KATHMANDU SCHOOL OF LAW

Pre-Board Online Examination 2078 (2021)

BA.LL.B. 5th Year

Subject: INTERNATIONAL HUMANITARIAN LAW AND CONFLICT

RESOLUTION

SUBMITTED BY: Rejina Paudyal

SUBMITTED TO: Ass. Professor Bhisma Sangroula

 GROUP 'A': LONG ANSWER TYPE QUESTIONS

Question no.1

The provisions under the Geneva Conventions are respected if the State parties adopted the
‘national implementation measures’. Discuss these required measures with special reference
to the situation of implementation of International Humanitarian Laws in Nepal.

Answer:

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. 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.

After witnessing the battle of Solferino, Henry Dunant had recounted those experiences in his book
called, ‘A memory of Solferino’ which got 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.

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

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

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.

The national implementation measures are:

1. Obligation to Respect and Protect the Geneva Conventions: The common Article 1 to
the 1949 Geneva Conventions obliges state parties to respect and protect these C0onventions.
They must do so in both peace and wartime. Some specific measures are a must to be followed
by state parties as per the 2016 Commentary to Common Article 1 to the four Geneva
Conventions, they are:
 States must disseminate the Conventions to the military personnel and respective
people as well,
 States have an obligation to communicate the official translations of the Conventions
plus the laws and regulations adopted by them,
 States are obliged to suppress all the breaches of the Conventions,
 States are required to take necessary measures for the prevention and repression of
abuses of emblem, if in case their legislation doesn’t provide such.
2. Ratification of IHL Treaties: In regards to ratification, Nepal has signed and ratified the 4
Geneva Conventions and 3rd Additional Protocols. Apart from that, Nepal is also party to 9
IHL treaties.
3. Domestication of Geneva Conventions: In this, state parties are obliged to domesticate the
Geneva Conventions by enacting national legislations and policies. They are also obliged to
penalize grave breaches of the Conventions i.e. Article 50, 51, 130 and 147 of the GCs
respectively and Article 85 of Additional Protocol 1. The methods of domesticating GCs are:
 Enactment of national legislation,
 Inclusion or incorporation of provisions of GCs into national legislations,
 Harmonization of the existing legislations and case law with the spirit and provisions
of the GCs.

It is, however, not mandatory to have a national implementation legislation and the GCs
doesn’t mention anywhere that it is required. Even though not mandatory, it would enhance
the compliance of the GCs and help in conflict time and after as well to prosecute war
criminals.
 4. Translation of GCs: State parties are obliged to translate GCs in their official languages as
per Article 48, 49, 128 and 145 of the GCs respectively.
5. Dissemination of the GC: the Conventions obliges parties to disseminate the text of GCs
and other necessary information as wide and as far as possible both during war and peace time
(Article 144 of the 4th GC). Military programs, civil instructions must be disseminated to all.
6. National IHL Committees also have a role in implementation of IHL. Even though the
GCs do not particularly oblige the state parties for the establishment of national IHL
committees, the idea was advanced by ICRC and it has a significant role in implementation in
national level. Along with this, national courts and National Red Cross Societies also have
important roles in national implementation of IHL.

Situation of implementation of International Humanitarian Laws in Nepal:

 As regards to the ratification of the treaties, Nepal has signed all four Conventions plus the
Additional Protocol but it yet to ratify 1st and 2nd Additional Protocols. However, Nepal has
not ratified one if the most important IHL treaties and that is the Rome Statute and the
Conventional Weapons Convention.
 For the domestication of GCs, state parties are required to enact domestic legislations,
include the provisions of GCs into domestic legislation or harmonize it with GCs. 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, even though
GCs do not explicitly mention that state parties must enact domestic legislations as such.
The new penal code, i.e. the National Criminal Code 2074 has penalized certain crimes that
comes under the purview of the GCs for example, genocide, however, it has not penalized
war crimes.
also enforced disappearance
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 warring parties
what provisions of domestic law they clearly violated2.

On positive note, however, a draft bill has been made and hopefully, it would be promulgated
and enacted soon.

The harmonization, however can be seen in Nepal, for example, the recognition of the notion
of Prisoners of War in The Army Act 2006.

