The Challenges of Implementing International Humanitarian Law in Nepal

Nepal’s relationship with international humanitarian law represents a complex narrative of commitment and incompleteness. While the country acceded to the Geneva Conventions in 1964, more than six decades later, significant gaps persist in translating these international obligations into domestic legal reality. This gap between ratification and implementation reveals broader challenges that many countries face in making humanitarian law operational within their borders.

The foundation: early commitment to humanitarian principles 🔗

Nepal’s accession to the four Geneva Conventions in 1964 demonstrated an early commitment to the core principles of humanitarian protection during armed conflict. The Geneva Conventions form the bedrock of international humanitarian law, offering protection to wounded and sick soldiers, prisoners of war, and civilians during wartime. This ratification placed Nepal among the community of nations committed to upholding basic humanitarian standards.

Beyond the Geneva Conventions, Nepal has joined several other IHL instruments. These include the 1925 Protocol prohibiting chemical and biological weapons, the 1972 Biological Weapons Convention, the 1993 Chemical Weapons Convention, and the 2000 Optional Protocol on the involvement of children in armed conflict. Nepal also signed the 2017 Treaty on the Prohibition of Nuclear Weapons, demonstrating continued engagement with humanitarian disarmament efforts.

The critical gap: missing protocols and domestic legislation 🔗

The most glaring challenge in Nepal’s IHL implementation lies in its failure to ratify the 1977 Additional Protocols to the Geneva Conventions. These protocols significantly expand protections for victims of armed conflicts and establish clearer rules governing the means and methods of warfare. Protocol II is particularly relevant for Nepal, as it applies specifically to non-international armed conflicts-the very type of conflict the country experienced during its decade-long Maoist insurgency from 1996 to 2006.

During that conflict, only Common Article 3 of the Geneva Conventions applied, providing minimal protections. Had Nepal ratified Protocol II, it could have better regulated the conduct of hostilities and offered enhanced protection to victims. Government officials have indicated that Nepal is waiting until the conclusion of its transitional justice process before considering ratification of these protocols, but this approach has drawn criticism from humanitarian law experts who argue that IHL should be promoted and implemented during peacetime to prepare for potential conflicts.

Equally concerning is the absence of domestic implementing legislation. Even after nearly 60 years since acceding to the Geneva Conventions, Nepal has not enacted national legislation to give these international obligations force within its legal system. A Geneva Conventions Act was drafted by Nepal’s National IHL Committee years ago but remains awaiting final approval. Without such legislation, Nepal cannot effectively apply the principle of universal jurisdiction, which enables states to prosecute war crimes regardless of where they occurred or the nationality of the perpetrator.

Why domestic legislation matters 🔗

Ratifying an international treaty is merely an expression of commitment to comply with its rules. The real work begins with translating those rules into practice through national implementation laws. These laws serve multiple purposes: they define specific offenses in domestic criminal codes, establish jurisdiction for prosecuting violations, and set appropriate penalties that reflect the gravity of humanitarian law violations.

The National Penal Code Act of 2017 includes some crimes that fall under IHL, such as genocide, torture, and enforced disappearance. However, these provisions are insufficient to fulfill Nepal’s obligations under the Geneva Conventions, which require states to enact legislation providing effective penal sanctions for grave breaches including willful killing, torture, and extensive destruction of property not justified by military necessity.

Progress in dissemination and training 🔗

Despite legislative shortcomings, Nepal has made notable progress in disseminating IHL knowledge among its security forces and broader public. The International Committee of the Red Cross has been instrumental in supporting these efforts, working closely with the government and other stakeholders during and after the conflict period.

In 1997, following sustained interaction with the ICRC and Nepal Red Cross Society, the Royal Nepalese Army agreed to introduce IHL as an integral part of its training program. Three retired senior military officials, having undergone extensive ICRC training, conducted the first course focusing on soldier behavior in action through field and classroom exercises. This initiative became a legal requirement when the 2006 Army Act mandated IHL training for all those recruited to the Nepal Army.

The Nepal Army’s Directorate of Human Rights now runs six-day basic IHL courses and, in cooperation with the ICRC, five-day advanced courses. By recent accounts, more than 42,000 army personnel have received training in IHL. The army has also issued various educational materials including a soldier’s card, rules of engagement card, human rights booklets, and a handbook for commanders.

