12 ROHINGYA GENOCIDE DAY Unlike in other areas of Myanmar, particularly in Kachin and Shan states, the violence in northern Rakhine State does not fulfill the criteria necessary to classify the situation as an armed conflict according to international law. The fact that military forces were employed to carry out security operations in northern Rakhine State does not of itself mean that those operations are taken pursuant to an armed conflict. In the absence of armed conflict, the State’s security operations must be restricted to law enforcement operations governed by criminal law and human rights law rather than military operations. Moreover, the security operations are characterized, in northern Rakhine State or anywhere else in Myanmar, the use of force by security forces must comply with protective limitations on the lawful use of force, including principles of necessity and proportionality. Security forces are obliged to abide by constitutional protections and to scrupulously respect international standards governing the use of force. What are the international standards on the use of force? The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provide that the use of lethal force by security forces can be made only when it is strictly unavoidable for the purpose of protecting the right to life. Regarding non-lethal force, this also must be employed only as strictly necessary and proportional, and this means it may only be used for limited purposes, such as in self-defence or in the defence of others against the imminent threat of death or serious injury, to prevent a particular serious act involving a grave threat to life threat or when less extreme means are unavailable. The 1979 UN Code of Conduct for Law Enforcement Officials specifies that, where police powers are exercised by military authorities or by State security forces, such military or other forces are subject to the relevant international standards for law enforcement officials on matters such as use of force and respect for human rights. Can private individuals lawfully participate in security operations? Credible reports suggest that groups of individuals who are not members of security forces have carried out acts of violence and arson in northern Rakhine State, allegedly with active involvement or acquiescence by security forces. Regardless of the involvement of security forces in the commission of acts by private individuals, such actions constitute crimes that necessitate investigation and prosecution. In instances where security forces enable, facilitate or otherwise contribute to human rights abuses perpetrated by private individuals, or by militias, this will generally also constitute violations of the State’s international human rights law obligations. A failure to intervene to prevent or stop such violence when it happens in the presence of State authorities or when they should be aware of it, or a failure to punish perpetrators in these instances, will also generally constitute a violation of the State’s obligations. Section 128 of the Criminal Procedure Code authorizes police, as well as magistrates, to acquire “the assistance of any male person, not being an officer, soldier, sailor or airman” to disperse public assemblies and to arrest and confine participants. Under section 127 of the Code, private individuals may be mobilized in this way in instances of unlawful assemblies or assemblies ‘of five or more persons likely to cause a disturbance of the public peace’. There have been no reports of these provisions being invoked recently in northern Rakhine State. Regardless, these provisions in no way permit the crimes of violence and arson. The use of militias by the Tatmadaw is a long-standing practice in Myanmar. Article 340 of the Constitution states that, “With the approval of the National Defence and Security Council, the Defence Services has the authority to administer the participation of the entire people in the Security and Defence of the Union. The strategy of the people’s militia shall be carried out under the leadership of the Defence Services.” As the National Defence and Security Council has not convened under the NLD government, any new militias raised in northern Rakhine State would have no legal basis under Myanmar’s Constitution.