International humanitarian law for Nepali civilians

International law is a body of public, private and supranational laws that have mostly emerged from the 19th century onwards and which primarily concern the governing of conduct between states. International law binds states to observe certain agreements, but unlike national law, does not provide for the equivalent enforcement unless and until the subject state consents with such enforcement. This is due to the state being regarded as the only sovereign entity, and enforcement from outside effectively violates such state sovereignty. Within a state the government has a monopoly of force to impose law, but no such monopoly exists at the international level. Any violation of international law therefore can only be redressed in one of two ways, discord (diplomatic or conflict) or reciprocity. As an example, should State A violate a treaty with State B, the latter has the options of either conflict or reciprocating by similarly violating the treaty in its relations with the former. However, reciprocity for some violations of international law, particularly humanitarian or human rights law, would be counterproductive; should State A adopt a law that allows child labour, State B doing the same would be nonsensical. Therefore a wider range of enforcement measures has been adopted as will be discussed further.

International humanitarian law (hereafter, IHL), also known as the laws of war or armed conflict, is a body of public international law, or the law of nations, that covers jus in bello, or acceptable conduct during war.[1] As summarised by the International Committee of the Red Cross (hereafter, ICRC), an institution that is both independent from governments and at the same time explicitly referred to within intergovernmental treaties, IHL is:

‘[A] set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. (ICRC 2004)

Laws regulating war are rooted in a variety of historical contexts and have a basis within most religions and philosophical belief systems. According to Greenwood, who currently sits on the bench of the International Court of Justice, regulation of the practice of warfare can be traced back as early as 5000 BCE and the Sumerian’s adoption of ‘declarations of war’ and ‘peace treaties’ (Greenwood 1995, p.12). IHL roots can thereafter be placed within Islamic, Hindu, Shinto, Buddhist, Judaic, Christian traditions. Greenwood defines the origination of IHL as we understand it today, the modern formulation of laws regulating war, as founded in the enlightenment. In particular, from the works of the French philosopher Rousseau who penned ‘The Social Contract’, which contains several principles of IHL under section IV on slavery:

‘[W]ar then is a relation, not between man and man, but between state and state, and individuals are enemies only accidentally, not as men, nor even as citizens, but as soldiers; not as members of their country, but as its defenders […] The object of the war being the destruction of the hostile state, the other side has a right to kill its defenders while they are bearing arms; but as soon as they lay them down and surrender they become once more merely men, whose life no one has any right to take. (Rousseau 1898)

Others trace the contemporary form of IHL back to Henry Dunant’s recommendation to found national humanitarian societies working under a common emblem and regulated under an international treaty. In his 1862 book, ‘A Memory of Solferino’, Dunant states:

‘On certain special occasions, as, for example, when princes of the military art belonging to different nationalities meet […] would it not be desirable that they should take advantage of this sort of congress to formulate some international principle, sanctioned by a Convention and inviolate in character, which, once agreed upon and ratified, might constitute the basis for societies for the relief of the wounded in the different European countries? (Dunant 1986, p.126)

Today, the main sources of IHL can be divided into two separate and distinct areas. The first, positive law, which includes various international treaties and conventions, first came about following the end of the Crimean War in 1856 with the codification and adoption by 55 states of the ‘Paris Declaration Respecting Maritime Law’, abolishing the practice of privateering. Today, positive IHL can be considered to consist primarily of two jus in bello branches of codified law, the Hague Conventions, treaties that regulate ‘belligerents in the conduct of operations and limits the choice of means in doing harm’, and the Geneva Conventions, most applicable to this essay, which govern the treatment and protection of combatants and non-combatants, or the “principle of humanity” (Pictet 1985, p.2). There are now four Geneva Conventions (hereafter, GC)[2] and three optional additional Protocols (hereafter, AP).[3] Nearly all states, with the exception of Nauru, have ratified or acceded to the four GCs, but not all states have agreed to the APs, with 170, 165 and 54 states ratified or acceded respectively.

