Civilian settlements are shelled remotely, typically from Tatmadaw mortar positions on nearby hilltops, but Tatmadaw troops remain in their position and do not enter the area on foot. No civilians or civilian objects within the settlement are accorded protection; schools, clinics, civilians working in farm fields: all may be subjected to shelling.

These practices appear to be designed to drive civilian populations into areas where non-state armed groups cannot access them for support, following earlier government forced relocation campaigns. They typically occur in areas where Tatmadaw control is most precarious, terrain is difficult, roads are non-existent or barely navigable and Tatmadaw forces fear ambush by non-state armed groups. Such areas can be found in southern and northern Karen State, eastern Bago Division and eastern Tenasserim Division.

While conflict between the Tatmadaw and non-ceasefire non-state armed groups (NSAGs), including the Karen National Liberation Army (KNLA) and the Democratic Karen Buddhist Army (DKBA) occurs in such areas, Type 1 attacks entail incidents in which an attack on a civilian settlements does not occur in response to a prior attack by KNLA or DKBA forces. Because neither group is militarily strong enough to defend fixed positions,[25] they appear to prefer ambushes and the use of landmines, and survive against a numerically superior opponent by limiting confrontations to situations where terrain and surprise give their forces a tactical advantage.[26] This inability to use anything other than 'guerrilla tactics' means that, as a rule, it is highly unlikely that non-ceasefire NSAGs would launch an attack from a position against which the Tatmadaw could retaliate, including both fortified military positions and unfortified civilian settlements. Cases where civilian settlements are shelled remotely but this attack immediately follows an attack by the KNLA or DKBA are discussed in more detail below in Type 4.

NSAGs in Karen State, Bago Division and eastern Tenasserim Division have not been documented consistently making Type 1 attacks. Such attacks only make sense as part of a 'counter-insurgency' strategy; as the 'insurgents,' NSAGs would thus not employ the approach. The KNLA and DKBA could not likely gain a strategic advantage by attempting to coerce large-scale population movements; neither group is strong enough to maintain control of the population afterwards. Instead, the groups must survive by positioning themselves as 'protectors' of the Karen people. The only consistent exception to this has been in areas in which DKBA and KNLA forces are in conflict. In these areas, DKBA forces have sometimes adopted methods akin those used by the Tatmadaw, though to a lesser degree.

In Type 1 attacks, prior to attacks, no effort is made by Tatmadaw forces to ascertain the presence of civilians, or whether settlements are civilian or military objects, and therefore whether they may or may not be lawfully attacked. Alternatively, the presence of civilians and the civilian nature of objects are known or clearly visible from the point of attack. In neither circumstance do Tatmadaw forces provide advance warning to civilians so that the latter may seek shelter or flee the area before attacks occur. It cannot be said that Tatmadaw forces exercise all feasible precautions to avoid or minimise harm to civilians and damage to civilian objects.

Type 1 attacks typically do not occur following clashes with non-state armed groups. Nor do they occur incidentally as a consequence of generalized fighting in the area.

In IHL, "military necessity" may justify "unavoidable" harm to civilians and civilian objects, but only if attacks are directed against a legitimate military objective; if use of force is proportional to the concrete and direct military advantage anticipated from the attack; and if all feasible precautions are taken to minimise civilian harm. Such attacks violate IHL if efforts are not made to determine civilian or military nature of objects of attack, if civilian nature of objects of attack is known, or if all feasible precautions are not taken to minimise civilian harm.

In cases of a direct or near hit, school or medical buildings are damaged or children killed or maimed.

Because communities in these areas have been attacked repeatedly, they do notalways flee as a response to remote shelling. Settlements are onlyabandoned in cases where civilians feel the threat of intensified shelling or a subsequent ground attack is highly probable. This entails the closure of schools and clinics. It also entails children and protected personnel from schools and medical facilities fleeing to avoid attack or the threat of attack.

Tatmadaw forces leave fixed positions and enter civilian settlements on foot, sometimes preceded by shelling. Civilians typically flee immediately prior to or during the attacks, often receiving warning from informal early warning systems established by civilians or by obtaining military intelligence from non-state armed groups.[27] Civilians who remain in the area may be shot on sight or detained and subjected to interrogation, physical violence and/or summary execution. This includes personnel of schools and medical facilities.

