IV. Legal Framework 68 This report shows instances of, among other acts, torture, killings, threats, and conscription by non-state actors. Non-state actors have perpetrated most, if not all, of these acts against civilian Rohingya refugees not actively taking part in the hostilities between ARSA, the RSO, and the Myanmar military. Third, there may be a nexus between some of these criminal acts and the background armed conflict. To be clear, Fortify Rights does not maintain that all such acts demonstrate such a nexus—but many do. The notion of a specific “nexus,” as it is commonly known, is not a clear-cut concept. Indeed, “[i]t is true that the notion of a nexus cannot be found in international humanitarian law treaties and has been mainly developed in international criminal case law for the purpose of…establishing whether a war crime has been committed.”371 However, case law and practice have created the nexus to discern between ordinary crimes and war crimes. Arguably, the “relevant standard” for determining whether such a nexus is present can be found in the Kunarac Appeals Chamber Judgment from the ICTY.372 The standard asks whether an armed conflict “play[s] a substantial part in the perpetrator’s ability to commit” or “decision to commit [the act], the manner in which it was committed or the purpose for which it was committed.”373 Even at its strictest, narrowest definition, the nexus is understood to require a “direct connection between the alleged crimes,” meaning the act is committed “in direct conjunction with the armed conflict.”374 In the acts committed by non-state actors in the Bangladesh refugee camps, perpetrators have themselves directly linked their acts with the armed conflict, essentially confessing that the purpose of the act was to further armed conflict in Myanmar. For example, one man told Fortify Rights: There were five people, including one [ARSA] commander. The other four were obeying orders from the commander. They said, “You must join us.”… I said, “I have a wife and kids. I cannot work for you.” They said, “You need to leave your wife and kids and join us. If we can liberate the country [Myanmar], you can bring your family back to Myanmar.” Then they said, “If you don’t join, we will kill you.” They then tied me up and locked me in the bathroom.375 ARSA members subsequently tortured the man for days in a direct attempt to get him to join the armed conflict in Myanmar. This torture has a direct link, a tangible nexus, to the ongoing armed conflict in Myanmar. Assuming the presence of an armed conflict between ARSA, the Myanmar military, and others, this satisfies, on at least a prima facie basis, the test for all war crimes. In other cases documented in this report, RSO and ARSA threatened, tortured, or killed Rohingya refugees on the alleged basis that they were working with or supporting the Myanmar military—in other words, RSO and ARSA targeted Rohingya refugees because of alleged support for the enemy in an armed conflict. These violations occurred before credible allegations emerged of ARSA and RSO cooperating with the Myanmar junta.376 Although all acts documented in this report do not satisfy the nexus requirement, many may, and those acts should not be ignored. 371 Oona Hathaway et al., What Is a War Crime?, Yale Journal of International Law, Vol. 44, No. 53, 2019, p. 84 (quoting Gloria Gaggioli, Armed Conflicts: A Violation of International Humanitarian Law and Human Rights Law, International Review of the Red Cross, Vol. 96, 2014, p. 503, 514). 372 See generally, Prosecutor v. Kunarac, ICTY, Case No. IT-96-23 and IT-96-23/1-A, Appeals Chamber Judgment, June 12, 2002. 373 Id. at para. 58. See also, Oona Hathaway et al., What Is a War Crime?, Yale Journal of International Law, Vol. 44, No. 53, 2019, p. 110 n.316 (noting that other tribunals have essentially endorsed this standard as the relevant one to satisfy). 374 Prosecutor v. Kayishema and Ruzindana, ICTR, Case No. ICTR-95-1-T, Judgement, May 21, 1999. 375 Fortify Rights interview with C.D., Cox’s Bazar District, Bangladesh, March 22, 2023. 376 Fortify Rights interview with A.A.Z., Cox’s Bazar District, Bangladesh, August 11, 2024; Fortify Rights interview with A.A.A., Cox’s Bazar District, Bangladesh, August 15, 2024. For information about the links between RSO and the Myanmar military junta, see Fortify Rights, “International Criminal Court: Investigate Arakan Army Massacre of Rohingya Civilians, Hold Perpetrators Accountable,” August 27, 2024, https://www.fortifyrights.org/myainv-2024-08-27/.