The second distinct area of IHL is common or customary law, which includes a vast historical body of case law and judicial decisions, the most recent and relevant of which have come from a series of international courts or tribunals over the past 15 years. Customary international law is important, despite the absence of any uniform agreement to what it includes, as in many states, such as the UK, international treaties do not form part of national legislation, but courts can apply international customary law (Greenwood 1995, p.124). Much customary IHL prior to 1949 was agreed and codified into positive law in the GCs and Hague Conventions, and since the mid-twentieth century a series of smaller treaties have been adopted that have either regulated certain weapons, such as the Ottawa Treaty, which bans anti-personnel mines, or regulated certain actors, such as the Convention on the Rights of the Child. Other as yet uncodified customary law created since the GCs is of significant importance to the evolution of IHL, and recognising such, the 1993 ‘International Conference for the Protection of War Victims’ convened a panel of experts from governments and international organisations to prepare a list of broadly accepted customary laws. The resulting publication, ‘The Study on Customary IHL’ (hereafter, the Customary Rules), took 10 years to produce by the GC-mandated ICRC and was published in 2005 to wide interest (Henckaerts 2005). [4]

Over the past 20 years, customary IHL has been enlarged due to a series of cases within newly founded courts and tribunals of an international nature. The first of such, the international Nuremburg and Tokyo tribunals, handed down a series of judgements between 1945-8, and formed a substantial basis for the GCs and for the UN General Assembly’s recognition of the need for a permanent international court. After a gap of 45 years, the next attempt, the ad hoc International Criminal Tribunal for the former Yugoslavia (hereafter, ICTY) was established in 1993 as a body of the UN, established to prosecute individual perpetrators for crimes under IHL. Since 1993, several tribunals have been created at the request of states with post-conflict governments, including the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal of Lebanon, the International Criminal Tribunal for Rwanda (hereafter, ICTR), and the Special Court for Sierra Leone. Following years of negotiations, a UN conference also finalised in 1998 the Rome Statute, establishing after ratification in 2002 the permanent International Criminal Court (hereafter, ICC). 114 countries have today ratified or acceded to the binding treaty, and the ICC is investigating or examining 17 situations, and has indicted 23 persons.

Protection for civilians

IHL has partly emerged to reduce the tenet that since time immemorial civilians have been victims of armed conflict. In recent years however, multiple sources have claimed that the numbers of civilians wronged in armed conflict has significantly increased. The respected INGO, Oxfam, advises of a general trend:

‘During World War One, an average of one in every ten casualties was a civilian. A century later, contravening the most basic principles of warfare, civilians account for the vast majority of casualties, and possibly fatalities, in situations of armed conflict. (Oxfam 2011)

Sussex University academic, Kaldor, establishes more specific statistics:

‘At the turn of the twentieth century, the ratio of military to civilian casualties in wars was 8:1. Today, this has been almost exactly reversed; in the ward of the 1990s, the ratio of military to civilian causalities is approximately 1:8. (Kaldor 1999, p.8)

Similar numbers are recognised by governments. The European Union Security Strategy states: ‘Since 1990, almost 4 million people have died in wars, 90% of them civilians’ (EU 2003, p.2). A number of academics however refute this, arguing that such statements are either based on distorted or hard to obtain statistics (Leitenberg 2006), are falsely defining ‘civilians’, or are simply creating mean averages that include conflicts which distort the figures (Roberts 2010). A more realistic average figure therefore may be somewhere between 75 and 90 per cent of total casualties in armed conflicts (Martin 2003).

Dispassionate headcounts aside, it would be hard to deny that, despite efforts, the number of civilians affected by conflict remains high. The same sources claim that this is worryingly for strategic reasons:

‘Behaviour that was proscribed according to the classical rules of warfare and codified in the laws of war in the late nineteenth century and early twentieth century, such as atrocities against non-combatants, sieges, destruction of historic monuments, etc., now constitutes an essential component of the strategies of the new mode of warfare. (Kaldor 1999, p8)

‘Civilian population displacement and casualties have increasingly become the purpose rather than a by-product of war. (Martin 2003, p227)

‘Civilians suffer as a result of indiscriminate attacks and, in many cases, are deliberately targeted […] In insurgency and counter-insurgency contexts, civilians have become part of military strategy used by anti-government and pro-government forces alike. (Oxfam 2011)

