The Role of International Humanitarian Law in the Protection of Civilians: the Case of Himalayan People’S War

The Role of International Humanitarian Law in the Protection of Civilians: The Case of Himalayan People’s War

Gajendra Aryal

A Dissertation

Submitted to the School of Law

In Partial Fulfillment of Requirements

For the Degree of Philosophy

Aristotle University of Thessaloniki

2013 i

Abstract

"The role of International humanitarian law in the protection of civilians: The case of Himalayan people's war" examines how IHL played a role in the protection of civilians in the decade long armed conflict of Nepal. This dissertation argues that civilian abuses were conducted in a grave, systematic, and widespread manner, showing that international humanitarian law in Nepal played significant role in the protection of civilians. This study has provided a clear picture of the decade long armed conflict of

Nepal and examined the rights of civilians in times of war as well as outlines the duties and obligations of the armed forces towards civilians. It critically analyzed the international legal obligations that the state has assumed for the protection of the right of civilians in case of Nepal.

It also confirmed existing literature which indicated that during the war, parties to the conflict had carried out acts of extreme violence, and human rights and

IHL abuses had been common across the country as increasingly civilians were the major victims of the conflict. Similarly, the reviewed literature about IHL showed that being a law of armed conflict the IHL is designed to regulate the treatment of the individual- civilian or military, wounded or active- in armed conflicts. It seeks to protect persons not engaged in or no longer participating in hostilities. The main purpose of it is to protect combatants and non-combatants from unnecessary suffering and to safeguard the fundamental human rights of persons, who are not, or are no longer, taking part in the conflict and of civilians.

This conflict had left a bad impact on the lifestyle of the 90% of the people living in ii the rural areas. The armed conflict affects all the citizens, especially the weaker groups of the society like, women, children, elderly, indigenous and dalits

Despite the problem of security, these organizations were involved in conflict areas in order to deliver humanitarian services for people in need. They helped to reduce the impunity of human rights and IHL abuses and recommended the warring parties to abide the humanitarian norms and values in the time of insurgency and counterinsurgency. They played a central role in the practical implementation of IHL to achieve IHL purpose, in particular under Geneva Conventions. They worked to save lives and alleviate the suffering of civilians, who were deprived of the basic necessities of life as a result of the hostilities. iii

Acknowledgements

It is a pleasure to thank many people who have contributed time, energy, and encouragement to this project and my career as a PhD student. A project of this size and duration couldn't have been completed without the participation of many sets of helping hands.

First and foremost, I am thankful to my advisor Professor Costas

Hadjiconstantinou, whose generosity and support throughout my project went above and beyond the call of duty. I cannot add more to the recognition Costas has earned other than to say that he is in all ways an exemplary scholar and mentor. I also owe my deepest gratitude to professors Margaritis Giorgos and Aarbakke Vemund, who were all the time eager to help and serve on my committee. It is an honour for me to get such support and thoughtful instruction. Without Costas, Margaritis, and

Aarbakke, this dissertation would neither have been imagined nor completed.

I cannot remain silent without giving thanks to the people from the school of law at Aristotle's university, who have contributed to make my PhD a rewarding and challenging experience. Constantine Stef. Matzaris (I simply call him Kostas) stands out for the help he provided me in trying to bridge the entire common gap between me and school. He has also made available his support in a number of ways by being an incredible friend, supporting my administrative work in school, and sharing many laugh with me. In the same way, others with whom I have enjoyed friendships and many great conversations are Sophia and Lumi. Without the support and warm smile of Kostas of multimedia lab, Sophia of library and Lumi who always treated me as a family member and provided homely environment with many delicious Greek and

Romanian lunches and dinners, I would have been lost at the sea years ago. iv

It is a pleasure now to finally thank my family, who has so patiently waited for me to finish my research. I would not be where I am today without them. Mom, you are great at heart. You taught me how to be empathetic and why it matters. I have always felt that I can do anything with your moral support. I love you so much! Dad, I am very lucky to have you as my Dad, who always encourages me to pursue my academic career. You have been an enthusiastic and passionate supporter of all my academic pursuits and have always expected and demanded excellence. Your help and support always inspired me to shape myself into the person and scholar I am today.

Uncle Dr. Mahendra and aunt Sanju, words cannot describe what you mean to me.

You two are incredible. My sisters, Divya and Shashi, you are the smartest ladies I have ever known. You both are incredible ladies with an amazing heart and I am grateful you are my sisters. Vinayak, my loveliest brother, you are so amazing. Your love to me is unwavering and I am so grateful to call you "babu". My brothers in law

Amrit Sharma Danai and Hari Budhathoki, you are always a great support to me.

Without your help I would be much less of a person and probably would not have completed this degree at all. I would be remiss if I did not also thank my two beautiful nieces Kinjal and Ashna, both of whom have always been so skilled at making me smile and laugh. I also would like to thanks all my relatives who all the time encourages me to go ahead.

More than anyone else, however, I must thank my wife, Amrita Khadka Aryal.

It is difficult to put into words exactly what she has meant to me. Your love, support and patient taught me to sacrifice and compromise in my life. There has been no greater and more positive influence in my life than you. I am so grateful to have such an intelligent, patient, and supportive partner beside me. Amrita you inspire me to be greater than I am. Thank you. v

Finally, I would like to express my gratitude to State scholarship foundation

(IKY) for the financial support I have received during my time at Aristotle University of Thessaloniki. The doctoral fellowship from the IKY helped me immensely by allowing me to focus exclusively on my research.

The last word is a dedication. To the human rights defenders around the world who work to protect the vulnerable and hold human rights violators to account, and who frequently themselves become the victims of human rights abuses, I dedicate my small efforts here to you. vi

TABLE OF CONTENTS

ABSTRACT ………………………………………………………………………..…i

ACKNOWLEDGEMENTS…………………………………………………………..iii

LIST OF ABBREVIATIONS…………………………………………………….….xii

CHAPTER I INTRODUCTION TO THE STUDY

Introduction………………………………………………………………………….1

Statement of Problem………………………………………………………………...12

Research Questions……………………………………………………………..……14

Purpose of Study………………………………………………………………..……14

Significance of the Study…………………………………………………………….15

Conceptual Framework for the Study………………………………………………..17

Assumptions and Limitations………………………………………………………...19

Definition of Terms………………………………………………………………..…21

Civilians……………………………………………………………………...21

Communist Party of Nepal (Maoist)………………………………………....21

Internal Armed Conflict………………………………………………..…….22

International Humanitarian Law………………………………………….….24

Summary…………………………………………………………………………..…27

CHAPTER 2: LITERATURE REVIEW

Introduction…………………………………………………………………………..30

First Focus Area………………………………...... 31

Glimpse of Nepal…………………………………………………...... 32 vii

A Short note on Conflict…………………………………………………….37

A Historical overview of the Armed Struggles in Nepal…………………....41

Genesis of People’s War in Nepal…………………………………………..46

The Chronological Context of the People's war in Nepal (1996-2006)…….54

Second Focus are……………………………………………………………………65

Introduction to International Humanitarian Law……………………………65

Historical Evolution of the International Humanitarian Law……………….68

Fundamental Principles of International Humanitarian Law…………...…..73

The Distinction between International and Non-international Armed

conflict………………………………………………………………………77

Non-international Armed Conflict…………………………………………..80

Protection of Civilians in Non-international Armed conflict………………..84

Enforcement of IHL……………………………………………………...….88

Third Focus Area…………………………………………………...... 91

Achievements of International Humanitarian Law in the protection of civilians

in Armed Conflicts…………………………………………………………...92

Summary …………………………………………………………………………...101

CHAPTER 3: RESEARCH METHODS

Introduction………………………………………………………………………...103

Design of Study…………………………………………………………………….104

Justification of why Nepal as a Case Study………………………………...104

Sources of Data……………………………………………………………..105

Method of Data Analysis……………………………………………………………106

Summary……………………………………………………………………………107 viii

CHAPTER 4: DATA ANALYSIS AND FINDINGS

Introduction………………………………………………………………………..109

The Context of the Study……………………………………………………….….109

Question 1: To which extent did the decade long war of Nepal affected the

Civilians?...... 111

Introduction…………………………………………………………………...…111

Women………………………………………………………………………….....113

Children………………………………………………………………………...... 117

Youths…………………………………………………………………………...... 121

Dalits………………………………………………………………………………122

Elderly People………………………………………………………….…..……123

Indigenous………………...... 124

Others…………………………………………………………………………....125

Conclusion……………………………………………………………………….130

Question 2: To what extent did the Maoist rebels and Government security forces commit serious violations of IHL?...... 132

Introduction……………………………………………………………………..…132

Attacks against Public Transportation………………………………………….....134

Indiscriminate aerial bombing and shooting by the Maoists and Security Forces...137

Endangering civilian populations through launching attacks in civilian areas and use of civilian houses and schools as shields…………………………………………..141

Enforced Displacements and Disappearances…………………………...………...144

Use of children……………………………...…………………………………..…149

Arbitrary arrest, Torture, and Extra-judicial killings…………………………..….153 ix

Conclusion………………………………………………………………………..157

Question 3: What was the role of IHL in the war of Nepal?...... 158

Introduction……………………………………………………………..………….158

Applicability of International Humanitarian Law in Nepal Case………….………159

International Humanitarian Law Involvement in the War of Nepal……….…...... 161

Conclusion………………………………………………………………………..175

Question 4: What was the performed role of IHL in the protection of civilians in the war of Nepal? ...... 175

Introduction………………………………………………………………………...175

Performed role of International Humanitarian Law in the period of conflict….…..176

United Nations System Agencies…………………………………...... 176

The UN Commission on Human Rights (UNCHR)……………....176

The Office of the High Commissioner for Human Rights

(OHCHR)………………………………………………………….179

International Human Rights Organizations………………………………..181

International Committee of Red Cross (ICRC) ………………....181

Amnesty International (AI)…………………………………..…....182

Human Rights Watch (HRW)………………………………….….185

International Crisis Group (ICG)………………………………….186

Asian Centre for Human Rights (ACHR) ……………………..….188

Asian Human Rights Commission (AHRC)……………………....191

National Human Rights Organizations...... 193

National Human Rights Commission (NHRC)…………..…….193

Nepal Red Cross Society (NRCS)…………………………….….196

Informal Sector Service Centre (INSEC)…………………….…..197 x

Conclusion…………………………………………………………………….……198

Summary……………………………………………………………………………199

CHAPTER 5: DISCUSSIONS, IMPLICATIONS AND RECOMMENDATIONS

Introduction…………………………………………………………………………203

Contexts of the Study …………………………………………………………...... 203

Discussion of Findings for Question 1………………………………………….....204

Discussion of Findings for Question 2…………………………………………...... 206

Discussion of Findings for Question 3……………………………………………...210

Discussion of Findings for Question 4……………………………………………...213

Implications …………………………………………………...... 216

Recommendations for Further Research……………………………………………218

Personal Reflections……………………………………………………………...…219

Summary……………………………………………………………………………220

REFERENCES

LIST OF TABLES

Table 1. Classification of the 40-point Maoist Demand …………………………….52

Table 2. No. of Victims killed by State and Maoists by Occupation ………………125

Table 3. No. of Victims district wise killed by State and Maoists...... 132

Table 4. No. of victims killed by State Month wise ……...... 140

Table 5. No. of victims killed by Maoists Month wise ………...…...... 143

Table 6. No. of persons disappeared by State and Maoists ………………………...145

Table 7. Situation of Common Article 3 of Geneva Convention in Nepal...... 160 xi

Table 8. Government's commitment on the implementation of Human Rights and

International Humanitarian Law ……...... 162

LIST OF FIGURES

Figure 1. Number of Killings by State and Maoists...... 112

Figure 2. Statistics of Women Killed by State and Maoists………………………..117

Figure 3. Statistics of Children Killed by State and Maoists ………………………120

LIST OF PICTURES

Picture 1. Muktinath Adhikari, the principal of Padini Sanskrit High School who was

brutally killed by Maoists……………………………………………..127

Picture 2. Civilian bus in Madi valley, Chitwan ambushed by Maoists...... 135

Picture 3. Injured child in hospital after bus ambushed in Madi……………………136

Picture 4. Indiscriminate attack on Civilian house...... 138 xii

Abbreviations

The following abbreviations have been used throughout this thesis:

ACHR Asian Centre for Human Rights AHRC Asian Human Rights Commission

AI Amnesty International

APF Armed Police Force

AP I Additional Protocol I

AP II Additional Protocol II

CA Constituent Assembly

CBS Central Bureau of Statistics

CDO Chief District Officer

CRC Convention on the Rights of the Child

CPA Comprehensive Peace Accord

CPNM Communist party of Nepal-Maoist

DHQ District Headquarter

DPO District Police Office

GA General Assembly

GoV Government of Nepal

HRA Human Rights Accord

HRW Human Rights Watch

HRTMCC Human Rights Treaty Monitoring Coordination Committee

IDPs Internal Displacement People

ICC International Criminal Court

ICG International Crisis Group xiii

ICRC International Committee of Red Cross

ICTR International Criminal Tribunals for the Rwanda

ICTY International Criminal Tribunals for the former Yugoslavia

IHL International Humanitarian Law

INGOs International Non- government Organizations

INSEC Informal Sector Service Centre

MINOSTAH United Nations Stabilization Mission in Haiti

MONUC United Nations Organization Mission in the Democratic Republic of

Congo

NC Nepali Congress

NP Nepal Police

NGOs Non- government Organizations

NHRC National Human Rights Commission

NRCS Nepal Red Cross Society

ONUB United Nations Operations in Burundi

OHCHR Office of the high commissioner for Human Rights

PLA Peoples liberation army

RNA Royal Nepal Army

SC Security Council

SPA Seven Party Alliance

TADO Terrorist and disruptive ordinance

UC Unity centre

UN United Nations

UNAMSIL United Nations Mission in Sierra Leone

UNCHR United Nations Commission on Human Rights xiv

UNIFIL United Nations Interim Force in Lebanon

UNAMI United Nations Assistance Mission for Iraq

UNMIL United Nations Mission in Liberia

UNMIK United Nations Interim Administration Mission in Kosovo

UNMIN United Nations Mission in Nepal

UNMIS United Nations Mission in Sudan

UNMISET United Nations Mission of support in East Timor

UNMIT United Nations Integrated Mission in East Timor

UNOCI United Nations Operations in Cote d’Ivoire

UPF United people's Front

VDC Village Development Committee

VDF Village Defence Force

WGEID Working Group on Enforced or Involuntary Disappearances CHAPTER 1:

INTRODUCTION TO THE STUDY

Introduction

On February 13, 1996 an internal armed conflict broke out in Nepal between the government and the Communist Party of Nepal (Maoist) (hereafter simply Maoists), a rebel opposition group in the country. This event marked the beginning of a decade long bloody civil war in Nepal that left in its wake massive human rights and International humanitarian law (herein after simply IHL) violations, destruction of life and property and a nation deeply and badly scarred. According to the reports of the Informal Sector Service Centre (INSEC)1, more than 13,000 people were killed, and tens of thousands of people were displaced. This figure includes civilians, political workers, police personnel, army personnel, students, civil servants, workers, social workers, business persons, health workers, agricultural workers, teachers, prisoners, photographers, and journalists and law professionals.2

The decade long conflict in Nepal traced its origin well back in time and to a complex mix of social, economical and political problems in the country. Poverty, and a very weak and unstable government, a lack of efforts to redress caste and ethnic problems, a stalled transition from autocratic to democratic rule and a tumultuous period of political instability had all contributed to an

1 INSEC is founded in 1988 as an independent, non-profit and non-partisan human rights organization; it aims to provide human rights education and awareness to the grassroots people. INSEC runs its programmes through 5 regional offices, 50 local networks. In addition, in all 75 districts 1 representative has been permanently deployed to Monitor the grassroots human rights situation. 2 Informal Sector Service Center, Human Right Year Book. Kathmandu, Nepal, 2007. 2 environment to flourish the people's war in whole country.3 Due to the political instability and an unsystematic development process, the nation has not been able to fulfill the needs of the poor for a long time. Before 1990, the non-democratic government 'panchayat',4 which ruled for 30 years, never worried about the national development. Administrative carelessness, corruption, impunity, criminal activities and so many other social evils had existed within the country as consequences of bad governance, which was especially exposed through open media after restoration of democracy in

1990.

In the 1990’s a popular people’s movement wrote a new constitution with a clear provision of fundamental rights for the people, allowing the Nepalese people to develop into citizens from the king’s countryman.5 However, the political parties were occupied with their own welfare, rather than the national and institutional development of a democracy. Similarly, ethnic and caste discrimination, economic crisis, people’s participation in development and social process became a neglected issue. As a result, rich people became richer and richer and poor people remained almost the same. People had high expectation of positive change and better policies from new democratic government for all the communities and groups. But, in all those years, in some districts of the mid- western region of a country like Rukum, Rolapa, and Jajarkot, there was severe harassment and criminalization of oppositions, especially of the United People’s Front of Nepal (herein after simply

UPF).6

3 International Crisis Group, Nepal: Dangerous Plans for Village Militias, ASIA Briefing, Katmandu/Brussels, 17 February, 2004, p.1-2. 4 'Panchyat' meaning 'Assembly'. King Mahendra introduced the 'Panchyat' system in Nepal in 1961, stating that the multiparty system had failed and was not suitable to Nepali soil. Within this system, the King himself was the supreme power who appointed the prime minister from the elected members of the National Panchyat. The Prime minister then formed a council of ministers upon the recommendation of the king. 5 Bishnu Pathak, Politics of People's War and Human Rights in Nepal, BIMPA Publication, Kathmandu, 2005, P. 237. 6 The United People’s Front constituted several communist factions: the CPN (4th convention) led by Nirmal lama, CPN (Mashal) led by Prachanda, Proletariat Workers' organization led by Rup Lal Biswokarma, CPN (Masal) led by Dr. Baburam Bhattarai, Nepal Workers and Peasants Party led by Rohit, and CPN (MLM) led by Krishna Das. It was 3 Dr. Baburam Bhattarai, Chairman of the Central Committee of the United People’s Front, addressed the “40 point Demand Presented by Maoists” to Prime Minister Sher Bahadur Deuba on 4,

February 1996. But Prime Minister Deuba did not take the Maoists seriously and gave the demands little attention.7 Pointing to the failure of the democratic government to establish genuine democracy and broad based development, the Maoist declared the start of a people’s war officially in 13

February 1996 in Nepal. Maoists had successfully capitalized on the people’s unfulfilled expectations and the largely unsatisfactory democratic transition of the 1990s. They argued that only a revolutionary armed struggle could create the basis to overthrow the corrupt government.8

Thus ‘Voicing to voiceless’, rural communities and helpless people were concerned with the Maoists slogan towards expectation to revolutionize. The declaration of People’s war in 1996 received very little attention at first. The police was mobilized to deal with the Maoists insurgency. In the name of police operation Romeo,9 police became so violent and barbaric in the areas of operations.

Officially, Operation Romeo was labeled as an operation to control a rise in criminal activities in

Rolpa, but in reality the operation focused on trying to dislodge the militant Maoist presence in the area. During this operation police treated everyone as a potential Maoists and many people were tortured, killed, sexually abused, arrested and been sent to jail with out investigation. This cruel and inhuman actions of police resulted in a substantial proportion of the local population joining and supporting to the Maoists.10

constituted for the formation of a legitimate left front, United People's Front (UPF) on January 21, 1991 to participate in the forthcoming general election 1991. 7 Human Rights Watch, Between a Rock and a Hard Place: Civilians Struggle to Survive in Nepal's Civil War, Vol.16, October, 2004. P.11. 8 Informal Sector Service Center. Human Right Year Book. Katmandu, Nepal. 2006. P. 83. 9 Romeo was a police operation launched by Government to suppress the United People's Front (UPF). This operation went on from November 4 to December 24, 1995. During the course of the operation, the human rights reports say: "331 people were arrested and 172 were taken into custody. Out of 172 civilians, 30 had been sent to jail without investigation". 10 Anjana Shakya, "Social Impact of Armed Conflict in Nepal-Cause and Impact", SIRF. 2006. P.17 4 The people's war aimed to establish a new democracy constitutes historical revolt against feudalism, imperialism, and so called reformist, which captured the rural areas in the early stages and was confined to the mid- western regions, but gradually, it gained momentum and spread throughout the country and created deadly violence by the means of weapons.11 The armed struggle began soon afterwards with simultaneous attacked on remote police station and district headquarters.

During first two years of insurgency (1996-1997), Maoists were succeeding to capture weapons. In

1998, Maoists declared the existence of a central military commission.12 To control the insurgency, the government launched a major repressive police operation, Kilo sierra II.13 Starting in 1998, the operation led to a massive increase in confrontations and clashes between the police and Maoists.

The military activities of the Maoists movement forwarded with the announcement with the formation of the People’s Army in 1999, both in scale and scope, and in frequency. Maoists launched a number of surprise attacked against police stations, banks, village development committee offices with increasing precision and sophistication.14 In September 2001, the People's

Army was renamed People's Liberation Army (hereinafter PLA)15. They were equipped with semi- automatic SLRs and rocket launcher looted from Army barracks, police post, and some even bought from aboard. After this, the conflict escalated dramatically. The Royal Nepal Army (hereinafter

11 Report of Secretary - General on the request of Nepal for United Nations Assistance in Support of it's Peace Process, 9 January, 2007.p.2. (To read full report, go to http://www.unmin.org.np/downloads/keywords/2008-01-03. UNMIN. SG. Report. to.sc . ENG.pdf): 12 Supra Note 10, p.18. 13 Kilo Sierra II was a police operation launched by government in 1998. This operation let to a massive increase in confrontation and clashes between the police and Maoist. During the operation, police were allegedly engaged in operations using excessive force arrested arbitrarily and was linked to an increasing number of disappearances. 14 P.J.C. Schimmelpenninck van der oije, "International Humanitarian Law from a Field Perspective – Case Study: Nepal", Year Book of International Humanitarian Law, Vol. 9, 2006, p. 396. 15 The People’s Liberation Army (PLA), was the armed wing of the Unified Communist Party of Nepal (Maoist). The party formed three different groups—combatant group, security group and volunteer group—in 1994, which was the origin of the PLA. PLA was officially formed only in 2001. The first national gathering of the Maoist combatants held in 2001 announced the formation of People’s Liberation Army with Maoist chairman Prachanda as its Supreme Commander. Within four years after the formation of the PLA it had formed seven divisions spread across the country. 5 RNA)16 was not involved in direct fighting because the conflict was regarded as a matter for the police to sustain control. Furthermore, controversy grew regarding the army not assisting the police during insurgent attacked in remote areas. Powerful anti-communist Prime Minister Girija Prasad

Koirala17 unexpectedly resigned his post, with the allegation that RNA did not cooperate with him when the Maoist abducted 69 police from Holleri-Rolpa.18 This situation had changed dramatically in 2001. The Maoists eventually drew the RNA into conflict after attacking the army barracks of different parts of country like Dang, Syanga, and Solukhumbu. Overnight the army was released against the Maoist insurgents. The RNA entered the battlefield and fighting started once again. A nationwide state of emergency was declared on 26 November 2001. As part of the emergency measure, the Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADO) was promulgated.19 The Maoists were declared a ‘Terrorist’ under the Ordinance. The TADO granted the government wide power and also suspended the fundamental rights of people of the constitution of

Nepal 1990. The fundamental rights which were granted by Nepali constitution 1990, such as the right of freedom of thought and expression, assembly and movement, the right not to be held in preventive detentions without sufficient grounds, right to information, right to property, right to

16 Historically, the army in Nepal was under the command and control of the King. No substantial changes were made in this respect in the 1990 constitution. In September 2006, the Interim Legislature Parliament approval a new Army Act changing the army’s name from Royal Nepal Army to Nepal Army and making the army accountable to the government. For easy reading, in this thesis, RNA is used when referring to the army’s operations at the time of the conflict and NA is used to refer the army's of post conflict period. 17 Girija Prasad Koirala, the Prime Minister at the time, had tried to mobilize the army, through the National Defence Council, in July 2001, in Holeri. The reports of this mobilization are controversial with some analysts arguing that the Army deliberately disobeyed the mobilization order. What is clear is that there was no combat in Holeri following the mobilization order. 18 Bishnu R Upreti and Daman N Dhungana. “Peace Process and Negotiation in Nepal: Revisiting the Past and Envisioning the Future” paper prepared for the research study Causes of Internal Conflicts and Means to Resolve Them: Case Study of Nepal Graduate Institute of International Studies, February 2004. P.177. 19 During the war, 'disappearances' were facilitated by the Terrorist and Disruptive Activities (Control and punishment) Act (TADA) 2002 which allowed the security forces to arrest suspects with out warrant and detain them with out charge. The Terrorist and Activities (Control and Punishment) Ordinance 2004 (TADO) replaced the TADA, increased the provision, for detention without charge or trial from 90 days to one year and established special powers to check 'terrorist and disrupted acts'. 6 privacy and constitutional remedy were fully suspended.20 From 2002, the Nepal Police (NP) and the

Armed Police Force (APF)21 were placed under the ‘Unified Command’ of the RNA for counter insurgency operations.22

The Maoists were able to control in all areas except close to the district headquarters, which were patrolled by the security forces.23 In the areas surrounding and close to the district centers people were caught between the activities of the security forces and the Maoists. Where as in the

Maoists controlled areas, where there was little security activity, communities were mainly affected by the action of the Maoists.

There had been several attempts of peace talks between the government and the Maoists, none of them successful. The first round of peace talks, which began on August 30, 2001, and broke down on November 23, 2001, after the Maoists unilaterally withdrew from the talks and attacked police and army posts in several districts, killing as many as eighty members of the security forces.24 In January

2003, after two years of intense fighting, the government of Nepal and the Maoists agreed to their second ceasefire.25 Several rounds of negotiation accompanied by temporary cease-fire had been held between the government and Maoists. The government removed the ‘Terrorist tag’ from the

20 Supra Note 14, p. 397. 21 The government created the Armed Police Force in January 2001, to help the police fight the insurgency movement. 22 Investigation into Violation of International Humanitarian Law in the Context of Attacks and Clashes between the Communist Party of Nepal (Maoist) and Government Security Forces, United Nations, Office of the High Commissioner for Human Rights in Nepal, March 2006, p.5 23 From November, 2002, the Nepal Police (NP) and the Armed Police Force (APF), were placed under the "Unified command" of Royal Nepal Army (RNA) for counter – insurgency operations and named security forces. 24 On 23 November 2001, Maoists attacked an army barrack in Dang and by the end of 2001, prospect for a peaceful end to the Maoist problem had declined. Within days after the Maoist attack in Dang, the government on 26 November declared Maoists the 'terrorists' by imposing a state of emergency. The large scale army action, the first in the country's history that began just days after the Maoist attack, continued until the end of the year. On 21 November, Chairman of Maoists Prachanda through a statement announced an end to the cease-fire alleging that the government had closed all doors to find positive political solutions to the problem. 25 Amnesty International, Nepal: Killing with Impunity (2005), available at http://web.amnesty.org/library/index/ENGASA310012005. The first cease-fire Lasted from December 1999 to October 2000 and the second from July to November 2001. 7 Maoists26. But, this cease-fire and peace talks also collapsed in august 2003 in an atmosphere of mutual mistrust. The government refused to agree to the key demands of Maoists for an election to the constitution assembly and the abolition of the Monarchy by a popular vote. After the dismissal of the negotiation the armed conflict took a new height with both competing in gross and grave human rights and IHL violations. The casualty rates from the war increased rapidly.27 Amnesty International claimed that during 2003 and 2004, Nepal had had the highest rate of reported ‘disappearances’ in the world.28

Intense fighting and civic unrest continued well up to 2005. On February 1, 2005, King

Gyanendra declared a state of emergency and with the army’s backing assumed all executive authority, citing the inability of the civilian government to resolve the conflict. After the declaration of state of emergency, King Gyanendra ordered the detention of thousands of political activists, journalists, lawyers, and human rights defenders, and imposed severe restrictions on civil liberties.29

King Gyanendra’s absolutist and authoritarian politics isolated him from the rest of the country.

