The alleged genocide of the Muslim minority Rohingya in Buddhist majority Myanmar has precipitated the largest refugee crisis in Asia today with approximately 1 million Rohingyas having been displaced since violence commenced in 1991. Alarmingly, the majority are women and children, which has been fueled by targeted hostilities such as infanticides and gang rapes. This exodus has worsened as the number of displaced Rohingya distends, and the leading host country, Bangladesh, faces worsening refugee camp overcapacity and calls for Rohingyas’ repatriation. Malaysia is the second largest Rohingya hosting country, such that Rohingyas, mostly women and children, are its largest refugee group. However, because Malaysia is a non-signatory to the Convention Relating to the Status of Refugees (Refugee Convention, 1951) and has enacted its Immigration Act (1959/63), all refugees and asylum-seekers are considered criminals and lack legal protections. Likewise, there is an ongoing rise in arbitrary punishments, detentions, and refoulement of Rohingyas to Myanmar, including women, children, and infants.

Refugee Protections in Malaysia

Despite lacking explicit international refugee law obligations, Malaysia must adhere to fundamental human rights laws that protect Rohingya women and children due to its ratification of the Convention on the Rights of the Child (1989) (CRC) and the Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW). However, firstly, its refoulement of Rohingya infants and other children violates the CRC. Refoulement, or the expel of migrants to territories where they face persecution, is illicit per customary international law and Article 11 of the CRC, which mandates that parties ‘take measures to combat the illicit transfer and non-return of children abroad’. Further, Malaysia’s immediate arrest and detainment of refugee children is unlawful under Article 37(b) of the CRC, which mandates that arrest or detention of children should only be ‘a measure of last resort’. Its indefinite detention of children further violates Article 37(b), which stipulates that children’s ‘arrest, detention or imprisonment…shall be…for the shortest appropriate period of time’. These actions, combined with children’s blocked access to the UNHCR, constitute breaches of Articles (40)(b)(iii) and 37(d) of the CRC, which provide the right to a fair trial alongside legal or appropriate assistance. Such contraventions likely contributed to the numerous deaths of detained Rohingya children, underscoring the urgent need for adherence.

Furthermore, although Rohingya women’s reproductive rights are safeguarded under the CEDAW, they have been withheld from refugees due to their criminalisation under the Immigration Act. The Immigration Act 1959/63 makes it a criminal offence to be a refugee in Malaysia, and refugees thus lack the legal protections that citizens and otherwise legal residents have, including universal healthcare. The lack of legal status is stated in Section 6(1), ‘no person other than a citizen shall enter Malaysia unless (a) he is in possession of a valid Entry Permit…[or] (c) a valid Pass lawfully issued to him to enter Malaysia’ and Section 6(3), ‘any person who contravenes subsection (1) shall be guilty of an offense…’ Because Malaysia has not ratified the Refugee Convention, refugees are not legally recognized and thus fall under the status of prohibited (illegal) immigrants.

The right to reproductive health, decreed in Article 12 of the CEDAW, ensures ‘women appropriate services in connection with pregnancy, confinement and the postnatal period, granting free services where necessary…’ However, Malaysia seems to be in violation of this Article, even though it holds no reservations and is thus fully obliged to comply with it under international law. Rohingya women in confinement lack access to maternal healthcare, and pregnant Rohingyas overall cannot reasonably afford pregnancy medical care due to their criminalisation and inability to work. Some who have managed to give birth in hospitals were reportedly refused their babies when they could not pay their delivery bills. Such hostility forces women to avoid hospitals due to fear of being arrested, detained, or refused treatment, all of which have been reported by Rohingya refugees in Malaysia.

Ramifications for International Law

Enforcement of the aforementioned protections in Southeast Asia is particularly precarious. This is largely because Asia, unlike Africa, the Americas, and Europe, lacks a continental human rights court. Likewise, members of the Association of Southeast Asian Nations (ASEAN) typically adhere to the principle of non-interference, including for refugee matters. Further, like Malaysia, most ASEAN states are not signatories to the Refugee Convention, though all are signatories to the same two binding human rights treaties (CEDAW and CRC). This presents an opportunity for Malaysia to demonstrate the importance of adhering to international law while respecting territorial sovereignty. For instance, Malaysia can reform the Immigration Act so that refugees are not automatically criminalised and stipulate fundamental protections for women and children in accordance with its international legal mandates.

Victims in Malaysia should also not overlook the potential for extra-territorial enforcement, particularly given the rising global use of universal jurisdiction, which allows victims to seek justice beyond national borders. For instance, Argentina heard the Rohingya genocide case against Myanmar in 2021, and Myanmar junta victims filed war crime charges in the Philippines in 2023. Thus, Malaysia should take urgent action on the plight of the Rohingya people to comply with its international law obligations and to play a crucial role in promoting justice.