Unlike other types of law, such as human rights law, IHL does not treat all people as equals and does not provide for a uniform set of rights or duties. Instead, it differentiates between categories. In IHL, ‘combatant’ and ‘civilian’ are regarded as different categories, each with a legal primary status. ‘Civilians’ are all those defined by what they are not: combatants, as defined under the 1874 Brussels Declaration,[5] the Hague Conventions,[6] GC3,[7] and AP1.[8] Civilians are ‘protected persons’ afforded privileged status with all associated protections, until and unless they become a direct participant in the fighting,[9] whereupon they are no longer given civilian status and instead become ‘unlawful combatants’ and may be charged under criminal law (Ipsen 1995; Green 2000, p.105). Gasser divides the IHL protections provided for civilians into those that are based on the GCs, which protect persons that are under the control of an adversary against violent or arbitrary acts, and those based on the Hague Conventions, which protect civilians from the effects of military operations (Gasser 1995, p.209). The primary protection for civilians is covered under Section III of GC4,[10] and civilian property is also protected under the Hague Convention.[11]

In addition to positive law, customary IHL also provides protection for civilians. In the aforementioned Customary Rules, several apply to civilians unless and until such time as they take part in fighting.[12] Customary Rules cover indiscriminate attacks or attacks that create excessive loss,[13] attacks specifically on civilians[14] and civilian objects,[15] acts that spread terror among civilians,[16] that create starvation[17] or that undermine objects vital for the civilian population.[18] Customary Rules also provide for a state’s duty of care over civilians and civilian objects,[19] and their lives,[20] without prejudice[21] or cruelty.[22] Should civilians be interned, Customary Rules require the provision of adequate food, water, clothing, medial attention and shelter.[23] Additional protection and respect beyond that available for civilians is also accorded to persons with special characteristics such as the wounded, the sick, the infirm, pregnant women and children.[24]

Such protections can be organised into a set of principles. The primary one here is the principle of distinction, which requires parties to an armed conflict to distinguish between those people and objects that are civilian in nature, and those that are military (Sassoli 2003). During an armed conflict only those that are defined as military objectives can be the subjects of attack. This does not mean that civilians will not suffer from such an attack, but rather that they cannot be the reasoning. Any civilian object, with the exception of those benefiting from special protection such as dams, dikes and hospitals, can become a military object however, simply by producing, according to their ‘nature, location, purpose or use’, an ‘effective’ contribution to military action, or by there being a definite military advantage from its destruction.[25] This brings us to the second, the principle of proportionality, which requires any attack not to create excessive impact on civilians or civilian objects as compared to the military advantage gained for such an attack.[26] The third principle is that of necessity, which requires a degree and kind of force only to be used that is needed in order achieve an objective at the earliest possible moment and with the minimum expenditure of life and resources (Carnahan 1998, p.230).[27] The fourth relevant principle is that of unnecessary suffering, which covers the use of means or methods that are seen to cause unnecessary human suffering, such as nuclear, chemical or biological weapons.[28]

Conflict in Nepal

The conceptual foundations of IHL have real grounds in Nepal’s own historical context. The 800 BCE religious epic, the Mahabharata was partly located within the borders of modern-day Nepal, and the section covering the Kurukshetra War, regarded by some historians as having taken place between 600 and 500 BCE, outlines the Dharmayuddha, or code of conduct for righteous warfare (Singh 1984, p.531). The Dharmayuddha provides the basis for some modern IHL, prohibiting as it does the killing or degrading treatment of surrendered combatants, and banning any attack on civilians, with special additional protections for women.

The Communist Party of Nepal (Maoist) (hereafter, the Maoists) announced the commencement of a “people’s war” in February 1996, establishing an armed conflict between themselves, an insurgent movement, and the state, a High Contracting Party to the GCs. Professor of Himalayan Studies at SOAS, Hutt locates the origins of the armed conflict in his opening chapter:

‘There are many other contrasts and contradictions that do not figure in tourist literature [of Nepal]: between the constitutional definition of Nepal as Hindu state and the presence of significant religious minorities; between its status as a multi-party democracy under a constitutional monarchy and the long term presence of a well-entrenched communist movement; between its status as a unitary state with one official state language and the presence within its borders of scores of different ethnic groups speaking dozens of different languages; between its status as one of the most aided ‘developing’ nations on earth and the impoverishment and marginalisation of a large chunk of its population; and between its reputation as a land of peace and the ruthless struggles for power that have taken place at several junctures in its history. (Hutt 2004, p.1)

