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Legal Fallout of Bangladesh-Myanmar Military Collaboration
Interview with International Law Expert on the Implications of Bangladesh-Myanmar Military Partnership
A confidential memo from a high-level meeting of Myanmar's junta has revealed that the Arakan Rohingya Salvation Army (ARSA), a Rohingya insurgent group, was the target of a deadly crackdown by a joint effort of the armed forces of Myanmar and Bangladesh. Although previous accounts of the memo highlighted internal dissent against the Myanmar government, the newly revealed minutes also expose the previously undisclosed collaboration between Bangladesh and Myanmar in dealing with ARSA.
The documents, originating from a 23rd December meeting of the Central Committee for Counter-Terrorism of the Home Affairs Ministry, were published by Khit Thit Media on January 10th, 2023. They contained an explosive paragraph which stated,
During 2022, there have been only 4 skirmishes between our forces and ARSA. We were able to meet, discuss and coordinate with Bangladesh Border Guard Force over ARSA. The result was Bangladesh special forces launched a military operation in the refugee camp where ARSA took shelter, killing the ARSA's 2nd in Command and 2 terrorists. From one intelligence exchange with Bangladesh, we learned that the ARSA leader Ataullah and 60 of his followers are facing legal actions in Bangladesh.
The clandestine alliance against ARSA and the planned assault on a refugee camp (No Man’s Land camp also known as Zero Point camp) could come as a surprise to observers. Having accepted more than 800,000 Rohingya refugees in 2016 and 2017, Bangladesh has been urging the global community to push Myanmar to take them back and has backed efforts at the International Court of Justice and the International Criminal Court to hold Myanmar accountable.
The disclosure of the joint operation between the armed forces of Bangladesh and Myanmar to target a refugee camp has the potential to harm the humanitarian reputation of Bangladesh. This is especially true because the Home Minister of Bangladesh characterised the operation as an attempt to combat drug-related problems. However, the leaked memo contradicts this statement by revealing that the operation was, in reality, a calculated and premeditated attack on ARSA.
The operation ultimately failed since ARSA was able to maintain its presence in the No Man's Land encampment, and a Bangladeshi intelligence officer was killed while a special forces member was wounded. A young Rohingya mother was also killed and others injured. Consequently, the encampment at No Man's Land or Zero Point was attacked once again on January 18th, 2023, resulting in the complete destruction of the camp and the forced displacement of all Rohingya refugees living there.
I reached out to Mike Becker, a former lawyer at the International Court of Justice and currently an Assistant Professor of Law at Trinity College, Dublin, to obtain his views on the paragraph in the memo and whether the joint operations call into question Bangladesh's commitment to supporting international probes into the criminal activities of the Myanmar government. His response is likely to be unsettling for Bangladeshi officials, and it is presented below.
Does this military cooperation call into question Bangladesh's commitment to the International Criminal Court's investigations into Myanmar regime members?
As a legal matter, Bangladesh has an obligation under the Rome Statute to cooperate fully with the ICC investigation. The ICC has been authorised since November 2019 to investigate certain alleged crimes having a cross-border element.
Increased military links or coordination between Bangladesh and Myanmar might complicate the nature of Bangladesh’s cooperation with the ICC. For practical reasons, Bangladesh may have less capacity than many other states to refuse to engage with the illegitimate military regime in Myanmar. Increased coordination between the Tatmadaw and Bangladesh’s military over the past year raises reasonable concerns that Bangladesh might prioritise broader security and economic interests over ensuring that conditions are in place to facilitate a safe and dignified return of displaced Rohingya people to Myanmar. However, cooperation between Dhaka and the Tatmadaw on some issues, including with respect to ARSA, does not necessarily mean that Bangladesh is going to stop cooperating with the ICC, such as by blocking access to ICC personnel seeking to gather evidence from displaced Rohingya in Cox’s Bazar or elsewhere.
Given the displacement of over 4,000 individuals in a subsequent operation (not mentioned in the original document) and the reported fatalities among the Rohingya population, is there sufficient cause for the International Criminal Court (ICC) and Independent Investigative Mechanism for Myanmar (IIMM) to launch an investigation?
The ongoing ICC investigation is subject to limitations, including that any alleged crime under investigation be sufficiently linked to the situation that triggered the investigation. This refers to the waves of violence directed against the Rohingya in Myanmar in 2016 and 2017. Depending on what actors may have been involved in more recent situations involving the further mass displacement of Rohingya, including fatalities, the ICC prosecutor could consider whether this falls within the scope of the ongoing investigation.
The Independent International Fact-Finding Mission on Myanmar was dissolved following the fulfilment of its mandate, but it has been replaced, in part, by the Independent Investigative Mechanism for Myanmar established by the UN Human Rights Council in 2018. The Mechanism has a mandate to collect evidence relating to the alleged commission of serious international crimes in Myanmar since 2011. Any recent incidents involving the mass displacement of Rohingya, including reported fatalities, would fall within its existing mandate if the incidents originated within Myanmar. It seems likely that alleged crimes taking place along the border that may involve the Tatmadaw in some way, even in disputed territory, would also fall within the IIMM’s mandate.
Does this close military cooperation portend a negative outcome for Rohingya refugees?
As noted above, increased coordination between the Tatmadaw and Bangladesh’s military may raise reasonable concerns that Bangladesh could decide to prioritise broader security and economic interests over ensuring that the necessary conditions are in place for a safe and dignified return of the Rohingya to Myanmar. However, the dynamic is complex. In theory, one might hope that Bangladesh could use its evolving relationship with the military regime in Myanmar to promote a better outcome for Rohingya refugees. It is in Bangladesh’s interest to make it possible for the Rohingya to return to Myanmar. However, it remains very difficult to imagine the current military regime in Myanmar ever taking the necessary steps to ensure a safe and dignified return for the Rohingya. To the extent that Bangladesh’s cooperation with the Tatmadaw helps to maintain the military regime’s grip on power, it is hard to see net positives for the Rohingya.
(A version of this article appears in The Citizen).