By TON Nepal

Due justice Process is stalled transitional in Nepal. The passing international humanitarian law of 1949 Geneva Conventions will complete its 73 years on August 12. The Geneva Conventions and their Additional Protocols are main gadgets of international humanitarian law (IHL) which standardize the conduct of armed conflict and seek to diminish suffering.

IHL protects people not taking part in hostilities. It includes those rules of international law which establish the least values of humankind that must be esteemed in any condition of armed fight be it worldwide or non-international. The Geneva Conventions have been approved by all states and are universally applicable. Nepal agreed to the conventions on February 7, 1964 paving the way for the creation of the Red Cross in Nepal.

The First Geneva Convention defends injured and sick soldiers on land in war. The Second Geneva Convention guards wounded, sick and stranded military personnel at sea during war. The Third Geneva Convention applies to detainees of war. The Fourth Geneva Convention defends citizens, including those in occupied terrains.

The Geneva Conventions and their implementation was first introduced in Nepal during the Maoist insurgency, 1996-2006. As Nepal was not a party to the protocols of the Geneva Conventions, it was only the common article 3 applicable in non-international armed conflict between the government of Nepal and the Communist Party of Nepal (Maoist). Article 3 is an accord that summarizes IHL.

Nepal is yet to agree to the Extra Protocols of the Geneva Conventions of which the Second Procedure is applicable in non-international armed conflict. It presents improved protection to the affected populace and controls behavior of conflicts.

Applicability of the common article 3 in Nepal’s conflict was formally accepted by the then government 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.

The 1977 Additional Protocols were developed to bridge the gaps that were felt while implementing the four Geneva Conventions in the context of war or armed conflict. The First Protocol comprehensively deals with the means and methods of warfare in international armed conflict.

The Second Protocol also touches upon the means and methods of fighting, and it is of specific significance considering the non-existence of IHL provisions regulating non-international armed conflict in the Geneva Conventions excluding the common article 3. As about 80 percent of the victims of armed conflicts since 1945 have been sufferers of non-international conflicts, there is a real need to develop further the rules applicable in times of non-international armed conflict.

The International Committee of the Red Cross on customary IHL in 2005 at the appeal of the International Conference of the Red Cross and Red Crescent recognized that a majority of the rules are applicable in both circumstances of conflict. Nepal went through the condition of non-international armed fight for a decade and ensuing protracted change resulting in human fatality, disappearance, ordeal, loss and destruction. Learning from the past, it is high time for Nepal to consider acceding to both protocols.

It has been 58 years since Nepal became a party of the Geneva Conventions. Nepal is yet to ratify implementing lawmaking. Nepal require the implementing legislation to prosecute violations of IHL at home. The Geneva Conventions have adopted the principles of universal jurisdiction. It need national law to exercise such authority.

The National IHL Committee chaired by the Ministry of Law, Justice and Parliamentary Affairs to promote IHL and advise the government on IHL issues, has prepared a draft Geneva Conventions Act. The finalization of the draft remains pending since long.

The National Penal (Code) Act 2017 comprises some of the wrongdoings that fall under IHL massacre, arms and ammunition, landmines, agony and forced disappearance. However, these are not sufficient. The Geneva Conventions and Additional Protocol (I) oblige the states to enact legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the conventions.

The grave violations include acts committed against persons or property protected by the convention wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. It is expected that the government of Nepal will enact the Geneva Conventions implementing law at the earliest.

IHL has a bearing on the conclusion of Nepal’s stalled transitional justice process. Despite the creation of twin mechanisms to look at missing and truth and reconciliation in 2015, the victims are yet to receive justice and reparation. There is a need to amend the law considering the decisions of the Supreme Court, recommendations of the international community and concerns of the conflict victims.

The on-going process of amending the law is expected to consider those points. IHL is a reference law together with international human rights law in the investigation and adjudication process of transitional justice. In a condition of armed conflict, there should be due space for IHL to conclude the transitional justice process.

The 1977 Additional Procedures were developed to bridge the gaps that were felt while implementing the four Geneva Conventions in the context of war or armed conflict. The First Protocol widely deals with the ways and means of warfare in international armed conflict.

The Second Protocol also touches upon the means and methods of warfare, and it is of specific significance considering the non-existence of IHL provisions regulating non-international armed conflict in the Geneva Conventions except the common article 3. As about 80 percent of the victims of armed conflicts since 1945 have been victims of non-international conflicts, there is a real need to develop further the rules applicable in times of non-international armed conflict.

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. Out of the 161 rules, 147 are applicable in non-international armed conflict.

Nepal went through the situation of non-international armed conflict for a decade and subsequent protracted transition resulting in human casualty, disappearance, trauma, loss and damage. Learning from the past, it is high time for Nepal to consider agreeing to both protocols.