There followed from 1996 a protracted armed conflict over 10 years that, for a while, placed Nepal as having the highest number of disappearances of any country in the world (Bell 2007). During the conflict the Maoists’ developed a uniformed and mostly-armed force named the People’s Liberation Army, a non-uniformed political section (the party), and a non-uniformed administrative section named the United Front. They also created ‘base areas’ across the country that were under their almost complete administrative control. According to the ICRC Commentary to GC4, in order for an armed conflict to be recognised legally as a non-international armed conflict (hereafter, NIAC), and above the threshold of a disturbance,[29] the insurgents should have the characteristics of possessing an organised military force and an authority responsible for its acts, while acting within a determinate territory, and having the means of respecting and ensuring respect for the GCs (ICRC 1949, p.35). The national army should also be mobilised against the threat. According to the well-respected INGO, Human Rights Watch, the conflict surpassed the required characteristics of a NIAC in 2001 upon the deployment of the national army:

‘The Maoist rebels have an identifiable and organized command structure, both at the national and regional level, are in de-facto control of a significant part of Nepali territory, and have repeatedly stated their willingness to abide by the Geneva Conventions. Moreover, the level of fighting between government and rebel forces has frequently been high, well above mere disturbances. This has been reflected in the Nepali government’s decision in 2001 to deploy the Royal Nepali Army against the Maoist insurgency. (Human Rights Watch 2004)

As a non-state party, the Maoists are not and could not be signatories to the GCs. However, the Maoists have agreed through common Article 3 to be bound by all parts of the conventions, as is the state, regardless of reciprocity.

Despite both the aforementioned historical and legal context, widespread violations of IHL took place by both parties during the NIAC. According to INSEC, a politically-linked but nevertheless internationally-respected human rights NGO, 13,347 people were killed during the 10 years, 11,941 or 89 per cent of which were killed during the five years classed as a NIAC,[30] and up to 200,000 displaced during the period (BBC 2006; INSEC 2006). Of those that were killed, the Maoists are alleged to be responsible for 4,970, or 37 per cent, and state agents for 8,377, or 63 per cent. Until today, no exact figures exist as to the number of those killed that were civilians, although a range of studies predict this to be very high.[31] Some studies, such as those done by the INGO, South Asia Terrorism Portal are clearly unrealistic.[32] A more credible number is that stated by a Canadian Christian INGO, Ploughshares, which over three months in 2006 they place the numbers killed as 238 Maoists, 181 state actors and 61 civilians. Unfortunately, these figures will not concur with the combatant-civilian paradigm, as, for example, the number of Maoists killed could include administrative personnel or ‘cultural teams’ rather than combatants. In order to populate the required combatant-civilian paradigm, and without any available definitive figures from agencies such as the UN, the closest estimate we can extract is from the aforementioned INSEC report, which breaks down those killed according to occupation (INSEC 2006). Though by no means perfect, our summary in Table 1 estimates civilian deaths at 48 per cent of total deaths, with 31 per cent killed by state actors and 17 per cent by the Maoists. While state actors were responsible for more civilian deaths than the Maoists, as a percentage, both killed a similarly high number.

Number of civilians and combatants killed in Nepal conflict

Killed by state actors Killed by Maoists Total
Civilians 4,116 (49%) 2,174 (46%) 6,425 (48%)
Total combatants 4,261 (51%) 2,797 (56%) 7,058 (53%)
– Of which can only be regarded as probable combatants 4,235 (50.7%) 1,995 (40%) 6,230 (47%)
Total 8,377 (63%) 4,970 (27%) 13,347 (100%)

The armed conflict came to an end on 21 November 2006 with the signing of the Comprehensive Peace Accord (hereafter, CPA) between the Maoists and a new government, made up of political parties. Since agreeing to the accord, the national army and the Maoist’s military arm, the People’s Liberation Army, have been confined to barracks under the watchful eye of a UN mission. The Maoist’s party arm has been in and out of political power, alongside the political parties, during the development of a new constitution, due later in 2011.

Extent of protections for civilians in Nepal

There are two primary constraints to the extent to which IHL has provided protection to civilians in Nepal: the non-international nature of the conflict, and the lack of post-conflict enforcement.

