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III. International Legal Obligations

Nepal as an Internal Armed Conflict

The armed conflict between the government of Nepal and the Maoist rebels falls under international humanitarian law (also known as the laws of war).  IHL provides rules regulating the method and means of combat and the treatment of captured combatants and civilians.  The applicable rules depend in part on whether the conflict is between states (an international armed conflict) or within a state (a non-international –or internal—armed conflict).

The official commentary to the Geneva Conventions of 1949 by the International Committee of the Red Cross (ICRC) lists a set of conditions that provide guidance in defining an internal armed conflict, foremost among them whether the insurgent party “possesses an organized military force, an authority responsible for its acts, [is] acting within a determinate territory and [is] having means of respecting and ensuring respect for the conventions.”56  Another important indication is whether the government has deployed its regular armed forces against the insurgency.57

The civil war in Nepal meets the Geneva Conventions definition of an internal armed conflict.  The Maoist rebels have an identifiable and organized command structure, both at the national and regional level, are in de-facto control of a significant part of Nepali territory, and have repeatedly stated their willingness to abide by the Geneva Conventions.58   Moreover, the level of fighting between government and rebel forces has frequently been high, well above mere disturbances.  This has been reflected in the Nepali government’s decision in 2001 to deploy the Royal Nepali Army against the Maoist insurgency.

Protections of International Humanitarian Law

Among the most fundamental protections during internal armed conflicts are those contained in Article Three common to the four Geneva Conventions of 1949.  Common Article 3 governs the treatment of civilians and captured combatants during internal armed conflicts, and outlaws summary executions, torture and other ill-treatment of persons, the taking of hostages, and punishment without fair trial.59 Combatants who express their intention to surrender, for example, by raising their hands and throwing away their weapons, are considered hors de combat and may not be attacked.

Common Article 3 is binding both states parties to the Geneva Conventions and insurgent groups.  Both the government of Nepal, which ratified the Geneva Conventions in 1964, and the Maoist rebels, are obligated to abide by its provisions.  Adherence to the Conventions is not based on reciprocity: one party to the conflict cannot excuse its own violations of Common Article 3 on the basis that the other party to the conflict is similarly violating Common Article 3.60

Parties to an internal armed conflict are also bound by provisions of the Geneva Conventions and the 1977 Protocols Additional to the Geneva Conventions (to which Nepal is not a party) that are accepted as customary international law.  These include prohibitions on attacks against civilians and civilian objects, the use of weapons that cannot distinguish between combatants and civilians, and the use of force that causes harm disproportionate to the civilian population beyond the expected military advantage. 

In contrast to international armed conflicts, the laws governing internal armed conflicts do not recognize the “combatant’s privilege”—the license of combatants to kill their opponents during combat—and does not grant captured combatants “prisoner of war” status and all its accompanying protections.  This means that the Nepali government may prosecute and punish captured combatants for acts of treason, sedition, and other crimes committed under domestic law. 

Protections of Human Rights Law

In addition to the laws of war, the government of Nepal must also abide by international human rights law.  Nepal is a party to all the major human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR)61 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment62.  Human rights law prohibits, among other things, arbitrary arrest and detention, torture and other mistreatment, enforced disappearances, and extrajudicial executions. 

From 2001 until the dissolution of parliament in late 2002, Nepal was under a nationwide state of emergency.  The ICCPR permits the derogation of certain provisions during an officially proclaimed “public emergency which threatens the life of the nation” to the extent required by the exigencies of the situation.  Certain rights however are never derogable, including the rights to be protected from extrajudicial execution, torture and other mistreatment, and “disappearance.”

Enforced disappearances have been a particular concern during the armed conflict in Nepal.  Persons are considered to have “disappeared” when they have been arrested, detained, or abducted, and the perpetrator refuses to disclose the fate or whereabouts of the person or refuses to acknowledge the deprivation of their liberty.63

Forced disappearances violate a number of human rights, including the right to life, the prohibition on torture and cruel, inhuman, and degrading treatment, the right to liberty and security of the person, and the right to a fair and public trial.64  The U.N. Declaration on Enforced Disappearances, adopted by the General Assembly in 1992, reflects the consensus of the international community against the crime of “disappearances,” and provides authoritative guidance as to the safeguards that need to be implemented to prevent it.  Four key principles affirmed by the Declaration are that “disappearances” cannot be justified under any circumstance; that “disappearances” are continuing offenses, exempt from statutes of limitation; that their perpetrators should not be eligible for amnesty from prosecution; and that their victims and their survivors have a right to compensation.65 

