Nepal's Humanitarian Law Gap

Conflict is an inescapable feature of human existence. Large-scale conflict, or war, constitutes humanity's most destructive activity. Consequently, International Humanitarian Law (IHL) mitigates warfare's impact and safeguards non-combatants. Nepal, a signatory to the four Geneva Conventions and their two optional protocols since 1964, has yet to integrate them into its domestic legal framework fully.

Although general provisions of the Constitution of Nepal 2072 (2015), such as the right to life, dignity, and protection against torture, reflect humanitarian values, the lack of comprehensive IHL legislation has weakened enforcement and accountability mechanisms.

The Nepal Army has incorporated certain IHL principles into its training programmes, and the International Committee of the Red Cross (ICRC) continues to work closely with state authorities and institutions to promote understanding of IHL. However, knowledge of IHL among lawmakers, lawyers, and even military officials remains limited.

Nepal's future commitment to peace and the rule of law requires codifying IHL, training relevant stakeholders, and integrating humanitarian principles in all security policies. As a country in post-conflict transition, respecting IHL is not just a legal duty but a moral necessity to avoid repeating past mistakes.

One of the most urgent reforms is the enactment of a dedicated International Humanitarian Law Act. While Nepal has incorporated some IHL principles into its Penal Code (2017), Army Act (2006), and Child Rights Act (2018), there is no single piece of legislation that comprehensively defines war crimes, crimes against humanity, and genocide in alignment with international standards.

A consolidated IHL Act should not only criminalise serious violations but also establish clear legal procedures for prosecuting war crimes and ensuring accountability. Additionally, ratifying the Rome Statute of the International Criminal Court (ICC) would allow Nepal to strengthen its global commitment to justice and enable domestic courts to prosecute international crimes effectively.

Another crucial area of reform is the strengthening of judicial and institutional frameworks. Nepal lacks specialised war crimes courts or a dedicated prosecutorial body to handle IHL violations.

Establishing special tribunals for war crimes and humanitarian law cases within the judiciary would enhance Nepal's capacity to deal with serious violations.

Furthermore, law enforcement agencies, judges, and public prosecutors must receive specialised training on IHL and transitional justice to improve their ability to handle conflict-related cases. Strengthening the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) is also necessary to ensure impartial investigations and prosecutions of past human rights violations. These commissions should be given full prosecutorial authority and must operate independently, free from political interference.

The protection of vulnerable groups, including women, children, journalists, medical workers, and foreign nationals, must also be prioritised in Nepal's IHL framework. While domestic laws offer some protection, weak enforcement and social stigma continue to deny victims access to justice. 

The government should fully implement the provisions of the Child Rights Act (2018) and UN Security Council Resolutions 1325 and 1820 on Women, Peace, and Security, ensuring that women and children affected by armed conflicts receive legal protection, psychosocial support, and rehabilitation. Also, stronger legal safeguards and security measures must be established to protect journalists and humanitarian workers in conflict zones. The Public Health Service Act (2018), which mandates the neutrality of medical workers, should be enforced more effectively to prevent attacks on healthcare personnel.

Many violations occur due to a lack of knowledge rather than an intentional disregard for IHL principles. The government should integrate IHL training into the curricula of military academies, law schools, and police training centres. Additionally, collaboration with international organizations such as the International Committee of the Red Cross (ICRC) and the United Nations can help design effective training programmes and public awareness campaigns on humanitarian law.

Another crucial step for the country is enhancing international cooperation and monitoring mechanisms. Nepal should strengthen its engagement with international human rights organizations, UN treaty bodies, and regional forums to improve compliance with IHL standards. Participating in periodic reviews and reporting mechanisms will provide Nepal with external guidance and pressure to improve its humanitarian law enforcement. The nation should also work towards ratifying additional international treaties, including the 1951 Refugee Convention and ILO Conventions on forced labour and child soldiers, to ensure comprehensive protection for displaced populations and conflict-affected individuals.

Finally, the government must strengthen transitional justice mechanisms to ensure justice for past human rights violations. The ongoing impunity for war crimes and lack of accountability for conflict-era atrocities continue to undermine the country's commitment to IHL. Nepal should expedite the prosecution of serious war crimes, provide reparations to victims, and establish a national war crimes archive to document past abuses for future legal proceedings.

In conclusion, Nepal's IHL implementation requires urgent legal, institutional, and policy reforms. By enacting a comprehensive IHL Act, strengthening judicial capacity, protecting vulnerable groups, increasing awareness and training, improving international cooperation, and ensuring transitional justice, Nepal can bridge the gap between IHL ratification and its practical enforcement. 

A more substantial commitment to accountability, legal reforms, and victim-centred justice will ensure Nepal's adherence to humanitarian law and its international obligations.

(Bade is a law graduate.)