Nepal’s main seven political parties' Alliance (SPA)30, which no longer had any hope for participating in the country’s politics decided to form a coalition on May 8, 2005. The seven parties’ alliance aimed at toppling Gyanendra’s dictatorship. On 3 September 2005 the Maoists unilaterally declared a 3 months cease-fire, extending it by another month soon after. During this period the seven parties’ alliance succeeded in arranging a meeting with the Maoists in Delhi (India), which led to the formation of an unprecedented alliance of the two parties against the king’s authority. The

26 Supra Note 14, p. 396. 27 Supra Note 11, p.2. 28 Amnesty International, Nepal: A decade of suffering and abuse, press Release of 10 February, 2006. 29 Nepal’s Civil War: The conflict Resume, A Human Rights Watch Briefing Paper, March 2006, www.hrw.org. 30 SPA consists of Nepali Congress (NC), Nepali Congress (Democratic), Communist Party of Nepal Unified Marxist-Leninist, Nepal Sadbhavana Party (NSP-Anand Devi), Nepal Workers and Peasants’ Party (NeWPP), United People’s Front (UPF) and United Left Front. 8 Maoist and the seven political parties agreed to work towards ending an autocratic monarchy.31 They centralized their assault against autocratic Monarchy by creating a nationwide storm of democratic protests. By April 2006, after more than a year of absolute rule, Gyanendra had come no closer to resolving the civil war, and even his security forces could no longer protect him from the concerted display of popular discontent as the Jana Andolan II (People’s Movement II) gathered force.

Although security forces resorted to excessive force to quell the demonstrations, even firing on unarmed protesters, Gyanendra was forced to give up his absolute power on April 24. 32 Nationwide demonstration, organized by the major mainstream political parties and Maoists compelled King

Gyanendra to capitulate. A few months later 21 November, a peace accord was signed, by the seven parties’ alliance and the Maoists.33The government of Nepal and the Maoists agreed to an arms management pact under which each side would hand in its weapons and withdraw most troops to barracks under UN supervision. The parties also promised to avoid recruiting anyone younger than

18 years of age for military purpose. The government released hundreds of detainees held under the public security Act and the TADO. The rate of casualties and violation of human rights and IHL caused by armed conflict reduced.34And the parties to the war declared the end of decade long conflict in Nepal.

During the war, parties to the conflict had carried out acts of extreme violence, and human rights and IHL abuses had been common across the country as increasingly civilians were the major victims of the conflict.35 Civilians, especially those in heavily contested rural districts, had been exposed to a catalogue of abuses at the hands of warring parties. The Maoists had killed, intimidated

31 Supra Note 14, p. 396. 32 Children in the Ranks: the Maoists ‘use of Child Soldiers in Nepal, Human Rights Watch, February 2007, p.13. 33 Supra Note 11. 34 Supra Note 14, p. 401. 35 Supra Note 3, p.1. 9 or coerced local government officials, such as local village leaders, teachers, journalists, human rights defenders and political parties’ workers. They had harassed civilians suspected of having government or military sympathies.36 Gradually, the villages remained empty of able bodied. Those who could afford to, ran away either across the border into India, or to urban center of the country.

For those who remained there was pressure to join Maoists force. Families most offered up at least one able bodied male, otherwise they had to face large scale of fines or being forced out of village.

There was also option of joining the security forces, which seemed attractive to many in the absence of other livelihood opportunities. The effect of this that communities were left with the elderly, disables, children, and women. Those were also often the poorest segment of the society who didn’t have the resources to leave.37

The freedom of movement was almost restricted at night. It was dangerous to travel from one place to another. In some cases both the warring parties blocked the movement of people and goods during the day. In zones with low agricultural output, these constraints disrupted the opportunities for trade - a key livelihood opportunity for the rural poor. In very rural remote areas, restriction on movement also interfered with the upkeep of water supply system and health services.38 Poor people were probably worse off than they used to be before the conflict, especially those who remained in the disrupted areas. For those communities, not only vulnerability increased but also levels of insecurity were very high. The families were often caught between the warring parties during the hostilities. Those perceived to be collaborating with one side even under coercion became the target of the other.39 Some human rights organizations40 that were working in Nepal during the conflict

36 International Crisis Group, Nepal: Peace and Justice, Asia Report No. 184, January 14, 2010, p.8. 37 See, Paper by, Sushil Pyakurel and Bipin Adhikari, Nepal: Strategies to Implement the Rights to Food in the Situation of Conflict. Presented at the National Seminar on Implementation of the Rights to Adequate Food in Uganda. January 22-24, 2003 38 See ICRC, Annual Report 2004. p. 157. 39 Supra Note 36, p. 17. 10 claimed that both the warring parties were engaged in regular intimidation and extortion leading to a climate of intense fear in Nepal. According to them, the security forces had reported to large scale arbitrary arrests, detentions, disappearances, extra-judicial execution and torture including rape.

Human rights defenders, lawyers including, journalist had been arrested and tortured, killed or disappeared in course of conflict. The Maoists had resorted to torture and deliberate and unlawful killings. The Maoists had abducted civilians, including teachers and school children for the purpose of political indoctrination. They further claimed that, the conflict had further undermined government access to rural areas. Some services, for example postal and telecommunications, had become completely dysfunctional. Others such as health and education still continued to function but often the Maoists saw some benefit from them. Development and Aid had become the issue of conflict. As the conflict had intensified, many donors and their implementing partners were withdrawn from heavily affected areas and continued to work around the safe areas.

In the rural areas, where the conflict was intensified so violently, there were hardly any women, who were not sexually harassed. In those areas, if women were suspected as potential

40 Human Rights Organizations, included (local and International) that were working in Nepal during the conflict like INSEC, NHRC, AI, ICRC, OHCHR, ICG, HRW etc. 41 Supra Note 10, P.52 11 and stripping them naked were very common during the time of in captivity.42 The Maoists had capitalized on the plight of women, who have been marginalized for decades in Nepalese society and enrolled them into the conflict in large numbers. Nearly half of the Maoists rebels were women and their sexual exploitation was not uncommon. It was estimated that the women combatants in Maoists force consisted of 40 percent of the total combatants.43 However, the victims of this situation were mostly girls as parents were not in favor of sending their daughters to the district headquarters for education. So they were forced to leave their studies and help in the household work or were forced into early marriage so as to escape the forced recruitment into Maoists army thus completely destroying their education prospects. Others encouraged them to seek jobs abroad – mainly in the

Gulf countries known for mistreating female domestic help. Most of the women took up prostitution as a means of livelihood because their husband had disappeared, fled or migrated, were displaced, or killed during conflict. The women were forced to sell their bodies to earn money for feeding, educating, and medical care of their children, elderly including parents in-law.

The conflict had gravely affected the children by exposing them to violence by both sides, disrupting their home lives, limiting their families' economic activity, and hampering their access to education and health care.44 Many children were grown up in an environment shaped by guns, bombs, bandhs (strikes), killings, the sight of dead bodies and the fear of war, leading them to be preoccupied with thoughts and fear about violence and other psychosocial consequences. 45 Children were caught in the middle. Both the warring parties had intentionally killed children. According to an Amnesty

International Report, the security forces often detained for questioning, and sometimes tortured,

42 Supra Note 5, P. 237. 43 See Supra Note 11, p. 2. 44 Supra Note 32, p.10. 45 Caught in the Middle: Mounting Violations against Children in Nepal's Armed Conflict, WATCH LIST on Children and Armed Conflict, January 2005, p.11. 12 “disappeared” or executed, children they believed to be Maoists or Maoist sympathizers. For their part, Maoists had reportedly targeted the children of security force members in addition to killing and maiming those they suspect to be informers.46 Large numbers of minors, including girls, were involved in the conflict as Maoist's army combatants, while the armies of both sides utilized minors as messengers, informers, cooks and in other support functions. The Human rights Watch, argues that," At least 3,500 to 4,500 children were part of the Maoist fighting forces. Tens of thousands of children had been forced to flee their homes to avoid recruitment by the Maoist or to seek better lives away from already impoverished communities further damaged by the conflict and the government brutal responses".47

Statement of Problem

Protection of the civilians’ population is a basic element of Humanitarian law. Civilians and all those not taking part in the fighting must on no account be attacked and must be spared and protected. The 1949 Geneva Conventions and their 1977 Additional protocols contain specific rules to protect civilians.48 IHL provides rules regulating the method and means of combat and the treatment of captured combatants and civilians.49 But, in the case of Nepal, the parties to the conflict committed the serious violation of human rights and the IHL which was marked by bloody murders through indiscriminate shooting and bombing, mass abduction, forced recruitment, rape, extortion,

(unlawful) killings, and forced displacement of civilians. In the course of conflict ignorance of humanitarian law principles had become the rule of the day. Since, the war broke out in 1996, it became a grave threat to life, liberty, security and dignity of poverty stricken people and its

46 Amnesty International, Nepal: Children Caught in the Conflict (July 6, 2005), available at http://web.amnesty.org/library/index/engasa310542005 47 Supra Note 32, p.2. 48 Enhancing Protection for Civilians in Armed Conflict and Other Situation of Violence, ICRC, September 2008, p.7. 49 Supra Note 7, p.22. 13 frequency and intensity were continuously escalating the violations and abuses of IHL in Nepal. The parties to the conflict had disregarded humanity and resorted to extreme and humiliating actions against civilians. Both sides did not provide adequate attention for assisting the sick and the wounded, and for ensuring medical help to civilians caught in the crossfire. The state was largely unable to protect the most basic rights of the citizens. The implementation of commitments on both international and domestic laws promulgated for fulfilling the obligations remained obstructed throughout the conflict.

There were frequent incidents where both sides had flouted the provisions of international humanitarian law, applicable in situations of armed conflicts. For example, IHL prohibits murder or violence to persons taking no active part in hostilities but Maoists had engaged in killing cadres of other political parties, killing people supposed to be ‘informers’, and they even killed unarmed people like relatives and family members of security personnel. Similarly, there were frequent incidents where government forces were found to violate humanitarian law. Security forces were involved in the disappearance of unarmed persons thought to be Maoist. Even the people who were arrested by government forces and were kept in army barracks were denied fair judicial trial, were subjected to torture and later, were disappeared from such barracks. Under the International instruments, the law prohibits attacks against civilians and acts or threats of violence intended to spread terror among the civilians population, but this provision was frequently disregarded by armed forces. There were frequent incidents where Maoist rebels targeted urban areas while government forces indiscriminately dropped bombs from helicopters in civilian areas.

It seems that since Nepal ratified the Geneva conventions and committed to international community that it protects civilians in any circumstances, though theoretically. While practice, during the time of armed conflict there were gross and systematic violations of IHL. This study will 14 analyze to which extent internal armed conflict affected civilians and how Nepal failed to protect civilians during conflict. Furthermore it will analyze whether Nepal had used all resources for the protection of civilians’ not only civil and political rights but also economic, social and cultural rights as well. And what was the role of IHL to protect civilians in case of Nepal and in which extent IHL succeed or failure in this regards.

Research Questions

The purposed research will try to determine the role of IHL in the armed conflict of Nepal.

The following questions guided the research:

1. To which extent did the decade long war of Nepal affect the Civilians?

2. To what extent did the Maoist rebels and Government security forces commit serious

violations of IHL?

3. What was the role of IHL in the war of Nepal?

4. What was the performed role of IHL in the protection of civilians in the war of Nepal?

Purpose of the Study

The purpose of this study is to provide a deeper understanding of the role of international humanitarian law in the protection of civilians in the internal war of Nepal. This study will provide a clear picture of the decade long armed conflict of Nepal. It further examines the rights of civilians in times of war as well as outlines the duties and obligations of the armed forces towards civilians. This study also critically analyzes the international legal obligations that the state has assumed for the protection of the right of civilians in the case of Nepal. The emphasis of this study is to analyze the 15 loopholes or inadequacy of the laws intended to protect the civilians in times of armed conflict.

Finally, the study suggests a solution to overcome issues in the protection of the civilians.

Significance of the Study

Today, the global scenario shows that the civilian populations, those no longer participating in hostilities, do suffer most from the consequences of armed conflict especially in non-international armed conflict. Civilians are the target of attacks involving systematic violations and abuse of their rights. Under these circumstances, protecting people caught up in armed conflict and other situations of violence is a critical challenge for international humanitarian law. In many armed conflicts, distinction between civilians and combatants are deliberately blurred. All too often civilians are the target of attacks and systematic violations and abuse of their rights. States and other relevant duty bearers frequently lack the capacity or the will to ensure effective protection of those at risk.50

Significant improvements have occurred in recent years in the response to protection crises but the systematic and indiscriminate attack against civilian populations causes immense civilian death and injury. Civilians are abused in many other ways in current armed conflicts. Civilians are often forced to leave their homes as a result of war, which leads to the permanent loss of livelihood, opportunities and cultural identities.51 Additionally, tactics such as humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault, discriminatory practices, forced disappearances, slavery and the slave trade in all their forms, pillage and threats to commit any of the foregoing acts and the recruitment of child soldiers are very common though these practices are prohibited by the law.52 Unless immediate changes are made within current armed conflicts, the

50 Professional Standards for Protection Work Carried out by Humanitarian and Human Rights Actors in Armed Conflict and Other Situations of Violence, ICRC, 2009, p. 7. 51 Report of the Secretary-General on the Protection of Civilians in Armed Conflict, UN Doc. S/2007/643, 2007, p. 2. 52 Additional Protocol II, Article 4(1) (2) (3). Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. 16 denial of basic human dignity to millions of civilians during armed conflict will continue to block the development of peaceful societies.

It has been argued that the reason why civilian human rights and IHL are being violated at a growing rate is that the number of armed conflicts has been increasing after the end of the Cold War.

After the collapsed of the Soviet Union and the end of the cold war there is a fundamental change in the climate of world politics53 and numbers of conflicts broke out are of non-international in nature in which the role of IHL in the protection of civilians has entered into more challenging phase. In recent years, though, there has been a decline in the number of armed conflicts around the world, in those, predominantly non-international, conflicts that simmer or rage, large numbers of civilians remain at risk of, or suffer, brutality and degradation. Some are simply in the wrong place at the wrong time. Others are deliberately targeted and subjected to atrocities in an environment of almost total impunity.54 In a similar way, the development of new weapons, changing war tactics, the increase in terrorism, and the spread of weapons of mass destruction have all changed the face of modern war, leading to greater civilian abuse. While these factors have undoubtedly had an impact, it does not negate the fact that there needs to be some international mechanism for protecting the rights of civilians regardless of the type of conflict and weapons. Given the current legitimacy of

IHL, it has the potential to adequately guarantee civilians' rights. Therefore, the effectiveness of IHL remains as a major factor for explaining why civilians' rights continue to be violated. If law is not effective then it must be changed or other mechanisms must be developed to ensure civilian rights during conflict. Determining the effectiveness of IHL in protecting civilian rights will help improve

53 Niels Blokker. "The Security Council and the Use of Force. Theory and Reality- A Need for Change? Eds. by Niels Blokker and Nico Schrijver. Martinus Nijhoff Publishers: (2005). P.13. 54 Supra Note 51. 17 the application of the civilian immunity principle and will accordingly improve the international adherence to the right to human dignity.

Civilians are not a homogenous group. The civilian population is made up of unique individuals, each with their own agency. The protection of the civilian population discussed in this paper refers to the protection of civilians and civilians’ rights in armed conflicts. The ultimate goal of IHL is to provide civilians with adequate protection during the armed conflict so that they can ensure their own human rights and safety during armed conflict.

Conceptual Framework for the Study

Civil war have become increasingly common in recent years and they erupt for several reasons including, ethnic and religious tensions, ideological differences and social and economic inequalities. Whatever the reason these war have an enormous impact on civilians.55 Traditional armed conflicts between states have lost significance at the global level, and there is now a low probability of war between states.56 Most contemporary wars are waged not between the countries but within states or in places where there is no effective state and the conflict is about who should be in control of the population and territory.57 Poor and developing countries have been found more vulnerable to violent conflicts due to inequality in distribution of resources and opportunities, inadequate service delivery system, injustice to identities and beliefs, ineffective governance and administration, inefficient socio-political transformation and intolerant leadership.58 The frequency and intensity of volatile internal conflicts are significantly increasing in number around the world. 55Kishor Sharma. "Development Policy, Inequity and Civil War in Nepal", Journal of International Development. John Wiley & Sons Ltd. (2006). p.554. 56 Andreas Wenger and Simon J. A. Mason, "The Civilization of armed conflict: trends and implications", International Review of Red Cross, Vol.90, No. 872, 2008, p.837. 57 Rein Mullerson, "International Humanitarian law in Internal Conflicts", Journal of armed conflict, Vol. 2, Issue 2, 1997, p.109. 58 Supra Note 5, p. 1. 18 The daily life of many civilians caught up in these situations of constant fear or the threat of destruction and extreme suffering. The deliberate targeting of civilians, the destruction of civilian property, the forced displacement of population, the use of civilians as human shields, the destruction of infrastructure vital to civilian population, rape and other forms of sexual violence, torture, indiscriminate attacks are very common act of violence by warring parties in non- international armed conflict throughout the world.59

In this situation, the role of IHL in the protection of civilians in internal armed conflict gradually becomes more significant in the course of time. But, the researcher cannot possibly include all cases in a study like this. This is a limited study that does not claim to apply to every case in the world. A study like this can only be a small part of the larger project on how international law in general and IHL in particular operate in practice. In this regard, I have chosen an internal armed conflict of Nepal as the subject of my study because it constitutes a case of contemporary history in which the role of IHL in the protection of civilians has entered into challenging situation that cannot be comprehend if we do not look at the specifics and if we do not undertake an imperative understanding of the actions and practices of IHL in non- international armed conflicts. A well targeted case study approach is a useful way to examine the issues given that conflict, instability and tensions are extremely variable phenomena. Therefore one needs to look closely at the underlying reason for, and nature of conflict in the specific countries where it occurs. The case of Nepal's internal war is instructive as a recent example of widespread and massive human rights and IHL violations. The violent conflict was the main reason for the widespread violation of Human Rights and the disregard for humanitarian laws. The decade long conflict of Nepal was marked by gory murders, disregard of humanitarian values and impunity for those responsible for the violations and 59 Increasing Respect for International Humanitarian Law in Non-International Armed Conflict. ICRC. Geneva, February. 2008.p.5. 19 indiscriminate killings. The warring parties continued to disrupt normal life through extreme actions with completely disregard of both national laws and international commitments while carrying out their duties.

"The Role of International humanitarian law in the protection of civilians: the case of

Himalayan People’s War" will be examined in this dissertation. This is the issue which has attracted serious attention among both academics and practitioners. This dissertation will attempt to study the applicability of IHL instruments in Nepal and the government's effort to enforce such instruments in conflict hit territories. This study assumes significance here as I have already outlined the situation of Nepal which was marred by conflict. When the government forces were fighting against Maoist rebels, then, there were a lot of cases where human rights of common people and the norms of IHL were completely ignored. Both the government and Maoists were accused of violating national human rights law and were found to be unconscious of IHL.

Assumptions and Limitations

The following assumptions have been made to conduct this study:

Firstly, it is assumed that the 10-years long armed conflict between Government of Nepal

(GoV) and the Communist party of Nepal (Maoist) falls under the international humanitarian law in which a political group decided to take up arms to fight against the established authorities. Secondly, it is assumed that the decade long armed conflict of Nepal was characterized by consistent patterns of impunity for serious human rights and humanitarian abuses. The parties to the conflict committed serious violations of IHL, principally endangering the lives of the civilians. Civilians were abducted, murdered, detained, tortured, and displaced in large number during the conflict; hence the role of

IHL is necessarily significant in the protection during the conflict. Lastly, it is assumed that the 20 views expressed by the researcher will be correct and not influenced by the changed political situation. The political situation of a country has changed a lot after the warring parties signed a

Comprehensive Peace Accord (CPA). Maoist rebels of that time have now become a legitimate political mainstream party which is the biggest party in Nepal after the election of Constituent

Assembly (CA) of 2008.

In terms of limitation, the study main focus will be concerned towards the IHL role in the protection of civilians in the decade long war of Nepal. This study will not cover the other aspects of a war except civilians’ status and IHL protection role in the war of Nepal. It is difficult for any approach to measure the effectiveness of international humanitarian law for two reasons: there is no world government to enforce the law and there will always be breaches in law, even if it is effective.

This thesis will attempt to overcome these limitations by carefully defining what sort of breaches indicates the shortcomings of the law. It is important nonetheless to recognize that certain conclusions reached in this thesis are neither universal nor concrete. Additionally, researcher has acquainted with time and travel limitations in course of this research. Despite these limitations, this thesis presents several arguments on the effectiveness of international humanitarian law during armed conflict which can add to future attempts to adequately protect the rights of civilians during conflict.

The purposed study utilized a qualitative case study, with the researcher as the main instrument for data collection, analyses and interpretations. To minimize the possibility of the researcher being subjective and biased, the researcher maintained self-consciousness about the tendency for subjectivity and exercised neutrality throughout the process. 21 In the course of data collection, the researcher was acquainted with some difficulties to get the depth information because the changes occurred since the conceptualization of the research and within the duration of this research. Researcher reviewed and used multiple sources of data to confirm research findings.

Definition of Terms

Civilians: For the purpose of this study, the term civilians refers to people who are no longer, taking part in a conflict or other situation of violence, notably persons or groups exposed to specific risks, such as children, women, the elderly, the disabled, and the displaced.60 Article 3 common to four

Geneva Conventions defined civilians as person taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause.61 Under Article 50(1) of protocol I, 1977, a civilian is defined as any person not a combatant, and in case of doubt a person is to be considered a civilian.62

Communist party of Nepal (Maoist): In this study, Communist Party of Nepal (Maoist) refers to a rebel opposition group in the country (1996-2006), who believes in the Maoist theory of violent revolution. The Communist Party of Nepal (Maoist), which had gone through multiple histories of growth, division, merger, and division until 1995, started an armed insurgency on February 13, 1996, pointing to the failure of the democratic government to establish genuine democracy and broad based development. The Communist Party of Nepal (Maoist) was influenced by various international revolutions, such as the Bolshevik revolution, the Chinese revolution, and India's

60 Supra Note 48, p.4. 61See, Common Article 3 of Convention (IV) relative to the Protection of Civilian Persons in Time of War. 62 Malcolm N Shaw, International law, Cambridge University Press, 2008, p. 1061. 22 naxalite movement of the 1960s. The goals of the CPN(M) were to establish a Maoist people’s republic, end Indian imperialism in Nepal, eliminate the caste system, and stop ethnic, religious, and linguistic exploitation.

Internal armed conflict: In the context of this study the term internal armed conflict is the concept of non-international armed conflict in humanitarian law which is analyzed on the basis of two main treaties; Article 3 common to the 1949 Geneva Conventions and Article 1 of Additional Protocol II of 1977.63

A distinction is made in international humanitarian law between international and non- international armed conflicts, founded upon the difference between inter-state relations, which was the proper focus for international law, and intra state matters which traditionally fell with in the domestic jurisdiction of states and were thus in principle impervious to international legal regulation.64 Traditional armed conflicts between states have lost significance at the global level, and there is now a low probability of war between states. With the end of the Cold War the international power equation unilaterally shifted towards the USA, which emerged as the world's only superpower. Since then, the regional, ethnic, linguistic, resources, geo-political and religious issues began to have more importance.65 In a sense, the lid was lifted off the boiling pot, allowing internal dissent to erupt, with a corresponding peak in intra-state conflicts in the early 1990s.66 Most of the internal armed conflicts are related to disagreements over wealth- and power-sharing, declining economies, high dependence on natural resources, bad governance, human rights violations and poor

63 Sylvain Vite´. "Typology of armed conflicts in international humanitarian law: legal concepts and actual situations". International Review of the Red Cross. Vol. 91. No. 873. (2009). p.75.9 64 Supra Note 62, p. 1069. 65 Supra Note 5, p. 1. 66 Supra Note 56, p.837. 23 human security conditions.67 In internal armed conflicts IHL provides rules regulating the method and means of combat and the treatment of captured combatants and civilians.68

Although the four Geneva conventions of 1949 are concerned with international armed conflicts, common Article 3 is applicable to internal armed conflicts. In the case of armed conflict

'not of an international character' occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a)Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

67 Ibid., p.842. 68 Supra Note 7,.p.22. 24 (2) The wounded and sick shall be collected and cared for.69

Common Article 3 of the four Geneva Conventions 1949 has some rather inadequate humanitarian principles applicable to 'armed conflict not of an international character'. So, with the increased concern about armed conflicts that is solely or partly internal, such as civil wars,

Additional protocol II developed and supplemented common Article 3 in respect of armed conflicts.70 Additional Protocol II applies to internal armed conflicts "which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol".71

International Humanitarian Law: In this study, international humanitarian law refers to the set of international instruments, treaties and conventions that are designed to regulate the conduct of hostilities to alleviate human suffering during and immediately after hostilities. IHL is the branch of international law that seeks to protect persons not engaged in or no longer participating in hostilities.

Protection of the civilian population is a basic element of humanitarian law. Civilians and all those not taking part in the fighting must on no account be attacked and must be spared and protected.72

IHL can be divided into two main streams: Hague law and Geneva law. Hague law is based on the rules how hostilities can be conducted in a lawful manner. It is centered on what the military personnel may do during hostilities and in occupied territory where as Geneva law is centered on the protection of non-combatant persons. In this protected persons are the wounded, sick or shipwrecked

69 See, Common Article 3 of four Geneva conventions 1949. 70 Anthony Aust, Handbook of International law, Cambridge University Press, 2005, p. 254. 71 Supra Note 63, p. 79. 72 Supra Note 48, p. 7. 25 military persons, the prisoners of war and the civilians in contact with a hostile power. Hague law and Geneva law reflect the fact that IHL is comprehensively promulgated by the Hague conventions of 1907 and then by the Geneva conventions, of which the latest are the four of 1949.73

IHL applies in armed conflict both of an international and non-international character. But the application of IHL differs depending on whether the conflict in question is of an international or non-international nature.74 All rules of the IHL apply to international armed conflicts. Only a smaller part of these rules apply to non-international armed conflicts. In international armed conflict the four

Geneva conventions and Additional protocol I apply.75A more limited range of rules apply to non- international armed conflict and are laid down in Article 3 common to the four Geneva conventions.

So with the increased concern about armed conflicts that are solely or partly internal, such as civil wars, Additional protocol II developed and supplemented common Article 3 in respect of armed conflicts within a state between its forces and dissident forces or other organized armed groups.76

The first Geneva Convention concerns the wounded and sick on land and emphasizes that members of the armed forces and organized militias, including those accompanying them where duly authorized, shall be respected and protected in all circumstances.77 The second Geneva Convention concerns the condition of wounded, sick and shipwrecked members of armed forces at sea.

