Domestication of Geneva Conventions in Nepal with Special

Reference to Raja Ram Dhakal v. Prime Minister

Term Paper

in

International Humanitarian Law

Word Count: 2482

Submitted to:

Subject Teacher’s Full Name: Bhishma Sangroula

Designation: Associate Professor

Kathmandu School of Law

Prepared by:

Name: Rejina Paudyal

Year: Fifth Year

Roll Number: 027-5-2-07253-2016

 CONTENTS

CHAPTER ONE

1.1. Background
1.2. Objectives
1.3. Methodology
1.4. Limitations

CHAPTER TWO

2.1. Introduction
2.2. Study of the case law

2.2.1. Fact

2.2.2. Applicant’s claim

2.2.3. Court’s verdict

2.3. A Way Forward

CHAPTER THREE

3.1. Conclusion

Bibliography
 CHAPTER ONE

1.1. Background
International Humanitarian Law (hereinafter IHL), distinct that the International
Human Rights Law (hereinafter IHRL), in a simple understanding is a body of rules
that seeks to protect humans during warfare. War is inevitable in nature and is beyond
human control which is why a political theorist named Michael Waltzer had divided
the reality of war in two parts i.e. i) before the war takes place or the cause of war and
ii) conduct of the parties during the happening of war. Now, the cause of war or the
reasons behind the warfare is dealt by ‘jus ad bellum’ whereas IHL, also called ‘jus in bello’
regulates the conduct of parties engaged in armed conflict (war and armed conflict are
used synonymously).

The International Committee of the Red Cross (ICRC) gives a comprehensive

definition of IHL, which states that,
IHL is a branch of public international law that consists of
rules that, in times of armed conflict, seek for humanitarian
reasons, to protect persons who are not or are no longer
directly participating in the hostilities and to restrict or limit the
means and methods of warfare.

There were efforts made since the ancient times for the protection of individuals from
the worst consequences of war. However, it was on the 19th century when Henry
Dunant, after witnessing the bloodshed of the battle of Solferino, recounted his
experiences in his book, ‘A Memory of Solferino’, published on 1862. In 1863,
Dunant, along with four other members founded the ‘Committee of Five’, an
international committee for the relief of the military wounded which later in 1876
became ICRC. The diplomatic conference of 1864, attended by 16 states had adopted
the Convention for the Amelioration of the Condition of the Wounded Armies in the
Field (Geneva Convention 1864), which gave rise to modern IHL.

Today, ICRC is present in over 90 countries, actively working on protecting individuals

during warfare and also developing IHL. This paper briefly highlights the development
 of the four Geneva Conventions, the fundamental basis of IHL and deals with the
domestication of these Conventions in an under-developed country like Nepal with
special reference to a case law (Adv. Raja Ram Dhakal v. Prime Minister).

1.2. Objectives
This paper aims to find out the domestication of Geneva conventions in Nepal along
with the analysis of the case Adv. Raja Ram Dhakal v. Prime Minister.

1.3. Method and Methodology

This is a doctrinal study based on primary and secondary data. Primary data would be
the case laws, legislations, treaties and conventions whereas secondary data would be
books journal and newspaper articles.

1.4. Limitations
This paper limits the study within one case law of Nepal. It doesn’t deal with
international case laws or legislations.
 CHAPTER TWO

2.1 Introduction
The first Geneva Convention, as stated above was adopted in 1864 which was again
revised and developed in 1906 and 1929.1 The third one i.e. relative to the Treatment
of Prisoners of War was also adopted in 1929. It was in 1949, after WWII, when state
parties had adopted the four Geneva Conventions which till date remains the
backbone of IHL. Similarly, three Additional Protocols were adopted to advance the
development of IHL, first two in 1949 and the third in 2005.

Nepal signed and ratified the Geneva Conventions in 1964 and is therefore, subjected
to the provisions of the conventions, plus the common Article 3 which governs any
armed conflict that is of non-international nature (NIAC). The armed conflict of Nepal
from 1996 to 2006, which lasted for more than 10 years was fought between the Maoist
and government forces. The conflict had begun by the Maoist rebels with an aim to
overthrow the then existing monarchy which had a very long history in Nepal. It ended
with the signing of a Peace Accord, however, the gross violation of humanitarian laws
and human rights laws during the time of conflict till this date send shivers down the
spines of many Nepalese.

Treaties and Conventions, once signed and ratified must be domesticated through
national legislations to be applicable in the national courts by the state parties. The
ratification of these Conventions took almost 57 years ago, however, the
domestication of Geneva Conventions is yet overdue in Nepal. If we had sufficient
national legislations, it would have been easier to punish the war criminals. This has
also been reiterated by International Humanitarian Law expert, Prof. Geeta Pathak
Sangroula,
Had we domesticated the Geneva Conventions before the
Maoist conflict started, stakeholders could have clearly told the

1 ICRC, IHL; Answers to your Questions, ICRC, Geneva, 2015, p. 22.

 warring parties what provisions of domestic law they clearly
violated2.

