A/HRC/42/CRP.5
565. The Mission notes that all EAOs engaged in armed conflict in Myanmar are bound
by international humanitarian law under Common Article 3 of the four Geneva
Conventions and customary international law. Directing attacks against civilians,
indiscriminate attacks and attacks that are not proportionate are violations of international
humanitarian law.1352 EAOs must also comply with the obligations under international
humanitarian law to take precautionary measures to spare civilians and civilian objects. 1353
Further investigation is warranted to come to a determination as to whether the August
2019 attacks by the TNLA, the AA and the MNDAA constituted such violations, given that
civilians were killed, civilian property was damaged and the destruction of the bridge may
have had deleterious effects on the civilian population.
566. The Mission also has concerns with the EAOs’ location of military objects and
fighters in and around civilian areas in a manner that increases civilian exposure to the
dangers of conflict, although it was unable to draw specific findings at the end of its
investigation. The Mission strongly encourages EAOs to review their practices. It also
emphasizes that civilians do not lose their civilian status or protections, unless and for such
time as they take a direct part in hostilities. 1354 in situations where an EAO breaches its
international humanitarian law obligations, including its obligations to take all feasible
precautions to protect civilians and civilian objects under its control against the effects of
an adversary’s attacks1355 and, to the extent feasible, to avoid locating military objectives
within or near densely populated areas.1356
567. International humanitarian law also prohibits acts of rape, sexual violence, torture,
cruel treatment and outrages upon a person’s human dignity. 1357 Many of these acts
constitute war crimes and must be criminally investigated and, where appropriate,
prosecuted.1358 The Mission concludes on reasonable grounds that SSA-S fighters in Shan
State inflicted severe pain or suffering on a group of Ta’ang men that constituted cruel
treatment or outrages upon their human dignity. The Mission was unable to determine if the
treatment constituted torture. The Mission also finds additional investigation warranted into
the alleged deaths of three Lisu civilians after the KIA took them into its custody in March
2019 and into uncorroborated allegations of physical or psychological abuses torture and
killings by the SSA-S and the TNLA.
1352
1353
1354
1355
1356
1357
1358
152
See J.M. Henckaerts and L. Doswald-Beck, “Customary International Humanitarian Law. Volume I:
Rules” (Cambridge, ICRC/Cambridge University Press, 2005), rule 1 (the principles of distinction
between civilians and combatants), rule 11 (indiscriminate attacks) and rule 14 (proportionality in
attack).
See J.M. Henckaerts and L. Doswald-Beck, “Customary International Humanitarian Law. Volume I:
Rules” (Cambridge, ICRC/Cambridge University Press, 2005), rule 15 (principles of precautions in
attack).
See International Criminal Tribunal for the Former Yugoslavia (ICTY), The Prosecutor v. Stanislav
Galić, Case No. IT-98-29-A, Judgment (Appeals Chamber), 30 November 2006, para. 194 (the failure
of a party to abide by these obligations do not “relieve the attacking side of its duty to abide by the
principles of distinction and proportionality when launching an attack”.)
See J.M. Henckaerts and L. Doswald-Beck, “Customary International Humanitarian Law. Volume I:
Rules” (Cambridge, ICRC/Cambridge University Press, 2005), rule 22 (principle of precautions
against the effects of attack).
See J.M. Henckaerts and L. Doswald-Beck, “Customary International Humanitarian Law. Volume I:
Rules” (Cambridge, ICRC/Cambridge University Press, 2005), rule 23 (location of military objectives
outside densely populated areas). See, also, Toni, Pfanner, Military uniforms and the law of war,
International Review of the Red Cross, No. 853, March 2004, p. 122.
See, Common Article 3 to the four Geneva Conventions; See J.M. Henckaerts and L. Doswald-Beck,
“Customary International Humanitarian Law. Volume I: Rules” (Cambridge, ICRC/Cambridge
University Press, 2005), rule 90 (torture and cruel, inhuman or degrading treatment) and rule 93 (rape
and other forms of sexual violence).
See J.M. Henckaerts and L. Doswald-Beck, “Customary International Humanitarian Law. Volume I:
Rules” (Cambridge, ICRC/Cambridge University Press, 2005), rule 156 (definition of war crimes).
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