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Political Conflict, Extremism and Criminal Justice 
in Bangladesh
Political Conflict, Extremism and Criminal Justice 
in Bangladesh
Protesters march in Dhaka during a general strike, held in response to the recent murder of Faysal Arefin, a publisher of books by critics of religious militancy in Bangladesh, 3 November 2015. REUTERS/Ashikur Rahman
Report 277 / Asia

Political Conflict, Extremism and Criminal Justice 
in Bangladesh

Political repression is reaching new highs in Bangladesh. The government’s abuse of rule of law institutions for political ends has created an atmosphere of injustice that is increasingly exploited by anti-state extremist groups. The gruesome recent killing of a secular blogger is just another tragic result of these groups' growing power and impunity.

Executive Summary

As the Awami League (AL) government’s political rivalry with the Bangladesh National Party (BNP) reaches new heights, so has its repression. At the same time, a deeply politicised, dysfunctional criminal justice system is undermining rather than buttressing the rule of law. Heavy-handed measures are denting the government’s legitimacy and, by provoking violent counter-responses, benefitting violent party wings and extremist groups alike. The government needs to recognise that it is in its interest to change course, lest it fail to either contain violent extremism or counter political threats. A key part of a more prudent course would be to depoliticise and strengthen all aspects of the criminal justice system, including the judiciary, so it can address the country’s myriad law and order challenges and help stall a democratic collapse. 

The political conflict between the AL and BNP has resulted in high levels of violence and a brutal state response. The government’s excesses against political opponents and critics include enforced disappearances, torture and extra-judicial killings. Police tasked with targeting the government’s rivals and an overstretched justice system compelled to prosecute opposition leaders and activists now also face a renewed threat from violent extremists. The permissive legal environment, however, is creating opportunities for extremist outfits to regroup, manifested in the killings of secular bloggers and foreigners and attacks on sectarian and religious minorities in 2015. The government’s reaction to rising extremism, including arrest and prosecution of several suspects without due process and transparency, is fuelling alienation that these groups can further exploit.

Reconciling with the opposition and hence stabilising the state requires both political compromises and an end to the repressive use of law enforcement agencies and abuse of the courts. Politicising the police and using elite forces, particularly the Rapid Action Battalion (RAB), to silence political dissent, are laying the seeds of future violence. By concentrating on targeting the opposition, the police are failing to curb criminality; the prisons are overburdened by the mass arrests of opposition leaders and activists; and the judiciary, perceived as partisan for trials and sentences based on political grounds, is losing credibility. The result is a justice system that swings between two extremes: woefully slow and dysfunctional for ordinary cases and speedy, undermining due process, in politically charged ones.

Any effort to reform a dysfunctional criminal justice system, including by investing in training, equipping and otherwise modernising the police, prosecution and judiciary, will be insufficient unless it is also taken out of politics. Years of partisan recruitment, promotions and postings have polarised these institutions to the point that officials no longer conceal their allegiances. Partisanship tends to determine the kinds of complaints and cases that get filed and prioritised and even informs verdicts and sentences.

The problems surrounding delivery of justice are further compounded by legal mechanisms to silence civil society and prevent media scrutiny and parallel processes that undermine due process in politically charged cases. The deeply flawed International Crimes Tribunal (ICT), established in 2010 to prosecute individuals responsible for atrocities committed during the 1971 liberation war, is an important example of the dangers of using rule of law institutions for political ends. Perceptions of injustice are creating opportunities for extremist groups and fuelling political conflict. 

The BNP and its Jamaat-e-Islami ally marked the anniversary of the disputed 2014 elections with indiscriminately violent strikes and traffic blockades, which were matched brutally by the state. The BNP now appears less willing to resort to violence to unseat the government; its decision to re-enter the political mainstream gives the government an opportunity it should exploit by urgently resuming dialogue with the opposition. To demonstrate sincerity and as a first step, it should end use of the rule of law institutions to target opponents and silence critics. Accepting legitimate avenues of participation and dissent would also help regain some lost legitimacy and the trust of citizens in the state’s provision of both justice and security. So long as there is no independent court system to arbitrate disputes fairly, the parties are likely to continue taking those disputes to the streets, but a neutral judiciary could help defuse tensions by upholding fundamental principles and preventing executive excesses. The international community can help to promote political reconciliation by, in the U.S. and EU case, using economic levers to pressure Dhaka to respect civil and political rights, and in New Delhi’s by using close ties to urge the AL to allow the opposition legitimate political expression and participation. There is no time to lose. If mainstream dissent remains closed, more and more government opponents may come to view violence and violent groups as their only recourse.