Tatmadaw forces entering civilian settlements sometimes but not always burn or otherwise damage or destroy some, many or all structures in the village. Essential civilian property such as food stores, crops under cultivation, livestock and cooking and agricultural equipment may also be burned or destroyed.[28] This includes schools and medical facilities.[29]

Tatmadaw forces are not typically able to remain for extended periods of time in villages after attacks, because the positions are not defensible; non-state armed groups typically monitor Tatmadaw movements and ambush Tatmadaw units when they are in vulnerable locations, such as along exposed sections of road or when they enter villages, which are not typically fortified.

Upon leaving, Tatmadaw forces sometimes leave unmarked landmines in the village or mutilated livestock, so the danger of injury or the smell of rotting carcasses makes it difficult for civilians to return to the area.

These practices appear to be designed to drive civilian populations into areas where non-state armed groups cannot access them for support, following earlier government forced relocation campaigns. They typically occur in areas where Tatmadaw control is most precarious, terrain is difficult, roads are non-existent or barely navigable and Tatmadaw forces fear ambush by non-state armed groups. Such areas can be found in southern and northern Karen State, eastern Bago Division and eastern Tenasserim Division.

As with Type 1 attacks, Type 2 attacks do not typically occur in response to a prior attack by NSAG forces. NSAGs have also not been documented making ground attacks, with the exception of areas in which the DKBA and KNLA are in conflict. In these areas, DKBA forces have sometimes adopted 'counter insurgency' methods akin those used by the Tatmadaw, though to a lesser degree.

Civilian nature of targets is known already, as Tatmadaw troops enter area on foot. Civilian objects, including those essential to the survival of the civilian population, are knowingly and wilfully damaged, including homes, cooking and agricultural equipment, household food supplies and communal property such as schools, clinics and churches.

Ground attacks typically do not occur following clashes with non-state armed groups. Nor do they occur incidentally as a consequence of generalized fighting in the area.

In IHL, "military necessity" may justify "unavoidable" harm to civilians and civilian objects, but only if attacks are directed against a legitimate military objective; if use of force is proportional to the concrete and direct military advantage anticipated from the attack; and if all feasible precautions are taken to minimise civilian harm. Tatmadaw forces appear to treat all persons and objects within settlements targeted for ground attacks as legitimate objects of attack, violating the principle of distinction and IHL rules regarding civilian protection – and making evaluations of "military necessity" impossible.

Because of past experiences in which civilians encountered by Tatmadaw troops have been shot on sight or arrested and later summarily executed, the entire community typically flees, as do adjacent settlements that also perceive the probability of attack to be high. This entails the closure of schools and medical facilities. It also entails children and protected personnel from schools and medical facilities fleeing to avoid attack or the threat of attack.

In cases where the threat of attack remains high, usually because the Tatmadaw establishes a new permanent position in the area, schools and clinics are permanently abandoned. In cases where the Tatmadaw vacates the area, civilians return and schools and clinics are reopened, sometimes in a surprisingly short interval of time given the severity of the threat. That they are later reopened does not obviate the fact that the school, clinic or related personnel were threatened with an attack.

Tatmadaw forces conduct foot patrols along roads or on forest paths. These patrols typically destroy civilian settlements or property, including property essential to the civilian population, when it is encountered. Civilians encountered by these patrols may be shot on sight or detained and subjected to interrogation, physical violence and/or summary execution. This includes personnel of schools and medical facilities.

These practices appear to be designed to drive civilian populations into areas where non-state armed groups cannot access them for support, following earlier government forced relocation campaigns. They typically occur in areas where Tatmadaw control is most precarious, terrain is difficult, roads are non-existent or barely navigable and Tatmadaw forces fear ambush by non-state armed groups. Such areas can be found in northern Karen State, eastern Bago Division and eastern Tenasserim Division.

As with Type 1 and Type 2 attacks, Type 3 attacks do not typically occur in response to a prior attack by NSAG forces. NSAGs have also not been documented conducting foot patrols and shooting civilians on sight, with the exception of areas in which DKBA and KNLA forces are in conflict. In these areas, DKBA forces have sometimes adopted 'counter-insurgency' methods akin to those used by the Tatmadaw, though to a lesser degree.

