Government and governance, Law | Asia, Southeast Asia

25 September 2020

Given widespread confiscation of Rohingya land, it is essential that Myanmar instate changes in property rights to encourage the voluntary return of its displaced Rohingya Muslim community, Farhaan Uddin Ahmed writes.

In August 2017, Myanmar’s military – the Tatmadaw – and other actors backed by it initiated a brutal violent campaign of ethnically cleansing the Rakhine state of Myanmar’s Rohingya community. The atrocities forced more than 800,000 Rohingya people to flee Myanmar, leaving behind their homes and livelihoods and seek refuge in neighbouring Bangladesh.

August 2020 marks three years since these events, which devastated Rohingya communities in Rakhine state. Many now mark 25 August as Rohingya Genocide Memorial Day.

Many argue this campaign of atrocities perpetrated by Myanmar against the Rohingya community was tantamount to genocide and crimes against humanity, and it is now the subject of two separate proceedings in the International Criminal Court and the International Court of Justice.

In March 2017, the UN Human Rights Council established an Independent International Fact-Finding Mission on Myanmar to establish the facts and circumstances of the alleged human rights violations and abuses perpetrated by the Tatmadaw and other security forces in Myanmar.

The Mission submitted its first and second report with detailed findings in September 2018 and 2019. In its reports, the Mission documented in detail the atrocities which have been perpetrated and continue to be perpetrated against the Rohingya community in Rakhine by Myanmar.

Importantly, the Mission’s reports state that the Tatmadaw and other actors supported by it undertook the widespread confiscation and/or destruction of land, food, livestock, and other possessions belonging to the Rohingya community.

More on this: Could Australia help resolve Myanmar’s Rohingya crisis?

According to the Mission’s findings, in 2018, Myanmar authorities confiscated hundreds of acres of Rohingya farmland, even in those areas which were not affected by the Tatmadaw’s 2017 ‘clearance operations’ and were still inhabited and used by the Rohingya community.

Moreover, the Mission’s 2019 report states that, ‘the Tatmadaw and ethnic Rakhine continue to prevent farmers from cultivating their lands and deliberately target their sources of food, including by burning paddy fields, confiscating farming and fishing tools, confiscating rice and other food stocks, and deliberately killing or confiscating livestock, such as cows, goats and chickens.’

Myanmar has adopted many measures which aid the large-scale confiscation of land from Rohingya people, and the appropriation of profits from that land into the national budget.

One such measure is the harvesting of untended rice paddies in Rakhine by government personnel in collaboration with private sector companies. In fact, Myanmar has enacted and implemented laws and policies specifically designed to confiscate land belonging to the Rohingya community, such as the recent amendment of the Vacant, Fallow and Virgin Lands Management Act, 2012.

The Mission further noted that the prevailing human rights crisis pertaining to the Rohingya community still living in Rakhine is in large part due to the Myanmar Government’s confiscation and re-appropriation the land inhabited and cultivated by the Rohingya community.

More on this: Beware a new age of isolation for Myanmar

Clearly, the confiscation of land and property belonging to the Rohingya community and denial of their land rights is a major obstacle to the voluntary repatriation of Rohingya refugees from Bangladesh and their rehabilitation in Myanmar. The Arrangement on Return of Displaced Persons from Rakhine State signed by the governments of Bangladesh and Myanmar in 2017 shows Myanmar’s apparent commitment to this goal:

‘Myanmar has agreed to take necessary measures… to encourage those who had left Myanmar to return voluntarily and safely to their own households and original places of residence or to a safe and secure place nearest to it of their choice. Myanmar will take all possible measures to see that the returnees will not be settled in temporary places for a long period of time…’

It is obvious that all the terms of the Arrangement can be critiqued at length, and the lack of its implementation scrutinised, but just in terms of housing, land and property (HLP) rights, the Arrangement only makes passing reference to them.

It does very little, if anything at all, to remedy the continued denial of HLP rights by Myanmar to the Rohingya community, despite Myanmar’s promise to ‘take all possible measures’ to encourage the voluntary repatriation of Rohingya refugees.

Without a framework in the Arrangement, Myanmar’s remedial actions should be guided by the 2005 United Nations Pinheiro Principles and the Inter-Agency Handbook on Housing and Property Restitution for Refugees and Displaced Persons.

The Pinheiro Principles draw upon existing rights and duties under international human rights law and international humanitarian law, and contextualises them for the restitution of land and property specifically, making them useful in this situation.

They were designed to assist all relevant actors, national and international, in addressing legal and technical issues surrounding HLP rights restitution, in situations where displacement has led to persons being arbitrarily or unlawfully deprived of their former homes, lands, or properties.

The Principles outline that the implementation of successful HLP restitution programs is a key element of restorative justice, and effectively contributes towards deterring future situations of displacement and building sustainable peace. They should be embraced as part of any program that encourages voluntary repatriation of Rohingya refugees to Myanmar.

If it plans to meet its promises in the Arrangement, it is essential that Myanmar institute a program for the restitution of HLP rights to the Rohingya community in line with the Pinheiro Principles. Only then will it be able to ensure voluntary and sustainable repatriation and rehabilitation of the displaced Rohingya people and, in doing so, take a step towards securing lasting peace in Rakhine.

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