According to this, members of the armed forces, including those accompanying them where duly authorized, and cared for on a non-discriminatory basis, and that attempts upon their lives and violence and torture are prohibited.78 The third Geneva Convention of 1949 is concerned with

73 Supra Note 70, p. 252. 74 Engdahl Ola, "The Status of Peace Operation Personnel under International Humanitarian Law", Yearbook of International Humanitarian Law, Vol. 11, 2008, p.112. 75 Ibid. p. 111. 76 Supra Note 70, p. 254. 77 Supra Note 62, p. 1171. 78 Ibid., p. 1172. 26 prisoners of war, and consists of a comprehensive code centered upon the requirement of humane treatment in all circumstances.79 And the fourth Geneva Convention is concerned with the protection of civilians in time of war. This marked extensions to the pre- 1949 rules, although limited under article 4 to those persons, who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or occupying power of which they are not nationals.80 The Fourth Convention provides a highly developed set of rules for the protection of civilians, including the right to respect for person, honor, convictions and religious practices and the prohibition of torture and other cruel, inhuman or degrading treatment, hostage- taking and reprisals.81

Parties to the 1949 Geneva Conventions and to Protocol I, 1977, undertake to respect and to ensure respect for those treaties.82 Each party is therefore obliged to do what is necessary to ensure that all authorities and persons under its control comply with the rules of international humanitarian law. The enforcement can include a wide variety of measures, both preventive and repressive, to ensure observance of that law. 83

Security Forces: In this study, Security Forces refers to the Nepal Police (NP), Armed Police Force

(APF), and Royal Nepal army (RNA) deployed during the insurgency. From November, 2002, the

Nepal Police (NP) and the Armed Police Force (APF) were placed under the "Unified command" of

Royal Nepal Army (RNA) for counter – insurgency operations and named security forces.

79 Ibid. 80 Ibid., p. 1176. 81 Ibid., p. 1177. 82 See, Geneva Conventions, common Article 1 and Additional Protocol I, Article 1 (1). 83 Toni Pfanner, "Various mechanisms and Approaches for Implementing International Humanitarian Law and Protecting and Assisting War Victims", International Review of the Red Cross, Vol. 91, No. 874, 2009, p.280. 27 Summary

The decade long war between the Government of Nepal and Communist rebels, who launched their armed insurgency in February 1996, had created deep humanitarian crisis in Nepal.

The war aimed to establish a new people democracy in Nepal constitutes a historical revolt against government, had captured the rural areas and created deadly violence by the means of weapons, and killed large numbers of people.

The warring parties committed serious violations of IHL during the war. These allegations of

IHL had been received in the context of indiscriminate attacks by the Maoists and the Security

Forces in urban, highly populated areas and on government buildings with civilian status, as well as clashes between the two sides. Too many human rights violations and ignorance of humanitarian law principles in the period of conflict had become the rule of the day.

The situation described above is a significant subject to the study because the issues that are related to the civilians in the severe armed conflict cannot be ignored in the era of human rights. It is necessary to examine the various obligations that have been cast upon insurgents and government forces by international instruments. So, in this dissertation, "The Role of International humanitarian law in the protection of civilians: the case of Himalayan People's War" will be examined. The organization of the dissertation will be rather straight forward. The dissertation will be comprised of five chapters. Each chapter deals with a different aspect of the research topic. The first chapter frames the area of interest and outlines the problem investigated. It presents the background of the armed conflict of Nepal by briefly stating the facts. In this, I have provided a brief sketch of the internal armed conflict paying attention to its historical background. Here, I have illustrated the ways in which armed conflict affects the innocent civilians. Then, it progresses into a conceptual analysis 28 of the foundational concepts of the entire study. This chapter introduces the research questions. It also discussed the limitation and assumption of the study. Furthermore, this chapter gave the definition of some key terms. The terms in this section should be the terms directly related to my research that will be used throughout the research.

The first section of the following chapter reviews the relevant literature with the aim of uncovering and clarifying the arguments commonly made for the Himalayan people's war and the role of international humanitarian law in the protection of civilians in the internal armed conflict.

This chapter will introduce the perspectives of scholars on the issues regarding the decade long armed conflict of Nepal and IHL. This provides a literature review with the purpose of laying the groundwork for dealing with some of the most contentious issues related to armed conflict of Nepal and IHL. The purpose of this chapter is to provide the context for the following chapters. This chapter will be largely descriptive in nature, outlining the differing attitudes and perspectives on the broad issues of the role of International humanitarian law in the protection of civilians in armed conflict.

The third chapter will introduce the methodology used for collecting and analyzing the data from the related respondents. Along with this there will be analysis of attitudes and perceptions towards the armed conflict. This chapter provides a theoretical framework to the research.

Documents from some of the national and international human rights and humanitarian organizations that were working during the time of armed conflict in Nepal will be the major source of data for this study. And, some other data will be taken from academic and non-academic sources likes books, articles appearing in journal and other publications, research paper submitted to the universities and sources available in electronic media are the main sources will be used in the study to arrive at a comprehensive report. 29 The fourth chapter will present the study's findings as informed by primary and secondary data collected and responds to the research question presented in the first chapter. This chapter will assess the relevancy of the role of IHL in the Nepal context in particular. This chapter illustrates the performed role of IHL in the time of severe armed conflict in Nepal and its challenges of prosecution for egregious human rights and IHL violations. Across all study locations, respondents’ perception of how IHL plays the role in the protection of innocent civilians in times of conflict will be discussed here. This chapter discusses the respondents’ data from the study location in relation to the arguments uncovered in the literature review.

In the concluding chapter, chapter 5, I will give an overview of the entire study. It will summarize the findings and discuss how the dissertation has expanded the knowledge of

International humanitarian law and its role in the protection of civilians in this area of research.

Policy implications from the findings will also discussed. Finally, I will make recommendation for where future research goes. 30

Chapter 2:

Review of Literature

Introduction

This chapter offers a comprehensive literature review on the theoretical and conceptual bases of a topic in order to introduce the central theme of the dissertation. It introduces the perspectives of scholars' on the issues regarding the decade long armed conflict of Nepal and IHL which provides a context to understanding the armed conflict of Nepal and the existing perspectives on IHL and its achievement in the protection of civilians in armed conflicts. The purpose of the literature review is to place the analysis in a historical perspective as well as to lay a foundation to relate the findings to provide topical learning and suggest further research. This chapter illustrates the complexity of the topic and its many conflicting dimensions.

In order to clarify the perspectives on the topic, this chapter is divided into three principal focus areas. The first focus area presents the background materials on the decade long armed conflict of Nepal. It talks about the history of Nepal, Conflict in general, history of armed conflict in Nepal, genesis of People's War, and its chronological context. This provides the analysis of scholars about these issues with their historical background, which set a foundation for the analysis. This provides an intensive framework to understand the People’s War in Nepal. The review summarizes available studies, theories and critiques in relation to how they came to exist.

In the second focus area, structural and operational information of the IHL, including its evolution and current status, will provide a context for analysis. This focus area is related with IHL in armed conflict in general. It gives the introduction of IHL and its historical development and 31 fundamental principles of IHL. It also discusses about the distinction between international and non- international armed conflict, definition of non-international armed conflicts, protection of civilians in non-international armed conflicts, and enforcement of IHL in general. It provides the analysis of scholars about the issues that are related to IHL and armed conflicts to lay the foundation for analysis.

This section will illuminate the perspectives of scholars who have judged the IHL role in armed conflicts. Specially, in this section, achievements of IHL in the protection of civilians in severe armed conflict will be critically evaluated to set the foundation for this study’s analysis.

In developing the conceptual framework to uncover and clarify the arguments commonly made for the decade long armed conflict of Nepal and the role of IHL in armed conflict, literature relevant to the topic will be utilized. Library of local universities, articles appearing in journal and other publications, research paper submitted to the universities, and the Google search engine will be used to research the literature on the subject. A subject based approach will be utilized for the search.

First focus area

In this section of the Literature Review background materials on the armed conflict in Nepal, is presented which will set a foundation for analysis. The objective of this area is to create a better understanding of the decade long conflict of Nepal. As noted above, this focus area provides the 32 analysis of scholars about these issues with their historical background which helps to understand the decade long People’s War in Nepal.

Glimpse of Nepal

The decade long People's War in Nepal cannot be understood in isolation from the political history of the country after the unification by King Prithivi Narayan Shah84 in the present form, the main socio-cultural dimension of society, the unique geographic features of the country, and the low indexes of human development that point at Nepal as one of the least developed countries of the world.

Nepal is a small landlocked country in South Asia bounded by china on the north, and by

India on East, west and south. According to the preliminary report of the National Population Census

2011 published by the Central Bureau of Statistics (CBS), the present population of Nepal is

26,620,809. The report states that the annual growth of population is 1.4 per cent which is little less than what was found 10 years ago. In 2001, the population growth rate was 2.25 per cent.85 The total area of Nepal is 147,181, sq.km. Geographically, the country is divided into Himalayan (Mountains),

Hills and the Tarai (Flat land). Administratively Nepal is divided into 5 regions, 14 Zones, and 75 districts86.

84 Prithvi Narayan Shah, King of Nepal (1723–1775), the first king of House of Shahs to rule Nepal. He is credited for starting the campaign for a unified Nepal, which had been divided into many little kingdoms. He was the ninth generation descendant of Dravya Shah (1559–1570), the founder of the ruling house of Gorkha. Prithvi Narayan Shah succeeded his father King Nara Bhupal Shah to the throne of Gorkha in 1743. 85 See, National Population Census- 2011, made public by the Central Bureau of Statistics (CBS). Available at http://census.gov.np/ 86 Nepal is already a ‘federal republic’ under the terms of the Interim Constitution (2007). Federalism is a fundamental principle that underpins all the work of the Constituent Assembly. The Supreme Court has stated that the provision of the Interim Constitution making Nepal a federal state is not amendable, which means that legally there is no way to abandon the state restructuring and federalization agenda. The restructuring of the state of Nepal into a federal state is perhaps the biggest change the new Constitution will bring to the country. 33 Economically, Nepal is much smaller, more dependent, and much less diversified, with tourism and textiles representing the main domestic foreign exchange earners, augmented by substantial remittances from overseas workers. One of Nepal's main challenges is its inability to provide employment opportunities for its population.87 The per capita GDP is $ 551 which makes

Nepal one of the poorest countries in the world.88 The United Nations Development Human

Development Report 2011 places Nepal 157 out of 187 countries in the Human Development Index

Rank89.

Culturally, Nepal is a multi-ethnic, multi-lingual, multi-cultural, and multi-religious. As

Nepal has resulted from the confluence of Aryan, Mongol, and Austro-Dravid races, various castes and sub castes of the Aryan people live across Nepal.90 The caste system consisted of four main levels: the Brahmins or noblemen at the highest level, followed closely by the protectors or warriors

(Chhetris), then the merchants (Vaishya), and the Dalits, who were the members of the

“untouchable” caste. Although the caste system was abolished in 1960 and is now prohibited by the constitution, for groups historically associated with particular castes it has been difficult to lose their family’s prior association.91

Politically, Nepal has been unstable country since its origin as a modern State. Nepal as a state emerged in its present form when Prithivi Narayan Shah, king of the Gorkha area west of

87 Thomas A Marks and David Scott Palmer. "Radical Maoist Insurgents and Terrorist Tactics: Comparing Peru and Nepal", Low Intensity Conflict and Law Enforcement: (2005). p.95. 88 Asian Development Bank. Economic update, September 2010. 89 Nepal still remains relatively poor. In 2011, it ranked 157 out of 187 countries in the annual UNDP Human Development Index (HDI) (UNDP, 2011). 90 Supra Note 5, p. 7. 91 Lara L Manzione. “Human Rights in the Kingdom of Nepal: Do They Only Exist on Paper?” Brookling Journal of International Law, vol. 32, issue 1, 2001-2002. p.210. 34 Kathmandu, expanded his domination in 176892 by conquering the Kathmandu Valley.93 After the death of Prithivi Narayan Shah in 1774, the Palace was rocked by much internal squabbles. Power and politics were dominated by conflicting factions within the royal family and a few elite families.

The killings, expulsions, imprisonment and power struggle within the Palace had already eroded the ability of the King to rule the country. No one was able to provide a stable rule.94During the period of this power struggle and uncertainty, in 1846 a member of a noble family, Jang Bahadur Kunwar95

(who later adopted the title Rana), seized control through massacres of rival notables.96 He made the king a nominal head and retained all the power creating a family autocracy where the post of Prime

Minister was a legacy passed on among his brothers and sons. This autocratic and dictatorial rule continued in Nepal for 104 years.97 Despite some socio-economic reforms, Rana rulers in general had developed an authoritarian attitude in the country and attempted only at pleasing the British-

India government.98 When India was freed from British rule, Nepal soon followed instituting multiparty democracy in 1951 with the active participation of the then King Tribhuvan.99 As a result, the King became the symbol of unity of a country.100 After the experiences of parliamentary

92 Before the unification in 1769 under Prithivi Narayan Shah, the nation-state of Nepal was 46 little kingdoms. Since unification, Shah Kings and Rana Prime Ministers ruled in Nepal (The Shah kings took back sovereignty from the Ranas in 1950 after the latter's 104 years of autocratic rule). 93 See, International Crisis Group, Towards a Lasting Peace in Nepal, the Constitutional Issues. ASIA Report. No 99. 15 June 2005. p. 3. 94Informal Sector Service Center. Human Right Year Book. Katmandu, Nepal: (1992). p. 4. 95 Jang Bahadur Kunwar (later adopted the title Rana) was a ruler of Nepal and founder of the Rana dynasty of Nepal. His real name was Bir Narsingh Kunwar. He established the powerful Rana dynasty of hereditary prime ministers, an office that remained in his family until 1951. 96 Supra Note 93. 97 Supra Note 94. 98 British ruled in the Indian subcontinent between 1858 to 1947. 99 King Tribhuhvan (June 23, 1906 – March 13, 1955) was King of Nepal from 11 December 1911 until his death. He ascended to the throne at the age of five, upon the death of his father, King Prithvi Bir Bikram Shah. King Tribhuvan died in 1955 in Zurich, Switzerland under mysterious circumstances. He was aged 48. He worked closely with Praja Parishad to abolish the Rana regime. In November 1950, Tribhuvan went into exile in India in an attempt to bring down the regime, which had ruled Nepal for 104 years. 100 Supra Note 5, p. 4. 35 democracy in the 1950s, again party politics were banned by King Mahendra101 and power was centralized in the royal Palace from 1960. The King Mahendra made various political moves in order to consolidate his power and personal ambition.102 King Mahendra asserted that multiparty parliamentary democracy was an alien system that was unsuited to the circumstances of Nepal.103

The autocratic and authoritarian rule of the king Mahendra continued for 30 years before it comes to an end through a popular people's movement in 1990. After the restoration of democracy in 1990, the autocratic and authoritarian King became a constitutional monarch under the constitution of

1990. The power vested in the king alone, now shifted towards the parliament.104

Despite establishment of a democratic system after the 1990 movement the democratic government failed in initiating any structural changes except the creation of a political super- structure, so as to meet the constitutional requirements of the democratic governance.105 While the political system in Nepal was more open than ever in the past, and the economic, social and cultural impression of the country was changing, the politics on the other hand gave the impression of lacking national commitment, and more than that, the visionary leadership required in the moment.

In February, 1996 amidst the same environment, the communist party of Nepal (Maoist) launched an armed insurgency aimed at replacing the constitutional monarchy with a one-party communist

101 King Mahendra was born to late King Tribhuvan on June 11, 1920 (Asar 30, 1977 B.S.) at Narayanhity Royal Palace. At the sudden death of King Tribhuvan on March 13, 1955 in Zurich Canton Hospital (Switzerland) King Mahendra ascended the throne of the kingdom of Nepal. When king Mahendra ascended the throne in 1955, he found that the political situation of the kingdom was deteriorating. In such a state of political instability, King Mahendra tried to control the situation of the country in his own way. He constituted an Advisory Board under his leadership and started to rule the country. He enacted and promulgated the constitution of the kingdom of Nepal on February 12, 1959. After ruling the country for 17 years, King Mahendra died at Diyalo Bangalow in Chitwan, on 31st January 1972. 102 John Whelpton. “A History of Nepal". Cambridge University Press: (2005).p.2. 103 Michael Hutt. "Himalayan People's War: Nepal's Maoist Rebellion". Indiana University Press: (2004).p.3. 104 Supra Note 5, p. 4. 105 Bhuwan Chandra Upreti. "Nepal: Transition to Democratic Republican State: 2008 Constituent Assembly". Kalpaz Publications, Delhi:(2010).p.11. 36 republic. They picked up several outstanding issues that the successive governments in Nepal were not able to address, and organized their movement on the strength of it.106

In June 2001, King Birendra, Queen Aishwarya and other royal family members were killed in shooting while they were attending their customary monthly gathering at Narayanhiti Palace in

Kathmandu. In June 4, Crown Prince Dipendra, who had been crowned the King while in coma, died and this lead to the crowning of his uncle Prince Gyanendra as the next King of Nepal.107 Meanwhile

Maoist rebels stepped up their violent activities. In 1 February 2005, the king Gyanendra sacked

Prime Minister Sher Bahadur Deuba and took power directly and declared a state of emergency. He formed the puppet government from the people those who were close to the palace. This government was highly centralized with all power residing in the Palace.108 King Gyanendra suspended key parts of the constitution109 when he declared a state of emergency. There were currently no effective constitutional limit to his powers, and all civil liberties had been suspended.110 In April 2006, the parties’ gathered strength and demonstrated against the King’s direct rule. The King’s government used excessive force in efforts to suppress the protest.111 Although security forces resorted to excessive force to quell the demonstrations, even firing on unarmed protesters, Gyanendra was forced to give up his absolute power in April 24.112 In November 2006, the parties signed the comprehensive peace Agreement, consolidating earlier agreements and understandings, and declared

106 Bipin Adhikai. "Building Capacity of National Human Rights Institutions: The Case of Nepal". Right to Education Foundation (RTEF): 2004. p. 13. 107 Ibid. 108 International Crisis Group, Nepal’s Royal Coup: Making a Bad Situation Worse. ASIA Report. No 91. 9 February 2005. p.1-2. 109 The key rights that were suspended were; Article 12(2) a: Freedom of opinion and expression; Article 12(2) b: Freedom to assemble peaceably and with out arms; Article 12(2) c: Freedom to form unions and association; Article 13(1): Press and publication rights; Article 15: Right against preventive detention; Article 16: Right to information; Article 22: Right to privacy; Article 23: Right to a constitutional remedy of 1990 constitution of Nepal. 110 International Crisis Group, "Nepal's Royal Coup: Making a Bad Situation Worse". Asia Report. No 91. 9 February 2005. p.3. 111 Amnesty International. Annual Report 2007, Nepal. 112 Supra Note 32, p.13. 37 an end to the war.113 Despite the peace process and recent generally peaceful constituent Assembly elections on April 2008, political tensions are not far below the surface. Major issues remain unsolved yet. Still, the country is facing small wars waged by various ethnic groups.

A Short note on Conflict

It is difficult to conceive of a human community where there is no conflict among members or between persons in the community and outsiders.114 Conflict is a normal part of life for all people both in developed and developing societies. There have never been societies without conflict.

Conflict like all human interactions, can be perceived as a state of opposition and the projection of contesting viewpoints between individuals, groups and institutions. Conflict occurs within human relationship. It is a manifestation of human nature representing combative expressions. It is embedded in relations at the individual, interpersonal, organizational, community, national and international levels; and includes psychological, socio-cultural, spiritual, political, historical, and economic dimensions.115

Acknowledging the existence of conflict as a fact of life many scholarly books and articles were written in the past to understand conflict and its situation. It is hard to find unified and coherent understandings of conflict situations and their solutions. Revolutionary philosophy of social transformation considers conflict as an inevitable process of social change. Social change, according to this view, amounts to the change in existing production relations so that glaring inequality

113 Supra Note 11. 114 Marc Howard Ross. "A Cross-Cultural Theory of Political Conflict and Violence". Political Psychology, Vol. 7, No. 3 (Sep., 1986), p. 428. 115 Dev Raj Dahal,. “Conflict Resolution, A Note on some Contending Approaches” in “Conflict Resolution and Governance in Nepal” eds. Ananda Prasad Srestha and Hari Uprety. Nepal Foundation for Advance Studies (NEFAS): 2003. p. 9. 38 between those who own the means of production and those who do not is ended.116 Anthropologists argued that conflict is deeply rooted in primitive customs and cultures that have integrative functions. The theory of evolution talks about the struggle for existence and survival for the fittest.

Political philosophers considered conflict as the essential aspect of the social and political life. They argued that conflict occurs due to the competition on power, privilege and authority. Sociologists have identified conflict into two categories- exogenous (without or between systems) and endogenous (within a society). Pathak defines exogenous conflict and endogenous conflict in this way:

The exogenous conflict normally develops into war between two systems, cultural invasion, adherence (westernization, and modernization etc.), and ideological adherence (feudalism, capitalism, communism, democracy, fundamentalism, radical determinism etc.). The endogenous conflict tends to a struggle over distribution of desirables (social rewards such as wealth, power, and prestige with in a society), adherence to values (cumulative effects of technological innovation, environmental crisis, generation gap, etc.), consolidation of authority (supremacy of those giving orders over those who take them), and preponderance of the individual upon society (conflict between interests, needs, and values).117

In the latter half of the 20th century, world events were very much overshadowed by the cold war struggle between the superpowers. In the shadow of this conflict, several intra-state conflicts had continued for decades, some of which were directly related to the superpower as well as neighborhood interests as well. After the end of the cold war in 1990s, the attention of the world finally fell upon these protracted conflicts, along with new conflicts that had arisen in the former

Soviet Union, Sri Lanka, Bosnia, Rwanda and Burundi, and recently Nepal is also one such example.118 Only the 1990s have witnessed violent confrontation in Bosnia, Chechnya and elsewhere. Over one-half million people were killed in Rwanda in three months in 1994. The

116 Informal Sector Service Center. Human Right Year Book. Katmandu, Nepal: (2001). p.3. 117 Supra Note 5, p. 8. 118 Niraj Dawadi. “The Conflict and the Peace Process in Guatemala Lessons for Nepal” in “Conflict, Human Rights and Peace Challenges before Nepal” ed. Bipin Adhikari. National Human Rights Commission: (2003). p.227. 39 twentieth century proved to be the most violent and destructive in all human history, with armed conflict taking the lives of over 100 millions people, and political violence responsible for 170 millions more deaths.119 In the essay “Theory, Research, and Practice” Kevin Clements along with editors argued:

As we reflect upon human conflict of the twentieth century we know it to be bloodiest epoch of all human civilizations. The barbarism that characterizes the past hundred years is greater than any that afflicted earlier times. Two major world wars decimated millions, and over 150 smaller wars fought in more than seventy-five countries resulted in even more deaths and destruction. The most recent conflicts are primarily internal and over 90 per cent of the casualties are civilians.120

The end of the Cold War has encouraged many scholars to outline emerging conflicts in post bipolar Landscapes. Many scholars argued that conflict evoked due to the clash of civilizations.

They argued that in the post-Cold War world the most important causes of conflicts are not ideological, political, or economic but cultural. Among them Samuel P. Huntington is one. His clash of civilizations theory attracted the attention of the world. Andrej Tusicisny in his paper

'Civilizational Conflicts: More Frequent, Longer, and Bloodier?' discussed about the Huntington's theory of clash of civilizations. He noted that:

Huntington believes that a civilizational paradigm thus sets forth a relatively simple but not too simple map for understanding what is going on in the world as the twentieth century ends […] Inter-civilizational conflicts are more frequent during the post-Cold War period than during the Cold War period [...] Nation states will remain the most powerful actors in world affairs, but the principal conflicts of global politics will occur between nations and groups of different civilizations. The clash of civilizations will dominate global politics. The fault lines between civilizations will be he battle lines of the future [...] Conflict between groups in different civilizations will be more frequent, more sustained and more violent than conflicts between groups in the same civilization.121

119 Supra Note 116. 120 The Editors with Kevin Clements. “Theory, Research, and Practice” in “Conflict” eds. Sandra Cheldelin. et al. Continuum International Publishing Groups: (2003). p.9. 121 Andrej Tusicisny. "Civilizational Conflicts: More Frequent, Longer, and Bloodier?" Journal of Peace Research, Vol. 41, No. 4 (Jul., 2004), p. 485-486. 40 Conflict mostly originates from the exploitative system that provides for a few to accumulate wealth, and leaves many to starve to death. It comes in place between the oppressor and the oppressed, between the rich and the poor, between those who have access to state mechanism and those deprived of it.122 In Marx's theory, conflict between the classes arises out of a clash of interests over the ownership of the means of production.123Pathak defines Marx theory of conflict in this way:

Kark Heinrich Marx (1818-1883) is undoubtedly the leading architect of conflict theory. He put forward an alternative perspective, class struggle, as a basic structural phenomenon of human society. Considering conflict as an inherent and integral part of human behavior and social interaction, Marxian theory states that human survival is based upon contradictions [...] He put forward that there is constant conflict between the two principal groups (economic classes) of owners and workers. The central concept of Marx is that 'owners exploit workers' to control the means of production. Political power is exercised through the gains of economic power. An economic power control society and social control is associated with the interests of particular groups or classes […] Class are one of the major factors of conflict in society.124

While Marx's ideas mainly focus on the economic sphere, later sociologists such as Georg

Simmel expanded the frontier of conflict theory. Simmel believes that conflict is an integral part of any society, from marriage to interstate war. It emerges out of hostile instincts rooted in the innate biological makeup of human beings. He thinks that conflict can also be functional, in that it promotes group solidarity.125

Some scholars argued that conflict is an integral aspect of political life. It involves efforts of two or more mutually opposed parties to obtain scarce resources at each other's expense through destroying, injuring, thwarting, or otherwise controlling other parties. Political scientists argued that causes such as dysfunctional impact of adversarial politics, political mal-administration, corrupt leadership, and excessive centralization of power, systematic deprivation of people from

122 Supra Note 116. 123 Joseph Lopreato. "Authority Relations and Class Conflict". Social Forces, Vol. 47, No. 1 (Sep., 1968), p. 70. 124 Supra Note 5, p. 9. 125 Supra Note 115, p. 10. 41 participatory opportunities, marginalization, injustice, high inequality, discrimination, excessive exploitation, domination, suppression and resistance against these factors constitutes a major source of political tensions and conflicts.126

A large body of literature indicates that widespread conflict is a universal and permanently recurring phenomenon within and between societies. In the light of relevant literature and experiences, conclusion can be drawn that conflict is a part of social life and it functions as a social process for development. It occurs due to human behavior, values and interests and it has become an integral part of human existence. Human behavior can be considered as a central, inherent, and integral factor of conflict. Conflict can be examined at all levels in different groups, social organizations, social classes, cultural systems, political and religious movements, ethnic entities, alliances etc.