The practice of shooting on sight precludes Tatmadaw forces from ascertaining whether individuals attacked are civilians or combatants. In some cases, Tatmadaw forces shoot on sight individuals whose non-combatant status is obvious, such as women carrying children or civilians working on agricultural projects.

Shooting and destruction of civilian objects by foot patrols typically do not occur following clashes with non-state armed groups. Nor do they occur incidentally as a consequence of generalized fighting in the area.

All shoot-on-sight attacks resulting in civilian injury or death contravene IHL because they entail that an attacker either knowingly attacks a civilian, or attacks an individual whose status has not been ascertained. Both courses of action preclude taking all feasible precautions to minimise civilian harm.

If a patrol encounters civilians, including children, the odds that they will be shot on sight and potentially killed are extremely high.

Fortunately, the odds of Tatmadaw soldiers surprising civilians on patrols are low, chiefly because, after decades of living in this situation, communities are adept at avoiding Tatmadaw patrols. Also, the threat of ambush by non-state armed groups means that Tatmadaw patrols typically stick to areas they perceive to be 'safe,' which are conversely areas that civilians avoid.

Because patrols may also precede ground attacks (Type 2), if a patrol enters an area near a settlement residents may flee if the threat of attack is perceived to be high. This entails the closure of schools and clinics. It also entails children and protected personnel from schools and medical facilities fleeing to avoid attack or the threat of attack.

Tatmadaw forces sometimes respond to attacks by non-state armed groups on fixed positions such as military camps by returning fire indiscriminately, usually with mortars. Villages thought to be supporting non-state armed groups are also sometimes shelled as punishment for an attack by a non-state armed group launched from another location. Importantly, this may be preceded or followed by a warning transmitted verbally via messenger or face-to-face encounter between Tatmadaw commanders and villagers. This helps distinguish incidents of this type from incidents described in Type 1 above.

These practices appear to be a defensive measure, designed to repel attacks or deter future attacks. These typically occur in both areas where Tatmadaw control is most precarious and where it is slightly stronger, but where attacks on fixed Tatmadaw positions are still possible. Such areas can be found across Karen State, eastern Bago Division and eastern Tenasserim Division. Since the DKBA began fighting the Tatmadaw following the 2010 election, these practices have been most commonly reported in southern and central Karen State.

NSAG forces have also been documented indiscriminately firing mortars. This is especially the case in southern and central Karen State, where conflict between the Tatmadaw and units of the DKBA and KNLA has increased since November 2010. Both state and non-state parties to the conflict have also been documented indiscriminately using landmines, including in areas clearly of a civilian nature.

Some incidents, especially in southern and central Karen State, may be permissible within international humanitarian law on grounds of "military necessity" where mortars hitting civilian settlements and civilian objects are an incidental or "unavoidable" consequence of attacks directed against a legitimate military objective, adhering to the principle of proportionality, and in which all feasible precautions have been taken to minimise civilian harm.

In many cases, however, the distance between civilian settlements and a military target – or the location of fighting – suggest that shelling is at best an indiscriminate attack that has not been directed at a specific military target.

Where shelling is intentionally directed against known civilian settlements, as punishment for an attack by a non-state armed group, such attacks violate the principle of distinction and associated prohibitions on attacking civilians.

In cases where non-state armed groups launch attacks from the vicinity or premises of a settlement, "military necessity" may justify a higher threshold of harm to civilians and civilian objects present in the settlement during a counter-attack. However, attacks entailing disproportionate uses of force, and which fail to take feasible precautions to avoid or minimise civilian harm, would remain prohibited.

Tatmadaw forces shelled the Tru Hta hiding site during February 2010. A mortar landed near a school during school hours, killing one student and injuring two others. The KHRG staff that visited the site to document the incident confirmed that the mortar attack was not a part of generalized fighting between the Tatmadaw and the KNLA, nor was it in response to a prior attack launched from the immediate area by KNLA forces.[30]

Did attack violate relevant IHL? Yes. Tatmadaw forces either (a) knew that Tru Hta was a civilian hiding site and purposefully targeted it for attack; or (b) attacked indiscriminately. Attempts were not made to ascertain civilian presence and civilian/military nature of targets prior to shelling. Rules requiring exercise of all feasible precautions to avoid or minimise civilian harm were not followed; civilians were not warned prior to attack of area. Civilians and combatants, and civilian and military objects were not distinguished in attack. "Military necessity" does not apply because attack was not against legitimate military target; no effort was made to ascertain civilian or military nature of target, or civilian nature of target was known; and feasible precautions were not taken to minimise civilian harm. The absence of an engagement with a non-state armed group in the area prior to the attack raises questions as to whether a concrete and direct military advantage was anticipated to arise from the attack, and whether the shelling and resulting civilian harm was proportional to that anticipated advantage.