Limitation 1: Protections for civilians are limited in NIAC

Any protections in IHL are limited according to the geopolitical nature of the conflict in question. IHL was originally and primarily concerned with international, inter-state armed conflict (hereafter, IAC) and the regulation of adverse national armies, as well as their interaction with each other and the civilians within their adversary’s territory. By its very nature, international law could not apply in a national situation, as it undermined the aforementioned sovereignty of the state. The GCs as written applied only to IAC, with the exception of common Article 3, which, put briefly, states that all parties, including non-state parties, are bound to treat ‘persons taking no part in the hostilities’ humanely, prohibiting violence, hostage-taking, outrages upon personal dignity, and sentencing outside of regular courts. AP2, which Nepal has not signed, was intended to supplement such legal brevity on NIAC, but many important tenets, such as the principle of distinction and the terminology of ‘combatant’ and ‘parties to the conflict’, were stripped out of the final draft by states worried of the potential threat from insurgents (Both 2004, p.8). Henckaerts compares AP2 to AP1, which applies to IAC:

‘Unlike Additional Protocol I, Additional Protocol II does not contain, however, specific rules and definitions with respect to the principles of distinction and proportionality. (Henckaerts, Doswald-Beck et al. 2005, p.xxxv)

Continuing that comparison, AP1 has more than 80 substantive articles regulating IAC, whereas AP2 has a meagre 15 covering NIAC. The high level of codification of protections for civilians in IAC under GC4 and AP1 is far stronger as compared to the codification for NIAC under common Article 3 and AP1, which Gasser regards as ‘summary in nature’ (Gasser 1995, p.209). In addition, as compared to the GCs, which bind 194 states, only 165 states have ratified or acceded to AP2. Many of those states that have not signed AP2 are those that, like Nepal, would be most affected by it. Kellenberger, president of the ICRC concludes:

‘[I]nternational humanitarian law applicable to non-international armed conflict falls short of meeting the protection needs arising from these conflicts. As admitted by the diplomatic conferences that adopted them, Article 3 common to the Geneva Conventions and Protocol II additional to those Conventions represent only the most rudimentary set of rule. (Kellenberger 2005, p.xvi)

For civilians in Nepal therefore, AP2 does not apply and common Article 3 is insufficient.

A secondary issue has arisen in the case of Nepal from the absence of a ‘combatant’ status in NIAC. Neither common Article 3 nor AP2 define or give status to a non-state fighter. Everyone is categorised as civilians or ‘persons taking no active part in the hostilities’ until they take part in fighting, upon which they enter a legal vacuum with none of the protections given to ‘combatants’ such as prisoner of war status, and none of the rules of humane treatment provided for under common Article 3 (Both 2004, p.5). Once the hostilities are over, such fighters in Nepal melt back into the civilian population as civilians, and yet remain dangerous to the state. In practice, this lack of clear definition has led to greater infringements on legitimate civilians who have become victims of a suspicious and invasive state army. Fleck states:

‘Ordinary soldiers would be required to make complex and immediate assessments as to whether an individual’s participation in hostilities is ongoing, at a time when the facts available are incomplete or unclear (Fleck 2006, p.5)

In the absence of ‘combatant’, the state has also been able to categorise the Maoists as ‘terrorists’. Under the Terrorist and Disruptive Activities Ordinance, Maoists, regardless of whether they are ‘persons taking no active part in the hostilities’ and therefore civilians, can be held without trial for up to 12 months, seemingly in contravention on common Article 3(1)(d). According to Watkin, IHL is therefore:

‘[O]nly as effective as the accuracy with which “combatants” as a group are defined and the degree that there is a common understanding of the cross over criteria for civilians losing the protection of their status. If the line between combatant and civilian is drawn in the wrong place or is more porous than the law on its face indicates then the ability of the law to regulate the conduct of hostilities can be adversely impact. (Watkin 2003, p.3)

This is not to say that civilians in Nepal are completely unprotected in IHL. Indeed, one of the primary reasons for the ICRC’s extensive Customary Rules was the need to clarify such protections, with a resultant total of 145 of the 161 identified rules applying in NIAC. An example of a general trend toward customary IHL being applicable in NIAC can be seen as early as 1968 in UN General Assembly Resolution 2444, which recognises ‘the necessity of applying basic humanitarian principles in all armed conflicts’ (my underscore). The Resolution went on to include the principle of distinction and proportionality, and was regarded by the USA as representing existing customary IHL at the time.[33] This message was repeated by an ICTY appeal chamber decision in 1995:

‘Since the 1930s, however, the aforementioned distinction [between NIAC and IAC] has gradually become more and more blurred, and international legal rules have increasingly emerged or have been agreed upon to regulate internal armed conflict […] If international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight.[34]

The same case also held that the principles of IAC, such as distinction and proportionality, also apply in NIAC.[35] The case holds Moir’s statement as follows to be now outdated:

‘While the Geneva conventions and Additional Protocol I do contain provisions aimed at the repression and punishment of breaches, or at any rate grave breaches, provisions governing the enforcement of common Article 3 and Additional Protocol II are sadly lacking. (Moir 1998, p.163)

The decision by the ICTY to allow the prosecution of violations of common Article 3 in NIAC has since been supported and added to by the statutes of the ICTR[36] and the ICC,[37] which outline and expand the list of such violations applicable for prosecution.

