How Should Bangladesh Handle Myanmar’s Fleeing Soldiers?

On February 6, 264 members of Myanmar’s border and security forces took shelter in Bangladesh to escape heavy fighting between Myanmar’s army and the Arakan Army. They were disarmed by members of the Border Guard Bangladesh (BGB) and taken to a safe shelter. Those who sustained critical injuries were given treatment at local hospitals.

It was the first time since the launch of the highly successful Operation 1027 by the Three Brotherhood Alliance in October last year that Myanmar troops had fled into Bangladesh. It would not be the last.

On February 15, a total of 330 soldiers and civilians from Myanmar were repatriated from Bangladesh by sea. They were received by Lt. Col. Myo Thura Naung, the leader of a five-member Myanmar Border Guard Police (BGP) delegation that came to take them back following a roll call and identification by Aung Kyaw Moe, ambassador of Myanmar to Bangladesh. The process was supervised by the BGB with the assistance of the Bangladesh Navy, the Coast Guard, and other law enforcement agencies.

More recently, on March 11, at least 179 members of Myanmar’s BGP fled to Bangladesh amid ongoing heavy gunfights with the Arakan Army. The BGB disarmed the troops and took them into custody. A day later, speaking with journalists, Bangladesh’s Foreign Minister Hasan Mahmud said that the BGP members would be repatriated, in the same manner as the 330 Myanmar nationals sent back in February.

When asked why Myanmar border and security forces were allowed to come to Bangladesh in the first place, Mahmud stated, “This is not a matter of competency. They also entered India and were sent back through discussion. The border is open. When they were attacked by their opponents, they infiltrated into Bangladesh. This is the issue.”

As conflict in Myanmar near the border of Bangladesh continues to escalate, one can reasonably expect that instances of soldiers and civilians of Myanmar fleeing into Bangladesh will become more commonplace in the near future. Against this backdrop, Bangladesh needs to re-evaluate how it handles these incidents.

In particular, Dhaka should be more cautious about sending the Myanmar soldiers and civilians back.

The repatriation of soldiers and civilians invokes discussion on the principle of non-refoulement. This principle has been reflected in many international treaties. Among these, Bangladesh is a party to the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment. Nevertheless, the principle of non-refoulement falls under customary international law. It means that even if a state has not signed any international treaty requiring it to uphold the principle of non-refoulement, it is nevertheless under an obligation to ensure compliance with it. Customary international law is equally binding on a state as international treaties to which it is a party.

This nature of customary international law was also acknowledged by the Supreme Court of Bangladesh in 2017. In discussing the applicability of the principle of non-refoulement in relation to a Rohingya refugee who was held in detention long after he had completed a five-year sentence, the court noted that the 1951 Refugee Convention had “become a part of customary international law, which is binding upon all the countries of the world, irrespective of whether a particular country has formally signed, acceded to or ratified the Convention or not.”

Under the principle of non-refoulement, states are prohibited “from transferring or removing individuals from their jurisdiction or effective control when there are substantial grounds for believing that the person would be at risk of irreparable harm upon return, including persecution, torture, ill- treatment or other serious human rights violations.”

Given the Myanmar military’s well-documented history of violence, there is a considerable risk that repatriated soldiers and civilians would face persecution, torture, ill-treatment, or other serious human rights violations on return. Indeed, senior Myanmar military officials have reportedly been sentenced to death for surrendering to rebel forces. Thus, any hasty attempt to send these soldiers back to Myanmar by Bangladesh should be avoided, as it might constitute a violation of the principle of non-refoulement.

Instead of focusing on repatriating them as soon as possible, Dhaka could seek to use the issue of fleeing soldiers from Myanmar to help the international community ensure justice for the Rohingya people.

Bangladesh currently hosts approximately 1.2 million Rohingya refugees, officially known as Forcibly Displaced Myanmar Nationals, most of whom sought refuge after the Myanmar military launched a “clearance operation” against the Rohingya in northern Rakhine State on August 25, 2017. During the crackdowns, the military burned villages and murdered, raped, and tortured innocent civilians under the guise of fighting insurgents.

Bangladesh should investigate to see if any of the soldiers fleeing across the border were involved in or have any relevant information on the atrocity crimes committed against the Rohingya in Myanmar. Such information might help bring about justice and create a favorable environment for Rohingya refugees to return to Myanmar, the lack of which has resulted in the failure of previous repatriation efforts.

Bangladesh has coordinated with the International Criminal Court (ICC) in the past and helped bring alleged perpetrators – Myanmar military soldiers Myo Win Tun and Zaw Naing Tun – to justice for their involvement in the atrocities committed in Myanmar. It should continue its cooperation with relevant bodies including ICC and the International Independent Mechanism for Myanmar.

Dhaka should not miss this golden opportunity of investigating Myanmar soldiers that have willingly crossed onto Bangladeshi soil to find relevant information that would help the international community to ensure justice for the Rohingya people.

Bangladesh should be mindful about returning the soldiers to Myanmar from a political viewpoint as well. With the Myanmar military losing ground in the fight against the Arakan Army and others, it would be unwise for Bangladesh to act in such a way that any party perceives as biased toward the other, at least for the time being. If the soldiers are sent back and the military government redeploys them in battle, rebel groups might start to question the neutral position of Bangladesh. Among other things, it might significantly damage the prospect of repatriation of the Rohingya refugees in the future.

Shahariar Sadat joined the Centre for Peace and Justice (BRAC University) in April 2021 as the first director, responsible mainly for two areas: Academic and Legal Empowerment. He is an advocate of the Supreme Court of Bangladesh and an accredited mediator and master trainer on mediation. Prior to joining CPJ, he was the head of the Human Rights and Legal Aid Services (HRLS) program at BRAC.