Tatmadaw forces entered Kyat Yeh hiding site. Threat of attack on students, personnel and school was perceived to be credible, forcing teachers and students to flee and one school to be closed. Other residents fled as well. Tatmadaw forces subsequently burned three civilian houses. According to the Backpack Health Worker Team (BPHWT), a mobile medic in the area also fled threat of attack. The KHRG staff that visited the attacked area and interviewed victims did not seek to confirm whether the Tatmadaw attack was part of generalized fighting or in response to a prior attack launched from the immediate area. Because the KNLA is not strong enough to repel a counter attack in that area, however, it is extremely unlikely that the group initiated an engagement.[32]

Did attack (a) kill or threaten to kill personnel related to schools or hospitals or (b) destroy, damage, or force closure of a school or medical facility? Yes.
 

• • Flight by teachers and medic, who should be protected personnel, confirms that they felt threatened with an attack on their person. This meets the requirement laid forth in Paragraph 3 of UNSCR 1998, which requires monitoring of "threats of attacks against protected persons in relation to schools and/or hospitals.[33]"

• Closure of the school and abandonment of the premises by students and teachers confirms that civilians did not expect Tatmadaw forces attacking the settlement to accord it any special protection from attack.

Tatmadaw forces shelled and then entered Tha Dah Der village. Threat of attack on students and personnel was perceived to be credible, forcing teachers and students to flee and one school to be closed. Other residents fled as well. Tatmadaw forces subsequently burned the majority of structures in the village. During this incident, Tatmadaw soldiers attempted to burn the school, but were only able to partially damage it before leaving the area; after the attack, a burned pile of school benches and other flammable materials were found in the centre of the school building. However, flames did not spread from these objects to the rest of the building. The KHRG staff that visited the attacked area and interviewed victims confirmed that the attack was not a part of generalized fighting between the Tatmadaw and the KNLA, or in response to a prior attack launched from the immediate area by KNLA forces. Tatmadaw forces left a note to area residents explaining that the attack was prompted by a KNLA ambush that had occurred on an earlier occasion in a different location, along a road located well to the northeast of Tha Dah Der.[34]

Did attack (a) kill or threaten to kill personnel related to schools or hospitals or (b) destroy, damage, or force closure of a school or medical facility? Yes.
 

• Flight by teachers, who should be protected personnel, confirms that they felt threatened with an attack on their person. This meets the requirement laid forth in Paragraph 3 of UNSCR 1998, which requires monitoring of "threats of attacks against protected persons in relation to schools and/or hospitals.[35]"
• Closure of the school and abandonment of the premises by students and teachers confirms that civilians did not expect Tatmadaw forces attacking the settlement to accord it any special protection from attack.
• Expectation that school would not be spared from attack was affirmed. Tatmadaw soldiers attempted to burn the school along with most other structures in the village, partially damaging the building and destroying other school materials in the process

Tatmadaw forces entered Lay Kaw Htih village. Threat of attack on students and personnel was perceived to be credible, forcing teachers and students to flee and one school to be closed. Other residents fled as well. Tatmadaw forces shot into a home while a midwife was assisting a woman during childbirth, killing the mother and placing the midwife at risk. The KHRG staff that interviewed the husband of the victim did not seek to confirm whether the Tatmadaw attack was part of generalized fighting or in response to a prior attack launched from the immediate area. Because the KNLA is not strong enough to repel a counter attack in that area, however, it is extremely unlikely that the group initiated an engagement. Irrespective of whether Tatmadaw forces responded to a prior KNLA attack, however, military necessity did not justify firing into a civilian home without first ascertaining the presence of civilians and taking appropriate measures to avoid or minimise civilian harm.[36]

• Flight by teachers, who should be protected personnel, confirms that they felt threatened with an attack on their person. This meets the requirement laid forth in Paragraph 3 of UNSCR 1998, which requires monitoring of "threats of attacks against protected persons in relation to schools and/or hospitals.[37]"
• Closure of the school and abandonment of the premises by students and teachers confirms that civilians did not expect Tatmadaw forces attacking the settlement to accord it any special protection from attack.
• The midwife who remained in the village was directly exposed to an attack that killed the woman for whom she was providing care. The midwife was not accorded any special protection by attacking soldiers. That she was endangered in an attack affirms the credibility of the threat of attack against other protected persons and civilians, including teachers and children, who fled Lay Kaw Htih.