 Nepal has also translated the GCs in cooperation with ICRC. Apart from GCs, the IHL: A
comprehensive Study by Tirtharaj Wanta and IHL: Frequently Asked Questions by ICRC have
also been translated into Nepali language.
 For dissemination of information, Nepal has included the primary notions of IHL in police
and military basics and advanced trainings, it has established different human rights cells, is
actively participating in trainings and workshops held by INGOs.
 A National IHL Committee was formulated in Nepal in 2007(2064) with objectives to serve
as an advisory body to government on matters related to IHL, to disseminate IHL among
government responsible in such matters, to enact a domestic legislation, etc.
 Besides this Supreme Court has also given some landmark judgments in this regard that have
been recognized by the by international communities including ICRC.

In the case of Adv. Raja Ram Dhakal v. PM3, the Supreme Court had issued 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. 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.

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.
 Also, in the case of Rabindra Prasad Dhakal on behalf of Rajendra Prasad Dhakal v. Nepal
Government4, 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.

Thus, we can say that the situation of national implementation of GCs is quite smooth and the process
is still ongoing.

4 Rajendra Prasad Dhakal v. Nepal Government, NKP 2064, writ no 3775.

 GROUP 'B': SHORT ANSWER TYPE QUESTIONS

Question no. 2

Make a list of major rules of war contained in the Hindu religious texts.

Answer:

The development IHL can be divided into two phases namely, ancient (pre-codification phase) and
modern (codification phase). In the ancient period, same type of protection were provided to different
categories of hostilities. The agreements were based on customary practices which were later codified
in the modern period. As per Quincy Wright, “War practices of primitive people illustrates various
types of international rules of war known at the present times”.

Hindu religious text in the ancient times had developed its own rules of IHL and even though today
we read GCs and other treaties regarding IHL, Hindu religious texts were developed even before that.

1. Manusmritis: The Manusmriti had provisions like:

 One cannot attack its enemies with concealed weapons, poisonous weapons, curved
or flattened or blaging weapons. The 1980 Conventional Weapon Convention
prohibits the same today.
 One cannot kill pedestrians, one who is begging for their lives, whose hair is not tied
as it was believed that a person with untied hair is not ready for war, those who are
sleeping, have no weapons, are naked, who is praying, is wounded or sick, etc.
2. Mahabharata: One cannot wage war:
 When the battle is ceased or after sun set,
 If one is fighting with words then another can fight back with words only,
 Hors de combat shouldn’t be killed,
 Horse rider should be fought with horse rider only and the same in case of elephant
riders.
3. Yagyabalakya Smritis:
 As per the Gautam Smriti, one couldn’t kill armless, whose hair is flying, has fled from
battlefield, has climbed the tree, is intoxicated, ambassadors, cow, priests, learned, etc.
 As per the Sankha Smriti, one couldn’t kill if the other is drinking, has not worn shoes,
women, elephants, horses, driver of chariot, cultural and religious places, etc.
 4. Markandya Purana: This text believed that shelter must be provided if sought, even though
he/she is an enemy.
5. Kautilya’s Arthasastra: Envoy of adverse country, prisoners of war, one who are the
audience of war should not be killed.
6. Rig Veda:
 As per Rig Veda, it was unjust to strike someone from behind,
 It was cowardly to poison the tip of the weapon,
 And was heinous to attack old people, children and women.
7. Agni Purana: It talks about prisoners of war.

Hence, these are some of the major rules of war contained in Hindu religious texts.
 Question no. 3

Write short note on prisoners of war status.