A Historical overview of the Armed Struggles in Nepal

The revolt of Lakhan Thapa can be taken as the first armed uprising in the history of Nepal. In April 1876, Lakhan Thapa, and some other youths in Gorkha, Bungkot had begun to organize themselves against the Rana Prime minister Jung Bahadur, who had wrested power after the bloody coup of kotparva in 1846. Lakhan Thapa and his friends had organized themselves in various villages and collected some weapons. When the Rana regime heard of this, Lakhan Thapa and his six other friends were arrested and brought in bamboo cages to Kathmandu. Some time later, Lakhan Thapa and two of his associates, Aja singh and Achhami Magar, were sent back to Gorkha on the orders of Jung Bahadur. They were hanged from a tree outside the famous Manakamana Temple in Gorkha. Lakhan Thapa is regarded as the first martyr in the political history of Nepal. His revolt was spontaneous, and his courage in standing up in arms against Jung Bahadur cannot be underestimated.127

As argued by the INSEC, the armed conflict of Nepal traced its origin back to the revolt of

Lakhan Thapa against the established rule of Rana authorities128. This revolt clearly indicate that the

126 Ibid.,p.11. 127 Informal Sector Service Center. Human Right Year Book. Katmandu, Nepal: (1996). p.83. 128 The Rana dynasty ruled the kingdom of Nepal from 1846 until 1953, reducing the shah monarch to a figurehead and making Prime Minister and other government positions hereditary. It is descended from one Bal Narsingh Kunwar of 42 people were gradually becoming conscious of the tyrannical rule of the Ranas and a revolutionary thinking was developing aimed at abolishing the Rana autocracy and the establishment of democracy in the country.129

After the rebellion of Lakhan Thapa, and excluding numerous conflicts over power, killings and petty rivalries with in the palaces, the movement of 1951 stands out as the first case of armed uprising of the people against the ruler and their system. The Nepali Congress Party130 formally decided to wage an armed struggle against the Rana regime. They were assisted in no uncertain terms by the reigning monarch king Tribhuvan. This was the organized and planned struggle against an autocratic regime and for democracy in Nepal.131 In the book “Paradise Lost?: State Failure in

Nepal, Ali and Basu argued that:

With the British Departure from India (19 August 1947), the Rana regime lost its most powerful foreign sponsor. The Nepali Congress decided to use this as an opportunity to step up their action against the Rana regime. It is not surprising that from the late 1940s with the coming of Indian independence, the Nepali Congress further stepped up their political activities against the Rana regime through violent insurgency. In November 1950, this culminated into a rebellion. Communists extended Lukewarm support to the movement as they suspected that the intention of the struggle was to restrict communist influence in Nepal […] The struggle took a dramatic turn when reigning Nepali monarch Tribhuvan shah, a mere figurehead, escaped from Rana control and took shelter in Delhi.132

Kaski, who moved to Gorkha in the early 18th century and entered the service of Raja Nara Bhupal Shah around 1740. Originally, the Rana dynasty hails from the Sisodiya Rajput Royal family of Chittor now Udaipur in India, capital of the Mewar region. Jang Bahadur was the first ruler from this dynasty. His original family name was Rana but in Nepal people mistook his Rajput title of Kunwar for his family name, Kunwar is a title denoting royal lineage used by Rajput princes in northern India. Rana rulers were titled "Shri Teen" and "Maharaja", whereas Shah Kings were "Shri Panch" and "Maharajdiraj". Both the Rana dynasty and Shah Dynasty are Rajput caste in the Hindu tradition, in contrast with the native Himalayan culture which is largely Buddhist and Bön. 129 Upreti, Bhuwan Chandra. “Maoist in Nepal: From Insurgency to Political Mainstream”. Kalpaz Publications, Delhi: (2008).p. 13. 130 The Nepali Congress is a Nepalese political party. This is a reform-oriented centrist party and has been in continuous operation since it was founded as the Nepali National Congress in 1947. The Nepali Congress led the 1950 Democratic Movement which successfully ended the Rana dynasty and allowed commoners to take part in the polity. It again led a democratic movement in 1990, in partnership with leftist forces, to end monarchy and reinstate parliamentary democracy. 131 Ali Riaz and Subho Basu. Paradise Lost?: State Failure in Nepal. Lexington Books: (2007). p. 3. 132 Ibid. p. 40. 43 Although the rebels were disciplined, their lack of expertise in warfare and firearms, shortage of weapons and lack of facilities for training hindered them. Despite this the armed uprising from the people’s side managed to overthrow the century old Rana rule in 1951.133 In this regard Ali and Basu further argued that:

The King’s departure led to far more violent insurgency. Rebels from India launched attacks on the army in Tarai plains on the Indian borders. Though rebels captured towns in Tarai they had to retreat in the face of counterattacks by the army. However, military confrontations of political uprising began in hills. Towns of the hills witnessed massive demonstration […] meanwhile, following classic guerilla tactics insurgents infiltrated into the remote hill areas of the west and east. In these hilly terrains conventional army operation proved to be difficult. Soon political turmoil took it’s on the army. Local commander now opposed the government moves. A series of regions slipped out of government control. By the end of January 1951, towns such as Palpa, Pokhara, and even parts of Gorkha district fell into rebel hands. By this time, low-level military officials resigned their commissions in protest, and troops were beginning to surrender to the rebels.134

After the ushering in democracy in 1951, the monarchy and Nepali Congress continued to share political power. In 1959, the first parliamentary election was held and by winning a two third majority in the parliament, the Nepali Congress formed the government under the Prime minister ship of BP Koirala. However, taking advantage of the short sighted policies of the Nepali Congress and the increasing instability in the country, King Mahendra dissolved the government as well as parliament and imposed the party less Panchayati system in 1960.135 The king appointed a commission to draw up a new constitution. In 1962 King introduced a new constitution. Under the new constitution, the political parties were banned, the leaders of the main political parties were arrested and those not arrested went into exile in India.136 According to the Human Rights Year

Book (1996) of INSEC:

133 Supra Note 127, p. 85. 134 Supra Note 131, p. 41. 135 Supra Note 127, p. 85. 136 Supra Note 131, p. 44. 44 After the imposition of the panchayati regime, a rebel organization named ‘Armed Rebels Gorkha’ with 15 members was formed under the leadership of Tek bahadur Gurung. He had been involved in the incident at Bharatpur, Chitwan in 1961. The rebel organization and army exchanged fire for eight hours at Chitwan Dhori in 1961. Tika Dutta Thapaliya, who had brought weapons from abroad and had engaged in battles against the army and evaded capture, was killed in the battle. Several other people were also killed in the armed uprising of 1961 in various other parts of the country […] in 1962, an armed rebel group of almost 100 men proceeded from pithauragadh to Bajhang with the objective of liberating Bajhang. The group named ‘Guerrillas of Nepali Congress’ was led by Omjung of Bajhang. All the members in the group had a 303 rifle each. When the group reached the Bitthad Lek on the border of Bajhang, it was surrounded by army. Altogether, 11 rebels were killed. Five others who had been caught were killed at a place called Kathpate in Baitadi on 30 October 1962, while they were being taken to Dhangadi137

In 1971, the Nepali Communists138 launched a violent movement for the first time.

Influenced by the Naxalite139 movement in West Bengal, India, the Jhapalis140 killed several ‘Class enemies’ (Feudal ‘landlords).141 Under a policy of ‘One area, one unit, one action’, groups armed with guns, spears, and khukuris142 started attacking the landlords. The poor and downtrodden people, who had been exploited for centuries by the landlords, were involved in the uprising following the increase in political consciousness among them. Deepak Thapa in his essay “Radicalism and the

Emergence of the Maoist” argued that:

The actual communist uprising took place in the south-eastern district of Jhapa. This was inspired by a violent Maoist uprising led by extremists within the Communist Party of India (Marxist), which broke out in 1967 in the Naxalbari region of North Bengal, just across the border, and was also influenced by the ongoing Cultural Revolution in China. The Jhapa rebellion was initiated by a decision taken by the Jhapa District Committee of the East Kosi Coordination Committee on 22 April 1971 […] According to one of the leaders of the Jhapa 137 Supra Note 127, p. 85-86. 138 Communist party is founded in 1949 in Culcutta, India. Since the establishment of Communist party it has gone through many ups and down, personality clashes, splits, reunions, mergers, and at present the mainstream left is represented by Communist party of Nepal (Maoist) together with Communist party of Nepal (United Marxist- Leninist) and at least half a dozen others small Communist groups. 139 “Naxalite” was a Communist movement in India inspired by the success of the Mao in China. This movement was started in 1967 in a place called Naxalbari, about 15 KM east from the eastern boarder of Nepal. The movement was soon suppressed by the Indian Government but its residue still exists in various parts of India. Some young Communists of Nepal copied the same action in Jhapa district of Nepal in early 1970s. 140 Jhapalis means people from Jhapa district of Nepal that situated in far-eastern part of a Country. 141 Mahendra Lawoti. “Towards the Democratic Nepal: Inclusive Political Situations for a Multicultural Society”.Sage Publication, India Pvt. Ltd. (2005). p. 41. 142 ‘Khukuri’ is a Nepalese curve knife. 45 movement, Radha Krishna Mainali, “The situation of exploitation by feudal elements was such that our movement could not but be violent”. A sum total seven ‘Class enemies’ had been killed by the time the movement came to an end.”143

The Nepali Congress again embarked on the armed struggle against the Panchayat which continued till 1975. On August 1972, a group of young activist associated with the Nepali Congress attacked the Haripur police post. During King Birendra’s144 visit to Biratnagar, a bomb was thrown at him on 14 March 1975. Although the King was unhurt, several other people were injured.145

Janabadi Morcha146 detonated bombs at the gate of the Royal Palace, inside the Rastriya panchayat147 building, and several other places in the capital on 20, June 1985.148

The Nepalese people had to take up arms to overthrow the century-old Rana regime.

However, the 30- years old Panchayat rule collapsed without the people having to resort to violent means through the 56 days long people’s movement. David N. Gellner in his book “Resistance and the State: Nepalese Experiences” wrote that:

As the international situation become favorable, the banned Congress and Communist parties joined together in 1990 for a programme of popular protest. The regime collapsed far more quickly than the opposition leaders had believed possible. The king invited an interim government to stand in until a new constitution could be drawn up and election held. The new constitution was ratified in November 1990 and vested sovereignty with ‘the people’.149

143 Deepak Thapa. “Radicalism and Emergence of the Maoist” in Himalayan ‘People’s War Nepal’s Maoist Rebellion, Ed by Michael Hutt. C. Hurts and co. ltd. (2004). p. 32-33. 144 Birendra Bir Bikram Shah Dev (28 December 1945 – 1 June 2001) was a King of Nepal. The son of King Mahendra, whom he succeeded in 1972, he reigned until his death in the 2001 Nepalese royal massacre. He is the most internationally well-known Nepalese king in modern history. He was the first Nepalese monarch to receive a formal education. He and most of his family including Queen Aiswarya were massacred at a royal dinner on 1 June 2001. 145 Supra Note 127, p. 87. 146 Janabadi Morcha is founded in 1976. It is a leftwing political movement in Nepal. It is led by Ram Raja Prasad Singh. Now, it plays little importance in national politics. 147 Rastriya Panchayat means National Council. At the time, the Rastriya Panchayat had 125 members; out of them 16 were appointed by the King, 90 were elected by Zonal Assemblies, 15 were elected by class organizations and 4 were elected by the graduates’ constituency. 148 Supra Note 127, p. 88. 149 David N Gellner. “Resistance and the State: Nepalese Experiences". Berghahn Books: (2007). p. 13. 46 In a way, the revolution took place and the Panchayat regime fell in 1990. An interim government was established and committed itself to the introduction of multi-party democracy and finally, the King for so long an absolute ruler, freely handed over his powers and became a constitutional monarch. The People’s Movement for the restoration of democracy in 1990, the violent conflict since the declaration of People’s War by Communist Party of Nepal (Maoist) in

February 1996 and the Royal Palace Massacre150 of June 2001 were such eruption in the recent history of Nepal.151 The People’s War took place between the times 1996 to 2006 and claimed more than 13,000 people, including a large number of women, children, unarmed civilians and other innocent lives. The main objectives of the insurgents were to abolish the monarchy, establish a

People’s Republic and elect a constituent assembly to draft a new constitution for the country. After signing a Comprehensive Peace Agreement between government and Maoists in 2006, the insurgency was concluded.

Genesis of People’s War in Nepal

Several scholarly debates and analysis were conducted in the past to understand the genesis of the decade long People’s War in Nepal. Given importance of crisis to armed conflict, the exploration of its underlying causes and its origin has become a subject of interest to many scholars in Nepal and beyond.

150 The entire Royal Family of King Birendra was murdered on June 1, 2001, under mysterious circumstances while they were attending their customary monthly gathering at the Narayanhiti Palace in Kathmandu. Of the twenty-one guest, king Birendra, his wife, Aishwarya, their younger son Nirajan and their only daughter Shruti, were all pronounced dead at the Birendra Military Hospital shortly after the incident. Their other son, Crown Prince Dipendra was declared dead on 4 June. 151 Shambhu R Simkhada with Daniel Warner and Fabio Oliva. “Causes of Internal Conflicts and Means to Resolve Them: Nepal a Case Study”. PSIO Occasional paper No. 3/2004, Graduate Institute of International Studies (HEI), Geneva. p.9. 47 Many scholars have argued that the root cause of PW set up after April 1990, when democracy was first installed in Nepal, failed to include all sections of Nepali society.152 Many of them agreed that the socio-political and ethnic issues in Nepal were the main problem which made

Nepal very vulnerable to Communist insurgency. They argued that the policy of state to exclude various minorities, castes and communities including the Maoists in the nation-building process, especially in the constitution making process after 1990, led to the origin of Maoist insurgency.153

After the restoration of democracy in 1990, the government was mandated to adopt and implement policies which, among others, promote people's welfare, human rights and self-reliance in national economy, remove social and economic inequalities among different caste, ethnic, religious, linguistic and community groups, and disallow class-based and other economic exploitation.154 But the government failed to address social exclusion, inequality, poverty and in the distribution of resources. In the essay "Locating the Structural Causes of the Maoist Struggle", Chaitanya Mishra argued:

Ethnic, religious, linguistic and regionalist dominance have more recently come to be regarded as a particularly salient cause of the Maoist struggle. The "ethnic cause", to a significant extent, encompasses linguistic, regional and religious causes as well, although the overlap is far from perfect. The dominance of upper-caste groups, which has also translated as the dominance of Hindu religion over those belonging to the Buddhist, animist, Islamic, Christian and other faiths, the dominance of the Nepali language over other languages—and the privilege enjoyed by Nepali speakers over the speakers of the other languages-and the dominance of the dwellers of the Hills region over those in the Tarai has a long history. These patterns of dominance have also been resisted, including, sporadically, in an organized manner. This dominance, among others, has also been expressed in questions of identity as well as access to education, public and political office and citizenship. The current resistance, while set in the backdrop of this historical dominance, also constitutes a resistance against specific features of the 1990 constitution.155

152 Supra Note 14, p. 395. 153 Supra Note 141, p. 1- 15. 154 Chaitanya Mishra. “Locating the Structural Causes” of the Maoist Struggle” in Simkhada, Shambhu R. and Oliva, Fabio: (2006). The Maoist Insurgency in Nepal: A Monograph, Geneva: The Graduate Institute of International Studies. p.20. 155 Ibid., p.38. 48 Instead of addressing the problems, in all those years, administrative carelessness, corruption, impunity, and so many other social evils had existed within the country as a consequence of bad governance. The government and the political parties were concentrated on their own welfare, rather than addressing the problems that had arise in the country. Sambhu Ram shimkhada in the essay "A

Vision of Democracy, Peace and Prosperity Amidst the environment of Death, Destruction and

Despair" wrote that:

Those living in discrimination, deprivation and destitution for centuries and expecting radical change were disappointed. Beneficiaries of the past were naturally unhappy. The new elite sought the immediate and automatic social and economic dividend of political change. As a result as soon as they reached positions of power some indulged in massive corruption as a reward for their sacrifice for democracy. The ones that did not get the share were disenchanted and became the enemy within. The result is the current crises where Nepal's young democracy and those who believe in positive and peaceful transformation – evolution through a revolution – are becoming casualties.156

People were expecting positive reforms and better policies for all the communities and groups from the political parties and a democratic government. Alas, nothing of this sort happened.

People’s participation in development and social process became a neglected issue. People were disappointed and their belief towards political parties and government gradually decreased. A leading human rights organization in Nepal, INSEC argued that:

Although the people have acquired political rights, they remain deprived of economic, social, and cultural rights even after seven years of the reinstatement of democracy. It seems that cynicism has crept in, ideals and moral values have eroded, and self centred and comfort- seeking attitude are becoming predominant in politics. Along with the polluting of national politics, social life is becoming chaotic due to inflation, insecurity, and increasing number of crimes. […] The people have been unable to gain any concrete benefit, while the parties and the government remain indifferent to the problems of the people. The leaders and activists of the political parties, upon attaining power, have become intoxicated with it; and political intolerance against those with differing viewpoints has developed. The local administrative machinery has been influenced and encouraged to suppress opposing voices. The

156 Sambhu Ram Shimkhada. "A Vision of Democracy, Peace and Prosperity Amidst the environment of Death, Destruction and Despair" in Simkhada, Shambhu R. and Oliva, Fabio: (2006) The Maoist Insurgency in Nepal: A Monograph, Geneva: The Graduate Institute of International Studies. p.212. 49 undemocratic attitude to win at all cost has been practiced and fostered in the elections. All these issues have degraded politics and the political actors in the eyes of the people.157

Large parts of society remained excluded from the political sphere, economic opportunity

and development resources. While the traditionally oppressed and marginalized social groups-

women, the ethnic groups or Janajatis (Indigenous identities) and the ‘untouchable’ castes or Dalit

were now able to express themselves and to organize against feudal, caste and patriarchal norms and

networks of a societies. In this condition the Maoists capitalized on a growing and wide-spread sense

of injustice felt by the people and included the gender- ethical and caste based disparities in their

political agenda.158 They received considerable support in rural areas, especially from women and

excluded caste and ethnic groups, and expanded rapidly.

Other scholars, such as Bishnu pathak, offer an alternative analysis. According to him the

Maoist insurgency was erupted as the result of deep-rooted grievances of marginalized Communist

groups in a country. In his book 'Politics of People's War and Human Rights in Nepal', Pathak

argued that:

When the panchayat government suppressed the armed communist movement in the eastern and central regions, it shifted towards the hills and mountains in the mid-western regions, especially Rolpa, Rukum, and Pyuthan districts. Several times, the Panchayati government tried to eliminate the communist ideologues and activists through the state machineries. But the repressed communists finally appeared in the forefront as a strong force after the restoration of democracy.159

After the restoration of democracy, seven small communist parties were constituted together

on 15 January, 1990 to make a legitimate left front to participate in the forthcoming general election

of 1991 and named United People's Front of Nepal (UPF).160 As noted above by the Bishnu pathak,

157 Supra Note 127, p. 89. 158 Barbara Weyermann. The vicissitudes of empowerment in conflict-affected Nepal. TRN Conference, St.Moritz, 14 – 17 September 2006. P. 3. http://www.traumaresearch.net. 159 Supra Note 5, p. 94. 160 Supra Note 129, p. 20. 50 the repressed UPF had appeared as a strong force in the political horizon in Nepal. In the

parliamentary election of 1991, one of the factions of the UPF won nine seats in parliament,

becoming the third largest party. However, the ruling party, Nepali Congress (NC) tried to wipe out

the UPF in its stronghold areas in the mid-western Development Region using state power and

resources.161 NC party used both politics and power to annihilate the UPF members and activists.

Under operation Romeo, the state used local administration and police to suppress the members of

UPF and their supporters. As a result, ordinary people did not feel secure, even though democracy

had been reinstated in the widely acknowledged political change of 1990. The excessive and

unlawful acts of the police under operation Romeo terrorized the local people.162 Pathak wrote:

The UPF strongly denounced such unconstitutional and unethical moves of the NC. Instead of hearing their voices, the state launched political repression misusing the state machineries on the instigation of local leaders of NC. Hundreds of workers of UPF were implicated in fake cases of killings and so forth. As a result, hundreds of UPF activists were arrested and dozens were kidnapped. Besides that, many incidents of arbitrary arrest, torture, incommunicado detentions, disappearances, and cruel, inhumane and degrading treatment occurred during that period.163

Violent repression through police operations in those districts where the UPF enjoyed

widespread popular support by the ruling political party NC further deteriorated the condition. Many

innocent people were criminalized, imprisoned, tortured, raped, and humiliated. Many of them were

compelled to leave their villages. The UPF had demanded the dismissal of the Chief District Officer

(CDO) of Rolpa. Thus, the action taken by the government against UPF workers agitated them and

they were compelled to take arms against the government.164 Pathak further argued:

161 Bishnu raj Upreti. "A Decade of Armed Conflict and Livelihood Insecurity in Nepal" in Bishnu raj Upreti and Ulrike Muller Boker: (2010), Livelihood, Insecurity and Social Conflict in Nepal. South Asia Regional Coordination Office, Swiss national Centre of Competence in Research (NCCR), North-South Kathmandu. p. 17. 162 Ibid. 163 Supra Note 5, p. 94. 164 Bhuwan Chandra Upreti. “The Maoist Insurgency in Nepal: nature, Growth and Impact. South Asian Survey, July 24, 2006. p. 42. Also available at http:// sas.sagepub.com/content/13/1/35.refs.htm/ 51 In October 1993, when UPF leader Dr. Baburam Bhattrai along with his team members went to Rolpa to inspect the prevailing circumstances of the district and villages, they were attacked by NC workers armed with khukuries and pistols under the protection of police. When they visited the Chief District Officer Abdul Rais Khan to request for their security and to meet their comrades in jail, they were severely threatened by him. He showed them the outdated Act and announced his authority to arrest anybody he desired. Against such state terror, atrocities, and oppression, Dr. Baburam Bhattrai and his subordinates handed over a memorandum to the Home Minister Khum bahadur Khadka on November 2, 1993, protesting against the illegal activities of the CDO and asking the state to take necessary action against him.165

Explaining the bitter situation of Rolpa, the UPF leaders reiterated the need to ensure equal

justice to all by respecting the norms, values, and principles of democracy, human rights, and spirit

of the constitution of Nepal. Indeed, the atrocities, oppressions, discriminations, exclusions,

injustices, and inequalities played a very significant role in eventually launching the People’s War in

Nepal.166

Some scholars argued that the road to People’s War in Nepal began with the split in the UPF

and the consolidation of the extremist Maoist forces in the subsequent years both ideologically and

organizationally. The split fraction of the UPF formed the Communist Party of Nepal Unity centre

(hereinafter simply UC). After the formation of CPN Unity centre by hardcore communist,

Prachanda167 became General Secretary of the party. Later, Baburam Bhattrai also joined it. UC was

a revolutionary political forum. It had serious objections to the constitution making process. But

gradually, the UC lost its interest in the constitutional-democratic process and turned into a hardcore

violent organization by 1995.168 Bhuwan Chandra Upreti in his book “Maoist in Nepal:From

Insurgency to Political Mainstream” argued that:

165 Supra Note 5, p. 94. 166 Ibid., p. 96. 167 Pushpa Kamal Dahal alias Prachanda, a former guerrilla leader is the Chairman of the Unified Communist Party of Nepal (Maoist). Under his leadership, the CPN (M) launched an insurgency on 13 February 1996, in which about 13,000 people died. Prachanda's extension of Marxism-Leninism-Maoism to take specific account of Nepal's situation is known as the Prachanda Path. 168 Supra Note 129, pp. 20-21. 52 In the first Congress of the Unity Centre held in December 1991, it was agreed to follow the ideology of Marxism-Leninism-Maoism. The party also decided to launch protracted war from the rural areas by following the Chinese model of rural to urban insurrection. […] In 1994, CPN (Maoist) finally decided to abandon all its democratic political activities. It got membership of the Revolutionary Internationalist Movement (RIM). In September 1995 the party took its historical decision to wage a protracted war in the near future. It selected the western hill districts of Rolapa and Rukum as its main areas of activities and began to prepare for a guerrilla war against the Nepali State.169

According to the Riaz and Basu, on 4 February 1996, Baburam Bhattrai, the leader of the

UPF, submitted a forty-point memorandum to prime minister Sher Bahadur Deuba in accordance

with their plan. The demands list submitted by Baburam Bhattrai was a rehash of the election

manifesto of the UPF in the 1991 general election. In many ways, these demands were also those of

the broad spectrum of leftist political activists in Nepal and thus Maoists could create a wide-ranging

program through which they could communicate their ideas to ordinary citizens.170 Michael Hutt

argued that the forty-point demand was for an end to the intrusion into Nepal and domination of

foreign elements; for a secular state free of all discrimination and oppression with the monarchy

stripped of its privileges; and for a wider range of welfare provisions and social and economic

reforms. 171 Harka Gurung classified the 40-point Maoist demands into four specific dimensions.

Table 1: Classification of the 40-point Maoist Demand (February 1996)172

Nationalism Political

169 Ibid. 170 Supra Note 131, p. 133. 171 Supra Note 103, p. 5. 172 Reproduced from Harka Gurung, "Nepal: Maoist Insurgency and indigenous People", Nepali Journal of contemporary Studies, Vol.3, No.2 September 2003. p.8. 53 1. Abrogation of 1950 Treaty 10. Republican constitution 2. Abrogation of Mahakali Treaty 11. End royal privileges 3. Border regulation 12. Civil authority over army 4. Discontinue Gurkha 13. Repeal repressive regulations recruitment 14. Release prisoners 5. Introduce work permit system 15. End state terrorism 8. End imperialistic hegemony 16. Enquiry on actions against Maoists 17. Recognition to martyrs and penalty to perpetrators 20. Ethnic autonomy 23. Freedom of speech 24. Freedom of thought 25. Regional devolution 26. Local governance Social Economic 18. Secular state 6. End capital aggrandizement 19. Equality to women 7. Self-relief economy 20. End ethnic oppression 27. Land to the tiller 21. Abolish untouchability 28. Nationalization of dubious 22. Equality of languages property 35. Access to education and 29. Employment generation health services 30. Set minimum wage 40. Protection of the disabled 31. Resettle squatting 32. Debt relief, credit provision 33. Cheap inputs, fair price for agricultural products 36. Control prices 37. Provide road, electricity, water supply to rural areas 38. Promote cottage industries 39. Control corruption

When Baburam Bhattrai submitted these forty-point demands to the Prime Minister Deuba, he warned that if appropriate steps were not taken to meet these demands before 17 February, his party would declare People’s War against the existing state power. But, Sher Bahadur Deuba ignored 54 these demands and went on an official tour to India.173 The Maoists read this as a sign that their

forty-point demand had been ignored and initiated the armed conflict.174

When the deadline for the 40-point demand was over, with the slogan, “Our struggle is a part

of the world wide proletarian revolution to end forever the exploitation, suffering and wars being

inflicted by humans on humans”, the Communist Party of Nepal (Maoist) declared a People’s War

on 13, February 1996 in Nepal.175 In the view of many scholars, the emergence of such a movement

and the degree of support it had enjoyed reflects the growing mood of resentment and unrest across

the country.

The Chronological Context of the People's war in Nepal (1996-2006)

Adhering to the politico-ideology of Marxism, the practices of Lenin, and the military

strategy and tactics of guerrilla warfare of Mao primarily and those of Che Guevara as well, the

Nepal Communist party (Maoist) started the People's war in Nepal.176 The People’s War in Nepal

formally began on February 13, 1996, with attacks on various police posts, which was four days

before the expiration of their 40 points demand with the current government.177 In the war that lasted

over ten years, over 13,000 people were killed, tens of thousands of people were displaced, and the

civilian population was caught in the middle of a brutal war.178

173 Supra Note 131, p. 133. 174 Supra Note 7, p.11. 175 Supra Note 127, p. 83. 176 Supra Note 5, p. 19. 177 Timothy R Kreuttner. “The Maoist Insurgency in Nepal and US Counterinsurgency Doctrine. Small wars Journal: (2009).p.3. 178 Supra Note 7, p.1. 55 Prior to launching a guerrilla war against the state, the Maoists, began a political campaign

termed “Sija”179 to mobilize party members to publicize the ideology of Marxism-Leninism-

Maoism. The Maoists, during this political campaign as part of political-ideological readying

process, clashed with the cadres of other parties, mainly with the Nepali Congress in regional

carnival in the eastern part of Rolpa District in October 1995. The then Nepali Congress government

immediately resorted to infamous police crackdown coded as “Operation Romeo” leading to

inhuman action against the local population in the nature of random arrests, torture, rape, and extra-

judicial killings.180 Indiscriminate police violence in the name of ‘Operation Romeo’ drove the

already disaffected and impoverished rural population towards the Maoist fold. In this environment,

as stated above, the Maoist declared the beginning of a “People’s War” in on 13 February 1996. It

began with the series of surprise attacks on several police stations, and banks in the mid western and

central regions of Nepal.181 When the insurgency began it started targeting so-called “enemies of the

people,” such as police, landowners, and members of the political parties, local government officials

and others. From the outset, they had targeted the national infrastructure as a means of destabilizing

the country. This had included attacks on airports, bridges, power plants and telecommunications

systems, as well as forced “donations” from business men, organizations (local and International),

and individuals to support their movement. They carried out general strikes, bandhs, which disrupt

trade and transport and cause shortages in food and other essential items by temporarily shutting

down major highways, government buildings and schools.182

179“Sija” named after two mountains of Rukum and Rolpa, Sisne and Jaljala. 180 D.B. Gurung, “Ethnic and Socio-Cultural Dimensions to the Maoist Insurgency: An Overview”, Conflict, Human Rights and Peace Challenges before Nepal, National Human Rights Commission, 2003, p.91. 181 Bipin Adhikari, “The Context of Conflict and Human Rights Violations in Nepal: Some Preliminary Observations”, Conflict, Human Rights and Peace Challenges before Nepal, National Human Rights Commission, 2003, p.13. 182 Supra Note 45, p.8. 56 In the early stages, the conflict was largely confined to the Mid-western regions, it steadily

gained momentum, and the response of the government in those areas further alienated substantial

sections of the population. From the isolated rebellion in remote mountainous districts of western

Nepal, the Maoist insurgency had spread throughout the country, where the threat of Maoist attacks

alone had brought the country to a standstill. In the paper “The Maoist Insurgency in Nepal and US

Counterinsurgency Doctrine” Timothy R. Kreutter talked about the beginning and development of

People’s war in Nepal. He argued:

The Maoist insurgency began with attacks on police stations in Rolpa, Rukum, and Sindhuli districts. The Army was initially not involved. From 1997 until 2001, the government responded with repressive police actions while the Maoists continued to conduct guerilla attacks against the police while expanding their base of support. In May 1998, the police conducted operation ‘Kilo Siera 2’. Because of indiscriminate police violence against the population, Kilo Sierra 2 backfired and ultimately had the effect of pushing many of the people over to the Maoists. In 1999, the government formed the Committee to provide suggestions to solve the Maoist problem with little result. In February 2001, the Maoists announced a change in strategy, adding urban and political efforts to the guerilla campaign in the countryside.183

The government responded to the Maoist uprising through police oppression ‘Kilo Siera 2’.

