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ICC Member States: Ensure Accountability for Attacks on Civilians in Myanmar
Civilians dead and injured from attack on Rohingya village, responsible battalions identified
(YANGON, February 13, 2024)—All parties engaged in armed conflict in the Myanmar revolution should protect civilians, and member states of the International Criminal Court (ICC) should refer the situation in the country to the Chief Prosecutor under Article 14 of the Rome Statute, said Fortify Rights today. Fortify Rights documented indiscriminate attacks on civilians, killings, destruction of civilian homes, and forced displacement during a four-day-long attack by the Myanmar junta beginning January 25 in the predominately Rohingya-Muslim village of Hpon Nyo Leik in northern Rakhine State. These attacks may amount to war crimes.
“The laws of war apply to the junta’s forces and all parties to the conflict and, whenever possible, civilians must be warned of incoming attacks," said John Quigley, Director at Fortify Rights. “Our recent investigation suggests effective warnings of military attacks could have saved civilian lives. The junta’s atrocity crimes are a daily occurrence. ICC member states should urgently refer the situation to the Court and send a message to the junta that these attacks are unacceptable.”
The Myanmar military junta shelled Hpon Nyo Leik village in Buthidaung Township, northern Rakhine State for four consecutive days beginning January 25, 2024. The attacks began after the Arakan Army (AA)—an ethnic resistance organization in Rakhine State—dug trenches in Hpon Nyo Leik on January 24. The four days of shelling by the Myanmar military junta resulted in 44 civilian casualties—12 civilians killed and 32 injured, including at least eight children, all Rohingya. According to sources on the ground, the attacks also displaced 15,000 civilians, including children, from Hpon Nyo Leik and surrounding areas.
A community-based worker and resident of Hpon Nyo Leik identified 41 civilian houses destroyed in the village, which had an estimated 1,000 houses. The names and identifying information of the civilian victims and survivors of the attack as well as owners of the destroyed properties are on file with Fortify Rights. They should be compensated for their losses.Fortify Rights believes the Myanmar junta’s Light Infantry Division (LID) 22, Light Infantry Battalion (LIB) 551, and Military Operations Command (MOC)-15 are likely responsible for the attacks and should be investigated for war crimes.In January and February 2024, Fortify Rights interviewed six Rohingya survivors of the attacks, including four residents of Hpon Nyo Leik village. Fortify Rights also reviewed mobile-phone videos and dozens of photographs showing wounded civilian women, men, and children, as well as burning buildings and homes reportedly damaged from the attacks.Hpon Nyo Leik residents told Fortify Rights that the AA dug trenches in the village on January 24. The AA did not warn residents to evacuate the area. A resident told Fortify Rights: “AA came into our village, spread around from the south side, and started digging trenches. Then, they took positions around our village.” The same resident said that later, on January 26, around 3 a.m.: “AA came into the village and fired their guns into the sky without any reason. … Then the [Myanmar junta] military fired artillery continuously.”Another resident told Fortify Rights, “AA didn’t alert or inform our villagers in advance to move out or evacuate.”“So many Rohingya were killed in my village,” a 22-year-old farmer from Hpon Nyo Leik village told Fortify Rights:
I saw more than 10 dead in total. It was such heavy shelling that I and others didn’t dare to search for other dead or injured villagers. … I even found fragments of brain that went up to the roof of a two-story building. The junta’s shelling was that severe.
The attacks forcibly displaced him and his family. He said: “When the shelling was getting heavier, my family and I escaped. … I couldn’t take any of my belongings. I had to leave everything behind in my village.”The 22-year-old man also told Fortify Rights about injuries sustained by his brother-in-law, who was, at the time of the interview, receiving treatment in Buthidaung’s downtown hospital:
[My brother-in-law] was injured due to the shelling. His ankle was damaged, and he got several punctures in his thigh. … Other Rohingya I saw in the hospital have injuries on the chest, arms, back, and heads. Some others lost their legs and arms. The majority of them lost their legs.
A 29-year-old survivor of the attack on Hpon Nyo Leik village described events on January 26. He said:
At around 9:30 a.m., when the shelling stopped for a while, some other villagers and I returned to the village to check the casualties. The shelling hit one family—two men died, Sadek and Faruk. … Their legs got crushed. Faruk’s grandmother died too. Her head wasn’t there. I saw only the brain. A few meters from that, there was another woman called Shonshuna who died, the wife of Lala. Her head [was] smashed, and her skull was gone. The bodies had so much blood around them.
Describing the second day of the attack, on January 26, a 35-year-old Rohingya resident of Hpon Nyo Leik village told Fortify Rights:
The incident began in Hpon Nyo Leik [village] at 4 p.m. on January 25, 2024. I was at my home in Hpon Nyo Leik. The junta started firing artillery, and it hit one house in my village. One person died, and four others were injured. … At around 3:30 a.m. [on January 26 2024], the junta military’s artillery fell on another house and killed three people.
