Application of International Humanitarian Law in Nepal’s Context

When armed conflict erupts within a nation’s borders, the question of how international law applies becomes both urgent and complex. Nepal’s decade-long internal conflict between government forces and Maoist insurgents from 1996 to 2006 offers a compelling case study of how International Humanitarian Law operates in practice, revealing both its protective potential and the challenges of ensuring compliance when battles rage within national boundaries.

Nepal’s relationship with the Geneva Conventions 🔗

Nepal’s engagement with International Humanitarian Law began formally in 1964 when the country ratified the four Geneva Conventions of 1949. These treaties form the cornerstone of humanitarian protection during armed conflicts, establishing fundamental rules for the treatment of wounded soldiers, prisoners of war, and civilians.

However, Nepal’s adoption of IHL instruments has been selective. While the country acceded to the core 1949 Conventions, it has not ratified the 1977 Additional Protocols that expand protections for victims of armed conflicts. Protocol II, which specifically addresses non-international armed conflicts, would have been particularly relevant during Nepal’s internal struggle. According to experts, only Common Article 3 of the Geneva Conventions was applicable during the Maoist insurgency, alongside customary international humanitarian law norms.

This limited framework created gaps in protection. The Additional Protocol II would have offered enhanced safeguards for civilians and clearer rules governing combat operations. Despite the comprehensive peace agreement signed in 2006, Nepal has yet to accede to these protocols, with government representatives indicating the country prefers to wait until the transitional justice process concludes.

Understanding Common Article 3 in Nepal’s conflict 🔗

Common Article 3, present in all four Geneva Conventions, serves as what scholars call a mini-convention within the larger framework. It establishes fundamental rules from which no derogation is permitted, functioning as a baseline of humanitarian protection applicable to internal conflicts.

The article requires humane treatment for all individuals no longer taking part in hostilities. It expressly prohibits violence to life and person, including murder, mutilation, cruel treatment and torture. Taking hostages, degrading treatment, and punishment without fair trial are also forbidden. These protections apply regardless of which side someone belongs to or their status in the conflict.

For Common Article 3 to apply, a situation must constitute a non-international armed conflict. This requires two key elements: sufficient intensity of violence and organization of the parties involved. The conflict in Nepal clearly met these criteria. Human Rights Watch documented that the Maoist rebels maintained an identifiable command structure, exercised de facto control over significant territory, and repeatedly expressed willingness to abide by the Geneva Conventions. The government’s deployment of the Royal Nepali Army in 2001 further confirmed the conflict’s character as more than mere civil disturbances.

Practical application in specific incidents 🔗

The theoretical framework of IHL faced real-world tests throughout the conflict. A tragic incident at Sharada Higher Secondary School in October 2003 illustrates both the application of these principles and the consequences when they are violated. Armed Maoist fighters entered the school and forced students and teachers to participate in a cultural program. When security forces arrived and opened fire, four students were killed and five injured, along with six Maoist fighters.

The National Human Rights Commission of Nepal investigated and found violations by both sides. The Maoists contravened humanitarian law by organizing activities in a school despite knowing military operations were likely nearby, effectively using civilians as shields. The security forces violated legal procedures by failing to exercise minimum precaution and firing indiscriminately despite students identifying themselves as non-combatants.

This incident demonstrates how IHL principles about distinction between combatants and civilians, proportionality in attacks, and precautions in military operations apply even in internal conflicts. Both parties had obligations under Common Article 3 to protect those not taking active part in hostilities.

The role of customary international humanitarian law 🔗

Beyond treaty obligations, customary international law filled some gaps in Nepal’s IHL framework. Customary IHL consists of rules derived from the general practice of states and accepted as law, applying to all parties in a conflict regardless of treaty ratification.

The International Committee of the Red Cross conducted a comprehensive study identifying 161 rules of customary IHL, with 147 applicable to non-international armed conflicts. These customary rules covered areas where treaty provisions were absent, including protections for civilians, restrictions on weapons, and requirements for humane treatment of detainees.

During Nepal’s conflict, these customary norms provided additional legal framework beyond Common Article 3. They prohibited attacks on civilians and civilian objects, banned weapons that cannot distinguish between combatants and civilians, and required that force used be proportionate to military objectives. The challenge remained ensuring both state and non-state armed groups understood and complied with these obligations.

Challenges in implementation and enforcement 🔗

Despite the existence of legal frameworks, Nepal faced significant obstacles in implementing IHL principles. The country has not enacted implementing legislation for the Geneva Conventions even decades after ratification. This absence of domestic legal mechanisms to prosecute IHL violations complicated accountability efforts during and after the conflict.

The non-domestication of international humanitarian law created complexities for transitional justice. Without national legislation criminalizing grave breaches of the Conventions, prosecuting wartime violations under domestic law proved difficult. Experts argue that there exists an obligation to domesticate the Geneva Conventions and share their contents with both civilians and militants.