The operation led to a massive increase in confrontations and clashes between the police and

Maoists. Police brutality, rather then quelling the rebellion, served to fuel the conflict. Innocent

civilians and disillusioned youths were either coerced into or willingly joined the Maoist fold.184

The military activities of the Maoists movement forwarded with the announcement with the

formation of the PLA in 1999. The Maoists launched massive raids on police posts and government

headquarters in rural districts, overwhelming the remote outposts, slaughtering the captured police

officers, and carrying off arms and ammunition.185 At first, the government was ill-equipped to

183 Supra Note 177, p.3. 184 Across the Lines: Impact of Nepal’s Conflict on Women, Advocacy Forum and International Center for Transitional Justice,. Kathmandu, Nepal, December, 2010, p.21. 185 Supra Note 14, p. 396. 57 respond to the conflict. Until the deployment of the RNA in 2001, only the poorly equipped police

force had been on the front lines against the Maoists. The police were neither trained nor equipped

for anti-insurgency campaign battles, and were unable to quell the uprising.186 The report by

Advocacy Forum and International center for Transitional Justice, argued:

After the Royal Nepal Army (RNA) was deployed to fight the Maoists in November 2001, the conflict escalated. The army launched a number of successful raids against CPN-M camps. In addition, in the context of what was dominated as a "global war on terror" after the attacks in New York on 11 September 2001, the Nepali government branded the Maoists as "terrorists" and succeeded in gaining support for a military solution from the United States and India. As the conflict escalated after 2001, there were large scale armed attacks by the CPN-M.187

After several years during which an ill-equipped police force was left to face the Maoists in

front-line combat, in November 2001 the Nepali government mobilized the Royal Nepal Army

(RNA) and declared a state of emergency. As part of the emergency measure, the Terrorist and

Disruptive Activities (Control and Punishment) Ordinance (TADO) was promulgated. The Maoists

was declared a 'terrorist organization' under the Ordinance.188At that time, the government officially

authorized the RNA to “disarm” the Maoists. With this declaration, the government also suspended

several articles of Nepal’s constitution, including those relating to rights of freedom of thought and

expression; rights of assembly and movement; the right not to be held in preventive detention

without sufficient grounds; and the rights to information, property, privacy and judicial remedy. 189

Even the deployment of the RNA in 2001 did not reverse the control that the Maoists had established

over much of the countryside. By early 2004, the security forces had effectively retreated to heavily

fortified bases in the district headquarters of various provinces, ceding control of much of the

186 Supra Note 7, p.11. 187 Supra Note 184, p.22. 188 Supra Note 14, p.397. 189 Supra Note 45, p.8. 58 countryside to the Maoists.190 Human Rights Watch argued:

There have been several attempts at peace talks between the government and the Maoists, none of them successful. The first round of peace talks, which began on August 30, 2001, broke down on November 23, 2001, after the Maoists unilaterally withdrew from the talks and attacked police and army posts in forty-two districts, killing as many as eighty members of the security forces. The government responded by declaring a nationwide state of emergency and deploying the army for the first time in the conflict. The government also brought the police and the Armed Police Force under the operational command of the army under a policy known as the “Unified Command.191

As argued by the Human Rights Watch, after dismissed the negotiation the armed conflict

took a new height with both competing in gross and grave human rights violations. The casualty

rates from the war increased rapidly.192 From 2002, the Nepal Police (NP) and the Armed Police

Force (APF) were placed under the ‘Unified Command’ of the RNA for counter insurgency

operations.193 On January 29, 2003, the government and the Maoists announced a second ceasefire.

But, this cease-fire and peace talks also collapsed in august 2003 in an atmosphere of mutual

mistrust. The government refused to agree to the key demands of Maoists for an election to the

constitution assembly and the abolition of Monarchy by a popular vote. The Maoists unilaterally

withdrew from the peace talks on August 27, 2003, shortly after the massacre in Doramba.194 Human

Rights Watch argued in the report "Between a Rock and a Hard Place: Civilians Struggle to Survive

in Nepal's Civil War":

The Doramba massacre remains one of the most notorious examples of brutality in a civil war marked by grave acts of violence. To this day “Doramba” stands as a symbol of the government’s violations of human rights and of the impunity enjoyed by perpetrators of such abuses. Nepal’s human rights community has been especially disturbed by the military’s delays in investigating and prosecuting a case so well-known to the public. To this day the

190 Supra Note 7, p.12. 191 Ibid. 192 Supra Note 11, p.2. 193 Supra Note 22, p.5. 194 Supra Note 7, p.12. 59 military has refused to name publicly those indicted and it has kept the trials closed to the public.195

The Doramba massacre shocked Nepal. The facts were brutal. In this massacre, the army

summarily executed 19 Maoist cadres after arresting them. They were all blindfolded and led to a

remote hilly area where the bodies were later found.196 The National Human Rights Commission

(NHRC) reported that the people had been shot in the head. Some had no skulls.197 The conflict

continued and civilians were increasingly impacted. Maoists continued to demand support from

civilians while the government forces continued to attack alleged Maoist sympathizers. By the

beginning of 2004 the conflict had reached its pre-ceasefire intensity, and the violence had spread to

new areas of the Eastern Region and the Tarai (the fertile plain on border with India). In March

2004, the Maoist launched two major attacks, one in Beni, headquarter of Myagdi District and

another in Bhojpur District. By the end of the year the RNA had deployed new brigades in areas

affected by the insurgency, and the PLA of the Maoist had enlarged its fighting force.198

In 2002, King Gyanendra dismissed the Sher Bahadur Deuba government and dissolved the

House of Parliament and ruled as chairman of the cabinet, which he filled with former Panchayat

(royalist) leaders, from his father King Mahendra’s time. According to the report of United nations

Secretary General:

The last multiparty parliamentary elections in Nepal took place in 1999. In May 2002 Parliament was dissolved on the recommendation of the then Prime Minister, Sher Bahadur Deuba. In October 2002 His Majesty King Gyanendra Bir Bikram Shah Dev dismissed Prime Minister Deuba, and from October 2002 to February 2005 three successive appointed Prime Ministers either resigned or were dismissed by the King, in the absence of a sitting Parliament.199 195 Ibid., p.13. 196 Supra Note 181, p.34. 197 “Storm over Doramba” Nepali Times. Access in http://www.nepalitimes.com/issue/2003/10/10/Nation/4639. 198 Supra Note 38, p. 156. 199 Report of the United Nations High Commissioner for Human Rights on the human rights situation and the activities of her Office, including technical cooperation in Nepal, United Nations General Assembly. 16 September 2005. p.4. 60 The involvement of the King in the prevalent political scenario had further complicated the

situation. King Gyanendra, who was the Supreme Commander in Chief of RNA, commands firm

and traditional support from the army. With the army's full involvement in quelling the Maoist

rebellion, the king had come to the forefront of politics in Nepal.200 Between 2002 and 2004, the

king appointed two former panchayat politicians as prime minister, but both governments eventually

collapsed. Ironically, in June 2004, King Gyanendra re-appointed Prime Minister Deuba to his

position, with the support of other political parties and the stated agenda of restarting peace talks

with the Maoists and ensuring elections to take place within a year.201

During the year 2004 the Maoists were set up “Autonomous Peoples’ Governments” in their

several controlled areas. Some UN agencies and non-governmental organizations (NGOs) suspended

or cancelled projects in these areas when they were faced with demands from those bodies that they

forces blockaded Kathmandu for several days.202 Again in February 1, 2005, in response to the

inability of the relatively democratic government to restore peace and order king Gyanendra

assumed total control of the government and declared ‘state of emergency’.203The King’s action

added fuel to the conflict to reach in the new height. In the annual report, 2005, ICRC argued:

On 1 February 2005, His Majestry King Gyanendra dismissed the government and declared a state of emergency. Several hundred party activists were arrested, and the media was restricted. […] The Communist Party of Nepal- Maoist (CPN-M) called many general strikes (bandhs), and there were frequent clashes between government and Maoist forces, especially in Western areas. In some places, “Village defense committees” were established. In February, in the Kapilbastu district, these vigilante groups were implicated in rampages which ended in the death of 30 people. There were attack on government buildings and act of retaliation in areas of the east that had not previously been affected by such violence.204 200 Supra Note 181, p.16. 201 Supra Note 45, p.9. 202 Supra Note 38, p. 156. 203 Ibid., 2005.p.173. 204 Ibid. 61 On 3 September 2005 the Maoists unilaterally declared a three month cease-fire, extending it

by another month soon after. During this period Maoist signed a 12-point understanding in Delhi

(India) with an alliance of seven political parties, which included a call for the election of a

constituent assembly under international supervision. The Maoist and the political parties agreed to

work towards outcome of multiparty elections and thus to boycott the forthcoming elections in

2006.205 In early, April 2006, the Maoists and the alliance of seven Parties’ launched a people

movement to restored democracy. On April 26, nationwide demonstrations were organized

throughout the country that compelled king Gyanendra to capitulate. The series of event in Nepal set

the example that authoritarian and autocratic rule was not at all accepted in the 21st century.206

In November 2006, the government and the Maoists signed a comprehensive agreement to

implement a peace process, establish a constituent assembly, redraft the country’s constitution, and

establish an interim government. The government and the Maoists agreed to an arms management

pact under which each side would hand in its weapons and withdraw most troops to barracks under

UN supervision. The government released hundred of detainees. Maoist’s cadres began to operate

openly and allowed other political parties cadres to operate in areas under their control. Human

rights and IHL violations decreased and casualties caused by armed clashes reduced to almost

zero.207

During the war, parties to the conflict had carried out acts of extreme violence, and human

rights and IHL abuses had been common across the country as increasingly civilians were the major

205 Supra Note 14, p. 400. 206 ICRC, Annual Report 2007. p. 22-23. 207 Supra Note 14, p. 401. 62 victims of the conflict.208 The nature of the People's War in Nepal had created a terrible situation for

civilians. According to the report by Human Rights Watch:

Civilians supporting neither side are often faced with fateful choices. Refusing to provide shelter to the rebels puts villagers at risk from Maoists who are ruthless in their punishments; providing such support, however, leaves them vulnerable to reprisal attacks from the state security forces. Both the Maoists and government forces have dismal human rights records, including the gravest of violations: summary executions, torture, arbitrary arrests and abductions, and persecution based on political associations. 209

Both the warring parties had committed grave violations of human rights and IHL during the

conflict. Warring parties had broken the law on arbitrary arrest, torture, summary executions,

political discrimination, and indiscriminate attack against civilian populations. Civilians routinely

endured the atrocities from the Maoists and Security Forces in course of the conflict. Innocent

civilians got victimized in one way or another. The estimates of those who disappeared during the

decade of armed conflict broadly range from 1,000 to 5,000 people. Tens of thousands were

displaced as a result of the war and sexual violence was common.210 During the war, the Maoists

routinely used civilian houses, schools and public spaces without removing the population to safety

endangers civilians who become subject to Security Forces fire. In many of the cases, civilian

casualties were unnecessary incurred when Security Forces deployed helicopters using

indiscriminate methods of aerial bombardment while pursuing retreating Maoists. The Security

Forces dropped mortar shells by hand from the side of helicopters, which did not allow proper

targeting in populated areas. According to the investigation report of OHCHR, on February 26 and

28, 2006, NA helicopters had indiscriminately bombed and had fired shots from helicopters at

civilians. As a result, in Khidim VDC, a remote hilly area in Palpa district, a 14 years old child

208 Supra Note 3, p.1. 209 Supra Note 7, p.1. 210 Supra Note 11. 63 Pawan gautam was killed and six civilians including four children, were injured.211 The report of

Secretary - General on the request of Nepal for United Nations Assistance in Support of its Peace

Process argued:

Numerous minors, including girls, were involved in the conflict as Maoist army combatants, while the armies of both sides utilized minors as messengers, sentinels, informers, cooks and in other support functions, including paramilitary activities. The conflict also increased women's visibility. Many women and girls joined the Maoist army, making up an estimated 40 per cent of combatants. In villages and across civil society women began to take on leadership roles; many women and girls meanwhile were made more vulnerable, subjected to displacement and sexual exploitation.212

Women who were accused of being Maoists or supporters of Maoists were subject to cruel

treatment by security forces. Similarly, the families of security forces were treated inhumanly by

Maoists. Rape, sexual abuse, and torture by warring parties were very common. Sexual violence was

used as a tool to punish women for their alleged connection with either side of conflict.213

As argued by the above argument, the situation of children was terrible during the conflict.

According to a Human Rights Watch report, in the course of the conflict, in areas firmly under

Maoists control, particularly in the rural areas, the Maoists operated a “one family, one child” policy

whereby each family had to provide a recruit or face severe punishment. Once recruited, children

were kept in the ranks through punishment or the fear of it. Children who considered escape had to

consider the real possibility that the Maoists would exact reprisal upon their families.214 Human

Rights Watch further argued that the government forces or security forces established a terrible record

for human rights and IHL violations through the course of the conflict as they engaged in routine and

systematic arbitrary arrest, unlawful detention, disappearances, extrajudicial execution and torture

211 See, Supra Note 22, p.15. 212 Supra Note 11. 213 Pratibedan Baidya."Impact of Armed Conflict in Women". INSEC Informal Quarterly. Vol. 26. (2009): p. 30. 214 Supra Note 32, p.5. 64 and mistreatment of detainees. Children considering escaping the Maoists were effectively

discouraged by fear that they would be detained and abused by Security forces.215

Economically, the country affected most during the conflict. Many reviews have mentioned

this issue. The focus in almost all such reviews has been on poverty, economic inequality, spatial and

social inequality and oppression, "frustrated expectations" during the conflict period, corruption

among political officials, miss-governance, rivalry within and between political parties, etc. Mishra,

Chaitanya in his essay “Locating the Structural Causes” of the Maoist Struggle, presents the

economic scenario during the war. He argued:

The economic costs of the war have been phenomenal. Displacement, violence and uncertainty induced loss of production—agricultural production in particular, bandh, violence and extortion induced loss of production and transportation in the industrial and service sectors—including in educational establishments, and the destruction of physical infrastructure, e.g. government and public buildings, power stations, telecommunication station, has been massive in scale.216

In zones with low agricultural output, these constraints disrupted the opportunities for trade -

a key livelihood opportunity for the rural poor. In very rural remote areas, restriction on movement

also interfered with the upkeep of water supply system and health services.217 Poor people were

probably worse off than they used to be before the conflict, especially those who remained in the

disrupted areas. Development and Aid had become the issue of conflict. As the conflict had

intensified, many donors and their implementing partners were withdrawn from heavily affected

areas and continued to work around the safe areas.

215 Ibid., p.7. 216 Supra Note 154, p.23. 217 ICRC, Annual Report 2004. p. 157. 65 Second Focus area

In this focus area, structural and operational information on the IHL, including its evolution and current status, will provide a context for analysis. This focus area gives the introduction of IHL and its historical development, fundamental principles of IHL, distinction between international and non-international armed conflict, definition of non-international armed conflicts, protection of civilians in non-international armed conflicts, and enforcement of IHL in general. It provides the analysis of scholars about the issues that are related to IHL and armed conflicts to lay the foundation for analysis.

Introduction to International Humanitarian Law

International humanitarian law is the law of armed conflict. It comprises all those rules of international law which are designed to regulate the treatment of the individual- civilian or military, wounded or active- in international armed conflicts.218 As a branch of international law, IHL seeks to protect persons not engaged in or no longer participating in hostilities.219The main purpose of the

IHL is to protect combatants and non-combatants from unnecessary suffering and to safeguard the fundamental human rights of persons, who are not, or are no longer, taking part in the conflict and of civilians.220

UK Ministry of Defence talks about two main streams of IHL: Hague law and Geneva law:

The law of armed conflict was traditionally divided into two parts, each named after the city where much of the law was devised. Hague was largely concerned with how military operations are conducted; Geneva law was concerned with the protection of the victims of armed conflict. The two body of law have now merged. However, there is still a distinction 218 Christopher Greenwood. “Historical Development and Legal Basis” in "The Handbook of International Humanitarian Law" ed. by Dieter Fleck. Oxford University Press. Oxford, New York: (2008).p.11. 219 Supra Note 48, p.7. 220 UK Ministry of Defense, The Manual of the Armed Conflict, Oxford University Press, Oxford New York, 2004, p.3. 66 between the law relating to armed conflicts between states, known as international armed conflicts, and armed conflict with in a territory of a state, known as internal (non- international) armed conflict.221

Hague law is based on the rules of how hostilities can be conducted in a lawful manner. It is centered on what the military personnel may do during hostilities and in an occupied territory where as Geneva law is centered on the protection of non-combatant persons. In this connection protected persons are the wounded, sick or shipwrecked military persons, the prisoners of war and the civilians in contact with a hostile power. Hague law and Geneva law reflect the fact that the IHL is comprehensively promulgated by the Hague conventions of 1907 and then by the Geneva conventions, of which the latest are the four of 1949.222

IHL, being a part of international law, is binding on states but it also regulates the conduct of individuals.223 It applies in armed conflict both of an international and non-international character.

But the application of IHL differs depending on whether the conflict in question is of an international or non-international nature.224 All rules of the IHL apply to international armed conflicts. Only a smaller part of these rules apply to non-international armed conflicts. In international armed conflict the four Geneva conventions and Additional protocol I apply.225A more limited range of rules apply to non-international armed conflict and are laid down in Article 3 common to the four Geneva Conventions. So with the increased concern about armed conflicts that are solely or partly internal, such as civil wars, Additional protocol II developed and supplemented common Article 3 in respect of armed conflicts within a state between its forces and dissident forces or other organized armed groups.226

221 Ibid. 222 Supra Note 70, p. 252. 223 Supra Note 220, p.4. 224 Supra Note 74, p.112. 225 Ibid. p. 111. 226 Supra Note 70, p. 254. 67 The source of IHL is to be found in customary law which rules developed from the practice of states which binding on states generally; and treaty law which rules expressly agreed upon by states in international treaties which are only binding on states party to those treaties.227 The main source of IHL is the Geneva Conventions, which apply "to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them."228 The four Geneva Conventions and their two

Additional Protocols are considered by most sources to be part of customary law in both international and internal conflicts. Thus, regardless of a state's ratification of the conventions, they are bound by Geneva law when engaged in armed conflict. The first Geneva Convention of 1949 concerns the wounded and sick on land and emphasizes that members of the armed forces and organized militias, including those accompanying them where duly authorized, shall be respected and protected in all circumstances.229 The second Geneva Convention of 1949 concerns the condition of wounded, sick and shipwrecked members of armed forces at sea. According to this, members of the armed forces, including those accompanying them where duly authorized, and cared for on a non-discriminatory basis, and that attempts upon their lives and violence and torture are prohibited.230 The third Geneva Convention of 1949 is concerned with prisoners of war, and consists of a comprehensive code centered upon the requirement of humane treatment in all circumstances.231

And the fourth Geneva Convention of 1949 is concerned with the protection of civilians in time of war. This marked extensions to the pre- 1949 rules, although limited under article 4 to those persons, who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or

227 Supra Note 220, p.4. 228 "Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field," August, 12 1949, 75 United Nations Treaty Series 31. 229 Supra Note 62, p. 1171. 230 Ibid., p. 1172. 231 Ibid. 68 occupation, in the hands of a party to the conflict or occupying power of which they are not nationals.232 The Fourth Convention provides a highly developed set of rules for the protection of civilians, including the right to respect for person, honor, convictions and religious practices and the prohibition of torture and other cruel, inhuman or degrading treatment, hostage-taking and reprisals.233

Parties to the 1949 Geneva Conventions and to Protocol I, 1977, undertake to respect and to ensure respect for those treaties.234 Each party is therefore obliged to do what is necessary to ensure that all authorities and persons under its control comply with the rules of international humanitarian law. The enforcement can include a wide variety of measures, both preventive and repressive, to ensure observance of that law.235

Historical Evolution of the International Humanitarian Law

There have always been rules of war. However, modern international humanitarian law dates back to the middle of the nineteenth century, upon the initiative of Henry Dunant following the battle of Solferino. According to the Marco and Antoine A, the battle of Solferino, a terrible battle in

Northern Italy between French, Italian, and Austrian forces in 1859, gave way to IHL to develop into a present form. They argued that, one of the witnesses of that brutality, Henry Dunant, a businessman from Geneva, who was struck by the miserable condition of the wounded left on the battlefield, published a short book "A memory of Solferino" in 1862 in which he vividly presented the horrors of the battle and tried to find remedies to the sufferings.236 To formulate some

232 Ibid., p. 1176. 233 Ibid., p. 1177. 234 See, Geneva Conventions, common Article 1 and Additional Protocol I, Article 1 (1). 235 Supra Note 83, p.280. 236 Marco Sassoli and Antoine A Bouvier, How Does Law Protect In War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, ICRC, Geneva, 1999, p. 98. 69 international principle, sanctioned by a convention inviolate in character and giving a legal protection to the military wounded in the field, in 1864, at the invitation of the Swiss government, a

Conference, attended by the representatives of 16 states, was held in Geneva to draw up a convention for the Amelioration of the Condition of the Wounded in Armies in the Field.237 This launched Geneva law as the body of the law of armed conflict that was concerned with the treatment and protection of persons rendered hors de combat (out of action), civilians, and other non- combatants.238

In accordance with Jean-Marie Henckaerts and Louise Doswald-Beck, the driving force behind the development of international humanitarian law has been the International Committee of the Red Cross (ICRC), founded in 1863. It initiated the process which led to the conclusion of the

Geneva Conventions for the protection of the victims of war of 1864, 1906, 1929 and 1949.239 Over the years, international humanitarian law has developed into a system of treaties, customary law, and judicial decisions that determine how combatants and civilians should be treated during armed conflict. The Lieber Code (1863)240 is the origin of what has come to be known as 'Hague law'. It was the first attempt to set down, in a single set of instructions for forces in the field, the laws and custom of war.241 In 1868 the Declaration of St. Petersburg242 prohibited the use of small explosive

237 Officially known as the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva, 22 August, 1864. It was adopted as a part of the establishment of the International Committee of the Red Cross at a conference attended by sixteen European States. The main principles laid down were: (1) relief to the wounded without any distinction as to nationality; (2) neutrality (inviolability) of medical personnel, establishments and units; and (3) the symbol of the Red Cross. The Convention was replaced by the Geneva Conventions of 1906, 1929 and 1949. 238 Supra Note 220, p.8. 239 Jean-Marie Henckaerts and Louise Doswald-Beck. Customary International Humanitarian Law. cambridge university press; (2005).p. xxxii. 240 In 1861 Francis Lieber , a German-American Professor prepared on the behalf of President Lincoln a manual based on international law which was put into effect for the first time in 1863 for the Government of Armies of the United States in the Field during the American CivilWar. 241 Supra Note 218, p.23. 242 The 1868 Declaration of St. Petersburg was the first to introduce limitation on the use of weapons of war. It codified the customary principle, still valid today, prohibiting the use of weapons to cause unnecessary suffering. 70 or incendiary projectiles.243 The Declaration of St. Petersburg dealt with the means and methods of warfare. The principles, set out in the preamble of St. Petersburg Declaration 1868, are more relevant to the law of armed conflict.244 According to UK Ministry of Defence, the first comprehensive international code of the law of armed conflict was the Brussels Declaration 1874.245

The Institute of International Law prepared a manual on the laws of war on land, known as the

Oxford Manual, in 1880 but this had no binding force.246 Both the Brussels Declaration 1874 and

Oxford manual 1880 were, however, influential in the negotiation at the 1899 and 1907 peace conferences that followed at the Hague. Jean-Marie Henckaerts and Louise Doswald-Beck argued:

It was at the origin of the 1899 Hague Convention and 1907 Hague Convention which adapted, respectively, the 1864 and 1906 Geneva Conventions to maritime warfare and were the precursors of the Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 1949. It took the initiative to supplement the Geneva Conventions that led to the adoption in 1977 of two Additional Protocols.247

The conventions and declarations prepared at the conferences concerned the conduct of armed conflict and underlined that body of the law of armed conflict still known as Hague Law.248 A series of conventions were adopted at these conferences concerning land and naval warfare, which still form the basis of the existing rules.249 A number of conventions in the inter-war period dealt with rules concerning the wounded and sick in armies in the field and prisoners of war. Such agreement were replaced by the Four Geneva Conventions of 1949 which dealt respectively with

243 Supra Note 62, p. 1168. 244 Supra Note 220, p.8. 245 The 1874 Brussels Declaration provided the first comprehensive code of the laws and customs of war. That Declaration was further developed at the Hague Peace Conference of 1899 and 1907. 246 Supra Note 220, p.8. 247 Supra Note 239, p. xxxii 248 Supra Note 220, p.9. 249 Supra Note 62, p. 1169. 71 the amelioration of the condition of wounded, sick and shipwrecked members of the armed forces at sea, the treatment of prisoners of war and the protection of civilian persons in time of war.250

The international cooperation that resulted from World War II culminated in the creation of the current international humanitarian law system. According to the UK Ministry of Defence, in

1949, Four Geneva Conventions were ratified and established specific guidelines for the protection of combatants and civilians during international armed conflict. The Geneva conventions are virtually universal application and are generally considered to embody customary law.251 In 1977, two Additional Protocols were added to the Geneva Conventions and included provisions on internal armed conflict. A major development in the IHL was the adoption in 1977 of two Protocols

Additional to the Geneva Conventions of 1949. Additional Protocol I deal with international armed conflict and Additional Protocol II deals with non-international armed conflicts.252 Marco and

Antoine A. illustrate the development experienced by IHL since the adoption of the 1864 Geneva

Convention. According to them three main characteristics that have marked this evolution:

a) The constant enlargement of the categories of war victims protected by humanitarian law (military wounded; sick and shipwrecked; prisoners of war; civilians in occupied territories; the whole civilian population), as well as by the expansion of the situations in which victims are protected (international and non-international armed conflicts);

b) The regular updating and modernization of the treaties, taking into account the realities of the most recent conflicts: as an example, the rules protecting the wounded adopted in 1864 were thus revised in 1906, 1929, 1949, and 1977 (critics have therefore accused IHL of being always "one war behind reality");

c) Two separate legal currents have, up until 1977, contributed to this development:

- the Geneva Law, mainly concerned with the protection of the victims of armed conflict, i.e., the non-combatants and those who do not take part any more to the hostilities;

250 Ibid. 251 Supra Note 220, p.14. 252 Ibid., p.15. 72 - the Hague Law, whose provisions relate to limitations or prohibitions of specific means and methods of warfare.