Recommendations

To restore political stability and ensure security

To the Government of Bangladesh:

  1. Commit to accepting legitimate political opposition and dissent, including by ending use of the criminal justice system to target political critics; and respond positively to the BNP’s decision to refrain from violence and re-enter the political and constitutional mainstream through participation in the electoral process by reopening urgently a dialogue to end the destabilising political stalemate.

To the Opposition:

  1. Commit to peaceful opposition, including by preventing party activists from using violence to subvert the political order; and sever ties with political allies who use violence to destabilise the government. 

To the Higher Judiciary:

  1. Develop consistent judicial doctrine/interpretation upholding the right to a fair trial and restraining the executive branch from undermining fundamental constitutional rights and principles, including actions against civil society institutions that undermine their ability to function freely.

To respect the constitutional right to free speech and dissent

To the Government of Bangladesh:

  1. Withdraw all cases against journalists, human rights groups and other civil society actors that are based on vague and dubious grounds, such as expressing views deemed “derogatory” of public officials or against the “public interest”, and end press closures and raids on media offices.
     
  2. Withdraw the 2014 national broadcast policy and remove restrictions on online expression in the Information and Technology Act.

To the Higher Judiciary:

  1. Refrain from issuing contempt of court citations to media and other civil society representatives for criticising court judgments, and overturn unjustified contempt convictions in other courts, including the International Crimes Tribunal.

To ensure due process and end political interference in the justice system

To the Government of Bangladesh:

  1. Enforce the constitutional requirement for an independent judiciary by establishing a more transparent, consultative appointment process, including consultations with the bar councils and parliamentary endorsement.
     
  2. Avoid statements alleging the identity of those responsible for crimes while investigations are ongoing; and end the practice of presenting suspects to the media, rather than in court, as required by the constitution.

To the Higher Judiciary:

  1. Issue clear orders against any executive bodies or officials found to be interfering in the judicial process.
     
  2. Insist on the need for an adequately resourced and staffed Supreme Court secretariat as fundamental to achieving judicial independence; provide the necessary resources to and scrutinise the workings of the lower judiciary; and hold to account judges who fail to provide a fair trial.

To modernise the criminal justice system

To the Government of Bangladesh: 

  1. Introduce amendments to adapt the Code of Criminal Procedure 1898, Evidence Act 1872, Police Act 1861, Penal Code 1860 and the Jail Code to modern challenges, including by implementing Bangladesh Law Commission recommendations on increasing use of technology and forensic and other modern evidentiary standards in investigations and trials. 
     
  2. Professionalise the police, prosecution agencies and lower judiciary, including by introducing a merit-based selection and recruitment process, secure tenure and effective mechanisms to evaluate performance and check political interference. 
     
  3. Identify personnel, training and resource needs particularly for the Police Bureau of Investigation, while developing specialised investigation units for national- and district-level policing. 

To push for a broader political reform agenda

To the International Community: 

  1. Link some development assistance, and in the U.S. case the restoration of the Generalised System of Preferences (GSP) facility, to demonstrable improvements in human rights, free speech and association and fair trial. 
     
  2. Use, in the case of India, its close relationship with the AL to urge the government to allow legitimate avenues of political expression and participation to the opposition.

Brussels, 11 April 2016

Rohingya refugee women hold placards as they take part in a protest at the Kutupalong refugee camp to mark the one-year anniversary of their exodus in Cox's Bazar, Bangladesh, 25 August 2018. REUTERS/Mohammad Ponir Hossain
Briefing 153 / Asia

Bangladesh-Myanmar: The Danger of Forced Rohingya Repatriation

Bangladesh and Myanmar have struck a deal for the involuntary repatriation of over 2,000 Rohingya refugees. But the agreement is rushed and threatens stability on both sides of the border. Myanmar and Bangladesh should halt the plan and instead work to create conditions conducive to a safe and dignified return. 