Answer:

 A combatant is a person who is member of regular or irregular armed force who participates
in an armed conflict. All combatants are prisoners of war (POW), but all POWs are not
combatants. Once the combatants lose their privileges they are classified as POWs.
 POWs are defined generally as combatants but exceptionally as a civilian who falls into the
power of the enemy in context of any international armed conflict. POWs were protected
during armed conflicts even in ancient period as well. Ancient scriptures and religious texts
have always protected POWs.
 Even though POWs were protected by religious and ancient texts, they were killed and treated
inhumanly in practice. Their lives were spared by the commanders in mercy. Returning POWs
on payment of certain ransom was practiced in medieval Europe. Hugo Grotius, in the
‘Laws of War and Peace’ in 1625 had opined that although victors had right to enslave their
enemies, they could better exchange or release them in exchange of certain ransom.
 The Treaty of Westphalia in 1648 had marked the end of widespread enslavement of POWs.
 Later, bilateral treaties would be signed between countries for the protection of POWs.
 After numerous attempts and documents signed in the past including the 17 points agreement,
it was in 1929, the third GC i.e. the Convention relating to the treatment of POW was signed
which stood of utmost importance during the WWII.
 Combatants under POW would be:
a) Members of regular armed forces,
b) Members of irregular armed forces,
c) Levee En Masse: As per art. 4(A)(6) of GC III, these are inhabitants of a non-occupied
territory, who on the approach of the enemy spontaneously take up arms to resist the
invading forces, without having had time to form themselves into regular armed units,
provided they carry arms openly and respect the laws and customs of war.
 Civilian POWs would be:
 a) Civilians accompanying the armed forces, such as civil members of military aircraft, war
correspondents, supply contractors but, they should a) be accompanying the armed force
by the latter’s consent and b) carry an ID card denoting this situation
b) Members of civilian (including merchant ships) aerial and naval ships if they are neither
protected as sick, wounded or shipwrecked/medical or religious personnel by GC I and
II nor as protected civilians under GC IV.
 There is a presumption that if there is any doubt as to whether a person who has committed
belligerent act and have been captured is lawful combatant or not, then they should also be
taken as POW. In a Malaysian case called the Oyekoi case, it was held that, ‘if there is any
doubt as to the status of POW, the person should be treated as POW, pending the
determination by a competent tribunal.’
 Major rules regarding the treatment of POW as per the 3rd GC and the Customary IHL Rules
are:
a. According to Article 5, combatants must be protected as POWs as soon as they fall into
the power of adverse party,
b. They must be respected for their allegiance towards the power on which they depend
and cannot be forced to participate in hostilities on behalf of the capturing power,
c. They should be assigned work in the camp on the basis of their military rank and abilities,
separate quarters must be made for men and women, etc.
d. According to Article 118, they must be repatriated to their own country after the end of
active hostility,
e. They must be evacuated to the camp as much far from the combat zone as possible.
(Article 19)
f. The hygiene and medical conditions must be maintained inside the camp (Article 29, 30).
 Question no. 4

How does the principle of proportionality strike a balance between the principle of humanity
and principle of necessity? Discuss briefly.

Answer:

There are certain principles of IHL around which all the treaties, conventions and laws of it roams.
These principles hold a customary character and also are the general principles of International Law
itself, hence, the dominant source of IHL. These principles are of inviolable nature, are the peremptory
norms and have gained the status of jus cogens.

The 5 most important principles of IHL are: humanity, necessity, proportionality, distinction and
non-discrimination.

Principle of proportionality is a cardinal principle of IHL that tries to maintain an equilibrium between
humanitarian considerations and military necessity, in short the principle of humanity and necessity.
To understand this principle, we should first know what these two principles are.

Principle of humanity: As per the Advisory Opinion given by ICJ on 8th July, 1996, ‘humanity is the
core or basic value on which is grounded, the underlying unity of IHL.’ This principle forbids the
infliction of all suffering, injury or destruction not necessary for achieving the legitimate purpose of
conflict5.

Principle of military necessity: Military necessity consists of all (all, but lawful) those means and
methods of warfare that are indispensable of securing military objectives. It permits only that degree
and kind of force required to achieve the legitimate purpose of the conflict.

‘Proportionality’ refers to a situation where the collateral damage or incidental loss is minimal or at
least proportional to the military advantage anticipated. Principle of humanity must weigh more or at
least equal to the military necessity. The principle of proportionality comes into application only
when there is a collateral damage of the civilian properties or when there is an incidental loss to the
civilian lives i.e. it is dependent to this factor. Any kind of indiscriminate attack6 is prohibited under
the principle of proportionality.