These two legal currents were merged with the adoption of the two Additional Protocols of

1977.253

More recently, some important conventions were added to develop IHL in the present form, particularly, the 1980 Convention on Certain Conventional Weapons and its five Protocols, the 1997

Ottawa Convention on the Prohibition of Anti-Personnel Landmines, the 1998 Statute of the

International Criminal Court, the 1999 Protocol to the 1954 Convention for the Protection of

Cultural Property in the Event of Armed Conflict and the 2000 Optional Protocol on the

Involvement of Children in Armed Conflict.254More than 50 years have now passed since the

Geneva Conventions of 1949 were adopted and almost 30 years since the adoption of their

Additional Protocols. As discussed above the creation of the Rome Statute of the International

Criminal Court (ICC) in 1998 is the most recent treaty in international humanitarian law. The Rome

Statute paved the way for the establishment of a permanent court capable of prosecuting individuals allegedly responsible for serious breaches of IHL and with jurisdiction over crimes regardless of when or where they were committed.255 The ICC is charged with asserting individual criminal responsibility during armed conflict. The Court has jurisdiction over "the crime of genocide; crimes against humanity; war crimes; and the crimes of aggression."256 Thus, all major ICC decisions contribute directly to international humanitarian law. Furthermore, the ICC has become a way to further enforce existing legal provisions. In more recent times, IHL has been influenced by human rights. To the extent human rights treaties apply in time of war or armed conflict, they frequently 253 Supra Note 236, p. 99. 254 Supra Note 239, p. xvi. 255 United Nations, "Special Report: Civilian Protection in Armed Conflict," New York: Office for the Coordination of Humanitarian Affairs and Integrated Regional Information Network, 2003.p.8. 256 "Rome Statute of the International Criminal Court," July 17,1998, 2187 United Nations Treaty Series 90. International Criminal Court: (2011). p.3. 73 cover much the same ground as the treaties on the law of war. The law of war, however, is both more specialized and more detailed and in many areas international human rights law adds nothing in it.257

In the present day, International humanitarian law is well developed and covers a wide variety of aspects of warfare, offering protection to victims of war and limiting permissible means and methods of warfare. The four Geneva Conventions of 1949 and their Additional Protocols of

1977 provide an extensive regime for the protection of persons who do not or no longer participate in armed conflict.258

Fundamental Principles of International Humanitarian Law

In the book The Manual of the Law of Armed Conflict, UK ministry of Defence argued:

At the outset of any consideration of the law of armed conflict, it must be emphasized that the right of the parties to the conflict to choose methods or means of warfare is not unlimited. Despite the codification of much customary law into treaty from during the last one hundred years, four fundamental principles still underline the law of armed conflict. These are military necessity, humanity, distinction, and proportionality.259

As mentioned by UK Ministry of Defence, the principle of military necessity is one of the most important fundamental principles of IHL. It permits a belligerent engaged in an armed conflict to use only that degree and kind of regulated force, not otherwise prohibited by the laws of war, required for the partial or complete submission of the enemy with the least possible expenditure of

257 Christopher Greenwood. “The law of War (International Humanitarian Law)” in "International Law" ed. Malcolm D. Evans. Oxford University Press. Oxford New York: (2006). p. 784. 258 Supra Note 239, p. xxxiv. 259 Supra Note 220, p.21. 74 time, life, and physical resources.260 UK Ministry of Defence talks about four basic elements of the principle of military necessity:

(a) the force used can be and is being controlled;

(b) Since military necessity permits the use of force only if it is ‘not otherwise prohibited by the law of armed conflict’, necessity cannot excuse a departure from that law;

(c) The use of force in ways which are not otherwise prohibited is legitimate if it is necessary to achieve, as quickly as possible, the complete or partial submission of the enemy;

(d) Conversely, the use of force which is not necessary is unlawful, since it involves wanton killing or destruction.261

According to Robert Kolb and Richard Hyde these elements, the belligerents engaged in armed conflict only adopt such measures as are necessary to overpower the enemy and to bring about its surrender.262 They argued “The aim of the war should not be seen as the destruction of as much of the adverse belligerents property and killing of as many members of the armed forces as possible; rather, the proper aim is to destroy and to kill as few as possible and to cause such damage only to the extent necessary to overpower the enemy.”263

The preamble of the St. Petersburg Declaration 1868 expressed that the only legitimate object which states should endeavor to accomplish in war is to weaken the military forces of the enemy and that for this purpose it is sufficient to disable the greatest possible number of men.264 The principle of military necessity allowed the acts that one should capture rather than wound; one should wound rather than kill; one should kill fewer people rather than kill more persons, and so on.265

260 Robert Kolb and Richard Hyde. “An Introduction to the International Law of Armed Conflicts” Hart Publishing. Oxford: (2008). p. 44. 261 Supra Note 220, p.22. 262 Supra Note 260, p. 47. 263 Ibid. 264 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. Saint Petersburg, 29 November / 11 December 1868. 265 Supra Note 260, p. 47. 75 Another principle of IHL, the principle of humanity prohibits the employment of any kind or degree of force not necessary for the purpose of the war.266 The principle of humanity is based on the notion that once a military purpose has been achieved, the further infliction of suffering is unnecessary. Thus, if an enemy combatant has been put out of action by being wounded or captured, there is no military purpose to be achieved by continuing to attack him. It further confirms that the basic immunity of civilians and civilian objects make no contribution to military action.267

According to this principle those who do not take part in the armed conflict should be treated humanely. This principle is most clearly expressed in Common Article 3 of four Geneva

Conventions 1949,268 and Articles 4 of AP II.269 This principle of IHL provides the foundation for all of the detailed rules that are contained in the Geneva Conventions, which in effect attempt to apply the requirement of humane treatment to specific terms.270 Robert Kolb and Richard Hyde discussed about the four facets of the principle of humanity:

(a) it requires a belligerent to treat protracted persons with respect;

(b) this is the requirement of protection. The role of this obligation is to defend protected persons from evils and sufferings brought about by armed conflict, and to make sure that they are not exposed to under dangers;

(c) this principle encompasses a principle of equality, which requires that the belligerent must not engage in adverse discrimination against protected persons;

(d) this requires that the belligerent accord humane treatment to protected persons in all circumstances. The protected person may be subjected to treatment and an environment

266 Ibid., p. 44. 267 Supra Note 220, p.23. 268 See, Common Article 3 of the four Geneva Conventions 1949. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949; Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 269 See, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. 270 Supra Note 260, p. 45. 76 which means that life is difficult, but this treatment must always be humane, appropriate and accepted.271

Distinction is another fundamental principle of IHL. Under the principle of distinction, all involved in armed conflict must distinguish between the persons thus defined, the combatants on the one hand, and civilians, on the other hand. Combatants must, therefore, distinguish themselves from all persons, the civilians, who may not be attacked nor directly participate in hostilities.272 The principle of distinction sometimes referred to as the principle of discrimination or identification, separates combatants from non-combatants and legitimate military targets from civilian objects.273

According to this principle only combatants and other military objectives are lawful targets. The civilian population and civilian objects must not be made the target of attack.274 Article 48 of

Additional Protocol I emphasizes:

In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.275

The principle of proportionality is one of the important fundamental principles of IHL.

According to this principle, all military measures taken by belligerents must be proportionate to the aim they seek to accomplish.276 This principle of IHL requires that the losses resulting from a military action should not be excessive in relation to the expected military advantage.277 Military advantage obtained by a particular operation must outweigh the damage caused to civilians and civilian objects by the action. When planning an operation, each belligerent must carefully weigh up

271 Ibid., p. 45-46. 272 Supra Note 236, p. 117. 273 Supra Note 220, p. 24. 274 Supra Note 257, p. 790. 275 Article 48 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 276 Supra Note 260, p. 48. 277 Supra Note 220, p. 25. 77 the importance of the military advantage, alternative means by which the advantage may be achieved and the expected losses on the part of civilians.278 The principle of proportionality is a link between the principles of military necessity and humanity. It is most evident in connection with the reduction of incidental damage caused by military operations.279 In terms of the applicability of the principle of proportionality, the UK Ministry of Defence argued:

The application of the proportionality principle is not always straight forward. Sometimes a method of attack that would minimize the risk to civilians may involve increased risk to the attacking forces. The law is not clear as to the degree of risk that the attacker must accept. The proportionality principle does not itself require the attacker to accept increased risk. Rather, it requires him to refrain from attacks that may be expected to cause excessive collateral damage.280

The Distinction between International and Non-international Armed conflict

A distinction has historically been drawn between international and non-international armed conflicts, founded upon the difference between inter-state relations, which was the proper focus for international law, and intra-state matters which traditionally fell within the domestic jurisdiction of states and were thus in principle impervious to international legal regulation.281 Prior to the twentieth century, classical international law recognized two types of armed conflict: ‘War’, which was understood as an armed conflict between two states and ‘Civil War’, which was a condition of armed conflict between a state and an internally located insurgent movement that had taken up arms against its own state.282 This classification remained until the early of twentieth century. However, the atrocities of the Second World War and the Spanish Civil War prompted a rethinking of the system for regulating armed conflict. The Geneva Conventions of 1949 redefined the concept of ‘War’ and

278 Supra Note 260, p. 48. 279 Supra Note 220, p. 25. 280 Ibid., p. 25-26. 281 Supra Note 62, p. 1191. 282 Emily Crawford. “Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts”. Leiden journal of International law: (2007). p. 443-444. 78 ‘Civil War’ as ‘international armed conflict’ and ‘non-international armed conflict’.283 Sandesh

Sivakumaran makes distinction between international and non-international armed conflict in this way:

The primary difference between an international and an internal armed conflict is the actors taking part in them. International armed conflicts are traditionally fought between states; internal armed conflicts are fought between a state and non-state armed groups or between opposing armed groups. The difference, then, is obvious, yet the implications of this difference have not been followed through. The differing actors involved in the two types of armed conflict suggest that, at the very least, certain legal norms cannot be transposed directly from the international armed conflict to the internal armed conflict without some modification. Yet, introducing armed groups into the equation has not always resulted in a translation of the relevant norms284

The distinction between international and non-international armed conflict can be drawn in terms of the specific rules such as, Status of combatants/fighter285, Public property,286 release of persons deprived of their liberty287 and Belligerent reprisals288. But some certain rules like the law of belligerent occupation289 and Military objectives290 draw the controversial line to make a distinction either it is international armed conflict or non-international armed conflict. These rules which are

283 Ibid., p. 444. 284 Sandesh Sivakumaran. “Re-envisaging the International Law of Internal Armed Conflict”. The European Journal of International Law. Vol. 22. no. 1. (2011). p. 221. (219-264) 285 In international armed conflicts combatants enjoy significant protection upon capture, as they are entitled to prisoner of war status and may neither be tried for their participation in hostilities nor for acts that do not violate international humanitarian law. Armed opposition groups in a non-international armed conflict cannot claim prisoner of war for their fighting members. 286 The parties to an international armed conflict may seize military equipment belonging to an adverse party as war winning. In occupied area, they may take public property that can be used for military operation, without the obligation to compensate to which it belongs. But in a non-international armed conflict the seizure of such equipment is not regulated under international law. 287 In international armed conflicts prisoner of war must be released and repatriated without delay after the cessation of hostilities but there is no universal treaty provision on the release of persons deprived of their liberty in non-international armed conflicts. 288 In international armed conflicts, the warring parties may in extreme cases resort to reprisals, subject to stringent conditions. But the parties to a non-international armed conflict do not have right to resort to belligerent reprisals. 289 The rules of occupation law have been developed in situation of foreign occupation as a result of a clear and lasting victory which are absent in non-international armed conflict. Yet essential standards for the protection of civilians and persons hors de combat are essentially the same in non-international armed conflicts. 290 Normally, in non-international armed conflicts the notion of 'military objectives' is more limited than in international armed conflicts but arguments can be drawn that 'military objectives' can be limit in terms of the nature of conflict, location, purpose, military action etc. 79 well accepted in international armed conflict may be disputed in non-international armed conflicts.291

Common Article 2 of the Geneva Conventions defines the notion of inter-state armed conflict that extend to all cases of ‘declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.292

According to the David Lloyd Roberts, an international armed conflict arises when one state uses armed force against another state or states. International armed conflict applies to all cases of total or partial military occupation. An international armed conflict is considered to be over once active hostilities or territorial occupation have ceased. He further argued that, all rules of the IHL apply to international armed conflicts. In international armed conflict the four Geneva conventions and

Additional protocol I apply.293

David Lloyd Roberts defines non-international armed conflict as internal armed conflicts that take place within the territory of a state and do not involve the armed forces of any other state.

According to him, in some cases, the state’s armed forces are used against dissident, rebel or insurgent groups. In others, there are two or more armed groups fighting within a state, but not necessarily with the involvement of government troops.294 Traditionally many rules were applicable only in international armed conflicts now have extended their applicability to non-international armed conflicts, but, this does not mean that the whole corpus of IHL has become applicable in Non-

291 Dieter Fleck. “The Law of Non-international Armed Conflict” Oxford University Press. Oxford, New York: (2008).pp. 627-628. 292 Andreas Paulus and Mindia Vashakmadze, “Asymmetrical War and the notion of armed conflict- A Tentative Conceptualization”, International Review of Red Cross, Vol. 91, No. 873, March 2009, p.100. 293 Roberts, David Lloyd. “Staying Alive: Safety and Security Guidelines for Humanitarian Volunteers in Conflict Areas”. ICRC: (2005). p. 23. 294 Ibid., p. 25. 80 international armed conflicts.295 A more limited range of rules apply to non-international armed conflict and are laid down in Article 3 common to the four Geneva conventions. So with the increased concern about armed conflicts that are solely or partly internal, such as civil wars,

Additional protocol II developed and supplemented common Article 3 in respect of armed conflicts with in a state between its forces and dissident forces or other organized armed groups.296

Non-international Armed Conflict

Andreas Wenger and Simon J.A. Mason argued that traditional armed conflicts between states have lost significance at the global level, and there is now a low probability of war between great powers. The end of the Cold War changed the global bipolar and state-centric security system into a more complex one. According to them stability through superpower domination decreased. In a sense, the lid was lifted off the boiling pot, allowing internal dissent to erupt, with a corresponding peak in intra-state conflicts in the early 1990s.297In the paper "Internal conflicts: Dilemmas and

Development" Steven Solomon discussed:

By the early 1990s, it was clear that internal conflicts were posing serious threats. Indeed, by some accounts, the humanitarian problems arising out of such conflicts grew more significant after the end of the Cold War. During this time, it also became better understood that the non-international character of these wars had serious legal consequences. They included: (1) that the law of armed conflict provided only limited rules for such situations, and (2) that for prosecution of war crimes, the Geneva Conventions were widely understood to create international criminal liability only for violations committed in international armed conflict.298

Traditionally, the non-international armed conflict were considered as purely internal matters for states in which no international law provisions applied but this view was radically changed with

295 Supra Note 57, p. 121. 296 Supra Note 70, p. 254. 297 Supra Note 56, p. 837. 298 Steven Solomon. "Internal Conflicts: Dilemmas and Developments". George Washington International Law Review: (2006).p. 2.(p .1-5) 81 the adoption of Article 3 common to the four Geneva Conventions 1949.299 Common Article 3 of the

Geneva Conventions 1949, which applies to any case of ‘armed conflict not of an international character’ occurring in the territory of one of the state party to the conventions, requires that the parties to such an internal conflict shall be required to apply Common Article 3.300 However,

Common Article 3 of the Geneva Conventions does not offer a clear definition of the notion of non- international armed conflict.301 No definition would be capable of capturing the factual situations that reality throws up and that a definition would thus risk undermining the protective limit of IHL.

Andreas Paulus and Mindia Vashakmadze argued:

First of all, it is not clear what level of violence must be reached and how protracted the hostilities must be. On the one hand, internal situations with a very high level of violence are often regarded, mainly for political reasons, as banditry not reaching the threshold of armed conflict. On the other hand, there are situations where a much lower level of violence that is not protracted is seen as armed conflict for the purpose of humanitarian law.302

Common Article 3 does not define “armed conflict.” However, several criteria have been developed through practice. According to common Article 3, the parties to the conflict have to be identifiable, i.e. they must have a minimum of organization and structure, and a chain of command.

And the armed conflict must have a minimum level of intensity. The parties would usually have recourse to their armed forces or to military means. The duration of the violence is another element that has to be taken into consideration. Therefore, Common Article 3 does not apply to situation of internal disturbances and tensions, such as riots and other isolated and sporadic acts of violence.303

Additional protocol II, 1977 further narrowed the scope of non-international armed conflict by stressing the requirements to be met by groups involved in it and by specifying that such a conflict

299 Supra Note 236, p. 89. 300 Supra Note 257, p. 806. 301 Supra Note 236, p. 89. 302 Supra Note 292, p.102. 303 Michell Mack. “Increasing Respect for International Humanitarian law In Non-International Armed Conflicts” ICRC. Geneva. February 2008. p. 7. 82 did not include ‘situation of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature’.304

Common Article 3 of the Geneva Conventions of 1949 and Additional Protocol II of 1977 contain rules applicable in non-international armed conflicts. Common Article 3 of the Geneva

Conventions of 1949 speaks about non-international armed conflicts as those “occurring in the territory of one of the High Contracting Parties, while Additional Protocol II of 1977 states that it

“should apply to all armed conflicts which are not covered by Article 1 of the Protocol Additional I of Geneva Conventions and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”.305 ICTY Appeals Chamber defined non-international armed conflict as a situation of protracted armed violence between governmental authorities and organized armed groups, or between such groups within a state.306

Under the terms of Common Article 3, the parties to a non-international armed conflict occurring in the territory of a party to the Conventions are obliged to apply ‘as a minimum’, the following provisions:

304 Supra Note 292, p. 98. 305 Supra Note 57, p.109-110. 306 Supra Note 74, p.112. 83 (a)Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for.307

Common Article 3 was developed by Protocol II, 1977, which applies by virtue of Article 1 to all non-international armed conflicts which take place in the territory of a state party between its armed forces and dissident armed forces.308 Article 1 of Additional Protocol II (APII) relates to the protection of victims of a conflict “Which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized groups which, under responsible command, exercise such control over a part of its territory.”309 Thus, it is of more limited applicability than Common Article 3 or the Martens Clause but it contains detailed stipulations guiding action and protection in internal armed conflicts. Additional Protocol II applies only where it has been ratified by the state. Like common Article 3, Additional protocol II provides for the humane and non-discriminatory treatment of all those who are not, or who are no longer, taking a direct part in hostilities. It expands the protection provided by common Article 3, by including prohibitions on collective punishment, acts of terrorism, rape, enforced prostitution and indecent assaults, slavery and pillage. It set out specific provisions and protections for certain categories of

307 See, Common Article 3 of four Geneva conventions 1949. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949; Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 308 Supra Note 62, p. 1195. 309 ICRC (1977), Protocol II: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflict (Protocol II), of 8 June 1977. Article 1. 84 persons such as children, persons deprived of liberty for reasons related to the conflict, person prosecuted for criminal offences related to the conflict, persons who are wounded, sick and shipwrecked, medical and religious personnel, and the civilian population.310

The conclusion can be drawn that non-international armed conflict is a confrontation between the existing governmental authorities and groups of persons subordinate to this authority or between different groups none of which acts on behalf of the government, which is carried out by force of arms within national territory and reaches the magnitude of an armed confrontation.311 In such a conflict each party shall be bound to apply, as a minimum, fundamental humanitarian provisions of international law. Regular armed forces should comply with the rules of IHL in the conduct of military operations in all armed conflicts.312

Protection of Civilians in Non-international Armed conflict

Protection of civilian population is a basic element of IHL. In all types of armed conflict civilians are protected by the provisions of the Four Geneva Conventions of 1949 and their

Additional Protocols. Civilians and all those not taking part in the fighting must on no account be attacked and must be spared and protected.313 Today, the global scenario shows that the civilian populations, those no longer participating in hostilities, do suffer most from the consequences of armed conflict especially in non-international armed conflict. In non-international armed conflicts, civilians are the target of attacks and systematic violations and abuse of their rights. States and other relevant duty bearers frequently lack the capacity or the will to ensure effective protection of those at

310 Supra Note 303, p. 9. 311 Christopher Greenwood. “Scope of Application of Humanitarian Law” in "The Handbook of International Humanitarian Law". ed. by Dieter Fleck. Oxford University Press. Oxford, New York: (2008).p. 54. 312 Ibid., p. 55. 313 Supra Note 48, p.7. 85 risk.314 In such type of armed conflict, civilians are not only increasingly directly caught up in the violence, but control over the civilian population is often one of the stakes in the conflict.315

The law regarding the protection of civilians in non-international armed conflicts has been codified mainly by Article 3 common to the four Geneva Conventions and developed in 1977 by

Additional Protocol II. Although these provisions are more summary in nature than the law of international armed conflicts, they contain important and binding rules on the victims in a civil war.316 Common Article 3 is accepted as customary and universal law, and applicable in every armed conflict. Article 3 common to the four Geneva Conventions of 1949 does not employ the term

'civilians'. Instead, the wording of the provision suggests a distinction between persons taking no active part in the hostilities who are entitled to humane treatment and enjoy the protection against certain acts and persons those who do take an active part in the hostilities, who fall outside the protective reach of Common Article 3.317 Common Article 3 refers to 'Person taking no active part in hostilities…shall in all circumstances be treated humanely'318 According to this, the right of civilians to be treated humanely. The parties to the conflict must respect the civilians without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or similar criteria. The use of disproportionate force like violence to life and person, in particular murder, mutilation, cruel treatment and torture, taking of hostages and outrages upon personal dignity, in particular humiliating and degrading treatment against civilians is prohibited an all armed conflicts.

314 Supra Note 50, p. 7. 315 Supra Note 48, p.7. 316 Hans-peter Gasser. “Protection of the Civilians Population” in "The Handbook of International Humanitarian Law". ed. by Dieter Fleck. Oxford University Press. Oxford, New York: (2008).p. 237. 317 Jann K. Kleffner. "From 'Belligerents' to 'Fighters' and Civilians Directly participating in Hostilities- on the Principle of Distinction in Non-international Armed Conflicts One Hundred Years After the Second Hague Conference". Netherlands International Law Review: (2007). p. 324. (315-336) 318 Common Article 3(1) of four Geneva conventions 1949. 86 In contrast to Common Article 3, Additional Protocol II and subsequent treaties that apply in non-international armed conflicts employ the term 'civilians' and 'civilian population' on various occasions. Yet they do not define the term civilians.319The protection of civilians in occupied territories is covered in Article 4 of Additional Protocol II. This Article establishes some of the most basic civilian rights, including the right to life, freedom from torture, freedom from collective punishment (summary execution), freedom from rape, and freedom from slavery, and the rights of children, including the right to education and the prevention of child soldiers. Article 4(1) of

Additional Protocol II provides that, in non-international armed conflicts, all persons who do not take part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person and honor. They must in all circumstances be treated humanely, without any adverse distinction.320 Article 4(2) of AP II, emphasizes on the rule of prohibition of violence to the life, health and physical or mental well-being of persons in non- international armed conflicts, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; collective punishments; taking of hostages; acts of terrorism; outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; slavery and the slave trade in all their forms; pillage and threats to commit any of the foregoing acts.321 Article 4(3) of AP II, mentions that in non-international armed conflicts, the convictions and religious practices of all persons who are not taking a direct part in hostilities must be respected and children must be able to receive religious and

319 Jann K Kleffner. "From 'Belligerents' to 'Fighters' and Civilians Directly participating in Hostilities- on the Principle of Distinction in Non-international Armed Conflicts One Hundred Years After the Second Hague Conference". Netherlands International Law Review: (2007). p. 324. 320 Additional Protocol II, Article 4(1). Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. 321 Ibid., Article 4(2). 87 moral education.322 In Article 13 of AP II, there is the provision of prohibition of attacking civilians in non-international armed conflicts and prohibition of acts of violence whose primary purpose is to spread terror among civilian population.323 Article 14 of AP II, explain the rule of prohibition of starvation of the civilian population as a means of warfare in non-international armed conflicts.324 In

Article 15 of AP II, there is the provision of prohibition of attacking works or installations that may cause the release of dangerous forces and severe losses among the civilian population, in non international armed conflicts.325 Article 16 of AP II, emphasizes on the rule of prohibition of acts of hostility against places of worship, which constitute the cultural and spiritual heritage of peoples as well as their use in support of the military effort in non-international armed conflicts.326Article 17 of

AP II, talks about the prohibition of forced displacement of the civilian population both within a country and across a border in non-international armed conflicts unless the security of the civilians or imperative military reasons so demand.327

The Rome Statute creates protection measures for civilians during the most egregious offenses committed during armed conflict, including genocide, war crimes, crimes against humanity, and the crime of aggression.328 The Rome Status classifies many of the common civilian abuses as war crimes. According to the Article 8(2) (c) (i); (iii); Art. 8(2)(e)(I); (xi) of ICC Status, the

Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; the taking of hostages; intentionally directing attacks against the civilian population or against civilians not taking direct part in hostilities; subjecting persons to physical mutilation or to medical

322 Ibid., Article 4(3). 323 Ibid., Article 13. 324 Ibid., Article 14. 325 Ibid., Article 15. 326 Ibid., Article 16. 327 Ibid., Article 17. 328 Rome Statute of the International Criminal Court," 1998, Article 5, 2187 United Nations Treaty Series 90. International Criminal Court, 2011. 88 or scientific experiments of any kind, not justified by the medical treatment of the person concerned and which cause death or seriously endanger the health of the person concerned are war crimes in non-international armed conflicts.329 One of the strengths of the ICC Rome Statute is that it applies to all individuals and not just states. However, the Rome Statute has not been ratified by many states and is not yet considered as customary law. Thus, it can only be applied in certain conflicts.