What’s new? Bangladesh’s government is preparing to return several thousand Rohingya refugees to Myanmar. Under pressure from China, the two countries have agreed to start implementing a repatriation agreement on 15 November 2018.

Why does it matter? The returns process is not voluntary and jeopardises refugees’ safety as conditions in Myanmar’s Rakhine state are not conducive to their return. The move renews the risk of violent unrest in Bangladesh where the refugees are housed as well in Myanmar’s Rakhine state.

What should be done? The UN, U.S., European Union (EU), Australia, Canada and other governments should press Bangladesh and Myanmar to postpone repatriation until conditions on the ground in Myanmar allow Rohingya refugees to return safely and voluntarily.

I. Overview

Bangladesh is poised to begin returning several thousand Rohingya refugees to Myanmar. This repatriation is unlikely to be voluntary and should not proceed. It would not only violate Bangladesh’s international legal obligations and jeopardise the safety of the refugees, but risks triggering violence and greater instability on both sides of the border. Bangladesh and Myanmar should immediately halt the plan. The UN, including the secretary-general’s special envoy and the UN refugee agency, should continue to firmly oppose it, both in public and in private, and establish a process whereby Rohingya refugees are consulted about their future. The U.S., European Union (EU), Australia, Canada and others also should press Bangladesh and Myanmar to halt the returns and instead work to create conditions conducive to voluntary repatriation; those countries’ participation at the 11-15 November ASEAN summits in Singapore is an opportunity to do so.

II. New Pressures for Repatriation

Almost 750,000 Rohingya fled to Bangladesh following Myanmar’s brutal military operation in Rakhine state in response to attacks on security posts by the Arakan Rohingya Salvation Army (ARSA) militant group in August 2017.[fn]See Crisis Group Asia Report N°292, Myanmar’s Rohingya Crisis Enters a Dangerous New Phase, 7 December 2017.Hide Footnote The refugees have been living in vast camps near the Bangladesh-Myanmar border ever since. A UN fact-finding mission concluded that the military’s actions constitute crimes against humanity, war crimes and possible genocide.[fn]“Myanmar: UN Fact-Finding Mission releases its full account of massive violations by military in Rakhine, Kachin and Shan States”, press release, Office of the United Nations High Commissioner for Human Rights (OHCHR), 18 September 2018.Hide Footnote

Myanmar and Bangladesh agreed to a procedural framework for repatriation in November 2017, which was supposed to start on 23 January. But no Rohingya refugee has returned through official channels. In fact, more Rohingya have left Myanmar since then: some 16,000 have departed Rakhine state for Bangladesh so far in 2018.[fn]Crisis Group interviews, UN officials involved in the relief effort, Bangladesh, November 2018.Hide Footnote Refugees are unwilling to return without guarantees that their security and rights will be protected, accountability ensured and compensation provided for the destruction of their villages, homes and property.

On 30 October, however, Bangladesh and Myanmar agreed on a repatriation deal at a joint working group meeting in Dhaka. Under the agreement, 485 Rohingya families (a total of 2,260 people) are to be returned to Myanmar starting on 15 November; Myanmar has said that it will process 150 returnees per day.[fn]“First batch of over 2,260 returnees to be accepted at rate of 150 per day”, Global New Light of Myanmar, 5 November 2018, p. 2.Hide Footnote  These people were not consulted in advance and how they were selected is unclear; they are terrified at the prospect of being returned to Myanmar.[fn]“Humanitarian Organizations call for Guarantees of Safety and Rights for Refugees before Return to Myanmar Commences”, press release, INGO Forum Myanmar, 8 December 2017.Hide Footnote  The Bangladesh authorities have said that they will not force people to go back, but no return under present circumstances can be voluntary. Crisis Group interviews indicate that some of the refugees on the list for return have gone into hiding out of fear of being repatriated; at least one has attempted suicide.[fn]Crisis Group interviews, Rohingya refugees, Cox’s Bazar, Bangladesh, November 2018. See also “Rohingya refugee attempts suicide as repatriation fears rise”, The Telegraph (London), 8 November 2018.Hide Footnote

Some of the refugees on the list for return have gone into hiding out of fear of being repatriated; at least one has attempted suicide.

