A/HRC/39/CRP.2 51. A non-international armed conflict exists “whenever there is protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.48 This definition is widely accepted and is understood to encompass two cumulative criteria, which distinguish a non-international armed conflict from internal tensions or disturbances: the intensity of the armed violence and the level of organization of the armed group(s) involved. Assessing whether these criteria are met in a particular situation is a factual matter to be decided on a case-by-case basis. In their jurisprudence, the United Nations ad hoc international tribunals have, for each of the two criteria, articulated a number of indicators.49 (a) Kachin and Shan States 52. The Mission is satisfied that these two criteria are fulfilled for the conflicts between the Government forces, on the one hand, and the Kachin Independence Army (KIA), the Shan State Army – South (SSA-S),50 the Shan State Army – North (SSA-N),51 the Ta’ang National Liberation Army (TNLA),52 the Arakan Army (AA), and the Myanmar National Democratic Alliance Army (MNDAA), on the other hand. This was the case for the period under review in this report. 53. These non-State armed groups, in Myanmar referred to as “ethnic armed organizations”,53 are long-established and, although they each have their own characteristics, they all have a clear leadership and command structure; headquarters; regular recruitment efforts and training; uniforms; a demonstrated ability to procure arms; an ability to plan, coordinate and carry out military operations (jointly54 or separately); and an ability to exercise some level of territorial control in their respective operational areas. These elements all confirm a level of organization sufficient to consider them party to an armed conflict. The hostilities between each of these groups and the Government forces have also reached the required level of intensity: clashes have occurred at regular intervals over a long period of time; have involved the use of heavy weaponry and landmines, as well as military aircraft, attack helicopters and heavy artillery; are often marked by extensive destruction of property and displacement, resulting in casualties; and lead to shifting frontlines and control over territory. 48 49 50 51 52 53 54 ICTY, Prosecutor v Tadic, IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70. Indicators relevant to an assessment of the intensity of violence include, for example, the number of incidents and the level, length and duration of the violence; the deaths, injuries, and damage caused by the violence; the geographical spread of the violence; the mobilization of individuals and the distribution of weapons to them; the weapons used by the parties; the conclusion of ceasefire and peace agreements; and the involvement of third parties, whether the UN Security Council or other outside entities. indicators that may assist in assessing the requisite level of organization of the armed group have been grouped into those that indicate a command structure; that suggest that the group can carry out organized military operations; that indicate logistical ability; that relate to the implementation of obligations of international humanitarian law; and that demonstrate the ability to speak with a unified voice.49 Specific indicators include the existence of an official command structure; headquarters; uniforms; discrete roles and responsibilities of differing entities; the modes of communication used; whether military training is afforded to members of the group; external relations such as negotiations with third parties; the ability to operate within designated zones; control of territory; procure, transport and distribute arms; recruit new members; ability to co-ordinate actions; and the existence of internal regulations and disciplinary procedures. See S. Sivukumaran, “The Law of Non-International Armed Conflict” (Oxford, Oxford University Press, 2012), pp. 167-172. Armed wing of the Restoration Council of Shan State (RCSS). Armed wing of the Shan State Progressive Party (SSPP). Armed wing of the Palaung State Liberation Front (PSLF). This report uses the term “ethnic armed organization” when referring to non-State armed groups operating in northern Myanmar (Kachin and Shan States) in opposition to the Government. The term “non-State armed group” ordinarily refers to such organizations, as well as other armed actors operating in these and other states (e.g. militia groups, or ARSA in Rakhine State). E.g. the KIA, AA, TNLA and MNDAA have formed the “Northern Alliance”, which has engaged in joint operations against the Myanmar military. 17