Enforcement of IHL

The Parties to the four Geneva Conventions of 1949 and two Additional Protocols of 1977 undertake to respect and to ensure respect for the Conventions and Protocols respectively in all circumstances.330 Common Article 1 of four Geneva Conventions and AP I, do contain provisions aimed at the repression and punishment of breaches of IHL. The International Court of Justice has recognized this principle to belong to customary international law and to apply also to the law of non-international armed conflicts.331 However, enforcement of IHL is in always questions in non- international armed conflicts. Common Article 3, and AP II, represents the considerable body of rules for the protection of civilians in non-international armed conflicts. Neither Common Article 3 nor AP II contains provisions governing their enforcement. They are sadly lacking the provisions that aimed at the repression and punishment of breaches of IHL in non-international armed conflict.332

A variety of enforcement method exists in IHL. A better means of enforcement is the prosecution of individuals responsible for violations of the IHL as war criminals. Christopher

Greenwood argued that “an individual who violates any of the rules of the law of armed conflict is

329 Ibid., Article 8. 330 Article 1 common to for Geneva Conventions and Additional Protocol I. 331 Supra Note 236, p. 231. 332 Lindsey Moir. “The Law of Internal Armed Conflict” Cambridge University Press: (2002). p. 232. 89 guilty of war crime if he has the necessary guilty knowledge”.333 According to this all states party to the conventions have a duty to search for persons alleged to have committed grave violations and to bring them to justice. These breaches of IHL constitute war crimes or crimes against humanity or even genocide for which universal jurisdiction is provided.334 Article 6 (b) and (c) of the charter of the Nuremberg Tribunal, 1945, talks about the war crimes and crimes against humanity. According to this, the following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to Wave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.335

In recent years the United Nations has become increasingly involved in attempting to secure compliance with the IHL.336 Since the end of the cold war, the United Nations Security Council has had a considerable role in enforcement of IHL.337 During the 1990s, the United Nations Security

Council has established international tribunals with jurisdiction to try charges of war crimes

333 Supra Note 257, p. 809. 334 Supra Note 62, p. 1200. 335 Article 6 of Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. London, 8 August 1945. 336 Supra Note 257, P. 813. 337 Supra Note 70, p. 261. 90 committed in the former Yugoslavia and Rwanda, which is established under international law to try offences committed during the brutal civil war.338 Rudiger Wolfrum and Dieter Fleck wrote:

The Security Council has particularly called on parties to armed conflict to ensure the safety of civilian populations and fully to respect human rights and international humanitarian law. In Yugoslav conflict it appointed an impartial commission of experts to investigate reports of violations of international human rights provisions. In this and other conflicts the Security Council has also endorsed the prosecution of war crimes and crimes against humanity.339

They further put their ideas:

In the conflict in the Democratic Republic of Congo the Security Council has called on all parties to protect human rights and respect international humanitarian law and the Genocide Convened to refrain from or cease any support to, or association with, those suspected of involvement in the crime of genocide, crimes against humanity, or war crimes, and to bring to justice those responsible, and facilitate measures in accordance with international law to ensure accountability for violations of international humanitarian law.340

Belligerent reprisals is the another method of enforcing the international humanitarian law. It exists as a form of sanction to enforce the laws of war during hostilities.341 It is permissible only in exceptional cases and for the purpose of enforcing compliance with international law.342 A belligerent reprisal is an act which would normally be a violation of the laws of armed conflict but which becomes lawful because it is taken in response to a prior breach of the laws of armed conflict by an enemy.343 IHL prohibits the reprisals against the wounded, sick, and shipwrecked, prisoners of war, civilians and civilian objects, cultural property, objects indispensable to the survival of the civilian population and the natural environment as well as works and installations containing dangerous forces.344

338 Supra Note 257, p. 809. 339 Rudiger Wolfrum and Dieter Fleck. “Enforcement of International Humanitarian Law” in "The Handbook of International Humanitarian Law". ed. by Dieter Fleck. Oxford University Press. Oxford, New York: (2008).p. 676. 340 Ibid., p. 675-676. 341 Supra Note 332, p. 237. 342 Supra Note 316, p. 690. 343 Supra Note 257, pp. 811-812. 344 Supra Note 339, p. 690. 91 The enforcement of IHL is a key objective of the International Committee of the Red Cross.

The ICRC promoted the 1864 and all subsequent Geneva Conventions and Additional Protocols. It plays a central role in the practical implementation of IHL, in particular under the Geneva

Conventions.345 ICRC consists over 100 national Red Cross (or Red Crescent)) Societies with a

League coordinating their activities, and conferences of all these elements every four year.346

National Societies are particularly well placed to promote implementation within their own countries.347 According to Malcolm N. Shaw, the ICRC is the most active body and has a wide ranging series of functions to perform, including working for the application of the Geneva

Conventions and acting in natural and man-made disaster.348 ICRC operates in both International and non-international armed conflict situations. One of the largest operations it has undertaken since

1948 related to the Nigerian civil war, and in that conflict nearly twenty of its personnel were killed on duty. The ICRC has since been deeply involved in Yugoslav, Somalia, Rwanda, Afghanistan, Sri

Lanka and in Iraq.349 The action which the ICRC can take when it detects violations of the law is usually limited to private persuasion, although it may make a general appeal to the parties to comply with the law. Within these limits the ICRC has often been remarkably successful and conditions where it is denied access have almost invariably been worse than those in places it has been allowed to visit.350

Third Focus Area

The final focus area of this chapter overviews reports, analysis and critiques of IHL achievements with focus on protection of civilians in war times, reconciliation, peace-building and 345 Supra Note 70, p. 262. 346 Supra Note 62, p. 1200. 347 Supra Note 236, p. 233. 348 Supra Note 62, p. 1200. 349 Ibid., p.1201. 350 Supra Note 257, p. 813. 92 justice, and outline the current body of knowledge and opinion on this core issue of the research. The objective of this area is to create a better understanding of the IHL achievements in armed conflicts in the issue of civilians protection, reconciliation, peace-building and justice through different organizations like UN, ICRC and several others non-governmental organizations.

Achievements of International Humanitarian Law in the protection of civilians in Armed

Conflicts

International humanitarian law is designed to protect persons who do not participate, or are no longer participating, in the hostilities; and it maintains the fundamental rights of civilians, victims and non-combatants in an armed conflict.351 More importantly, in recent time protecting civilians has emerged as a central purpose of IHL. To achieve this purpose IHL involved in many armed conflict through many organizations in conflict hit zone. Since the end of the cold war, the UN Security

Council has had a considerable role in enforcement of IHL. Numerous resolutions adopted under chapter VII of the Charter reaffirmed the duty of belligerents to observe IHL, and authorized the use of force to protect civilians from grave and persistent breaches of IHL.352 Similarly, ICRC plays a central role in the practical implementation of IHL to achieve its purpose, in particular under Geneva

Conventions. It promoted the 1864 and all subsequent Geneva Conventions and the Additional

Protocols.353 Now, there are many public and private humanitarian organizations operating all over the world. These organizations are working to save lives and alleviate the suffering of those not

351 "United Nations Peacekeeping Operations Principles and Guidelines" United Nations Department of Peacekeeping Operations Department of Field Support: (2008).p.15. 352 Supra Note 70, p. 261. 353 Ibid., p. 262. 93 taking part in an armed conflict, who are deprived of the basic necessities of life as a result of the hostilities.354

According to Niels Blokker, the Security Council played a more prominent role since 1990 specifically in relation to the use of force to achieve the purpose of IHL. As much more limited substitutes for such forces, peacekeeping was further developed and in a large number of cases resolutions were adopted authorizing member states to use force.355 The book "United Nations

Peacekeeping Operations Principles and Guidelines" discussed:

Over the past sixty years, United Nations peacekeeping has evolved into one of the main tools used by the international community to manage complex crises that pose a threat to international peace and security. Since the beginning of the new millennium, the number of military, police and civilian personnel deployed in United Nations peacekeeping operations around the world has reached unprecedented levels. Not only has United Nations peacekeeping grown in size but it has become increasingly complex. Beyond simply monitoring cease-fires, today’s multi-dimensional peacekeeping operations are called upon to facilitate the political process through the promotion of national dialogue and reconciliation, protect civilians, assist in the disarmament, demobilization and reintegration of combatants, support the organization of elections, protect and promote human rights, and assist in restoring the rule of law.356

As noted above the maintenance of international peace and security is one of the primary purposes of the United Nations. It plays a significance role in the maintenance of international peace and security. Chapter VII permits the Security Council to decide on coercive measures or undertake enforcement action against a state or states in response to breaches of the peace or acts of aggression.357The United Nations has had a significant involvement in military operations of one kind or another since the first major United Nations authorized operation during the Korean conflict

354 Ruth Abril Stoffels,. "Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps. IRRC. Vol. 86. No.855. September (2004). p. 515. 355 Supra Note 53, p.14. 356 "United Nations Peacekeeping Operations Principles and Guidelines" United Nations Department of Peacekeeping Operations Department of Field Support: (2008).p. 6. 357 Ray Murphy. "United Nations Military Operations And International Humanitarian Law: What Rules Apply to Peacekeepers? Criminal Law Forum: (2003) p. 166. 94 in 1950.358Prior to 1990, the United Nations had authorized two enforcement missions, that against

North Korea in 1950 and the Congo in 1960.359 But, after the collapsed of the Soviet Union and the end of cold war there was fundamental changes in the climate of world politics in which the role of

Security Council has become more important. Whenever the need arose to maintain international peace and security, agreement was often reached, opening of new perspectives for Security Council action.360 Security Council has since approved a number of major operations in Kuwait, Somalia, the former Yugoslavia, Kosovo, East Timor, Albania, The Central African Republic and Sierra Leon and other many countries.361 According to wolfrum and Fleck:

The Security Council, invoking its responsibility for world peace, condemned Iraqi repression of the Kurdish people and compelled Iraq to permit international humanitarian organizations access to persons in need of help. Thus it has been possible through Security Council efforts to alleviate the distress and persecution of the Kurdish people. Furthermore, in the conflict in the Former Yugoslavia and the Civil War in Somalia, serious human rights violations perpetrated against sections of the population and difficulties in distribution of essential aid supplies have caused the Security Council to intervene or tighten its Sanctions. In the Yugoslav conflict the Security Council has prohibited military fights in Bosnia airspace, tightened inspections, and authorized enforcement of control and aid measures by armed force to ensure the protection of humanitarian air convoys. In the conflict of East Timor the Security Council emphasized the urgent need for coordinated humanitarian assistance and the importance of allowing full, safe, and unimpeded access by humanitarian organizations. These actions were based upon Chapter VII of the UN Charter. In the conflict in the Democratic Republic of Congo the Security Council has called on all parties to protect human rights and respect humanitarian law and the Genocide Convand to refrain from or cease any support to, or association with, those suspected of involvement in the crime of genocide, crime against humanity, or war crimes, and to bring to justice those responsible, and facilitate measures in accordance with international law to ensure accountability for violations of international humanitarian law.362

The Security Council has particularly called on parties to armed conflicts to ensure the safety of civilian populations and fully to respect human rights and international humanitarian law.363 As

358 Ibid. 359 Ibid. 360 Supra Note 53, p.13. 361 Supra Note 357, p. 166. 362 Supra Note 339, pp. 675-76. 363 Ibid., p. 676. 95 peacekeeping missions have grown in number, frequency, size and mandate, the UN has made increasingly concerted efforts to put civilian protection at the heart of these operations. On the basis of chapter VII, the Security Council adopted a Status for the International criminal tribunals for the former Yugoslavia and for Rwanda.364 In this regard Meron argued:

Atrocities in the former Yugoslavia and Rwanda shocked the conscience of people everywhere, triggering, within a short span of time, several major legal developments: the promulgation by the security Council, acting under chapter VII of the United Nations Charter, of the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda, the adoption by the International Law Commission of a treaty-based statute for an international criminal court, the convening of a series of conferences in the United Nations leading to the Rome Conference (1998) for the adoption of the Rome Statute of the International Criminal Court (ICC), and a series of meetings of Preparatory Commission designed to complete the remaining work necessary to bring the Rome Statute into force.365

The Security Council's Status for the Criminal Tribunals for the former Yugoslavia and

Rwanda have contributed significantly to the development of IHL and its extension to non- international armed conflicts.366 Criminal Tribunals for the former Yugoslavia and Rwanda constitute the first successful efforts of the international community to establish institutions to impose individual criminal responsibility since the Nuremberg trials. Their statutes, rules of procedure and evidence, and practice stimulate the development of the law further.367 The Status for the ICTY and the ICTR paved the way for the agreement for and Status of the special Court for

Sierra Leone of 16 January, 2002. Serious Crimes Panels in the District Court of Dili (East Timor) and Regulation 64’Panels in the Courts of Kosovo have contributed to a practice of Courts which was, and still is, supported by the international community.368 Similarly, in 1998, the Rome Statute on the International Criminal Court opened the door for the establishment of a permanent court

364 Supra Note 53, p.14. 365 Theodor Meron. "The Humanization of International Law" The Hague Academy of International Law: (2006). p.93. 366 Ibid., p. 94. 367 Ibid. 368 Supra Note 339, p.719. 96 capable of prosecuting individuals allegedly responsible for serious breaches of IHL - and with jurisdiction over crimes regardless of when or where they were committed.369

Protecting civilians has emerged as a central purpose of many contemporary peace operations. Only the period between 2004 – 2006, nine UN Peace operations have been launched successfully in the following countries: Burundi (ONUB), Cote d’Ivoire (UNOCI), the Democratic

Republic of Congo (MONUC), Haiti (MINOSTAH), Iraq (UNAMI), Lebanon (UNIFIL), Liberia

(UNMIL), Sudan (UNMIS), and East Timor (UNMIT), while four have drawn-down or closed:

Burundi (ONUB), Kosovo (UNMIK), Sierra Leone (UNAMSIL), and East Timor (UNMISET).370

The Security Council may consider the establishment of arrangements addressing impunity and, as appropriate, for truth and reconciliation during the crafting of peacekeeping mandates. Truth and reconciliation Commission of different types have been established to consolidate the peace process after recent conflicts in Argentina, Uganda, Chile, Nigeria, Sierra Leone, Chad, El Salvador, Haiti,

South Africa, Ghana, east Timor, Peru, Morocco, and Liberia. The extent to which this process could be supported by peace operations on a more regular basis, deserve consideration.371According to the

Report of the Secretary-General on the protection of civilians in armed conflict, much has been achieved in recent years towards strengthening the protection of civilians in armed conflict, including the acceptance of the responsibility to protect; increased engagement of the Council on issues relating to the protection of civilians; more regular inclusion of activities in support of protection of civilians in peacekeeping mandates; investment in strengthening the United Nations peace mediation capacity; improved coordination of protection activities among humanitarian actors;

369 United Nations Office for the Coordination of Humanitarian Affairs (OCHA) Integrated Regional Information Network (IRIN): (2003). p.8. (To access the web special please go to: www.irinnews.org/webspecials/civilprotect/default.asp) 370 Ben F Klappe. “International Peace Operations” in "The Handbook of International Humanitarian Law". ed. by Dieter Fleck. Oxford University Press. Oxford, New York: (2008).p.637. 371 Supra Note 339, p.719. 97 and increased momentum at the international and national levels towards combating impunity for war crimes and crimes against humanity.372

In a similar way, the International Committee of the Red Cross (ICRC) has been working as a main driving force behind the success and achievement of IHL in the protection of civilians in armed conflicts for 140 years.373 United Nations Office for the Coordination of Humanitarian Affairs claimed that the ICRC has a specific mandate under the Geneva Conventions on the conduct of war to protect and assist victims of armed conflict and internal violence – though many other humanitarian and development agencies have become involved in offering protection and relief.374

Since its establishment, ICRC has engaged and involved in many humanitarian initiatives aimed at ameliorating the suffering of the wounded and sick, in the protection of non-injured prisoners of war protection of civilians, providing relief to the population of occupied territories, selecting and transmitting information concerning missing persons and offering its good offices to facilitate the establishment of hospital and safety zones.375

More recently ICRC engaged in many armed conflicts aimed to protect the civilians in severe armed conflicts. In the report, Overview of Operations 2012 of ICRC, Kellenberger wrote:

In 2011, the ICRC adopted its response effectively to several sudden- onset crises, notably to those unfolding simultaneously in Cote d’Ivoire and Libya. In Cote d’Ivoire, its longstanding relations with all sides and presence in the crisis prone region enabled it to adjust swiftly to the post election conflict. In Libya, it had first to establish a presence and relation to gain access to affected populations.376

372 Supra Note 51, p. 3. 373 Bugnion, Francois. “The International Committee of the Red Cross and the Development of International Humanitarian Law. Chicago Journal of International Law. Vol.5. No. 1. (2004). P. 191. 374 Supra Note 369, p. 5. 375 Supra Note 260, p. 114. 376 Overview of Operations 2012. ICRC. November: (2011). p. 8. 98 As discussed above, the ICRC provided vital assistance to the victims of Côte d’Ivoire’s rapidly escalating post-election violence, in Abidjan and in the west of the country, where it was one of the only humanitarian organizations on the ground. In the same way, in the violent unrest erupting in Libya, an ICRC team was deployed to the eastern city of Benghazi, which was crucial in facilitating further dialogue and access. The ICRC was also the first international humanitarian organization to establish a delegation and carry out activities in Tripoli.377

Kellenberger pleaded, in Somalia, where the population has been suffering from multiple pressures for many years’ armed conflict and regular natural disasters in particular without any real prospects of peace and development. There, the ICRC, together with the Somali Red Crescent

Society responded to the worsening situation in 2011 principally by significantly expanding its therapeutic feeding centres and health care facilities in areas controlled by Harakat al-Shabaab

Mujahedin (al-Shabaab), boosting an already major relief operation that included food distribution to

1 million people.378 Similar to Kellenberger, Kirsten Young talked about the role of ICRC in the war of former Yugoslavia, where the ICRC had visited over 54,000 detainees in 520 places, exchanged

18 million Red Cross messages, reunited over 4,500 families, distributed over 100,000 metric tons of food, and spent over 47 million Swiss francs on medical and surgical assistance.379 Similarly in

Rwanda, the ICRC continues to address the humanitarian consequences of genocide as well as of past and present armed conflict in the region. Its programmes address the needs of detainees and unaccompanied children and minors. It supports the humanitarian activities of the Rwanda Red

377 Jakob Kellenberger. "Overview of the ICRC's operations in 2012: message from the president" . 08-12-2011 Report, Access in http://www.icrc.org/eng/resources/documents/report/appeals-2012-message-president-2011-12-08.htm 378 Ibid. 379 Kirsten Young. "UNHCR and ICRC in the former Yugoslavia: Bosnia - Herzagovina. International Review of Red Cross. Vol. 83. No. 843. September (2004). p. 784. (781-805) 99 Cross and promotes adherence to and implementation of international humanitarian law.380 In the war of Sudan, the ICRC started working in 1978. Since 2003, the organization has been responding to needs arising from the hostilities in Darfur, where ethnic violence over resources and sporadic military clashes continue to displace and harm civilians. In Darfur, the ICRC improves the lives of thousands of people through an integrated programme of agricultural, veterinary, water and health projects, often conducted with Sudanese partners.381

In this scenario of violent armed conflicts which continued to displace millions of people, disappear thousands of persons, brutally suffer countless children and young people and force them into service in the ranks of one party or another to the hostilities still infested with antipersonnel mines and other unexploded munitions primarily as the direct result of violations of IHL, the ICRC systematically encourages states to adhere to humanitarian law treaties, and it is convinced that the greater the rate of participation in those treaties, the more strongly their rules will be established in international law, and thus more difficult to question.

In terms of assuring IHL achievement for civilians' protection, many private humanitarian organizations working in the field in situations of violence endeavor to assess living conditions of the population, analyze cases of abuse and violations of IHL, identify any shortcomings or needs, and monitor those people who are particularly vulnerable. Wolfrum and Fleck wrote about the role of non-governmental organizations to achieve the goal of IHL in the protection of civilians:

Non-governmental organizations (NGOs) have an important role to play in conflict prevention, conflict resolution, and post-conflict reconstruction. The influence of NGOs has been supported by the courage, devotion, and compassion of individuals and in turn the role of individuals for the implementation and development of international humanitarian law has 380 The ICRC in Rwanda. 29-10-2010 Overview. International Committee of the Red Cross. Access in http://www.icrc.org/eng/where-we-work/africa/rwanda/overview-rwanda.htm 381 The ICRC in Sudan. 16-12-2011 Overview. International Committee of the Red Cross. Access in http://www.icrc.org/eng/where-we-work/africa/sudan/overview-sudan.htm 100 clearly been increased by NGOs during their activities. This role has been indispensable already in the past and it is challenging states at present and in the foreseeable future.382

As discussed by Wolfrum and Fleck, humanitarian organizations aim to ensure that all parties to a conflict provide individuals and groups with the full protection entitled to them under international law, and to take specific measures to ensure their safety in situations of military engagement. Stoffels argued:

Humanitarian organizations also have a right to provide humanitarian assistance. This consists of the right to offer victims the relief supplies that they need and the right for the offer of aid not to be unreasonably refused when the needs of the victims are not met in some other way. This right should be regarded as a corollary to the right of victims to humanitarian assistance, without which it lacks a solid justificatory basis.383

Relief agencies also work to protect civilians by negotiating access to vulnerable groups - their very presence often, but not always, serving to protect civilians - and by providing material and medical relief.384 Although not all humanitarian organizations serve strictly humanitarian purposes, many of them, including amnesty international, Human Rights Watch, Medecins Sans Frontieres, and others, may offer professional services which may be indispensable for the victims of armed conflicts and should be accepted and supported by states.385 Such humanitarian organizations in situations of armed conflict are generally working to provide at least a minimum of protection to civilians affected. This may include establishing a presence on the ground, negotiating humanitarian access, preventing breaches of humanitarian law, ending such breaches or limiting their effect when they occur, and/or providing for the prosecution of individuals and parties violating the rights of civilians.386

382 Supra Note 339, p.721. 383 Supra Note 354, p. 521. 384 Supra Note 369, p.7. 385 Supra Note 339, p.721. 386Supra Note 369, p.7. 101 Summary

A critical examination of the literature under review showed that the literature on the subject provided a comprehensive overview as regards issues involved in the decade long armed conflict of

Nepal and International Humanitarian Law. In this regard, it showed that the decade long armed conflict of Nepal traced its origin well back in time and to a complex mix of social, economic and political problems in the country. During the war, parties to the conflict had carried out acts of extreme violence, and human rights and IHL abuses had been common across the country as increasingly civilians became the major victims of the conflict. Similarly, the reviewed literature about IHL showed that being an official law of armed conflict IHL is designed to regulate the treatment of the individual- civilian or military, wounded or active- in armed conflicts. It seeks to protect persons not engaged in or no longer participating in hostilities. The main purpose of it is to protect combatants and non-combatants from unnecessary suffering and to safeguard the fundamental human rights of persons, who are not, or are no longer, taking part in the conflict and of civilians.

The literature grounds the decade long armed conflict of Nepal and International

Humanitarian Law mostly in narrative and also as a purely descriptive form. The logic, evidence, and facts presented by the scholars seem to indicate that the role of IHL in the protection of civilians has increased in any types of armed conflicts elsewhere, but these claims are yet to be tested. The strength of the literature however is in the fact that it provides an overview and ramifications of the issues involved in the decade long armed conflict of Nepal and International Humanitarian Law. It thus serves as a compass, showing direction for future research and policy framework on IHL role in the civilians' protection in armed conflicts. 102 Chapter 3 offers a detailed discussion on the research design used for the study. This chapter provides a theoretical framework to the research. This includes the research design: justification why Nepal as a case study, sources of data, method of data collection and procedures, and method of data analysis. 103 CHAPTER 3:

RESEARCH METHOD

Introduction

This chapter describes the research design: justification why Nepal as a case study, sources of data, method of data collection and procedures, and method of data analysis. The following questions guided the research:

1. To which extent did the decade long war of Nepal affect the Civilians?

2. To what extent did the Maoist rebels and Government security forces commit serious

violations of IHL?

3. What was the role of IHL in the war of Nepal?

4. What was the performed role of IHL in the protection of civilians in the war of Nepal?

This research should lead to the understanding of the IHL role in the protection of civilians in the decade long armed conflict of Nepal. This research evaluates the IHL role in the protection of civilians in the armed conflict of Nepal in terms of descriptive and case study analysis method. The descriptive analysis describes the nature and history of the decade long armed conflict of Nepal and

International Humanitarian Law. The case study analysis examines the civilians' status in armed conflict of Nepal and IHL role in the protection. In this research the case study analysis serves as empirical evidence to evaluate effectiveness of the IHL in the civilians' protection and provide a way to examine specific instances of civilian abuses. 104 Design of Study

This Section describes the research design used for the study. The research design is the conceptual structure within which research is conducted; it constitutes the blueprint for the collection, measurement and analysis of data.387 To this end, it addresses the justification of why

Nepal as a Case Study, methods of data collection, and method of data analysis.

Justification of why Nepal as a Case Study

In the design phase of this research, several qualitative paradigms or traditions were examined to determine the appropriate methods. But the qualitative tradition of case study was utilized as the most suitable method of inquiry for this research. As a research study, the case study is used in many situations to contribute to our knowledge of individual, group, organizational, social, political, and related phenomena.388

Given the time constraints of this research project, it was necessary to limit the research only on Nepal case. The researcher couldn't possibly include all similar cases from the world in a study like this. A study like this can only be a small part of the larger project on how international law in general and IHL in particular operate in practice. In this regard, the researcher has chosen an internal armed conflict of Nepal as the subject of his study because it constitutes a case of contemporary history in which the role of IHL in the protection of civilians has entered into challenging phase that cannot be comprehend if we do not look at the specifics and if we do not undertake an imperative understanding of the actions and practices of IHL in non- international armed conflicts.

387 C. R Kothari. "Research Methodology Methods & Techniques". Wishwa Prakashan, New Delhi: (2004).p.39. 388 Robert K Yin. "Case Study Research Design and Methods". SAGE Publication:2003.p.1. 105 In order for the analysis to reflect the most recent developments in armed conflict and international humanitarian law, it was necessary for the case studies to meet some criteria. First, the armed conflict had to occur around 9/11 era. The conflict of Nepal was the most accurate representation for current and future application of international humanitarian law. The second criterion was that the conflicts chosen for the case studies had to start prior to 2007. There is simply not enough information on the rights of civilians in most of the conflicts that have started since 2007.

The third criterion was that civilian abuse had to occur during the conflict. The reason for choosing

Nepal with a high record of civilian abuse is that this country would be more likely to prove the ineffectiveness of international humanitarian law. In country where civilian abuse has been rare, it would remain unclear if they were following the law or if other factors were able to make up for the deficiencies in the law. Finally, Nepal was chosen where the armed conflict was not increasing as of

2006 because conflicts with magnifying violence are too complex to be used as a measurement of the effectiveness of the law.

Sources of Data

Data means information. Data can be seen as the essential raw materials of any kind of research. They are the means by which we can understand events and conditions in the world around us.389 The data used for this study was from documentary source. This research is primarily a qualitative field based research; nonetheless the researcher has integrated components from desk research, compiled official statistics from various human rights organizations that were working during the time of conflict and pertinent literature and reports produced by them. Many international and local human rights organizations conducted extensive research on the human rights and IHL abuses that occurred during the conflicts in Nepal. The format and purpose of their reports provide 389 Nicholas Walliman. "Social Research Methods". SAGE Publication:2006.p.50. 106 the exact type of human rights and IHL data that is required in this study. With available data, the researcher made use of primary and secondary sources covering the armed conflict between the times 1996 to 2006. Available data was utilized because the phenomenon being studied was a past event. In such a situation, given the nature of the study, available data in the form of relevant reports were required to determine the performed role of IHL in the protection of civilians.

Available data gathered for this study included compiled official statistics with the reports from various international and local human rights organizations and their statements and press releases by them. Other data from academic and non-academic sources likes books, articles appearing in journal and other publications, research paper submitted to the universities and sources available in electronic media were also utilized in the study to arrive at a comprehensive report.

These documents were collected, analyzed and reviewed to make sure the performed role of IHL in the time of conflict In Nepal.

Method of Data Analysis

The data, after collection, has to be processed and analyzed in accordance with the outline laid down for the purpose at the time of developing the research plan.390 Several components might comprise the discussion about the plan for analyzing the data.391 Data analysis requires that the researcher be comfortable with developing categories and making comparisons and contrasts. It also requires that the researcher be open to possibilities and see contrary or alternative explanations for the findings.392

390 Supra Note 387, p. 151. 391 John W Creswell. "Research Design Qualitative and Quantitative Approach". SAGE Publications: (1994). p.153. 392 Ibid. 107 For this study the researcher utilized step- by - step data analysis procedures as suggested by

Creswell. This step- by- step procedures are data management, reading and memoing, description, classification and interpretation, and representation.393

In the first stage, the researcher managed the data. Due to the volume of data gathered, the researcher developed a list of all data collected. Data were then organized according to categories.

Categories were applied to the research questions to provide understanding of international humanitarian law role in internal war of Nepal. In the second stage, the researcher read the entire materials and documents several times until he became immersed in it to make sense of the entire data. In the course of reading, the researcher made reflective notes and documented initial findings in the form of a memo. Third stage deals with data analysis. It involves description, classification, and interpretation of data. The fourth stage in the data analysis involve packaging and presenting what is found in the data in a form of a matrix or figure to make the analysis open. Presenting a matrix of category development has brought the process into public domain and enhances the credibility of findings. These processes provided a detailed account of how the findings on context and dynamics of the international humanitarian law role in Nepal during the time of conflict were arrived in.