Tatmadaw forces departed a nearby military camp and approached the immediate area of Tay Mu Der and Htee Shee Kee villages. Threat of attack on students and personnel in both villages was perceived to be credible, forcing teachers and students to flee and two schools to be closed. Other residents fled as well. Tatmadaw forces subsequently burned the majority of structures in an adjacent village, Tha Dah Der. The KHRG staff that visited the attacked area and interviewed victims confirmed that the attack was not a part of generalized fighting between the Tatmadaw and the KNLA, or in response to a prior attack launched from the immediate area by KNLA forces.[38]

Did attack (a) kill or threaten to kill personnel related to schools or hospitals or (b) destroy, damage, or force closure of a school or medical facility? Yes.

• Flight by teachers, who should be protected personnel, confirms that they felt threatened with an attack on their person. This meets the requirement laid forth in Paragraph 3 of UNSCR 1998, which requires monitoring of "threats of attacks against protected persons in relation to schools and/or hospitals.[39]"
• Closure of the schools and abandonment of the premises by students and teachers confirms that civilians did not expect attacking Tatmadaw forces to accord schools any special protection from attack. This expectation was reasonable given that soldiers attempted to burn a school along with multiple other structures in a concurrent attack on nearby Tha Dah Der.

Tatmadaw forces entered Htee Poe Meh Gkeh village. Threat of attack on students and personnel was perceived to be credible, forcing one medic, teachers and students to flee and one school to be closed. Other residents fled as well. Tatmadaw forces burned civilian homes and a children's boarding house. The KHRG staff that visited the attacked area and interviewed victims did not seek to confirm whether the Tatmadaw attack was part of generalized fighting or in response to a prior attack launched from the immediate area. Because the KNLA is not strong enough to repel a counter attack in that area, however, it is extremely unlikely that the group initiated an engagement.[40]

Did attack (a) kill or threaten to kill personnel related to schools or hospitals or (b) destroy, damage, or force closure of a school or medical facility? Yes.

• Flight by the medic and teachers, who should be protected personnel, confirms that they felt threatened with an attack on their person. This meets the requirement laid forth in Paragraph 3 of UNSCR 1998, which requires monitoring of "threats of attacks against protected persons in relation to schools and/or hospitals.[41]"
• Closure of the school and abandonment of the premises by students and teachers confirms that civilians did not expect Tatmadaw forces attacking the settlement to accord it any special protection from attack.
• Expectation that educational facilities would not be spared from attack was affirmed. Tatmadaw forces burned a children's boarding house along with other civilian objects.

Tatmadaw forces shelled and then entered an area containing 14 villages in Plah Koh, Ler Muh Bplaw and Saw Muh Bplaw village tracts. Threat of attack on students and personnel was perceived to be credible, forcing teachers and students to flee and six schools in two villages to be closed. Tatmadaw forces destroyed civilian homes, food storage barns, agricultural equipment and agricultural projects. KHRG staff present during the attack confirmed that the attack was not a part of generalized fighting between the Tatmadaw and the KNLA, or in response to a prior attack launched from the immediate area by KNLA forces.[42]

Did attack (a) kill or threaten to kill personnel related to schools or hospitals or (b) destroy, damage, or force closure of a school or medical facility? Yes.

• Flight by teachers, who should be protected personnel, confirms that they felt threatened with an attack on their person. This meets the requirement laid forth in Paragraph 3 of UNSCR 1998, which requires monitoring of "threats of attacks against protected persons in relation to schools and/or hospitals.[43]"
• Closure of the six schools and abandonment of the premises by students and teachers confirms that civilians did not expect attacking Tatmadaw forces to accord schools any special protection from attack.