While the two countries have held many previous discussions and made announcements on repatriation plans over the past year that have not been implemented, this time Bangladesh appears determined to push through a limited returns process. Its political calculations have shifted for two key reasons.

First, it has come under considerable diplomatic pressure from China to start returns. China has important economic and geostrategic interests in Myanmar, including a multi-billion dollar China-Myanmar Economic Corridor, the details of which are currently being finalised; it is also a major investor in Bangladesh, giving it significant leverage. China has been supporting Myanmar in the UN Human Rights Council and General Assembly and protecting it from stronger Security Council action. It has advocated support for Myanmar and Bangladesh to deal with the situation bilaterally instead of being addressed in multilateral forums, but this argument rings hollow if the bilateral process is not working.

Beijing has thus facilitated a series of meetings between Myanmar and Bangladesh and has made clear that it wants to see movement. Chinese Foreign Minister Wang Yi hosted a side meeting among Myanmar, Bangladesh and UN Secretary-General António Guterres and his Special Envoy during the General Assembly in September, where the Bangladesh foreign minister committed to start repatriations “soon”.[fn]“China facilitates informal meeting at UN to expedite refugee repatriation process”, The Irrawaddy, 1 October 2018.Hide Footnote Shortly before the 30 October meeting between Myanmar and Bangladesh, Chinese Public Security Minister Zhao Kezhi also met with Bangladeshi leaders.

Secondly, Bangladesh is worried about what it sees as an emerging global consensus that most refugees are unlikely to return home for the foreseeable future and a shift in Western donor focus to their local integration. Many senior Bangladeshi officials privately acknowledge that the majority of refugees may never go home.[fn]But they are not ready to state this publicly or to allow donors to take for granted Bangladesh’s continued hosting of the Rohingya – especially given the low levels of funding for the humanitarian operation and the burden this places on Bangladesh. It also believes that international actors have not pressed Myanmar enough to address the security, rights and accountability issues to enable any large-scale return.[fn]By undertaking some forced returns, Bangladesh officials appear to be banking on the fact that they will alarm donors and prompt them to focus more on the situation and realise the status quo is unsustainable.

These factors have combined to tip Bangladesh’s policy in favour of a small-scale return. Political dynamics ahead of general elections in Bangladesh on 23 December may also play a part. Myanmar also sees a limited repatriation as serving its interests. Naypyitaw hopes that a small number of returns would demonstrate to a sceptical world that it is ready to welcome Rohingya back, shifting the focus away from the reasons why they originally left – and thereby weakening, it believes, the basis for claims of ethnic cleansing and genocide.

III. The Risks of Forced Returns

While Bangladesh and Myanmar may consider that the return of some refugees serves their respective interests, it would harm the Rohingya themselves, who would be returning to a situation from which people continue to flee. Bangladesh is not a signatory to the 1951 Refugee Convention or its 1967 Protocol, and while it has given the Rohingya safe haven, it does not formally recognise them as refugees. Nevertheless, Bangladesh has an obligation under customary international law to ensure that any return of refugees to Myanmar is voluntary and safe.

Bangladesh and Myanmar did not consult in advance with the UN or its refugee agency on the repatriation. The UN has stressed the move is premature and that it does not yet consider conditions on the ground in Rakhine state conducive to returns.[fn]The UN special rapporteur on the situation of Human Rights in Myanmar issued a statement on 6 November calling on Bangladesh to shelve the “rushed plans” for repatriation.[fn]

In addition to the human rights concerns, a forced repatriation carries serious risks for security and stability on both sides of the border. The refugee community in Bangladesh is strongly opposed to the move and will do whatever it can to resist it. This will increase tensions in the camps and could lead to confrontations between refugees and Bangladeshi security forces and greatly complicate humanitarian operations. A botched repatriation attempt could potentially set back peace and development efforts by years.

