Navigating the Landscape of International Humanitarian Law in Nepal

When Nepal signed the Geneva Conventions in 1964, it took a significant step toward recognizing the importance of humanitarian protections during armed conflict. This accession not only marked Nepal’s entry into the global community committed to International Humanitarian Law but also paved the way for the establishment of the Nepal Red Cross. Yet, more than six decades later, Nepal’s relationship with IHL remains incomplete and complex.

The foundation: Nepal’s early commitment to humanitarian principles 🔗

Nepal acceded to the four Geneva Conventions on February 7, 1964, joining the universal framework designed to protect wounded soldiers, prisoners of war, and civilians during armed conflict. This decision reflected Nepal’s alignment with international humanitarian norms and its constitutional commitment to global cooperation and world peace.

The accession had immediate practical significance. Following Nepal’s commitment to the Geneva Conventions, the Nepal Red Cross Society was officially registered in 1963 and recognized by the International Committee of the Red Cross in 1964. The organization has since grown into Nepal’s largest humanitarian network, operating across all 77 districts with blood transfusion services, ambulance stations, and disaster response capabilities.

Gaps in treaty participation 🔗

Despite this early commitment, Nepal has not ratified several crucial IHL instruments. Most notably, Nepal has not signed the two Additional Protocols of 1977, particularly Protocol II, which specifically regulates non-international armed conflicts. This gap became particularly significant during the Maoist insurgency from 1996 to 2006.

During the decade-long conflict, only Common Article 3 of the Geneva Conventions applied. This provision, often called a treaty in miniature, establishes minimum humanitarian standards for non-international armed conflicts. The government formally accepted the applicability of Common Article 3 on March 26, 2004, when then-Prime Minister Surya Bahadur Thapa issued a commitment to implement humanitarian law.

Had Nepal ratified Protocol II before the conflict, it would have provided enhanced protections for civilians and clearer rules governing hostilities. The protocol addresses means and methods of warfare in internal conflicts, offering safeguards that Common Article 3 alone cannot provide.

Why the hesitation? 🔗

Government representatives have indicated that Nepal is waiting to conclude its transitional justice process before considering ratification of the Additional Protocols. However, experts argue this represents a shortsighted approach. Promoting IHL and adopting legislative measures should be done in peacetime to prepare for potential conflicts, not postponed until after violence occurs.

The Maoist conflict as a test case 🔗

The armed conflict between the Communist Party of Nepal (Maoist) and government forces from 1996 to 2006 presented a stark test of Nepal’s commitment to IHL principles. The conflict fell under international humanitarian law as a non-international armed conflict, meeting the threshold requirements of organized armed groups operating within a defined territory.

Both parties committed serious violations during the decade of fighting. Government security forces and Maoist insurgents were responsible for unlawful killings, enforced disappearances, torture, and attacks on civilian infrastructure. In one documented incident, government forces opened fire at a school where Maoists were conducting a cultural program, resulting in civilian casualties including students and teachers. The National Human Rights Commission concluded that both parties violated humanitarian law enshrined in Common Article 3.

The conflict demonstrated the practical importance of IHL frameworks. While both sides publicly committed to respecting humanitarian principles, the absence of comprehensive domestic legislation and Nepal’s non-ratification of Protocol II limited accountability mechanisms and protective standards.

The implementation challenge 🔗

Ratifying treaties is one thing; implementing them domestically is another. Nepal faces a significant implementation deficit. Despite being party to the Geneva Conventions for nearly 60 years, Nepal has not enacted implementing legislation to prosecute IHL violations domestically.

The National IHL Committee, an inter-ministerial body established in 2007 and chaired by the Minister of Law and Justice, has prepared a draft Geneva Conventions Act. However, this legislation remains pending, awaiting final approval and submission to the relevant ministry. Without such legislation, Nepal cannot effectively apply the principle of universal jurisdiction to prosecute war crimes.

Partial measures 🔗

The National Penal Code Act of 2017 does incorporate some IHL-related crimes, including genocide, torture, and enforced disappearance. However, these provisions do not comprehensively address all grave breaches of the Geneva Conventions. The conventions obligate states to enact legislation providing effective penal sanctions for serious violations, including willful killing, torture, and unlawful destruction of property.