Few attempts, however, have been taken by the legislators, experts and the judiciary
for the process of domestication which would be discussed later in the paper.

2.2. Study of the case law (Adv. Raja Ram Dhakal v. Prime Minister3)

2.2.1. Fact of the case

The applicant is the general secretary of an organization called ‘Foundation for Human
Rights, Environment and Alternative Development’. The foundation has dedicated
itself to promote rule of law, democracy and human rights in Nepal. As per the reports
published by Amnesty International, National Human Rights Commission and certain
NGOs, during the Maoist insurgency in the 50s, thousands of peace keepers and
innocent civilians were executed with grave violation of humanitarian law. Nepal being
a member country of the Geneva Convention since 1964, have an obligation to amend
the existing laws or formulate new legislations with regards to any treaties or
conventions signed. During the conflict, many Nepalese people were deprived of their
fundamental rights including their right to life which is a serious violation of the
Constitution itself.

2.2.2. Applicant’s claim

The enactment of legislations, directories and provisions of penalties for breach of

these Conventions, plus the court and authority to undertake it should be defined in
national legislations as per Art. 49 of first Geneva Convention, Art. 50 of the second,
Art. 129 of the third, Art. 146 of fourth and the provisions of Art. 80 of the first treaty
that Nepal had signed. Also, the government fails to enact any legislation as per section
9(2) of the Treaty Act 2047 of Nepal.

2 Ram Kumar Kamat, Jail term till death proposed for grave violations, The Himalayan Times, Kathmandu, 13
August 2019, available at https://thehimalayantimes.com/nepal/jail-term-till-death-proposed-for-grave-
violations, accessed on 17 July 2021.
3 Raja Ram Dhakal v. Prime Minister, NKP 2060, volume 12, Decision no. 7274.
 Hence, the applicant claims to the court to issue an interim and directive orders in the
name of government to promptly promulgate and enact national legislations in order
to implement the Geneva Convention.

2.2.3. Court’s verdict

As per Section 9(2) of the then Treaty Act 2047, ‘…His Majesty Government shall
initiate action as soon as possible to enact laws for its enforcement.’ Also, the court
has already set precedent in the case of Meera Dhungana v. Ministry of Law, Justice
and Parliamentary Affairs (NKP 2058, Writ no. 55) that ‘necessary legislations must
be enacted in accordance to the treaties and conventions that Nepal has signed’.

Also, His Majesty government in the reply had addressed the fact that though a
National Human Rights Commission Act 2053 have been enacted, there has been no
legislation to address the Geneva Conventions but the process in ongoing.

With these ratio decidendi, the court issues a directive order in the name of the opponents
to conduct necessary research and study in this regard and take necessary actions to
enact a legislation to implement the Geneva Conventions.

2.3. The Implementation of IHL in Nepal

Merely signing and being a party to the convention is just the first step towards
recognizing the presence of IHL. State parties must actively take efforts in
implementing humanitarian laws in national level, in other word, to turn the rules into
action.4 The implementation of IHL is not possible once the war has begun which is
why it urges nation states to enact national legislations so that actions might be taken
when needed. For this reason, it is of utmost importance that the citizens of the nation
must be familiar and aware of existing humanitarian laws, practices and the
punishments or sanctions that follows.

4Christopher Harland (ed.), Basic Documents on IHL; South Asia Collection, ICRC Publication, Geneva, 3rd edition,
2012, p. 1314.
 As per the four Geneva Conventions, Additional Protocols and other international
humanitarian laws certain measures can be take such as translation of the Conventions
into the national languages, to spread awareness and knowledge about IHL in civilians
and military forces, to adopt a criminal legislation that would punish war crimes, to
ensure and mark properties, persons and places that are protected by law5, or even
National Humanitarian Committees could be established.

Nepal might have taken certain actions, such as the establishment of National Human
Rights Commission as a constitutional body, establishment of National Red Cross
Societies, etc. but the major action of enacting a legislation is yet overdue. The new
penal code promulgated in 2017 (2074) punishes certain crimes which comes under
the purview of the Geneva Conventions for example, genocide. However, it has not
penalized war crimes. Even though a ‘National Committee for the Implementation of
IHL’ was established in 2007 (2064) by the Government of Nepal with an objective
to develop legislation required to implement IHL treaties to which Nepal is party to6,
we still do not have a legislation.

Besides this, the Supreme Court has also given some landmark decisions in this regard
that have been recognized by the by international communities including ICRC. The
above cited case is one of them. Apart from that, in the case of Rabindra Prasad Dhakal
on behalf of Rajendra Prasad Dhakal v. Nepal Government7, certain questions
regarding the disappearance of people during the armed conflict were raised before
the court, to which the court had realized that no serious efforts had been made by
the government to strengthen the domestic legal framework. The court had also issued
certain orders in the name of government to adopt a new legislation applicable for the
time of conflict and to do further research and study in this regard.

