Nepal’s Commitment to IHL Conventions: A Path Forward

When Nepal acceded to the Geneva Conventions in 1964, it joined the global community in committing to humanitarian principles during armed conflict. This early step marked Nepal’s recognition that even amid war, fundamental protections must exist for civilians, prisoners, and wounded combatants. Yet decades later, the country’s journey toward fully implementing International Humanitarian Law reveals a complex picture of formal commitments paired with practical gaps in domestic legislation and treaty participation.

Nepal’s ratification of core IHL instruments 🔗

Nepal’s engagement with IHL began when it acceded to the four Geneva Conventions on February 7, 1964. These foundational treaties establish protections for wounded and sick soldiers on land and at sea, prisoners of war, and civilians during armed conflicts. All 196 countries worldwide have ratified these conventions, making them among the most universally accepted international treaties.

Beyond the Geneva Conventions, Nepal has joined several other significant IHL instruments. The country is party to the 1925 Protocol prohibiting the use of asphyxiating gases and bacteriological warfare methods, the 1972 Biological Weapons Convention, and the 1993 Chemical Weapons Convention. Nepal also ratified the 2000 Optional Protocol on the involvement of children in armed conflict and signed both the 2005 Additional Protocol III to the Geneva Conventions and the 2017 Treaty on the Prohibition of Nuclear Weapons.

The missing pieces in Nepal’s treaty commitments 🔗

Despite these ratifications, significant gaps remain in Nepal’s IHL treaty participation. Most notably, Nepal has not ratified the 1977 Additional Protocols I and II to the Geneva Conventions, which have been accepted by 175 and 169 states respectively. Protocol I addresses international armed conflicts while Protocol II specifically regulates non-international armed conflicts, establishing enhanced protections for affected populations and clearer rules governing the conduct of hostilities.

This absence is particularly striking given that Nepal experienced a decade-long internal armed conflict between 1996 and 2006 involving government forces and Maoist insurgents. During this period, only Common Article 3 of the Geneva Conventions applied, which provides minimum humanitarian standards for non-international conflicts. Protocol II would have offered much more comprehensive protection for civilians and clearer guidelines for all parties involved.

Government officials have indicated that Nepal is waiting to conclude its transitional justice process before considering ratification of the 1977 Protocols. However, this reasoning contradicts the fundamental principle that IHL implementation should occur during peacetime to ensure preparedness for potential conflicts.

The challenge of domestic implementation 🔗

Ratifying international treaties represents only the first step toward effective IHL implementation. These international commitments must be translated into domestic law to become truly enforceable within a country’s legal system. Here, Nepal faces its most significant challenge.

The missing Geneva Conventions Act 🔗

Even after more than 59 years since acceding to the Geneva Conventions, Nepal still lacks implementing legislation to prosecute violations of IHL domestically. The National IHL Committee, an inter-ministerial body established in 2007, drafted a Geneva Conventions Act several years ago. However, this crucial legislation remains pending, awaiting final approval before being referred to the relevant ministry.

Without this national legislation, Nepal cannot apply the principle of universal jurisdiction, which enables states to prosecute war crimes regardless of where they occurred or the nationality of perpetrators. The Geneva Conventions require states to end all violations and to prosecute those responsible for grave breaches, including willful killing, torture, inhuman treatment, and extensive destruction of property not justified by military necessity.

The National Penal Code of 2017 includes some crimes that fall under IHL, such as genocide, torture, and enforced disappearance. However, these provisions are insufficient to meet Nepal’s comprehensive obligations under the Geneva Conventions and related treaties.

Implications for transitional justice 🔗

The gap in IHL implementation has direct consequences for Nepal’s ongoing transitional justice process. IHL applies alongside human rights law, criminal law, and domestic law when addressing violations that occurred during the armed conflict. Yet proper understanding of IHL remains limited compared to human rights law among investigators, prosecutors, and judges who handle these cases.

Nepal’s Treaty Act of 1991 establishes that international treaties ratified by Nepal take precedence over conflicting domestic laws. This constitutional provision creates a pathway for IHL principles to influence legal proceedings. However, without specific implementing legislation, applying these principles consistently remains challenging.

The Rome Statute and accountability gaps 🔗

Another significant gap in Nepal’s IHL framework concerns the Rome Statute of the International Criminal Court. In 2006, Nepal’s Parliament unanimously passed a resolution directing the government to ratify the Rome Statute. Multiple government ministers have since expressed commitment to ratification, and the issue has appeared in Nepal’s action plans following UN Human Rights Council reviews.

Despite these repeated affirmations spanning nearly two decades, Nepal has not joined the ICC. Officials have indicated that ratification would only be possible after promulgating a new constitution and addressing constitutional concerns. This delay means Nepal cannot access the ICC’s complementary jurisdiction, which allows the Court to investigate and prosecute genocide, crimes against humanity, and war crimes when national authorities are unable or unwilling to do so.