Limited institutional capacity, resource constraints, and the complex nature of internal conflict further hindered full implementation. Training programs for military and police personnel in IHL principles remained inadequate. Public awareness of humanitarian protections was low, particularly in rural areas most affected by fighting.

Efforts by humanitarian organizations 🔗

The International Committee of the Red Cross and Nepal Red Cross Society played crucial roles in promoting IHL awareness and compliance during the conflict. The ICRC produced a Nepali translation of the Geneva Conventions and Additional Protocols in 2009 to mark the 60th anniversary of the Conventions, making these critical texts accessible to local audiences.

These organizations conducted training sessions for armed forces, government officials, and civil society members. They worked to integrate IHL into educational curricula and promoted understanding through media and community outreach. The ICRC also maintained contact with families of missing persons, documenting cases and advocating for authorities to provide information about the fate and whereabouts of disappeared individuals.

In 2013, a handbook for parliamentarians titled “Promoting Respect for International Humanitarian Law in Nepal” was launched through collaborative efforts between the National IHL Committee, the ICRC, and Nepal Red Cross Society. Such initiatives aimed to familiarize civilian authorities with humanitarian law principles and their role in ensuring compliance through appropriate national legislation.

Obligations of non-state armed groups 🔗

An important aspect of IHL application in Nepal concerns the obligations of non-state armed groups. The Maoist insurgents, despite not being a state party to treaties, were bound by Common Article 3 and customary humanitarian law. This principle ensures humanitarian protections apply regardless of the legal status of parties to a conflict.

The Communist Party of Nepal (Maoist) publicly stated its commitment to humanitarian principles on multiple occasions. In statements, Maoist leaders expressed willingness to uphold universal human rights principles and relevant clauses of the Geneva Conventions. They claimed to provide respectful treatment to captured enemy combatants and to release prisoners of war in good condition.

However, documented incidents including the Sharada school attack demonstrate gaps between stated commitments and actual conduct. The challenge of ensuring non-state armed group compliance with IHL remains significant, particularly when such groups operate without formal military structures or comprehensive training in humanitarian law.

Transitional justice and ongoing challenges 🔗

The conflict’s conclusion in 2006 did not resolve all humanitarian law concerns. Nepal continues to grapple with transitional justice, seeking to prosecute crimes from the past while providing justice to victims. Over a thousand families still lack information about relatives who disappeared during the conflict, a situation that violates IHL requirements for authorities to account for missing persons.

The absence of implementing legislation complicates prosecution of wartime violations. Nepal has also not joined the Rome Statute of the International Criminal Court, limiting international accountability mechanisms. These gaps in the legal framework mean many serious violations may never be adequately addressed through formal justice processes.

Nepal’s experience highlights the importance of proactive measures to strengthen IHL implementation. This includes enacting national legislation, training security forces and armed groups, raising public awareness, and establishing clear accountability mechanisms before conflicts arise. The country’s delayed adoption of Additional Protocols demonstrates how political considerations can override humanitarian imperatives.

Lessons for South Asian humanitarian law 🔗

Nepal’s engagement with IHL offers important insights for the broader South Asian region, where internal conflicts and humanitarian challenges persist. The case demonstrates that ratification of international treaties alone is insufficient; effective implementation requires domestic legislation, institutional capacity, political will, and sustained awareness efforts.

The conflict illustrated how even basic humanitarian principles face implementation challenges during active hostilities. Ensuring compliance requires not just legal frameworks but also mechanisms for monitoring, reporting violations, and holding perpetrators accountable. The role of neutral humanitarian organizations in bridging gaps between armed parties and affected populations proved essential.

Nepal’s story also shows that post-conflict contexts demand continued attention to humanitarian principles. The needs of conflict victims, including families of the disappeared, continue long after fighting ends. Addressing these needs through truth-seeking, accountability, and reparations remains integral to respecting the spirit of humanitarian law.

What do you think? How can countries better prepare to implement international humanitarian law before conflicts arise? What mechanisms would be most effective in ensuring non-state armed groups understand and comply with humanitarian obligations during internal conflicts?

References

1. https://casebook.icrc.org/print/20885
2. https://kathmandupost.com/columns/2023/08/10/nepal-and-international-humanitarian-law
3. https://www.law.cornell.edu/wex/geneva_conventions_and_their_additional_protocols
4. https://www.hrw.org/reports/2004/nepal1004/3.htm
5. https://kathmandupost.com/columns/2022/08/09/the-1949-geneva-conventions-and-nepal
6. https://www.cambridge.org/core/books/abs/asiapacific-perspectives-on-international-humanitarian-law/application-of-the-geneva-conventions-in-nepal-domestication-as-a-way-forward/AC26E276A3BEE502A958273626C6420D
7. https://www.icrc.org/en/doc/resources/documents/news-release/2009-and-earlier/nepal-news-120809.htm
8. https://www.icrc.org/en/document/new-handbook-promote-international-humanitarian-law-nepal