(COX’S BAZAR, August 27, 2024)—The International Criminal Court (ICC) should investigate a massacre of Rohingya civilians perpetrated by the Arakan Army (AA), an ethnic armed organization based in Rakhine State, Myanmar, said Fortify Rights today. The ICC already has jurisdiction to investigate and prosecute forced displacement and other crimes against Rohingya in Rakhine State and Bangladesh, and the AA’s recent attacks against Rohingya civilians could potentially be examined as part of the ICC’s ongoing investigation.

A new Fortify Rights investigation documents the AA’s indiscriminate and disproportionate attacks against fleeing Rohingya civilians on August 5 and 6, and the displacement of Rohingya from Maungdaw Township, Rakhine State.

“Major General Twan Mrat Naing and other Arakan Army leaders must prevent mass atrocity crimes at all costs and should be put on notice that the ICC already has indefinite jurisdiction to investigate and prosecute forced deportation of Rohingya civilians from Rakhine State to Bangladesh, regardless of which party commits the crime,” said Matthew Smith, Chief Executive Officer at Fortify Rights. “There is no excuse for indiscriminate and disproportionate attacks on civilians. Arakan Army commanders found responsible for these attacks on civilians should be held criminally accountable.”

On August 5 and 6, multiple drone and shelling attacks along the Myanmar-Bangladesh border killed over one hundred Rohingya women, children, and men as they sought to flee to safety in Bangladesh. According to Rohingya eyewitnesses and survivors, on August 5, a crowd estimated in the thousands of Rohingya civilians were attacked with mortar fire and drones as they gathered on the banks of the Naf River in Maungdaw Township, Rakhine State. The next day, August 6, AA soldiers shot to death dozens of fleeing Rohingya civilians along the border, also in Maungdaw Township.

Map Analysis. Click to enlarge. ©Fortify Rights, 2024

Since April 2024, Fortify Rights has interviewed 23 Rohingya civilians about recent attacks against civilians in Rakhine State. Fortify Rights also reviewed open-source video and photographic evidence of the attacks and killings on August 5 and 6, 2024, in Rakhine State, showing the bodies of killed Rohingya women, children, and men.

Since November 2023, the AA, which is part of the Three Brotherhood Alliance of armed organizations in Myanmar, has made major territorial gains against the Myanmar military junta as part of an ongoing nationwide pro-democratic revolution. In May 2024, the AA took control of large parts of Buthidaung Township, a predominantly Rohingya area of northern Rakhine State. Fortify Rights interviewed 10 Rohingya who witnessed AA soldiers commit widespread arson and destruction of property in downtown Buthidaung—the largest town in the township of the same name, mostly Rohingya populated—during their takeover

Rohingya militants align with Myanmar junta in fight against AA

Following the takeover and arson destruction in Buthidaung, AA began to focus its offensive on the neighboring Maungdaw Township, then under the control of the Myanmar junta and allied Rohingya militias, including the Rohingya Solidarity Organisation (RSO). Through firsthand testimony, Fortify Rights established that the military junta and RSO are coordinating their military activities around Maungdaw, representing a shift in Rohingya militant allegiances.

“The RSO and the military have mutual contact and movement in broad daylight,” said one Rohingya resident from Maungdaw Township. “The military junta and RSO were fighting alongside each other against the AA.”

The same man had direct contact with RSO leadership on multiple occasions and told Fortify Rights the military junta provided RSO with “a three-storey building” in the Myoma Ka Nyin quarter, adding that it “was given to the RSO by the junta military to make their office.” He said local Rohingya people questioned how RSO could align with the same military that committed genocide against them, and that RSO is framing the newfound allegiance as strategic.

According to testimony, RSO members sometimes refer to themselves as the “Maungdaw militia” to avoid criticism from “the international community” about its alignment with the junta’s military.

In a previous investigation in July 2024, Fortify Rights established that Rohingya armed groups including the RSO abducted Rohingya refugees from refugee camps in Bangladesh, and then the abductees were transported to Myanmar and forced to join the Myanmar junta’s military—the same military responsible for genocide against Rohingya. These acts may violate the laws of war and amount to human trafficking.

“The Myanmar junta is attempting deadly divide-and-rule tactics at the expense of Rohingya people’s lives,” said Matthew Smith. “The AA cannot justify attacking Rohingya civilians just because an ethnic Rohingya armed group is now fighting alongside the military junta.”