Progress in promotion and training 🔗

While Nepal lags in treaty ratification and legislative implementation, the country has made notable progress in promoting IHL awareness and integrating humanitarian principles into institutional practices.

The International Committee of the Red Cross has played a crucial role in supporting Nepal’s IHL promotion efforts. Through collaboration with the government, IHL has been integrated into training programs for armed forces, security forces, and the judiciary. Academic institutions have also incorporated IHL into their curricula, building knowledge among future lawyers, judges, and policymakers.

Nepal’s National Judicial Academy has organized courses for the judicial sector, while universities have introduced specialized IHL courses. These educational initiatives create a foundation of understanding that will prove essential when stronger legislative frameworks are eventually established.

The government has also hosted several regional and national IHL workshops and conferences. In 2009, Nepal and the ICRC jointly organized the first South Asian IHL conference, attended by high-ranking officials from across the region. For a country emerging from a decade of armed conflict to host such a gathering sent a powerful message about Nepal’s commitment to humanitarian principles.

Regional context and comparative perspectives 🔗

Nepal’s position on IHL treaties reflects broader patterns across South Asia. All countries in the region have ratified the four Geneva Conventions, but participation in additional protocols varies significantly. India has not ratified Additional Protocols I and II, citing concerns about operational flexibility in counter-insurgency operations. Pakistan similarly remains outside these protocols while expressing reservations about various provisions.

However, some South Asian countries have moved further. Bangladesh and Sri Lanka have ratified both Additional Protocols, though Sri Lanka showed initial reluctance toward Protocol II given its decades-long internal conflict. The Maldives has also ratified both protocols despite limited military capacity, reflecting general alignment with international norms.

This regional variation demonstrates that security concerns, conflict experiences, and political considerations shape each country’s approach to IHL commitments. Nepal’s hesitation regarding the 1977 Protocols places it alongside India and Pakistan, but differs from the approach taken by Bangladesh and Sri Lanka following their respective conflicts.

The path forward for Nepal 🔗

Closing the gap between Nepal’s international commitments and domestic implementation requires action on multiple fronts. The most immediate priority involves finalizing and enacting the Geneva Conventions Act that has been pending for years. This legislation would provide the legal basis for prosecuting IHL violations domestically and enable Nepal to exercise universal jurisdiction over war crimes.

Second, Nepal should reconsider its position on the 1977 Additional Protocols. Rather than waiting for the conclusion of transitional justice processes, ratifying these protocols would demonstrate commitment to preventing future violations and provide clearer legal frameworks for any potential conflicts. The notion that over 170 countries have accepted these protocols while Nepal remains outside this consensus deserves serious examination.

Third, addressing the Rome Statute question would close a significant accountability gap. While constitutional concerns may exist, other countries have found ways to reconcile domestic legal frameworks with ICC obligations. Nepal’s continued delay sends a troubling signal about its commitment to international accountability mechanisms.

Finally, building on the progress made in IHL education and training, Nepal should ensure that knowledge translates into practical application. This means not only teaching IHL principles but also conducting regular simulations, developing clear military doctrines incorporating these principles, and establishing accountability mechanisms within security forces.

The role of civil society and international actors 🔗

Nepal’s journey toward comprehensive IHL implementation cannot rely solely on government action. Civil society organizations have played crucial roles in advocating for treaty ratification and legislative reform. The Nepal Red Cross Society, with its mandate to promote IHL, continues to serve as a bridge between international humanitarian principles and local realities.

International organizations, particularly the ICRC, provide technical assistance, training, and advisory services that strengthen national capacity. Their ongoing engagement with Nepal demonstrates the value of sustained international support for countries working to improve IHL implementation.

Academic institutions and legal professionals also bear responsibility for building expertise in this field. As Nepal’s transitional justice process continues, developing a cadre of lawyers, judges, and legal scholars with deep knowledge of IHL becomes increasingly important.

What do you think? Given that Nepal experienced a decade-long armed conflict, what factors might explain the continued reluctance to ratify the Additional Protocols that could have provided greater protection during that period? How can countries balance concerns about sovereignty and security with their commitments to international humanitarian law?

References

1. https://kathmandupost.com/columns/2023/08/10/nepal-and-international-humanitarian-law
2. https://www.ejiltalk.org/40th-anniversary-of-the-additional-protocols-of-1977-of-the-geneva-conventions-of-1949/
3. https://casebook.icrc.org/international-humanitarian-law-guide-g-p-sangroula
4. https://kathmandupost.com/columns/2022/08/09/the-1949-geneva-conventions-and-nepal
5. https://www.icrc.org/en/law-and-policy/domestic-law-and-ihl
6. https://www.coalitionfortheicc.org/nepal
7. https://rcrcconference.org/app/uploads/2024/09/34IC_10.1-Progress-Report-Bringing-IHL-Home-EN.pdf