A DKBA foot patrol fired small arms, mortars and rocket propelled grenades into an isolated civilian house near a farm field in the Maw Ler Kee village area. One child was maimed, one adult was killed and two adults were injured. DKBA forces did not first seek to ascertain whether civilians or combatants occupied the house. After an initial round of fire, DKBA forces sent a scout to check on the occupants of the home. After this scout informed the unit that civilians occupied the home, and that the civilians were still alive, DKBA forces then resumed firing.[44]

Did attack violate relevant IHL? Yes. The DKBA patrol was on foot, so the civilian nature of the house would have been apparent or feasible to ascertain. Forces fired on the civilian home, either: (a) with knowledge that civilians including a child were present inside, meaning soldiers deliberately attacked civilians; or (b) with knowledge that people were present inside, but without knowledge of whether they were civilians or combatants, meaning soldiers attacked indiscriminately, without verifying that persons in question were legitimate targets of attack. A second deliberate attack was carried out, with knowledge that civilians including were being attacked. "Military necessity" does not apply because attacks were not against legitimate military targets; no effort was made to ascertain civilian or military nature of targets or the civilian nature of targets was known; and feasible precautions were not taken to minimise civilian harm.

A Tatmadaw foot patrol encountered two women and two children as they walked along a forest path towards Kaw Hta village. One five-year-old child and one five-month-old baby were shot and killed; the mother of the children was injured and the other woman was killed. No soldiers from non-state armed groups were present at the time and the shots were not fired at other legitimate military targets; they were fired directly at the women and children.[46]

Did attack violate relevant IHL? Yes. The Tatmadaw patrol was on foot, so that the individuals to be attacked were civilians including children, and not combatants, would have been apparent. Forces deliberately attacked the group of civilians in violation of the principle of distinction and associated rules of IHL requiring the protection of civilians, including the requirement to take all feasible precautions to minimise civilian harm. "Military necessity" does not apply because attacks were not against legitimate military targets; the civilian nature of the targets was known; and feasible precautions were not taken to minimise civilian harm.

One seven-year-old girl was injured by a landmine while travelling with her father to check on their home village, which they had earlier fled to avoid the threat of generalised fighting between the Tatmadaw and units of the DKBA and KNLA. The girl was injured by the mine along a footpath near the village. KHRG could not confirm which party placed the landmine, however all three parties to conflict in that area are known to employ landmines.[48]

Did attack violate relevant IHL? Yes. Although it is not known which party to conflict placed the mine, the landmine was unmarked and placed in a civilian area. Use of an indiscriminate weapon in an area in which civilians may be expected to travel, and failing to mark or warn civilians in the area of the location of the mine, precludes parties to a conflict from adhering to the principle of distinction and associated rules of IHL regarding the protection of civilians, particularly the requirement to take all feasible precautions to minimise civilian harm.

Tatmadaw forces repelling at attack on their hilltop camp shelled a wide area behind the position from which DKBA forces were making an attack. Mortars fired by the Tatmadaw landed in at least three villages in the surrounding area. None of these villages were being used by DKBA forces to launch attacks. Tatmadaw mortars killed one seven-year-old child and injured a 17-year-old teenager. The children were in a location five kilometres from the Tatmadaw position.[50]

Did attack violate relevant IHL? Yes. Tatmadaw forces either (a) knew that the area in question contained multiple civilian settlements and deliberately shelled it; or (b) indiscriminately shelled a wide area, without attempting to ascertain civilian presence and civilian/military nature of targets prior to shelling. Rules requiring exercise of all feasible precautions to avoid or minimise civilian harm were not followed; civilians were not warned prior to attack of area. "Military necessity" likely does not apply because attack was not against legitimate military targets; no effort was made to ascertain civilian or military nature of targets, or civilian nature of targets was known; and feasible precautions were not taken to minimise civilian harm. The occurrence of an engagement with a non-state armed group in the area during the attack raises questions as to whether a concrete and direct military advantage was anticipated to arise from the attack – for example, termination of the attack – and whether the shelling and resulting civilian harm was proportional to that anticipated advantage. In this incident, the geographic separation of the area shelled and the actual location of the DKBA-Tatmadaw clash, as well as the failure by Tatmadaw forces to ascertain civilian presence in order to take measures to minimise civilian harm or draw a conclusion as to whether an attack would be proportional, make an argument of "military necessity" tenuous.