International solidarity is required to ensure safe, dignified and voluntary repatriation of Rohingyas

Brian Barbour is a lawyer with a background in International Refugee Law. He started his work by leading a legal aid organisation in Hong Kong. He is a long-time advisor to the Asia Pacific Refugee Rights Network. His work includes engaging with governments, non-governmental organisations, lawyers and bar associations for the improvement of refugee protection systems in the Asia Pacific region. Recently, Tahseen Lubaba from Law Desk talks to him on the following issues:

Law Desk (LD): Based on your experience providing legal aid services to refugees in Hong Kong, do you think a similar approach could be effective in Bangladesh?

Brian Barbour (BB): Hong Kong has a very strong judicial system with a reputation of delivering well thought out decisions and having effective lawyers who bring forward good claims. However, the system itself that exists in Hong Kong is not a model for how things should be done. Because it is a series of judicial decisions directing the government, fixing one gap at a time, it is not exactly comprehensively developed. But it does show that a lot can be done even in a country where the Refugee Convention hasn’t been signed. Ultimately, it is not a question of whether a country has or hasn’t signed the Convention. The reality is that refugees are here, and in large numbers, and they cannot be ignored. The Government of Bangladesh has been consistent in its reception of refugees. But there is still a long way to go. The legal community and civil society of Bangladesh must come forward and collaborate with the government, and there is a lot of potential for that.

LD: In what ways do you think the civil societies and NGOs play an effective role in refugee protection?

BB: Civil society can contribute in two ways: first, they must deliver protection in practice. Rohingya refugees are here regardless of whether there is a law for it, and they are in a vulnerable situation and have protection needs. To my opinion, the local civil society needs to identify the needs of the refugee population and try to address them as best they can. If they find that a right or need is not being met, they need to raise the alarm, call out rights violations, remove barriers to solutions, and/or take it to those who can fill the gaps. The other thing that the civil society can do is to collaborate with each other effectively. Coordination is an ongoing challenge, because there are so many actors, but in the face of tremendous needs and limited resources, we need all hands on deck.

LD: Considering the legal system in Bangladesh, do you think the Rohingyas can approach the domestic courts for legal remedy?

BB: I think the legal community and framework in Bangladesh is quite strong. The number of laws that may be relevant for the Rohingyas are tremendous. Without signing any new Conventions or enacting new laws, there may be a lot of opportunities to provide remedies to specific needs of the Rohingyas. Some laws have explicit barriers and do not apply to foreigners, and some laws are ambiguous. Ambiguous laws should be tested to find out whether they may be applied to Rohingyas. Where explicit barriers exist, lawyers should challenge these restrictions. The first step is to engage lawyers who can bring forward claims. For instance, marriage registration is being denied to inter-Rohingya-Bangladeshi couples. This, I believe, needs to be challenged. There are provisions in the Constitution that provide equality before the law, for example, amongst other provisions that can be used to challenge the denial of marriage certificates. However, this is one issue and many other issues need to be addressed such as child marriage, domestic violence, access to education and healthcare. There will inevitably be opportunities for the courts to engage, but they will need lawyers to bring them good cases.

LD: The issue of integrating the refugee community within the host communities has always been a problematic issue. Will you reflect a little on this?

BB: At present, refugee camps create a parallel system, segregate people, and are unsustainable from a humanitarian, environmental, and economic perspective. The longer the refugees are kept segregated, the more tensions may grow between communities. The easiest way to tackle this is through regular interaction between the refugees and the host communities. Addressing a refugee crisis and mass arrival remains a complex scenario that the whole world is struggling to manage, but the trend is away from camps. For example, Malaysia does not have camps and refugees are living in the host communities. There are legitimate questions about the best way to manage large arrivals of refugees and it needs to be addressed strategically and collaboratively, by the international community working in solidarity. Hopefully, thirty years from now, refugee camps will be few and far between – because they are not necessary and have significant costs to both refugees and the State. I am sympathetic to the given circumstances, but camps are not sustainable and do not provide a long-term solution.

LD: Speaking of long-term solutions, do you think repatriation agreements between Governments of Bangladesh and Myanmar will come in effect any time soon?

BB: Firstly, we need to be very careful when we talk about repatriation. We must include the words ‘safe’, ‘dignified’ and ‘voluntary’ repatriation; otherwise, we risk that refugees will be sent back by force to face mass atrocities again. Safe, dignified, and voluntary repatriation depends entirely on the Government of Myanmar addressing the ongoing mass atrocity, taking accountability for it and ensuring that the Rohingyas will be protected when they return and will be welcomed back as citizens of Myanmar. In the short-term, it’s unlikely that this will happen. The current situation in Myanmar is not safe. However, it can happen in the long term, if the international community comes together. It cannot all be on Bangladesh, and there needs to be an international response.

LD: Thanks for your time.

BB: You are welcome.