The ARSA militant group continues to have a prominent presence in the camps and could launch cross-border raids on Myanmar’s security forces, as it did in January 2018, in an effort to stop repatriation. Other militant factions have also been organising in the camps, though their capacity for violent action is unclear.[fn]Crisis Group interviews, Rohingya refugees, Cox’s Bazar, Bangladesh, January-November 2018.Hide Footnote Any attack or other security incident in Rakhine state would heighten tensions there and could worsen conditions for the several hundred thousand Rohingya who remain. Myanmar has also said that some of the people proposed by Bangladesh for repatriation were ARSA members.[fn]“Dozens of ‘terrorists’ among Rohingya slated for repatriation, Myanmar official says”, Radio Free Asia, 8 November 2018.Hide Footnote  It is not known if they are among those selected for return but this raises the worrying possibility that some of those sent back could be arrested.

In addition to the human rights concerns, a forced repatriation carries serious risks for security and stability on both sides of the border.

A rushed repatriation is also likely to increase tensions in Rakhine state. Already, ethnic Rakhine opposed to returns have held demonstrations to stop them. Rakhine nationalists are also calling for strict security vetting of returnees and resettling them to certain secure areas instead of their home villages. In particular, nationalists are staunchly opposed to any returns to southern Maungdaw, which they want to maintain as a “Muslim-free zone”.[fn]“With Rohingya gone, Myanmar’s ethnic Rakhine seek Muslim-free 'buffer zone’”, The Daily Star, 16 March 2018.Hide Footnote  Crisis Group has seen a partial list of the returnees, a number of whom came from villages in this area, and under the terms of the repatriation agreement should be allowed to return there. A secretive repatriation process without the consultations and preparations needed in Rakhine state could easily inflame hostilities and provoke violence against returnees or the remaining Rohingya population.

If refugees fear that they will be forced back to Myanmar, they may become more desperate to leave the camps and to attempt dangerous sea journeys across the Bay of Bengal to Thailand, Malaysia, Indonesia or other countries. This could have wider regional implications, as it did during the maritime migration crisis of 2015.

IV. Recommendations

The following actions should urgently be taken:

  • Bangladesh and Myanmar should immediately halt plans to return refugees to Rakhine state until they can ensure a process of voluntary, safe and dignified return. The onus is squarely on Myanmar to create those conditions.
     
  • In the meantime, Myanmar should grant unfettered access for the UN and its international NGO partners, as well as the media, to northern Rakhine for the delivery of essential humanitarian support and in order to allow independent assessment of the situation on the ground.
     
  • The Bangladesh government and its international partners should deepen their political engagement with the Rohingya refugees and consult them about their future. So far, there is almost no consultation or even processes in place to do so.
     
  • China should stop pressing for an early repatriation and lend its weight to efforts by other governments and organisations to create conditions in Rakhine state that are conducive to voluntary and sustainable return.
     
  • The UN and its refugee agency should continue to firmly oppose the repatriation in public and in private and use its influence in both countries to halt the process. In particular, the UN Secretary-General’s Special Envoy for Myanmar, Christine Schraner Burgener, should take a clear public stand and press both Dhaka and Naypyitaw to shelve their current plans. The UN, already facing serious questions about its approach in the years leading up to the crisis, cannot fail the Rohingya again.[fn]The Fact-Finding Mission recommended that “As a matter of urgency, a comprehensive, independent inquiry should be conducted into the involvement of the United Nations in Myanmar since 2011, with a view to establishing whether everything possible to prevent or mitigate the unfolding crises was done, identifying lessons learned and good practices, making recommendations as appropriate, including on accountability, and enabling more effective work in future.” This call has been echoed by the Special Rapporteur, Yanghee Lee. See “Report of the International Fact-Finding Mission on Myanmar”, A/HRC/39/64, 18 September 2018, para. 111.Hide Footnote If a precedent of forced repatriation is set, larger-scale forced returns in the future become much more likely.

As dialogue partners with the Association of Southeast Asian Nations (ASEAN), the U.S., EU, Australia, Canada and others should use the upcoming ASEAN summit meetings from 11 to 15 November in Singapore to press Myanmar to halt its current plans and instead work to create conditions for voluntary repatriation. ASEAN countries have a direct stake, since forced returns will likely lead to a surge in Rohingya seeking to flee by boat to Thailand, Malaysia and Indonesia.

Brussels, 12 November 2018

 

Appendix A: Map of Rakhine State