, the Government of Bangladesh has been using the term "Forcibly Displaced Myanmar Nationals" (or "FDMNs") to denote the Rohingya population since September 2017. One of the underlying reasons for using this term is to avoid any international obligations related to the refugees. Nevertheless, calling them "FDMNs" in lieu of "refugees" does not change the prospects of their protection under the ICCPR. The Rohingya will continue to enjoy the protection of the ICCPR on the condition that they fall within its scope within the meaning of article 2.
Bangladesh has already dealt with the rights of the Rohingya in its initial state party report on the UN Convention against Torture and its Universal Periodic Reports of the second and third cycle. Now, Bangladesh should utilise the occasion of submitting its second ICCPR report to show that its treatment towards the Rohingya since 2015 is consistent with the ICCPR. In the past, many laws and policies of Bangladesh related to the Rohingya raised human rights concerns. These may include the manner of application of the Foreigners Act 1946 to the Rohingya, the prohibition of the registration of Bangladeshi-Rohingya mixed marriage, access to courts and legal aids, the right to work within camps, and so on. In most cases, the Government has been reluctant to provide any justifications for restricting their rights.
As the rights enunciated in the ICCPR apparently cover many crucial rights of the Rohingya, Bangladesh's thorough review of the treatment of the Rohingya under the ICCPR will be crucial in contextualising its human rights commitments towards the Rohingya pending their voluntary repatriation. Besides, it will provide the Rohingya community and the humanitarian aid providers with a clear picture of their rights under the ICCPR in Bangladesh. Simultaneously, the HRC will have an opportunity to provide some valuable recommendations for ensuring and protecting human rights of the Rohingya.
The state party report review process of the ICCPR also provides the civil society organisations (CSOs) an opportunity to submit their shadow reports on the ICCPR. During the review of Bangladesh's initial state party report, several CSOs submitted their shadow reports. The CSOs working on the rights of the Rohingya must avail themselves of the occasion of Bangladesh's forthcoming ICCPR report to submit their shadow reports detailing the human rights situation of the world's most persecuted nations in Bangladesh.
The writer teaches public international law at American International University-Bangladesh.