Limitation 2: enforcement of IHL limited

‘The main problem facing the international community today lies not in the content of those rules, but rather in their enforcement.’ (Moir 1998, p.163)

Nepal is not a signatory to the Rome Statute, despite a parliamentary order and promises from government,[38] and therefore the onus is upon the state to enforce IHL nationally. The CPA and various government statements since have committed to addressing violations of IHL by both parties during the NIAC. The CPA’s preamble clearly states that the parties are: ‘Remaining committed towards […] international humanitarian laws’,[39] repeated under Article 7: ‘remaining committed to […] international humanitarian law’,[40] but with no greater detail except Article 5.2.5:

‘Both sides agree to constitute a High-level Truth and Reconciliation Commission through mutual agreement in order to investigate truth about those who have seriously violated human rights and those who were involved in crimes against humanity in course of the war and to create an environment for reconciliation in the society.

The 2007 Interim Constitution has since supplanted the CPA. It contains further confirmation of the government’s intentions regarding violations of IHL. Part 4, ‘Responsibilities, directive principles and policies of the state’, is largely a description of intended policies, but provides a responsibility to establish an ‘Investigation Commission’ to probe disappearances,[41] provide compensation and rehabilitation for victims of the conflict[42] and their property.[43] It also pledges:

‘to constitute a high-level Truth and Reconciliation Commission to investigate the facts about those persons involved in serious violations of human rights and crimes against humanity committed during the course of conflict, and to create an atmosphere of reconciliation in the society.’[44]

Part 4 overlooks, presumably intentionally, criminal prosecutions for violations of IHL, but what little it does require of the state, is nullified by Article 36, ‘Questions not to be raised in court’:

‘No question shall be raised in any court as to whether provisions contained in [Part 4] are implemented or not[45]

According to Supreme Court Justice and Chairman of the Interim Constitution Drafting Committee, Laxman Prasad Aryal, additional clauses on impunity were removed in the final draft of the constitution by the then government (Nepal Law 2007). This is not surprising, bearing in mind that the last two national investigations into violations of IHL, the Malik Commission in 1990 and the Rayamajhi Commission in 2006, were either ignored, or as in the latter case, never published.

In April 2010, the government began to fulfil the constitutional directive and registered a parliamentary bill for a Truth and Reconciliation Commission. The process has since stalled, however. According to the media, the delay has primarily been due to a difference in opinion, with the Maoists pushing for emphasis to be placed upon reconciliation mechanisms, and others more interested in truth and eventually prosecution (Acharya 2011). The Maoist’s intransigence towards prosecutions has been demonstrated by the inclusion, on 11 May 2011, of Agni Sapkota, a wanted man, as the new Minister of Information and Communications.[46] The army has equally refused to engage with IHL proceedings, consistently ignoring habeas corpus orders by the courts and protecting those accused of violations of IHL.[47] According to the army’s ‘Human Rights Directorate’, 283 unnamed soldiers have been punished by military court martial with sentences ranging from warnings to 10 years imprisonment, but no further information exists and most sentences are believed to be negligible (Bell 2007). The Maoists have similarly claimed that they maintain a system of internal court martial, but have provided no further information.