5
ICRC, IHL; Answers to your Questions, 2015, p.6.
6
Article 51(4) of the Additional Protocol I of Geneva Convention.
As per Article 51(5)(b) of the Additional Protocol I to the Geneva Convention, ‘an attack which
maybe expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects,
or a combination thereof, which would be excessive in relation to the concrete and direct military
advantage anticipated’ is considered to an indiscriminate attack.

The situation of proportionality is determined on following basis:

 Simply, during any attack on legitimate military objective, there must be a reasonable
assessment that the collateral damage and incidental loss (an unintentional or unavoidable loss
of civilian lives or properties) is lesser than that of the military advantage. So, collateral
damage and incidental loss must be < military advantage.
 The principle of proportionality comes alongside to the principle of precaution. So, it is also
seen if any precautionary measures to spare the civilian population, civilians and civilian object
is taken or not. As per Article 57 of API, all feasible measures must be taken to minimize
collateral damages.
 This principle also comes alongside the principle of limitation or prohibition. As per Section
35 of API, there are 3 basic rules of limitations, they are:
 The right of parties to the conflict to choose the means and methods of warfare is not
unlimited,
 Prohibited to employ weapons, projectiles and materials and methods of warfare of a
nature to cause superfluous injury or unnecessary suffering,
 It is prohibited to employ methods or means of warfare which are intended, or maybe
expected, to cause widespread, long-term and severe damage to the natural
environment.

The principle of proportionality is a grave breach of IHL as per Rome Statute Article 85(3) (b) and
the violation of principle of proportionality culminates into war crime as per Article 8(2)(b)(iv) of the
same.

Hence, in this way, principle of proportionality of IHL strike a balance between the principle of
humanity and principle of necessity.
 Question no. 5

Write a short note on jurisdiction of International Criminal Court (ICC).

Answer:

The development of ICC can be traced back in 1998 after the adoption of the Rome Statute also called
the statute of ICC. It was later established in 2002 but came into force in 2005 after the success of
other military tribunals like ICTY and ICTR. It is the first permanent international court that has
jurisdiction over serious international crimes. The jurisdiction is complementary to the national
criminal jurisdiction which means that one can approach ICC only after all domestic remedies have
become exhausted.

The applicability of ICC i.e. its jurisdiction are:

As per Article 6 of the Rome Statute, the jurisdiction of the court is limited to the most serious crime
of concern to the international community as a whole.

The court has jurisdiction for following different crimes:

1. Genocide:
Article 6 of Rome Statute means that genocide is the acts committed with the intent to
destroy, in whole or part, a national, ethnical, racial or religious group by methods of killing
members of the groups, causing bodily or mental harm to members of the group, deliberately
inflicting on the group conditions of life calculated to bring about its physical destruction in
the whole or in part, imposing measures intended to prevent births within the groups, forcibly
transferring children of the group to another group.

2. Crime against humanity:

As per Article 7, crime against humanity comprises of acts when committed as part of a
widespread or systematic attack directed against any civilian population, with knowledge of
attack; Murder; Extermination; Enslavement; Deportation or forcible transfer of population,
Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules
of international law, Torture, Rape, Sexual Slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other forms of sexual violence of comparable gravity.
 3. Crime of aggression:
The General Assembly of UN had adopted a resolution that is defined under Article 1 that,
‘aggression is the use of armed force by state against the sovereignty, territorial integrity or
political independence of another state, or any other manner inconsistent with the charter of
the United nations’. The court has jurisdiction over the crimes which are committed on the
territory of the state party or committed on board a vessel or aircraft, the state of registration
of that vessel or aircrafts.

4. War crime:
War crimes are those crimes that arise from the grave breach of the four Geneva Conventions
along with other serious violation of laws and customs of war. Some war crimes are, willful
killing, torture or inhumane treatment inducing biological experiment, etc.

The court doesn’t have universal jurisdiction as such, even though it aspires to be ratified by every
single state so that serious crimes could be dealt by ICC. The court only has jurisdiction over crime
that is committed in the territory of a state party to the ICC and if the crime is committed by a person
who is a national of state party to the ICC.

Two types of responsibilities is attracted under ICC, individual criminal responsibility and command
responsibility.

THANK YOU 