The Rohingya community has been the victim of discrimination and persecution for decades. The heinous persecution and mass killings of Rohingya people have resulted in their exodus from Myanmar. When someone is persecuted, it prompts others to feel for and stand up for those they believe to be victims of that injustice. Bangladesh was no exception, and hence it followed the principle of non-refoulement and allowed the Rohingya community to stay here. Bangladesh is now hosting more than 1.2 million of Rohingya refugees on humanitarian grounds. By allowing such stay, Bangladesh is responsible for securing their basic human rights, including the right to life, even though it is not a ratifying country of the 1951 Refugee Convention. International customary law does not allow derogation from this principle of non-refoulement in any way.
The intricacy arose when there were several attacks on Bangladesh from Myanmar which endangered the safety and security of the refugees, protecting whom is the responsibility of Bangladesh under both international and constitutional mechanisms. Bangladesh cannot escape its liability without providing sufficient protection to the refugees concerned from persecution. The Rohingyas in Bangladesh, as refugee, are already vulnerable. They have fled persecution due to the fear of losing life or limb in their country of origin. Henceforth, when Bangladesh gives them shelter, it is expected that Bangladesh is at least going to protect their right to life. The government has so far provided different amenities to the refugees. However, there are cases which portray a different scenario where the state machinery of Bangladesh has failed to provide them necessary protection.
In the past five years, more than 120 refugees have been murdered. On 27 October 2022, 2 more Rohingyas were shot dead inside a refugee camp in Cox’s Bazar. Till 9 September 2022, six Rohingya men were killed. Previously, on 29 September 2021, a Rohingya leader was shot and killed in Kutupalong camp in Cox’s Bazar. The picture has worsened, which is clear from the recent incident of 16 September night of 2022, when five shells landed on the Tumbru border of Ghumdhum union of which one exploded. That explosion killed a Rohingya man and injured two refugee children. When the concerned Officer in Charge (OC) was contacted, he stated that he had no knowledge of the event.
This kind of attack is not the first here. There have been attacks inside the Bangladesh border from the Myanmar side several times. Previously, on August 28 2022 and 3 September 2022 mortar shells fired from Myanmar were found inside Bangladesh. This is a serious concern since it is also a direct violation of the sovereignty of Bangladesh. Again, as the hosting state, Bangladesh has the responsibility to respect, protect and fulfill the basic human rights of the Rohingya community. Among those rights, the most important one is the right to life, for which they have fled their country of origin or country of habitual residence to the neighboring country. In these circumstances, if their right to life and bodily integrity is hampered, this is a clear violation of the international and constitutional obligation of Bangladesh as a state which is clearly elucidated hereunder.
The cruel, inhuman and degrading treatment that they have received from Myanmar is the core reason for the Rohingya influx in Bangladesh. Myanmar is obviously responsible for the deaths of refugees and injuries sustained by refugee children inside Bangladeshi territory. Referring to pertinent international and constitutional provisions, this essay attempts to determine if Bangladesh is also responsible for not protecting them adequately from the activities of another nation.
A refugee has the right to safe asylum. The concept of international protection, however, extends much beyond mere physical security. It is only fair that refugees be granted the same freedom of thought, movement, and protection from torture and degrading treatment as those guaranteed to any other foreigner who is a legal resident. Refugees’ right to physical security is not directly codified in the 1951 Refugee Convention. James Hathaway argues that the drafters made the assumption that the right did not require codification precisely because it is of such fundamental importance. He reasoned that the right to safety would be upheld automatically if the rights enshrined in law were effectively protected. Refugees are given significant protection under the Refugee Convention, which partly derives from the 1949 Geneva Conventions and international humanitarian law. Article 14 of the Universal Declaration of Human Rights (UDHR) recognizes the right to ‘enjoyment of asylum from persecution’. No way does being injured or killed fit the definition of ‘enjoyment’. The UDHR has long been incorporated into the body of customary international law. Therefore, it is Bangladesh’s state obligation to uphold the UDHR’s requirements. Article 14 of the UDHR is violated since their lives have been made more precarious as a result of shelling.