“LID-22 is the main battalion that fired artillery,” said one civilian survivor to Fortify Rights. LID-22, LIB-551, and MOC-15 are stationed in the area of Hpon Nyo Leik and Da Pyu Chaung.Another resident, also an eyewitness, described the destruction of civilian properties from shelling on January 27, saying the destruction included 13 houses in Ward-Two, behind the market, and 28 houses from Ward-13, near the school. These properties were burned down due to artillery shelling, he said.The Myanmar military’s attack affected not only Hpon Nyo Leik village but also surrounding villages. According to an aid worker from Buthidaung involved in helping injured and displaced Rohingya from the area:
Until today, as per the estimated data we collected, more than 15,000 Rohingya have been displaced from their original villages [Hpone Nyo Leik and other nearby villages] due to the clash between AA and the junta. This happened within a week of time.
The Myanmar junta’s ongoing attack on the civilian population of Myanmar is happening nationwide, affecting all ethnic and religious groups in Myanmar, said Fortify Rights.On January 30, 2024, the U.N. High Commissioner for Human Rights, Volker Türk, issued a statement on ongoing atrocity crimes in Myanmar, specifically addressing the shelling in Hpon Nyo Leik village, saying, “[F]ighting between the Arakan Army and the Myanmar military reportedly left at least 12 Rohingya civilians dead, and 30 others wounded.” High Commissioner Türk continued: “Indiscriminate shelling and airstrikes underline the lack of measures to protect civilians on the ground, including disruption of basic communications that would help warn civilians in advance of fighting so they could get out of harm’s way.”
According to the Office of the U.N. High Commissioner for Human Rights, “[C]ommunications and internet services in some 74 townships, including most of the 17 townships in Rakhine State, are experiencing partial, intermittent or total shutdowns.”In 2016 and 2017, the Myanmar military-led genocidal attacks against Rohingya communities in northern Rakhine State and, in a span of weeks, forced more than 700,000 Rohingya survivors into Bangladesh.On February 1, 2021, the Myanmar military launched a deadly coup d’état, killing untold numbers of civilians and imprisoning tens of thousands of others in a bid to secure nationwide political power. The junta’s attacks against civilians continue and amount to crimes against humanity and war crimes.International humanitarian law—also known as the laws of war—is applicable to the situation in Rakhine State and the broader revolution in Myanmar, which constitutes a non-international armed conflict. In particular, the Geneva Conventions set forth fundamental rules regulating armed conflict conduct. Common Article 3 of the Geneva Conventions protects civilians in a non-international armed conflict, stating:
Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat (out of the fight) … shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.
Under the laws of war, parties involved in the conflict are required to distinguish between, on the one hand, civilians and “civilian objects” (such as homes and hospitals that are not being used for military purposes) and, on the other hand, combatants and “military objectives.” The laws of war expressly prohibit both direct attacks and indiscriminate attacks that target civilians and civilian objects, and violations can be prosecuted as war crimes. The laws of war also require all parties to armed conflict to take precautionary measures to minimize harm to civilians and civilian objects. This includes providing effective warnings to civilian populations when circumstances permit.Furthermore, Article 8(2)(c)(i) of the Rome Statute provides, “Violence to life and person in particular murder of all kinds” when “committed against persons taking no active part in the hostilities” are considered serious violations of international humanitarian law that may amount to war crimes. Similarly, under Article 8(2)(e)(i) of the statute, “intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities” in a non-international armed conflict constitutes war crimes.Under these benchmark standards, the attacks on civilians in Hpon Nyo Leik village may constitute violations of international humanitarian law as well as international criminal law.Article 14 of the Rome Statute empowers ICC member states to request the Prosecutor to investigate international crimeswithin the Court’s jurisdiction. While Myanmar is not an ICC member state, the National Unity Government—the body representing Myanmar’s democratically-elected leaders—lodged a 12(3) declaration with the Court’s registrar on July 17, 2021, accepting the jurisdiction of the Court for international crimes committed on Myanmar territory since July 1, 2002, and into the future.Hpon Nyo Leik village is located southeast of Buthidaung Township in northern Rakhine State. Before the attacks, the estimated population of Hpon Nyo Leik village was approximately 8,800 and comprised predominantly ethnic-Rohingya residents with some ethnic-Rakhine, also known as Arakanese, residents as well.
“The conflict in Myanmar is disproportionately affecting civilians, including Rohingya, and the perpetrators of international crimes against civilians must be held accountable,” said John Quinley. “All combatants need to protect civilians as a priority, and the international community should immediately impose a global arms embargo against the Myanmar military to help end its horrific attacks.”
(c) 2024, Fortify Rights
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