Supreme Court had also ordered the government to enact new laws to govern the
process of pardon, waiver, suspension and commutation of prisoners’ sentence who

5 Ibid, p. 1315.
6 ICRC, ‘Table of National Committees and Other National Bodies on IHL’, ICRC, 2011, Geneva, p. 27, available
at https://www.icrc.org/en/doc/assets/files/other/national-committes-icrc-30-10-2011-eng.pdf, accessed on
17 July 2021.
7 Rajendra Prasad Dhakal v. Nepal Government, NKP 2064, writ no 3775.
 have committed serious crimes8. As per senior Adv. Dinesh Tripathi, ‘Our country is
a party to the Geneva Convention and it is obliged to bar pardon, waiver, suspension
and commutation of sentence for crimes listed under Article 3 of the Geneva
Convention’. According to Tripathi, government was waving the prisoners’ sentences
as per the old laws which in the modern times are outdated and do not confirm with
modern international principles and practices that prohibited pardon or waiver in
serious human rights violations and war crimes. Thus, a separate legislation is the only
solution to address this issue.

It is clear from this that the Supreme Court has time and again given some landmark
judgements and has issued orders to the government for the development of IHL in
Nepal.

2.4. A Way Forward

It took only five years for India to enact a new legislation incorporating the provisions
of Geneva Conventions from the date of their ratification (ratified in 1954 and enacted
legislation in 1959) and we have not yet enacted any. Nevertheless, the process is on
and it shows that the law making bodies are not inactive in this regard.

It is evident from various news articles that the Ministry of Law, Justice and
Parliamentary Affairs has prepared a draft bill to domesticate the conventions with a
major objective of removing the gap in the domestic legal system which could also
serve as a strong deterrence against war crimes.9 As per the officials of the Ministry,
the new Bill contains provisions that proposes imprisonment till death for serious
violations of the provisions of the conventions.10 The draft also provides for a special

8 Himalayan News Service, ‘New laws for pardon, waiver, suspension, commutation of sentence sought’, The
Himalayan Times, Kathmandu, 3 June 2018, available at https://thehimalayantimes.com/nepal/new-laws-for-
pardon-waiver-suspension-commutation-of-sentence-sought, accessed on 17 July 2021.
9 Kamat (n 2).
10 Ibid.
 court11 to prosecute and try the cases under the Act. Efforts were started way back, so
now, the finalization of the Bill solely depends upon the law makers.

11 Jaclyn Belczyk, ‘Nepal Government prepared Legislation to incorporate Geneva Conventions in Domestic
Law’, Jurist; Legal News and Commentary, 14 August 2019, available at
https://www.jurist.org/news/2019/08/nepal-government-prepares-legislation-to-incorporate-geneva-
conventions-in-domestic-law/, accessed on 17 July 2021.
 CHAPTER THREE

3.1. Conclusion

Concluding on a positive note, it seems that the government has been taking actions to
implement Geneva Conventions in Nepal, only thing left to do is the promulgation and
enactment of the Act. It would have been an instrument to safeguard rights and provide justice
to thousands of victim of armed conflict during the Maoist insurgency, had this Act been
drafted earlier. Nevertheless, we can always hope for the best to happen in the future.

Implementation of IHL, turning rules into action is the first and foremost responsibility of the
States that are party to the Geneva Conventions and their Additional Protocols. The four
Geneva Conventions requires state parties to respect these Conventions in all circumstances.
Implementation maybe done in several ways, like promulgation of legislation, awareness
raising, development of educational programs for the public and the armed groups, etc. It is
the duty of State Parties to take certain legal and practical measures aiming to ensure the full
application of IHL, both during armed conflict and peace time.
 BIBLIOGRAPHY

 Belczyk, Jaclyn, ‘Nepal Government prepared Legislation to incorporate Geneva

Conventions in Domestic Law’, Jurist; Legal News and Commentary, 14 August 2019
 Harland, Christopher (ed.), Basic Documents on IHL; South Asia Collection, ICRC
Publication, Geneva, 3rd edition, 2012
 Himalayan News Service, ‘New laws for pardon, waiver, suspension, commutation of
sentence sought’, The Himalayan Times, Kathmandu, 3 June 2018
 ICRC, IHL; Answers to your Questions, ICRC, Geneva, 2015
 ICRC, ‘Table of National Committees and Other National Bodies on IHL’, ICRC,
2011, Geneva
 Kamat, Ram Kumar, Jail term till death proposed for grave violations, The Himalayan
Times, Kathmandu, 13 August 2019

THANK YOU 