Moreover, the need for child protection is frequently emphasized in the Geneva Conventions and the Additional Protocols, which are equally pertinent here. In 1987, UNHCR brought the situation of refugee children before the Executive Committee (Ex-COMM) which reiterated, in conclusion no 47, that children must be among those who will receive protection and assistance first. The refugee children are not given any special status under the United Nations Convention on Rights of the Child (UNCRC) but they are not given any lesser status also. They are to be treated as children and not as migrant children, since national immigration policy cannot trump child rights. Under Article 4 of the UNCRC, state parties have been imposed with responsibility to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights of the child. Article 19 obligates the state to protect the child from all forms of physical or mental violence, injury or abuse. In the context of Bangladesh, these rights of the refugee children have been severely infringed by the killing of two refugee children (as evident from the incident of 16 September 2022). Bangladesh is a signatory to the UNCRC and hence Bangladesh is responsible for the protection and security of the refugee children.
Now comes the relevance of aforementioned international instruments. In the case of BNWLA vs Bangladesh, the High Court Division held that ‘where there is a gap in the municipal law in addressing any issue, the Courts may take recourse to international conventions and protocols on that issue for the purpose of formulating effective directives and guidelines to be followed by all concerned until national legislature enact laws in this regard’. As Bangladesh has no specific legislation in the protection of refugees, in this situation, Bangladesh may apply international law to fill that vacuum.
In the Constitution of the People’s Republic of Bangladesh, Article 31 ensures the right to the protection of law and to be treated only in accordance with law to every person within Bangladesh for the time being. This also asserts that ‘no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law’. The state has the responsibility to respect, protect and fulfill the basic human rights of the persons concerned and here, it is clear that injuring or killing the refugees mentioned hereinabove is in no way done as per the legal mechanism and the state has considerably failed to uphold their right to life. Article 32 makes it clearer as ‘[n]o person shall be deprived of life or personal liberty save in accordance with law’. In most other articles, the fundamental rights have been ensured for the citizens only. Here, the use of the word ‘person’ instead of ‘citizen’ indubitably clarifies that the framers of the Constitution have used the term intentionally. Thus, it is clear that the amenities provided to the Rohingyas are not sufficient enough to protect their right to life.
Considering the juxtaposition of international instruments and constitutional texts, it is quite evident that the refugees are aggrieved and the state had the responsibility to safeguard their life, which it failed considerably. In this circumstance, the Rohingya victims or their near ones can also move to the High Court Division under Article 102 of the Constitution for obtaining remedy.
If we evaluate the responsibility of Bangladesh while setting aside that of Myanmar, it is clear that Bangladesh has commitments that it has not been able to fully meet in safeguarding the Rohingyas. Besides, children’s protection and safety should be the topmost priority, regardless of their citizenship, in accordance with international instruments. The constitutional text of Bangladesh also harmonizes with the principle of international law and upholds the right to life of the refugees concerned. Hence, the government should be more cautious in ensuring the basic rights of the refugees in the given context.
 Non-refoulement is an international law principle that asserts not to send back a refugee to the state where he or she has a fear of persecution.
 S Bashu Das, ‘Mortar Shells from Myanmar Found at Bangladesh Border’ Dhaka Tribune (Dhaka, 28 August 2022) <https://www.dhakatribune.com/south-asia/2022/08/28/myanmar-border-police-hurl-mortar-shell-found-at-bangladesh-border> accessed 12 October 2022.
 Muktadir Rashid, ‘Myanmar Army Again Fires Two Mortar Shells Inside Bangladesh Territory’ New Age Bangladesh (Dhaka, 3 September 2022) <https://www.newagebd.net/article/180097/myanmar-army-again-fires-two-mortar-shells-inside-bangladesh-territory> accessed 12 October 2022
 James C Hathaway, The Rights of Refugees under International Law (Cambridge University Press 2005).
 Guy S Goodwin-Gill, Jane McAdam and Emma Dunlop, The Refugee in International Law (3rd edn, Oxford University Press 2007).
 Sandra Singer, ‘The Protection of Children during Armed Conflict Situations’ (1986) 26 International Review of the Red Cross 133.
 Christian Whalen, ‘Article 22: The Right to Protection for Refugee and Asylum-Seeking Children’ in Ziba Vaghri, Jean Zarmatten, Gerison Lansdown, Roberta Ruggiero (eds), Monitoring State Compliance with the UN Convention on the Rights of the Child (Springer Nature 2022).
 BNWLA vs Government of Bangladesh & Ors (2011) 31 BLD (HCD) 324.
 Md Mostofa Hossain and Christine Richardson, ‘Application of International Law in Bangladesh: An Analysis of the Supreme Court Judgments’ (2015) 1 Jagannath University Journal of Law 1.