According to a senior local humanitarian official interviewed by Fortify Rights, Rohingya civilians began fleeing their villages around Maungdaw town in June and July as the AA advanced on the town, concentrating tens of thousands of Rohingya civilians in Maungdaw town. During this time, the AA reportedly shelled the area daily, targeting areas of displaced Rohingya civilians:

Rehan, a 25-year-old resident of Fayazi Fara [also known as Fezi Ywa] village, told Fortify Rights how the attacks forced him and many others to Bangladesh:

Drone and Mortar Attacks in Rakhine State on August 5

On the morning of August 5, AA forces launched a major offensive towards Maungdaw town, forcing Rohingya residents to flee from several villages on the outskirts of Maungdaw as the Myanmar military junta and the RSO began abandoning their positions. A general panic set in, making most of the displaced Rohingya decide to flee towards the Myanmar-Bangladesh border to flee to Bangladesh by boat, according to a senior humanitarian official and other witnesses and survivors interviewed by Fortify Rights.

Between 5 and 6 p.m. on August 5, large numbers of Rohingya civilians gathered along the Naf River near the Maungdaw Cemetery, waiting for boats to cross over into Bangladesh. Survivors and eyewitnesses described mortars and drones fired from Pan Taw Pyin, Shwe Zar, and Maung Ni villages where the AA held positions. At least two drones flew over the fleeing civilians and dropped mortars on them.

Fortify Rights interviewed 13 survivors and eyewitnesses of the attack on August 5.

According to Rehan, who survived the beach massacre, the AA first sent a surveillance drone to observe the crowd gathered at the beach and then launched a massive attack with bomb-dropping drones and mortar fire on the crowd:

A map published by Fortify Rights clarifies areas in Maungdaw Township that, according to multiple witnesses, were under the control of the AA, areas under the control of the military junta, and the direction from which drones and attacks came, clearly implicating the AA as responsible for the riverside massacre of Rohingya civilians.

Some Rohingya witnessed the presence of armed members of the RSO with the group of fleeing Rohingya civilians. According to the senior humanitarian official interviewed by Fortify Rights, RSO officials also fled by boat across the Naf River into Bangladesh on the evening of August 5. However, the vast majority of the people gathered on the beach were Rohingya civilians with well-founded fears of violence, all trying to flee the fighting. The fact that the AA first sent a surveillance drone before launching the massive attack shows clearly that the group intentionally attacked a civilian crowd that included children and the elderly.

One Rohingya eyewitness and survivor told Fortify Rights:

This survivor reported seeing “more than 50 dead bodies” on August 5.

Another Rohingya survivor, a 25-year-old woman, recounted, “I saw about 100 dead bodies lying on the beach.”

Another Rohingya survivor of the August 5 attack told Fortify Rights: “I saw the drones, mortars, and artillery flying toward us from the direction of Shuza Fara [Shwe Zar] village, which is controlled by the AA. … Allah had mercy and saved us. A mortar shell landed close to us in the mud. Fortunately, it didn’t explode.”

Unexploded ordnance throughout Rakhine State, on its border areas, and in other areas of armed conflict in Myanmar pose grave threats to civilians, said Fortify Rights, and should be the focus of urgent humanitarian intervention.

Eyewitnesses and survivors also described mortar and artillery being fired from Pan Taw Pyin and Shwe Zar villages where the AA was positioned on August 5. One Rohingya woman, 24, said:

Another Rohingya survivor, 20, told Fortify Rights he witnessed dead bodies on August 6, the day after the attack, in a state consistent with victims of explosive weapons. He said: “Some bodies had no hands, legs, or heads. There were dead bodies everywhere. There were men, women, and children. All kinds of people.”

Although many of the Rohingya who died on August 5 and August 6 at the Naf riverside were killed by drone and mortar fire, others drowned when at least one overcrowded boat was hit by a mortar round and sank on August 5, and two other overcrowded boats capsized and sank — one on August 5 and another on August 6.

According to a survivor from Maungdaw, two boats sank on the evening of August 5, one of which was hit directly by a drone bomb, and a second one, which capsized when the overcrowded passengers panicked when drones dropped bombs near the boat. Almost all passengers on both boats, including children, drowned:

A 44-year-old Rohingya man interviewed by Fortify Rights described how he fled from Myanmar to Bangladesh on a boat on August 6. His five children all drowned to death when their boat capsized in the Naf River, along with an estimated 30 others who drowned. He said he witnessed more than 100 dead bodies at the river’s edge from the August 5 attack, and that his family came under heavy fire from AA as they waited to be rescued on the beach on August 6:

The man described their boat capsizing due to inclement conditions on the water:

The man ultimately found another boat to take him and his wife to Bangladesh, paying with the last remaining gold his wife was wearing.

A Rohingya man, 35, recounted how AA soldiers shot at him, his 10-year-old daughter, his eight-year-old son, and his sister-in-law on August 6 along the Myanmar-Bangladesh border near a retaining wall near the Naf riverbank. The man said: “The retaining wall is behind the border fence. The fence is next to the road.”

