Human rights in Nepal – Time to cut out the diplomatese

The hostilities in Nepal constitute a clear case of "armed conflict not of an international character" covered by CA3. Although the Geneva Conventions themselves do not define the term "armed conflict," several sources of international law have been used to clarify the term's meaning. First, the drafting history demonstrates that the Diplomatic Conference of Geneva of 1949 specifically rejected a narrow application of CA3 to only internal armed conflicts that closely resembled inter-state wars. Instead, the Diplomatic Conference chose to extend a core set of the substantive principles of the Geneva Conventions to all organised hostilities excluding "mere acts of banditry or … unorganised and short-lived insurrections."

The ICTY (Tadic jurisdiction appeal) and ICC Statute apply CA3 whenever there is protracted armed violence between government authorities and organised armed groups within a State. The narrowest interpretation of the criteria suggest they require (1) protracted armed violence and (2) and organised armed group that controls territory.

These requirements are satisfied by the hostilities in Nepal. Armed violence has lasted for more than 8 years, whereas the ICTR (in the Akayesu case) held that armed violence extending over only a few months satisfies the "protracted" requirement. The Maoist insurgents have a military command and control structure and control significant territory within Nepal, fulfilling the requirement of an organised armed group that controls territory. Thus, even under the narrowest interpretation of Tadic and the ICC Statute, the armed violence in Nepal requires application of CA3.

Commentators on international humanitarian law point to several key factors for determining whether armed violence should be considered an armed conflict under CA3. These include: the nature and quality of the hostilities; the reactions of the parties to the hostilities; the international community's reaction; and the organisational characteristics of the armed group.

The nature of the Maoist insurgency constitutes an armed conflict, because it has the requisite purpose, intensity, protraction/duration, and coordination of the attacks. Maoists repeatedly refer to their actions as part of a "People's War" to overthrow the government.  The Maoists repeatedly call for the government to respect the Geneva Conventions, although Maoists have yet to declare their own commitment to the Conventions and frequently violate them. Maoists control approximately one third of Nepal's territory.  Maoists have a military command structure with similarities to a regular army, and have increasingly engaged in large-scale battles causing significant casualties. Maoists have established quasi-governmental apparatuses in territory under their control, and coerce "taxes" from anyone that works in their territory (including humanitarian workers).

The actions of the Royal Nepal Government likewise indicate it is engaged in an "armed conflict" with the Maoists. In November 2001, after a series of violent attacks that broke a four-month ceasefire, King Gyanendra declared a nationwide state of emergency that remained in effect until August 2002. The King responded to the threat by eliminating democratic government, dissolving the parliament in May 2002, dismissing the Prime Minister and Cabinet in October 2002, and postponing elections indefinitely.

Until 2001, the government treated the insurgency as a law and order problem, using the police rather than the army in counterinsurgency operations. However, at the beginning of the state of emergency, the RNA took over command and control responsibility of counter-insurgency operations.

Finally, the international community's response demonstrates that it considers the situation in Nepal a serious internal armed conflict. Using the United States as one example, in 2002 and 2003, the US appropriated $17 million in Foreign Military Financing to Nepal (FMF; grants to a foreign government earmarked for purchase of U.S.-made military equipment). The US administration requested another $10 million in FMF for FY2004 to "continue funding training and equipment programs" for the RNA. The US State Department refers to the FMF aid and to additional assistance of 20,000 M-16 rifles to the RNA as "help to counter a brutal Maoist insurgency". 

Provision of substantial "military assistance" by the US to the RNA for the purpose of countering the "Maoist insurgency" indicates that the US considers that the internal hostilities require a robust military response.The United Kingdom, India and Belgium also provide military assistance to the Nepalese Government to counter the Maoists. The resort to a military response by the international community demonstrates that the hostilities are not "mere acts of banditry" but are an organised, protracted and intense application of force that constitutes an "armed conflict" under CA3.

Taken in sum, the case for application of CA3 is conclusive. Recognition of the applicability of the Geneva Conventions has important legal and practical consequences. First, CA3 imposes obligations on all parties to the conflict that are part of customary international law (Tadic). Criminal violations of these obligations can be enforced against individuals as war crimes. This is important in the context of Nepal where the judiciary has been seriously compromised and is no longer independent. Second, CA3 provides for direct international supervision of the protections it guarantees. Third, CA3 provides judicial guarantees of non-derogable due process rights, which could significantly enhance the prospect of securing human rights for all Nepalese.

Nepalese Foreign Minister Bhekh Bahadur Thapa, who spoke during the CHR’s ‘High Level Segment’ stated that Nepal "adhere[s] to [its] commitments" as a "party to all the major international conventions." This is misleading and inaccurate. Although Nepal has formally ratified many important human rights conventions (e.g., CERD, CCPR, CESCR, CEDAW, CAT, and CRC), it repeatedly fails to respect and ensure the rights guaranteed by these conventions. Indeed, Nepal appears to merely use treaty ratification as a shield from criticism, providing a gloss on its poor human rights record that the US (as chief military financier) is more than ready to support.

If Nepal is earnest about its commitment to human rights it would allow State and individual communications under the treaties, and it would adopt measures to develop an independent judiciary to adjudicate complaints. Currently, the admirable but under-funded National Human Rights Commission of Nepal (NHRC) is left as the sole audience for complaints of grave human rights violations, of which it receives over 1,200 each year. Regarding its reiterated promises of free and fair elections, the government must be called upon to reinstall full democratic governance, rather than merely pay lip-service to far-off plans (first communicated to the UN in May 2002 promising elections in November 2002).

The consideration of Nepal’s human rights situation at the 60^th session of the CHR ran a course that is now typical at the CHR: draft resolution, waffling by CHR member States having a stake in the country, dilution of the draft, and finally, a watered down Chairperson’s Statement.

The draft resolution, formulated by Switzerland, was commendable on several counts. It called for effective measures to combat impunity in a broad range of contexts, and for support to the NHRC. It left out several crucial aspects of Nepal’s obligations; however, it was still too much for the weak constitutions of Nepal’s neighbours and many other countries. As it happened, the idea of a resolution was banished altogether, and a Chairperson’s Statement was read out as a compromise.

It is now up to Nepal’s neighbours, its donors and well-wishers to impress upon the King and his unrepresentative Government that the daily afternoon demonstrations in Kathmandu and the killings in the interior areas will not stop until visible action is taken on establishing a democracy and on ensuring the primacy of human rights. The promises made, at the CHR and elsewhere, must now be fulfilled.