Institutional mechanisms for IHL promotion 🔗

In 2007, Nepal established a National IHL Committee, an inter-ministerial body chaired by the Minister of Law and Justice. This committee advises the government on multiple aspects of IHL implementation and has been involved in providing IHL training for various authorities, including the judiciary. The committee has also organized conferences and workshops aimed at civil servants, military officers, police officers, judges, prosecutors, and academics.

Nepal, together with the ICRC, hosted the first South Asian IHL conference in 2009, bringing together high-ranking government officials from across the region. The fact that a country emerging from a decade of armed conflict organized such a conference was viewed as a positive gesture demonstrating commitment to humanitarian principles.

IHL has been integrated into training courses for armed and security forces, the judiciary, and academic institutions. Universities across Nepal have incorporated IHL into their curricula, particularly in law faculties, helping to spread knowledge among future lawyers, judges, and policymakers.

The transitional justice connection 🔗

Nepal’s stalled transitional justice process has direct implications for IHL implementation. The conflict between government forces and Maoist insurgents resulted in serious violations of international humanitarian law and human rights. Addressing these violations requires adequate knowledge of IHL among investigators, prosecutors, and judges-knowledge that remains limited compared to familiarity with human rights law.

IHL is one of several legal regimes that apply to Nepal’s transitional justice process, alongside human rights law, criminal law, and domestic law. The proper understanding and application of these frameworks is essential for accountability and reconciliation. However, the lack of domestic implementing legislation creates significant obstacles to prosecuting IHL violations.

Moving forward: what needs to happen 🔗

Nepal’s IHL implementation challenges are not unique, but they require urgent attention. Several concrete steps could strengthen the country’s humanitarian law framework:

Ratify the Additional Protocols. Nepal should move forward with ratifying the 1977 Additional Protocols without further delay. The argument that this should wait until transitional justice concludes puts the cart before the horse-strong legal frameworks should guide transitional justice, not the other way around. Globally, Protocol I has been ratified by 174 states and Protocol II by 169 states, representing near-universal acceptance.

Enact implementing legislation. The National IHL Committee should prioritize finalizing and securing approval for the Geneva Conventions Act. This legislation is essential for criminalizing grave breaches, establishing universal jurisdiction, and ensuring accountability for IHL violations.

Study past conflicts systematically. Government officials have mentioned studying the “desirability” of further IHL accessions, but no such study has materialized. A thorough examination of the past conflict could identify specific legal and operational gaps that implementing legislation should address.

Join the International Criminal Court. Despite persuasive efforts at national and international levels, Nepal remains outside the Rome Statute of the International Criminal Court. Joining the ICC would demonstrate serious commitment to accountability for the most serious international crimes.

Sustain and expand dissemination efforts. While Nepal has performed well in promotional activities, these efforts must continue and expand. Knowledge of IHL must reach not only military personnel but also police, civil servants, legal professionals, and the general public.

Why peacetime implementation matters 🔗

Some officials remain skeptical about promoting IHL in the absence of active conflict, viewing it as unnecessary given Nepal’s current peaceful status. This perspective is dangerously shortsighted. International humanitarian law is most effective when implemented during peacetime-when clear thinking, careful planning, and thorough training can occur without the pressures and chaos of armed conflict.

Waiting until conflict erupts to implement IHL frameworks is like waiting until a building is on fire to install fire safety systems. The time to build strong legal frameworks, train personnel, and establish enforcement mechanisms is precisely when they are not immediately needed. This peacetime preparation creates an environment conducive to lawful behavior should conflict arise.

Moreover, Nepal’s security forces continue to participate in UN peacekeeping missions, where they may encounter armed conflict situations governed by IHL. Robust domestic implementation supports these international commitments and enhances Nepal’s reputation as a responsible member of the international community.

What do you think? Given Nepal’s experience with internal conflict and ongoing transitional justice challenges, what should be the top priority for strengthening IHL implementation? How can countries balance the demands of addressing past violations while building frameworks to prevent future ones?

References

1. https://kathmandupost.com/columns/2023/08/10/nepal-and-international-humanitarian-law
2. https://kathmandupost.com/columns/2022/08/09/the-1949-geneva-conventions-and-nepal
3. https://ihl-in-action.icrc.org/case-study/nepal-ihl-training-nepalese-army