Dissemination and institutional development 🔗

Nepal has made notable progress in certain areas of IHL promotion. The government, with support from the International Committee of the Red Cross, has integrated IHL principles into training programs for armed forces, security personnel, judiciary members, and academic institutions. Nepal even hosted the first South Asian IHL conference in 2009, demonstrating regional leadership on humanitarian issues.

However, these promotional efforts exist alongside persistent gaps in legal frameworks and treaty participation. The contrast highlights a pattern of incomplete engagement: Nepal has shown willingness to educate about IHL principles but hesitancy to fully embrace the binding legal obligations that come with comprehensive treaty ratification and domestic legislation.

The transitional justice intersection 🔗

Nepal’s approach to IHL cannot be separated from its ongoing struggle with transitional justice. The country established two commissions in 2015 to address conflict-era violations: the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons. These bodies have received over 60,000 complaints but have struggled to complete investigations.

IHL serves as a reference law together with international human rights law in the investigation and adjudication process of transitional justice. As a specialized law applicable during armed conflict, IHL should play a central role in addressing conflict-era crimes. Yet the absence of comprehensive IHL legislation and Nepal’s limited treaty participation create legal ambiguities that complicate accountability efforts.

In 2024, Nepal passed amended transitional justice legislation aimed at addressing these issues. While the UN Human Rights Chief welcomed this as an important step, concerns remain about provisions that could shield perpetrators rather than ensure accountability for serious violations.

Moving forward: The path to fuller engagement 🔗

For Nepal to strengthen its IHL framework, several steps are necessary. First, ratifying the Additional Protocols would close critical gaps in legal protection, particularly for non-international armed conflicts. Second, enacting the pending Geneva Conventions Act would provide the domestic legal foundation needed to prosecute IHL violations and exercise universal jurisdiction.

Third, the transitional justice process must genuinely integrate IHL standards rather than treating them as secondary to political considerations. Victims of conflict-era violations deserve accountability based on clear legal principles, not compromised by provisions that prioritize political reconciliation over justice.

Finally, Nepal should conduct a thorough study of the conduct of hostilities during the Maoist conflict, identifying legal and operational gaps and addressing them through appropriate legislative and institutional reforms. Such an analysis would provide concrete guidance for strengthening Nepal’s IHL framework and preparing for potential future challenges.

Conclusion: Between commitment and compliance 🔗

Nepal’s journey with International Humanitarian Law reflects a broader tension between international aspirations and domestic realities. The country’s 1964 accession to the Geneva Conventions demonstrated early recognition of humanitarian principles. The establishment of the Nepal Red Cross and subsequent educational efforts show continued engagement with IHL norms.

Yet significant gaps remain. Non-ratification of crucial protocols, absence of comprehensive implementing legislation, and the incomplete transitional justice process all suggest that Nepal’s engagement with IHL remains partial and unfinished. The Maoist conflict presented both a test and an opportunity for Nepal to deepen its commitment to humanitarian law, but that opportunity has been only partially realized.

As Nepal continues its democratic development and works toward lasting peace and reconciliation, strengthening its IHL framework is not merely a matter of international obligation. It represents a commitment to protecting human dignity during the most extreme circumstances and ensuring that future conflicts, should they occur, are governed by clear humanitarian standards rather than political expediency.

What do you think? How can Nepal balance the political challenges of transitional justice with the need for genuine accountability under International Humanitarian Law? Should international humanitarian standards take precedence over domestic political considerations when addressing conflict-era violations?

References

1. https://kathmandupost.com/columns/2022/08/09/the-1949-geneva-conventions-and-nepal
2. https://kathmandupost.com/columns/2023/08/10/nepal-and-international-humanitarian-law
3. https://en.wikipedia.org/wiki/Nepal_Red_Cross_Society
4. https://casebook.icrc.org/case-study/civil-war-nepal
5. https://www.hrw.org/reports/2004/nepal1004/3.htm
6. https://www.hrw.org/news/2023/03/23/nepal-transitional-justice-bill-needs-protect-victims-not-abusers
7. https://www.ohchr.org/en/press-releases/2024/08/nepal-turk-welcomes-adoption-transitional-justice-law-calls-victim-centred