It is widely believed by the public that neither governmental party will allow their own supporters to face prosecution for violations of IHL.[48] The Maoists because they see the courts as biased, and the political parties because they see the institution of the army as the last bastion against the Maoists. The Supreme Court, seemingly the lone state institution pursuing prosecution, has issued a number of indictments and orders, all ignored, including an order for the government to establish a high level commission of inquiry into disappearances during the NIAC, as pledged in the Interim Constitution.[49] The only step that the government has taken, the aforementioned draft bill on a Truth and Reconciliation Commission, is, according to Amnesty International, incompatible with IHL, providing for amnesty for violators and introducing a statute of limitations to violations (Amnesty International 2010). Bell believes that without stronger safeguards the draft bill could also make matters worse by using financial compensation to reward political patronage among some groups, without providing justice to others (Bell 2007). Bell continues that this is already happening in practice; Maoists have reportedly extorted money from local people to pay compensation to others for violations of IHL. Worse still, post-conflict governments led by both the Maoists and the political parties have at different times since the NIAC ended withdrawn registered criminal cases, 349 and 282 respectively, most of them alleged murders (Advocacy Forum 2010).

Even if violators were prosecuted, very few laws exist on the Nepali law books that would cover violations of IHL. According to Appeals Court Judge Bhattrai, there exist only limited laws on sexual assault, enslavement, forcible transfer of population and destruction of property, and no laws that criminalise torture, enforced disappearance, abduction, taking of hostages, wanton attacks on civilians or persecution on the basis of political beliefs, race, ethnicity, culture or gender (Bhattarai 2007, p.10). In addition, there are no definitive positions in Nepali law on issues such as the exploitative commission, inducement, incitement or abating of crimes, and no duty of persons in authority to prevent or report crime. Referral to the ICC remains a possibility as a complementary court, and one that has reportedly been the subject of much diplomatic pressure in Kathmandu (French Embassy Kathmandu 2008). Indeed, although Nepal remains a non-signatory to the Rome Statute, recent happenings in regards to Libya, another non-signatory but referred to the ICC by UN Security Council Resolution 1973, demonstrates that this is no longer an unassailable protection for violators. Whether this threat gives the parties the impetus to prosecute and enforce the IHL protections for Nepali civilians at a national level is however open to see.

Conclusion

IHL is intended and does indeed provide for a range of protections for civilians. Unfortunately however, the natural desire of the state, as in the case of Nepal, is to retain the status quo and establish a check upon the ability of people to self determine. As such, at every opportunity the states had, they codified an IHL system to obstruct internal, national attempts to transform the state, and created a situation whereby state forces were curbed from hurting their neighbour’s people, but could lash out at their own civilians with little consequence. At least, this would have been correct until when, in the late 20th century, a less state-friendly interpretation of IHL began to develop as led by judges in a series of tribunals around the world. Today, internationally agreed protections for civilians in NIAC are rapidly increasing due to decisions being made in such tribunals together with efforts by organisations such as the ICRC to consolidate customary IHL. However, as we have explored, violations of IHL continue and any enforcement of legal protections for civilians remains slow to manifest in countries like Nepal. Attempts to enforce IHL are generally weak and remain the concern of civil society, while governments and other powerful actors speak of compromise and rapprochement, and rarely of prosecution.

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Footnotes

[1] It does not cover jus ad bellum, the acceptable justifications for war, which is outlined under Articles 43-51 of the United Nations Charter.

[2] GC1 on the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 1864; GC2 on the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 1906; GC3 on the Treatment of Prisoners of War, 1929; and, GC4 on the Protection of Civilian Persons in Time of War, 1949

[3] AP1 relating to the Protection of Victims of International Armed Conflicts, 1977; AP2 relating to the Protection of Victims of Non-International Armed Conflicts, 1977; and AP3 relating to the Adoption of an Additional Distinctive Emblem, 2005

[4] Another important review of customary IHL carried out by the academic Dieter Fleck is the San Remo Manual on the Protection of Victims of Non-International Armed Conflicts, available at www.dur.ac.uk/resources/law/NIACManualIYBHR15th.pdf

[5] Art. 9-11

[6] Art. 1-3

[7] Art. 4

[8] Art. 43-4

[9] GC4 Art. 5

[10] Art. 27

[11] Art. 46

[12] Rule 6 Henckaerts, J.-M., L. Doswald-Beck, et al. (2005). Customary international humanitarian law. Cambridge ; New York, Cambridge University Press.

