The 1949 Geneva Conventions and Nepal

The Geneva Conventions celebrate their 73rd anniversary on August 12. The Geneva Conventions and their Additional Protocols are key instruments of international humanitarian law (IHL) that govern the conduct of armed conflict and aim to alleviate suffering. IHL protects those who are not taking part in hostilities and those who are no longer taking part. It includes the rules of international law that establish the minimum standards of humanity that must be observed in any situation of armed conflict, whether international or non-international. The Geneva Conventions have been ratified by all States and are universally applicable. Nepal acceded to the conventions on February 7, 1964 paving the way for the establishment of the Red Cross in Nepal. The first Geneva Convention protects wounded and sick soldiers on land during war. The Second Geneva Convention protects soldiers wounded, sick and shipwrecked at sea during war. The Third Geneva Convention applies to prisoners of war. The Fourth Geneva Convention protects civilians, including those in occupied territories.

We have heard and read a lot about the Geneva Conventions and their implementation in Nepal during the Maoist insurgency, 1996-2006. As Nepal was not a party to the Protocols of the Geneva Conventions, it was only Common Article 3 applicable in non-international armed conflicts between the Government of Nepal and the Communist Party of Nepal (Maoist). Article 3 is a miniature treaty summarizing IHL. This article has acquired a form of common law. Nepal has not yet acceded to the Additional Protocols to the Geneva Conventions, the Second Protocol of which is applicable in non-international armed conflicts. It offers enhanced protection to the affected population and regulates the conduct of hostilities. The applicability of Common Article 3 to the conflict in Nepal was formally accepted by the then government led by Surya Bahadur Thapa on March 26, 2004 by issuing a 25-point commitment. It also included a commitment to respect other relevant principles of IHL and international human rights law.

Non-international conflicts

The 1977 Additional Protocols were developed to fill in the gaps felt when implementing the four Geneva Conventions in the context of war or armed conflict. The First Protocol deals comprehensively with means and methods of warfare in international armed conflicts. The Second Protocol also addresses means and methods of warfare, and is of particular importance given the absence of IHL provisions governing non-international armed conflicts in the Geneva Conventions, with the exception of common Article 3. . As approximately 80% of the victims of armed conflicts since 1945 have been victims of non-international conflicts, there is a real need to further develop the rules applicable in times of non-international armed conflict. The study carried out by the International Committee of the Red Cross on customary IHL in 2005 at the request of the International Conference of the Red Cross and Red Crescent established that a majority of the rules are applicable in both situations of conflict. Of the 161 rules, 147 are applicable in non-international armed conflicts. The study has proven useful in invoking these rules where treaty provisions do not exist. Nepal has been through a situation of non-international armed conflict for a decade and an ensuing protracted transition resulting in loss of life, disappearances, trauma, loss and damage. Learning from the lessons of the past, it is high time that Nepal consider joining both protocols.

It is 58 years since Nepal became a party to the Geneva Conventions. Nepal has not yet enacted implementing legislation. We need implementing legislation to prosecute violations of IHL in the country. The Geneva Conventions have adopted the principles of universal jurisdiction. We would need national legislation to exercise such jurisdiction. The National IHL Commission, an inter-ministerial body chaired by the Ministry of Law, Justice and Parliamentary Affairs to promote IHL and advise the government on IHL issues, has prepared a bill on the Geneva Conventions. The finalization of the project has been pending for a long time.

The National Penal (Code) Act 2017 includes some of the crimes under IHL: genocide, weapons and ammunition, landmines, torture and enforced disappearance. However, these are not enough. The Geneva Conventions and Additional Protocol (I) oblige states to enact the necessary legislation to provide effective criminal penalties for persons committing or ordering the commission of any of the grave breaches of the conventions. Serious breaches include acts committed against persons or objects protected by the convention – intentional homicide, torture or inhuman treatment, including biological experiments, deliberately causing great suffering or serious injury to body or health , as well as the massive destruction and appropriation of property, not justified by military necessity and carried out illegally and without cause. It is expected that the Government of Nepal will enact the law implementing the Geneva Conventions as soon as possible.

World Wars I and II

The Geneva Conventions have evolved over time. They were very influenced by the First and Second World Wars as well as other wars. The means and methods used by the warring parties and the resulting losses necessitated further development of the laws of war. The First World War led to the codification of the Third Geneva Convention in the absence of adequate rules to protect prisoners of war. A similar situation led to the codification of the Fourth Geneva Convention to protect civilian populations in the aftermath of World War II. The evolution of guerrilla warfare and waves of liberation from colonial regimes around the world led to the adoption of Additional Protocol (I). With limited rules governing the situation of non-international armed conflict, we now have Additional Protocol (II) adopted in 1977.

IHL affects the conclusion of the stalled transitional justice process in Nepal. Despite the creation of twin mechanisms to review disappearances/disappearances and Truth and Reconciliation in 2015, victims have still not received justice and reparation. It is necessary to amend the law taking into account the decisions of the Supreme Court, the recommendations of the international community and the concerns of the victims of the conflict. The current process of amending the law should take these points into account. IHL is a reference law with international human rights law in the process of investigation and judgment of transitional justice. As IHL is a lex specialis in a situation of armed conflict, there should be enough space for IHL to conclude the transitional justice process.

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