Widespread or systematic patterns of “enforced disappearances” constitute a crime against humanity, a term which refers to acts that, by their scale or nature, outrage the conscience of humankind.  The most recent definition of crimes against humanity is contained in the Rome Statute of the International Criminal Court (ICC).  Nepal is not a signatory of the Rome Statute, but many of the definitions of crimes contained in the ICC are considered part of customary international law.  The Rome Statute provides in Article 7 that “enforced disappearances” are a crime against humanity “when committed as a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” 

Limits on the Use of Force

The U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials66 and the U.N. Code of Conduct for Law Enforcement Officials67 provide international standards governing the use of force in law enforcement, including during the policing of violent unlawful assemblies. While these principles are not legally binding, they provide authoritative guidance and reflect a high level of consensus by the international community about the standards that states are required to apply on the use of force and firearms by law enforcement officials. Principle 9 of the Basic Principles states:

Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.68

The Basic Principles provide that law enforcement officials69 shall “as far as possible, apply non-violent means before resorting to the use of force and firearms.” (Principle 4). The Basic Principles also call for proportionality in the amount of force used (Principle 5), for the adoption of reporting requirements where force or the use of firearms lead to injury or death (Principle 6), and for governments to ensure that “arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law” (Principle 7).

The U.N. Code of Conduct for Law Enforcement Officials provides similar international human rights standards for law enforcement. Article 3 of the Code requires that “[l]aw enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” The official commentary accompanying Article 3 sets forth detailed standards applying to the use of firearms, arguing for restraint in their use (“The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children.”), and recognizing the principle of proportionality in the use of firearms (“In no case should this provision be interpreted to authorize the use of force which is disproportionate to the legitimate objective to be achieved”).

[56] International Committee of the Red Cross, Commentary, IV Geneva Convention (Geneva: International Committee of the Red Cross, 1958.)

[57] ibid.

[58] See, e.g., statement of Maoist leader Prachanda on March 16, 2004: “Our Party has been committed to the fundamental norms of human-right [sic] and Geneva Convention since the historic initiation of the People’s War. Anyone who without prejudicially [sic] judges the facts of eight years can find that our People’s Liberation Army has been providing a respectful behaviour, treatment to the injured and release in good conditions of the prisoners of war who have been arrested from the army and police of the enemy combatant. Our Party has been expressing its commitment not only on the Geneva Convention in relation to the war but also on the international declarations in relation to the human rights.” (from Appeal of the CPN-M) [online] (retrieved September 27, 2004); Prachanda statement from December 15, 2003: “The CPN (Maoist) has consistently sought to uphold the universal principles of human rights and relevant clauses of Geneva Conventions on war. The Party has time and again publicly welcomed any international monitoring, preferably under the UN auspices, of the human rights situation in the country.” (from Maoist Information Bulletin, No. 7, News and Views.)

[59] Common Article 3 of the Geneva Conventions of 1949.

[60] For the full text of Common Article 3, see [online] (retrieved September 28, 2004.)

[61] United Nations General Assembly Resolution 2200 A (XXI) of December 16, 1966 (entered into force on March 23, 1976.)

[62] United Nations General Assembly Resolution 39/46 of December 1984, (entered into force on June 26, 1987.)

[63] According to the preamble of the Declaration on the Protection of all Persons from Enforced Disappearance, “enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government…followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.”  General Assembly resolution 47/133 of December 18, 1992.

[64] ICCPR Articles 6(1), 7, 9, and 14(1).  For a detailed discussion of the human rights violations committed by disappearances, see United Nations Commission on Human Rights, “Report submitted January 8, 2002, by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, pursuant to paragraph 11 of Commission resolution 2001/46,” E/CN.4/2002/71, p. 36.

[65] U.N. Declaration on “disappearances” Articles 7, 17, 18, and 19.

[66] U.N. Doc. A/CONF.144/28/Rev.1 (1990), adopted in 1990 by the Eighth U.N. Congress on the Prevention of Crime and Offenders.

[67] G.A. res. 34/169, annex, 34 U.N. GAOR Supp. (No. 46) at 186, U.N. Doc. A/34/46 (1979), adopted by the U.N. General Assembly on December 17, 1979.

[68] U.N. Doc. A/CONF.144/28/Rev.1 (1990), adopted in 1990 by the Eighth U.N. Congress on the Prevention of Crime and Offenders, Principle 9.

[69] The Basic Principles define "law enforcement officials" to include "all officers of the law, whether appointed or elected, who exercise police powers, especially the power of arrest or detention.  In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services."  Basic Principles, "Note".

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