[13] Rules 11, 14, 71

[14] Rules 1, 6

[15] Rules 7, 10

[16] Rule 2

[17] Rule 53

[18] Rule 54

[19] Rules 15, 87

[20] Rules 104, 105

[21] Rule 88

[22] Rules 89-100

[23] Rules 118-120

[24] See GC4 Art. 16-25

[25] For the principle of distinction, see AP1 Art. 48, 49(3) and 52(2); and Customary Rules 1 and 7

[26] For the principle of proportionality, see AP1 Art. 51(5)(b), 52(2), 57(2)(a)(iii) and 85(3)(b); Hague Convention Art. 22, 23(g) and 25; Rome Stature Art. 8(2)(b)(iv); and Customary Rule 14

[27] For the principle of necessity, see UK Ministry of Defence (2005)

[28] For the principle of unnecessary suffering, see Hague Regulations Art. 23(e); AP1 Art. 35(2); Rome Statute Art. 8(2)(b)(xx)

[29] ‘Threshold’ is a term in IHL to separate disturbances, riots, etc., as different to NIAC. The threshold for a NIAC is higher in AP2 than common Article 3, which refrains from defining it.

[30] 8,377 people were killed by the state and 4,970 killed by the Maoists. During the period regarded as a NIAC, 7,460 people were killed by the state and 4,481 killed by the Maoists (INSEC 2006).

[31] Well-regarded domestic NGOs that have carried out research include Advocacy Forum, INSEC, and the National Human Rights Commission. INGOs include Amnesty International, Human Rights Watch, the International Center for Transitional Justice, the UN Office of the High Commissioner for Human Rights in Nepal and the UN Working Group on Enforced and Involuntary Disappearances

[32] SATP data available at www.satp.org shows 1,225 state agents killed, a high 5,023 Maoists killed, and a very small 184 civilians killed between 2001 and 2005. SATP data is sourced from newspapers, but such methodology does not take due regard of the lack of media independence or the periods of overt censorship of the press by the state, particularly during 2004-6.

[33] UN General Assembly, 1,634th meeting of the 23rd session in the 3rd Committee, A/C.3/SR.1634

[34] Prosecutor v. Tadic, ICTY Appeals Chamber Decision, 2 October 1995, para 97. at www.icty.org/x/cases/tadic/acdec/en/51002.htm

[35] Prosecutor v. Tadic, ICTY Appeals Chamber Decision, 2 October 1995, para 100-127. at www.icty.org/x/cases/tadic/acdec/en/51002.htm

[36] Art. 4

[37] Art. 8(2)(c) and 8(2)(e)

[38] The House of Representatives ordered the executive to accede to the Rome Statute on 25 July 2006 Chapagain, K. (2006). “Nepal parliament directs government to ratify International Criminal Court statute “. Retrieved 01/05/2011, from http://jurist.law.pitt.edu/paperchase/2006/07/nepal-parliament-directs-government-to.php.

. Prime minister Girija Prasad Koirala promised to do so on 27 August 2006 Lin, L. (2006). “Nepali PM committed to ratify ICC statute.” Retrieved 01/05/2011, from http://news.xinhuanet.com/english/2006-08/27/content_5012190.htm.

[39] CPA unofficial translation, Preamble, para. 5, at www.nic.gov.np/download/interimconstitution.pdf

[40] CPA, Art. 7

[41] Interim Constitution, Art. 33(q)

[42] Interim Constitution, Art. 33(p)

[43] Interim Constitution, Art. 33(r)

[44] Interim Constitution, Art. 33(s)

[45] Interim Constitution, Art. 36(1)

[46] The Supreme Court ordered police to register a murder case against Sapkota in 2006 for the 2005 abduction and killing of a civilian, Arjun Lama. Sapkota however remains ‘at large’ and has repeatedly claimed either that it was a subordinate (he remains criminally responsible under Customary Rule 152 or 153) or that he cannot be prosecuted for action carried out following orders (he again remains criminally responsible under Customary Rules 154 and 155). Nepal has a history of Ministers from all parties that carry out or condone violations of IHL. In 2005, Dan Bahadur Shahi, Minister for Home, Law and Justice, continuously repeated his approval of killings to amongst others, the BBC, stating that recourse to the courts, ‘is not relevant during a war’ (Bell 2005)

[47] According to Human Rights Watch, the little information available suggests extreme leniency from the army. The most well know case is that of Maina Sunwar, a 15-year-old schoolgirl tortured to death while in army custody in 2005. Despite the request of the courts, the alleged perpetrator, Colonel Babi Khatri, remains protected by the army.

[48] See surveys by the newsweekly, Nepali Times, at www.nepalitimes.com

[49] See for example a Supreme Court ruling on 1 June 2007 calling for the government to comply with international law (Amnesty International 2010).

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