The man explained how the group of around 30 Rohingya hid along a retaining wall as fighting between the Myanmar military junta and AA broke out. “I put my hands over my ears and told my daughter to cover her ears since there was intense fighting between AA and the military. … After half an hour, there was no military, and they [military junta soldiers] fled the area.”

“[After the Myanmar junta soldiers fled the area] the AA was coming close to us, speaking the Rakhine language,” the man told Fortify Rights. “They yelled in anger, ‘Clear them, they are bloody motherfuckers.’ They meant to shoot and kill our group.” He continued:

When the AA opened fire on the civilians, they shot the man quoted above in his hand, shot his 10-year-old daughter in her arm, and shot and killed his 8-year-old son as well as his adult sister-in-law. The man cried as he told Fortify Rights about his son’s tragic death: “A bullet hit him in the chest. He was shot three times. Once in the chest, once in the right leg, and once in his hand.  … When the first bullet hit him, he cried. He was right next to me at the time. That’s when he died. I held his arm.”

Fearing for his and his daughter’s life, the man told Fortify Rights:

Fortify Rights reviewed the man’s medical records from a humanitarian organization-run hospital in Bangladesh, which he willfully provided, and which included descriptions of his treatment for a gunshot injury and related infection.

While he pretended to be dead, the man heard what he believed was AA soldiers raping and mutilating a Rohingya woman: “The woman was crying, ‘Don’t do this to me.’ … It was almost two hours, and then one AA said, ‘Cut her arm and cut her breast.’ … After five minutes, I heard another gunshot. After that, I could not hear the woman.”

Another Rohingya survivor, age 20, and brother-in-law of the man above told Fortify Rights about the AA shooting at the group on August 6 at close range:

“[Later] we ran into the water of the Naf River up to our necks and hid there,” the man said. The man later crossed into Bangladesh.

In a statement on August 7, the AA denied responsibility for the attacks on August 5: “[T]he deaths did not occur in areas under our control and are not related to our organization.” On August 17, the United League of Arakan—the political wing of the AA—published online a “preliminary” report on the incident, effectively denying AA responsibility but committing to investigating the incident when the AA “has taken control of the town and incident location.”

International Legal Framework

International humanitarian law—also known as the laws of war—is applicable to all parties to the conflict in Rakhine State and the broader conflict 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 …. 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, the AA and Myanmar military junta 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. Violations can be prosecuted as war crimes.

Under international humanitarian law, any attacks reasonably expected to cause incidental loss of civilian lives, injury, or damage to civilian objects are also prohibited if the damage to civilian lives or objects would be excessive compared to the military advantage gained through the attack. If the military advantage gained is proportionate to the potential damage to civilian lives or objects, conflicting parties must take every precaution to protect civilians from harm, including through the means and methods of warfare they employ.

Two Rohingya survivors and eyewitnesses of the August 5 attack who were fleeing in the large group of Rohingya did recount the presence of the armed members of the RSO among the civilians. One Rohingya resident from Maungdaw downtown told Fortify Rights: “The massive bombs fired on August 5 were from the AA. As far as I could see, they operated drones because the RSO members were trying to flee before us. The RSO members were also in the crowd [of people fleeing].”

“I saw at least 100 RSO members in the exodus,” the man said. “They were also fleeing with us at that time. They [RSO] all had guns.”

The presence of RSO fighters among the fleeing civilians does not justify the AA’s attack on the group, said Fortify Rights.

Moreover, while Common Article 3 of the Geneva Conventions does not explicitly mention sexual violence, it prohibits “violence to life and person,” including cruel treatment and torture and “outrages upon personal dignity.” Sexual violence is described in the Rome Statute as including “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.”

On September 6, 2018, the ICC granted the Chief Prosecutor jurisdiction to investigate and possibly prosecute the crime against humanity of forced deportation of Rohingya to Bangladesh, as well as persecution and other inhumane acts. While the court’s jurisdiction stemmed from the Rohingya genocide of 2016 and 2017, its jurisdiction is indefinite, and its investigation could focus on any individual or group deemed responsible for perpetrating the forced deportation of Rohingya to Bangladesh.

The ICC Chief Prosecutor should include the AA’s attacks on Rohingya civilians as part of his ongoing investigation, said Fortify Rights.

“The very same culture of impunity that led to the Rohingya genocide is now facilitating the AA’s deadly attacks against civilians,” said Matthew Smith. “This attack had a transnational component, inspiring terror among Rohingya civilians and forcing another exodus to Bangladesh. It deserves a full investigation as an atrocity crime.”

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