Summary

This chapter examined the design for the study. This study has attempted to examine the existing role of IHL during the armed conflict of Nepal. To examine the existing role of IHL the case study approach was utilized as the most suitable method because it offered an in-depth contextual perspective on the subject. Available documents were methods of data observation employed for the

393 Supra Note 394, p.153-169. 108 study. Data were analyzed by using the step by step procedures. These step by step procedures are data management, reading and memoing, description, classification and interpretation, and representation. Chapter 4 consists of data analysis and findings that provided from the data in answer to the research questions. 109 Chapter 4:

DATA ANALYSIS AND FINDINGS

Introduction

This chapter presents the study's findings as informed by primary and secondary data collected. This chapter assesses the relevancy of the role of IHL in the Nepal context in particular.

This chapter illustrates the violation of international humanitarian law by warring parties and the performed role of IHL in the protection of civilians’ in time of severe armed conflict in Nepal and its challenges of prosecution for egregious human rights and IHL violations. Across all study locations, gathered documents of how IHL plays the role in the protection of innocent civilians in times of conflict are discussed here. The following questions guided the study:

1. To which extent did the decade long war of Nepal affect the Civilians?

2. To what extent did the Maoist rebels and Government security forces commit serious

violations of IHL?

3. What was the role of IHL in the war of Nepal?

4. What was the performed role of IHL in the protection of civilians in the war of Nepal?

The Context of the Study

The case study approach was utilized as the most suitable method to provide in depth contextual perspectives on the subject. A qualitative research method using historical analysis exploiting primary and secondary sources is employed in this dissertation. To facilitate this project, the researcher conducted field research in Nepal in August 2010 to September 2010. During the period, the researcher tried to collect as much data as possible, relating to the conflict of Nepal and

IHL role in the protection of civilians during war. The findings in this chapter consist of analysis of 110 gathered documents. The researcher himself had involved in the task of collecting relevant documents.

Documents used for the study were from the many international and local human rights organizations that were working in Nepal during the period of conflict. United Nations agencies,

Human Rights Watch, ICRC, Amnesty International, International Crisis group, and many local human rights organizations like INSEC, National human rights commission, Nepal Red Cross

Society etc were the main sources for the relevant documents.

For this study the researcher utilized step- by - step data analysis procedures. This step- by- step procedures are data management, reading and memoing, description, classification and interpretation, and representation.394

In the first stage, the researcher managed the data. Due to the volume of data gathered, the researcher developed a list of all data collected. Data were then organized according to categories.

394 Supra Note 394, pp.153-169. 111 and dynamics of the international humanitarian law role in Nepal during the time of conflict were arrived in.

Question 1

To which extent did the decade long war of Nepal affect the Civilians?

Introduction

The question sought to find out the real situation of civilians in the time of conflict. Analysis of gathered documents revealed that civilians were the target of attacks and systematic violations and abuse of their rights. During the war, parties to the conflict had carried out acts of extreme violence, and human rights and IHL abuses had been common across the country as increasingly civilians were the major victims of the conflict.

The parties to the conflict had disregarded humanity and resorted to extreme and humiliating actions against civilians. The warring parties committed bloody murders through indiscriminate shooting and bombing, mass abduction, force recruitment, rape, extortion, unlawful killings, and forced displacement of civilians. Civilians, especially those in heavily contested rural districts, had been exposed to a catalogue of abuses at the hands of warring parties. It was dangerous to travel from one place to another. In some cases both the warring parties blocked the movement of people and goods during the day. In zones with low agricultural output, these constraints disrupted the opportunities for trade - a key livelihood opportunity for the rural poor. In very rural remote areas, restriction on movement also interfered with the upkeep of water supply system and health services.395 Poor people were probably worse off than they used to be before the conflict, especially those who remained in the disrupted areas. For those communities, not only vulnerability increased 395 Supra Note 38, p. 157. 112 but also levels of insecurity were very high. The families were often caught between the warring parties during the hostilities. Those perceived to be collaborating with one side even under coercion became the target of the other.396 Many innocent civilians had been killed in the conflict in the name of insurgency and suppressing the insurgency. There were many examples in which security forces had killed innocent people blaming them either to be the Maoists or their supporters. Similarly,

Maoists had also killed many innocent peoples alleging them to be the spies of the security forces.

The adverse impact of the conflict was not limited to one level or sectors. Farmers, teachers, students, Law professionals, businessmen, journalists, photographers, political activists and others were also badly affected by the conflict. The security forces had reported to large scale arbitrary arrests, detentions, disappearances, extra-judicial execution and torture including rape. Human rights defenders, lawyers including, journalist had been arrested and tortured, killed or disappeared. The

Maoists had resorted to torture and deliberate and unlawful killings. The Maoists had abducted civilians, including teachers and school children for the purpose of political indoctrination.

Figure 1: Number of Killings by State and Maoists

(13 February, 1996 to 31 December, 2006)

396 Supra Note 36, p. 17. 113 Violence and unrest had affected the lifestyle of the whole nation. The conflict had exacerbated fear among the civilians especially people of a rural areas of a country. This conflict had left the bad impact on the lifestyle of the 90% of the people living in the rural areas.397 The armed conflict affects all the citizens, especially the weaker groups of the society like, women, children, elderly, indigenous and dalits (untouchables). During conflict, they lack adequate security, safety and protection.

Women

Women were bearing the major brunt of the decade long people’s war in Nepal. The impact of the conflict situation was more heartbreaking to women. During the conflict women were victims of hatred between the security forces and Maoists. Knowingly or unknowingly, women had taken part in the war activities from the side of the state and Maoists rebels. Women who were accused of being Maoists or supporters of Maoists were subject to cruel treatment by security forces. Similarly, the families of security forces were treated inhumanly by Maoists. Rape, sexual abuse, and torture by warring parties were very common. Sexual violence was used as a tool to punish women for their alleged connection with either side of conflict.398 Frequently, women were at risk because of their presence among the warring parties, which was perceived as assisting them or being a part of the armed groups even if they were completely against their will. During the conflict, women, who were raped have to date never had any access to justice. There were huge internal and external displacement of people due to threats, harassment and forced migrating by warring parties. During the Romeo operation by Nepal police in mid-western region, dozens of females became pregnant

397 Informal Sector Service Center. Human Right Year Book. Katmandu, Nepal: 2005.p.93. 398 Supra Note 213, p. 30. 114 because of the police rape, which caused huge social tensions in entire the Rapti Zones.399 However, such rape cases and pregnancies hardly came out in public as no cases were registered with the local authorities due to the social stigma attached with the rape victim in a conservative Hindu society.

In the rural areas, where the conflict was intensified so violently, there were hardly any women, who were not sexually harassed. In those areas, if women were suspected as potential

Maoists, they were not only tortured physically or mentally but also molested and or raped by security forces. Many had to endure extra-judicial imprisonment and were even killed.400 In most of the cases women were raped in front of their families. However, nobody wants to share their experiences they have gone through. Security forces resorted to sexual exploitation of women and girls as a means of revenge. Oral sex, brutal rape, gang rape, and repeated gang rape were also forced on women while in custody to extract confession. Touching their sensitive organs of the body and stripping them naked were very common during the time of in captivity.401 The Maoists had capitalized on the plight of women, who have been marginalized for decades in Nepalese society and enrolled them into conflict in a large numbers. Nearly half of the Maoists rebels were women and their sexual exploitation was not uncommon. It was estimated that the women combatants in Maoists force consisted of 40 percent of the total combatants.402 However, the victims of this situation were mostly girls as parents were not in favor of sending their daughters to the district headquarters for education. So they were forced to leave their studies and help in the household work or were forced into early marriage so as to escape the forced recruitment into Maoists army thus completely destroying their education prospects. Others encouraged them to seek jobs abroad – mainly in the

399 Rapti Zone is in the Mid-western Region of Nepal. It is named after the west Rapti River which drains Rolpa, Pyuthan of Dang district. The headquarters of Rapti is Tulsipur. Rapti Zone is divided into 5 districts, Dang, Pyuthan, Rolpa, Rukum and Salyan. 400 Supra Note 10, p.52 401 Supra Note 5, p. 237. 402 See Supra Note 11, p. 2. 115 Gulf countries known for mistreating female domestic help. Most of the women took up prostitution as a means of livelihood because their husbands had disappeared, fled or migrated, were displaced, or killed during conflict. The women were forced to sell their bodies to earn money for feeding, educating, and medical care of their children, elderly including parents in-law.

As an outcome of the proliferation of armed conflict and the high level of casualties, there had been large numbers of widows in the country. Widow and single women were particularly at risk of violence and harassment from parties to the conflict, as well as their families and communities.403 This had a major impact not only in women but also in society in general.

Widowhood had changed the social and economic roles of women in the household and community, and the structure of the family. They were forced to take on new and unaccustomed roles. It had affected the physical safety, identity and the mobility of women in a large scale. It also had affected their access to basic needs and services necessary for survivals and their rights to inheritance, land and property. Women whose husbands have disappeared or are missing experience many of the same problems as widows, but without official recognition of their status, and this again created specific problems. In addition, they have to suffer the psychological effects and insecurity that stem from not knowing their husbands fate and not being able to bury their loved ones and mourn properly, and the long term consequences of raising children without a father and not being able to remarry.404 A number of wives of missing persons faced extreme stigmatization in their homes that has led to their being ejected by their in-laws, leaving voluntarily or continuing to live there in terrible conditions.

403 See, Amnesty International, Annual Report 2006. p. 195. 404 Charlotte Lindsey, "Women Facing War, ICRC Study on the Impact of Armed Conflict on Women". Women and War. ICRC, October 2001. 116 In the conflict areas, there were hardly any male members in the family and community.

Most of the heads of the family were temporarily settled in the urban centers of the country due to the threats on their lives by warring parties. At this situation women took over the total responsibility to run their families. The workload of women increased tremendously.405 They had to take care of their children as well as develop alternative method to look after the entire household. Many women and children were left without male protection and security. Due to all these, psychologically, women were in very poor situation. Increased amount of responsibility and work burden, women suffered from frustration, depression, anxiety, psychological pain, shock and fear. They were often harassed by the warring parties for shelter and food. Frequent and unnecessary home searches conducted by security forces, women became more vulnerable physically and mentally. They faced sexual slavery, sexual harassment, rape and other forms of violence during home searches which affected their physical as well as mental well being.406

Rural women were constantly in the fear of being caught in the crossfire when they went to work in the fields or to gather firewood in the forest or while tending cattle. During the decade long armed conflict, many women lost their lives. 1013 women were killed in the conflict through the end of 2006 with 820 of those death attributed to the security forces and 193 to Maoist.407

405 Supra Note 10, pp.53-54. 406 Smiriti Thapa. "A Focus on the Conflict in Nepal and it's Impact on Women". Women's World. Kampala: 2007, ISS. 42; p. 33. 407 Supra Note 8, p. 8. 117 Figure 2: Statistics of Women Killed by State and Maoists

(13 February, 1996 to 31 December, 2006)

Children

Children had been exposed to a catalogue of abuses at the hands of warring parties. The conflict had gravely affected the children by exposing them to violence by both sides, disrupting their home lives, limiting their families' economic activity, and hampering their access to education and health care.408 Many children were grown up in an environment shaped by guns, bombs, bandhs

(strikes), killings, the sight of dead bodies and the fear of war, leading them to be preoccupied with thoughts and fear about violence and other psychosocial consequences. 409 Children were caught in the middle. Both the warring parties had intentionally killed children. The security forces often detained for questioning, and sometimes tortured, “disappeared” or executed, children they believed 408 Supra Note 32, p.10. 409 Supra Note 45, p.11. 118 to be Maoists or Maoist sympathizers. For their part, Maoists had reportedly targeted the children of security force members in addition to killing and maiming those they suspect to be informers.410

Large numbers of minors, including girls, were involved in the conflict as Maoist's army combatants, while the armies of both sides utilized minors as messengers, informers, cooks and in other support functions. At least 3,500 to 4,500 children were part of the Maoist fighting forces. Tens of thousands of children had been forced to flee their homes to avoid recruitment by the Maoist or to seek better lives away from already impoverished communities further damaged by the conflict and the government brutal responses.411

In the course of conflict, in areas firmly under Maoists control, particularly in the rural areas, the Maoists operated a “one family, one child” policy whereby each family had to provide a recruit or face severe punishment. Once recruited, children were kept in the ranks through punishment or the fear of it. Children who considered escape had to consider the real possibility that the Maoists would exact reprisal upon their families.412 In the same way, the government force or security forces413 established a terrible record for human rights and IHL violations through the course of the conflict as they engaged in routine and systematic arbitrary arrest, unlawful detention, disappearances, extrajudicial execution and torture and mistreatment of detainees. Children considering escaping the

Maoists were effectively discouraged by fear that they would be detained and abused by Security's forces.414

410 Supra Note 46. 411 Supra Note 32, p.2. 412 Ibid.p.5. 413 Use of the term "government forces" and "security forces" pertain to unidentified members of governmental armed groups, including the Royal Nepalese Army, national police, armed police force and other armed branches mobilized by the government. 414 Supra Note 32, p.7. 119 Education suffered because of the conflict. Children’s accessed to education was threatened by Maoist bandhs (strikes), particularly those that specifically target school schedules and examinations, while government forces often used schools for shelter, and schools were mined or bombed. There was a high level of fear of attending school as a result of violence in and around schools, destruction of schools and school closures. Thousands of community schools had been among the local institutions most violated and threatened by the combatants in the war. Whole generations of Nepali children, who were often the first in their families to attend school, were losing their rights and opportunities to an education due to this on-going conflict.415 Some children had been removed from school to help at home, as older members of the family had migrated away from their home village to avoid recruitment by the Maoists or harassment by the security forces.416In some cases, Maoists had abducted students from schools for political indoctrination. Children and adult who had been abducted describe being given lectures on Maoism and on the rights of citizens.

Although many abducted children were returned with in a days, the fate of others is still unknown.

Some girls who were released after abductions had reported sexual abuse.417 The impact of the child abduction from schools, caused many parents to keep their children at home rather than risk sending them to school, and in some places, forcing the schools to shut down.418

With Nepal already one of the world’s poorest countries, the armed conflict had contributed to further degeneration of the low standard of living of many Nepalese children. Access to health and social services, as well as families’ basic needs, had been significantly affected and left many households overburdened.419 The families were often caught between the warring parties during the

415 Supra Note 45, p.11. 416 Supra Note 32, p.13. 417 Office of the Special Representative of the UN Secretary-General on the involvement of children in armed conflict, “Abduction of Children”, http://www.un.org/special-rep/children-armed-conflict/English/Abduction.html. 418 Supra Note 7, p.63. 419 Supra Note 45, p.10. 120 hostilities. Those perceived to be collaborating with one side even under coercion became the target of the other.420 Children had been subjected to killing, maiming and other violations of their rights committed with impunity by both Maoists and Security Forces. Over the decade long conflict, approximately 447 children were killed directly by the warring parties and many children were injured in the conflict. From the start of the people's war in 1996 through the end of 2006, 246 children were killed by Maoists and 201 of those death attributed to the security forces.421 Many were killed or injured during armed clashes or through extrajudicial executions carried out by each side. Dozens of children were killed as a result of indiscriminate attacks by the combatants.

Figure 3: Statistics of Children Killed by State and Maoists

(13 February, 1996 to 31 December, 2006)

420 Supra Note 36, p. 17. 421 Supra Note 8, p. 6. 121 Youths

Youth were amongst the most vulnerable groups that borne the impacts of the armed coflict.

Durig armed coflict, youth faced many problems regardless of where they lived, in rural areas or urban centres. In the period of coflict youth were viewed as 'the lost generation' because they lost their youth-hood in conflict.422 The Maoists had frequently pressed the local youth in rural areas to join their People’s War, and the security forces too had on occasions detained young men and women on suspicion for either being Maoists or their informants. As consequences, many of them had run away to safer regions. The villages remained empty of able bodied. Those who could afford to, were run away either across the border into India, or to urban center of the country. For those who remained there was pressure to join Maoists force. Families most offered up at least one able bodied male, otherwise they had to face large scale of fines or being forced out of village. Generally, those who had remained in the villages were the disable, widows, elderly people, persons with no support from any where, and the children.423

Usually, Maoist troops entered into a village and forced a particular family to provide them with food and shelter, despite their already limited food supplies. Threatened with violence, the family had no other choice but to act as directed. This subsequently left them vulnerable to attacks by security forces and accused of collaboration with Maoists. In such a condition, fear of being in the middle of attacks and counter attacks between security forces and Maoist rebels, fear of abduction by either of the parties, looting, shortage of food supplies due to the conflict and unemployment huge number of youths had been displaced from their local areas. Many young people and young adults left their villages simply because they wanted to avoid being pressured to join the Maoists on their fight

422 Supra Note 10, p.60. 423 Paper by, Sushil Pyakurel and Bipin Adhikari, Nepal: Strategies to Implement the Rights to Food in the Situation of Conflict. Presented at the National Seminar on Implementation of the Rights to Adequate Food in Uganda. January 22- 24, 2003. 122 against the security forces. Some others left because of the fear of being persecuted by security forces on the suspicion of being with the Maoists.424 This had become a common story for youths throughout Nepal. Due to this kind of physical and mental torture, youth got frustrated and depressed and to get away from difficult reality of warring parties' torture and suspicion, they had started taking drugs and alcohol. The threats and terror from the warring sides forced youth to remain within the four walls of their homes. They were deprived from entertainment, sports and other activities that are essential for their development.425

Dalits

The caste system is the most prominent aspect of Nepal’s social order. At the top of the hierarchy are the Brahmins or noblemen at the highest level, followed closely by the protectors or warriors (Chhetris), then the merchants (Vaishya), and the Dalits, who are the members of the

“untouchable” caste. During the conflict Dalits (untouchables) were frequently threatened from warring parties. The Maoist rebels used the traditional skills of the Dalits to make homemade guns, khukuri, and other weapons. When the security forces knew of this, they kept strict vigilance over the Dalits, threatened them to prevent from continuing their traditional work for their livelihood. The

'Kamis'426 were unable to go the forests to make charcoal due to fear of being in crossfire or aerial attacks. During the conflict Maoists had forced them to make khukuries and various other weapons for them. Some who had not helped Maoists were tortured and beaten by them. At the same time they were also threats from security forces and take into custody and interrogate them about Maoists.

Thus many people left their occupation to avoid such tension from either side.427 Similarly the tailor and cobbler had affected by warring sides. Maoists would ask tailors to sew combat dresses and 424 Sushil Pyakurel. "Nature oh Human Rights violations in Nepal Notes for Further Consideration”, Conflict, Human Rights and Peace Challenges before Nepal, National Human Rights Commission, 2003, p.74. 425 Supra Note 10, p.61. 426 'Kami' are the persons who have been traditionally make the khukuries. 427 Supra Note 10, p.67. 123 cobblers to repair their shoes. Security forces in turn tortured and interrogated them for their service to Maoists.

The militarization of the conflict had exacerbated caste dynamics and the resulting abuses against Dalits in Nepal. Caste-based profiling was a common occurrence at security check posts and during village interrogation round-ups. The burgeoning presence of the security forces in the villages had led to even greater sexual abuse and exploitation of Dalit women.428 Security forces regularly assumed that Dalit civilians unilaterally support the Maoists. While individual Dalit men and women have actively joined Maoist forces, Dalit communities as a whole were collectively and summarily punished by security forces, even when there was no evidence of their involvement in the insurgency. Within a climate that legitimizes violence against anyone believed to be a Maoist sympathizer, sexually abused Dalit women are unable to bring these perpetrators of abuse and sexual violence to justice.429

Elderly People

Elderly people were affected in various forms by the conflict. Many of them lost their young and other family members during the conflict who were only the hope of their old age. During the conflict many youth were forced to displace. In rural areas there were hardly any youth remained to serve their families. The villages remained empty of able bodied. The majority of population who had remained in the villages were the elderly people along with widows, children, and disables. In such a situation they had to face tremendous difficulties and worse life scenarios, which they never even

428 THE MISSING PIECE OF THE PUZZLE Caste Discrimination and the Conflict in Nepal. Center for Human Rights and Global Justice:2005.p.4 429 Ibid.p.36. 124 dreamt it. However, warring parties of the conflict did not spare them from harsh and at times brutal inquiries.430

In Nepal there is not social security system. Their sons are only the social security for old age.

In the absence of the able bodied there is no support system to facilitate them in their old age. But during the conflict elderly people were lost their hope because they were only the remained people in the villages along with other minorities. Psychologically they were in very critical situation. They had a great fear of their insecure future.

Indigenous

The decade long violent armed conflict had severely victimized the indigenous people in many ways. They were among the most badly affected groups by the conflict. In Nepal, these people are considered as ‘backward’ and their local indigenous comprehensive knowledge of their environments are disrespected and disregarded.

During the armed conflict the indigenous people were one of the hardest hit groups. Both warring parties mistreated and abused the indigenous people. Many indigenous were oppressed and exploited in conflict. Majority of them were tortured, nobody even young or old were spared from being abused physically and psychologically. If we look only the data from 1996 to 2003 among the killed population majority were the indigenous people. Of the total 8,265 people killed between 13

February 1996 and 31 December 2003, 21.33% were identified as belonging to the indigenous. Out of those killed, 65% were reported to have been killed by the state security forces. 431 Their appearances had been one of the major threats to them. Security forces had presumed that people with particular appearance would be Maoists. They suspected indigenous as one of the major groups 430 Supra Note 10, p.61. 431 Informal Sector Service Center. Human Right Year Book. Katmandu, Nepal: 2004. p. 136. 125 involved in the conflict. Quite a few indigenous families, particularly affiliated to mainstream political parties, in the public services and security forces, were pressured, threatened and physically abused by the Maoists, too.432 In many cases indigenous people were forbidden to speak in their languages even in public phone booths, to prevent sharing of vital information secretly. They were sternly directed to talk in Nepali.

Others

Similar to ordinary citizens professionals like farmers, teachers, students, Law professionals, businessmen, journalists, photographers, political activists were also badly affected by the conflict.

They were arrested and tortured, killed or disappeared in course of conflict by the warring parties.

Table 2: No. of Victims killed by State and Maoists by Occupation

(13 Feb 1996 – 31 Dec 2006)

Occupation By State By Maoists Total

Agricultural workers 1448 933 2381

Teachers 59 86 145

Political workers 5264 453 5717

Police personnel 16 1348 1364

Students 204 140 344

Civil/private service 53 583 636

Social workers 6 7 13

Business persons 57 127 184

Workers 157 84 241

Health workers 2 3 5

Army personnel 23 666 689

432 Supra Note 10, p.64. 126 Security personnel 3 136 139

Photographers 2 3 5

Journalists 9 4 13

Law professionals 0 2 2

Prisoners 1 3 4

Dacoits 4 4 8

Engineer 0 1 1

Refugee 0 0 0

Unidentified persons 1069 387 1456

Total 8377 4970 13347

Source: INSEC

During armed conflict teachers were the most targeted group to be used and abused by both warring sides. They were sandwiched between the two warring sides. Many of the teachers had came under pressure by both the Maoists and the government, causing anxiety and stress, and compromising their ability to focus on teaching and to assist students in coping with psychosocial issues. Both the Maoists and security forces were known to use blacklists to intimidate teachers.

When teachers’ names were put on such lists, they were likely to be interrogated by the security forces or called to the government security offices of the district for alleged Maoist activity.

Ironically, this may cause the Maoists to accuse the same teachers of being government informers because they were seen at the government offices and to put them on their own black lists and vice versa.433

The Maoist rebels basically used the teachers to broaden their revolution. Teachers were forced to pay certain percentage of their salary to the Maoists as donations. Teachers were taken by 433 Supra Note 45, p.25. 127 Maoists for theirs campaigns. In many incidences Maoists had killed teachers in school time. For example, In Duradada, Lamjung, the principal of Padini Sanskrit High School, Muktinath Adhikari, was teaching a lesson when armed Maoists entered his classroom, dragged him out and brutally killed him. The armed Maoists beat him, tied his hands and feet, dragged him to a nearby hill, hung him from a tree with a scarf around his neck, stabbed him in the shoulder and abdomen and shot him in the head.434 Similarly, Security forces viewed teachers as they were collaborating with Maoists.

They were detained by the security forces and were extremely tortured and inhumanly treated. They were prosecuted, imprisoned, and their salaries seized for certain months by Government administration. In one case, Kamal Dahal, a teacher and father of a 12-year-old school student, was killed in front of his daughter by the security forces on charges of being associated with the

Maoists.435

Muktinath Adhikari, the principal of Padini Sanskrit High School who was brutally killed by maoists Source: Bimal Chandra Sharma/INSEC

434 Ibid., p.25. 435 Ibid., p.25. 128 Freedom of expression remained constricted throughout the conflict. There were no legal restrictions as such but acquiring and disseminating information was obstructed repeatedly by the parties in conflict. There were also instances where Human Rights activists and journalists had to encounter physical threats and endure bodily harm in the course of acquiring and disseminating information. The Maoists remained intolerant about news and write-ups criticizing their ways, or opinions asking them to reform their tactics. Foe example, the Maoists abducted and killed Dekendra

Thapa, a reporter for Radio Nepal and also advisor of Human Rights and Peace Society, Dailekh

District after torturing him for seven weeks.436 On 26 June 2002, it was reported that senior journalist Krishna Sen had died in police custody. Local sources alleged that he had been subjected to severe torture while in custody. His body was reportedly taken to a police hospital for post- mortem. His body had not been returned to his family and had already been cremated secretly. The family had not been given any information about the results of the post-mortem.437 In other case, police detained Chhakka Bahadur Malla a reporter of the Nepal Samachar Parta daily at Kolti of

Bajhang Distirct on the charge of disseminating "false" news. Similarly Pravat Kumar Jha of the

Annapurna Post daily was summoned by the District Police Office at Gaur and questioned on his dispatches for two-and-a-half hours.438

Political activists of other political parties were placed under arrest by security forces supposing them as Maoists supporter. All independent Nepali media were closed down and state owned radio announced that a number of rights including freedom of movement and freedom of assembly were suspended. The continuous enforcement of Terrorist and Disruptive Activities

Ordinance (TADO) provided the security forces sweeping powers to detain suspects for preventive

436 Supra Note 401, p. vii. 437 Amnesty International. Fear of torture/ fear for safety/ possible “disappearance”/ medical concern. (AI Index: ASA 31/049/2002). 5 July 2002. 438 Supra Note 401, p. vii. 129 reasons for prolonged period, which had violated the international human rights and humanitarian laws including Common Article 3 of Geneva Conventions.439 Similarly, Maoists regularly attacked the activists of other political parties in the issue of not supporting them. In one case, Maoists attacked the activists of the Peoples' Front Nepal party at Damek VDC of Baglung District which was the worst manifestations of mindless violence. The Maoists attacked their supporters who were asleep and tortured the victims using extreme means. Some of the victims had drill holes on their thighs and shins and others survived with broken limbs. The Damek attack left 18 Peoples' Front

Nepal's workers injured, another 3 persons were abducted.440

There were lots of difficulties for the government offices and their staffs to implement their programs in the villages. The development programs at local level were very challenging to implement since they had threats from Maoists. Government officials got victimized most in areas that were controlled by the Maoists or caught up in the conflict. They were forced to pay certain percentage of their salary to the Maoists as donations. If not anything could be happened to them.

Gradually, they began to stay in district headquarters. The presence of the local government in villages was minimal. The Village Development Committees and its secretaries were threatened.

1260 VDCs were attacked by Maoist. The secretaries were also one the most displaced groups in the districts. In some places VDC secretaries were tortured and even killed.441This made difficult for them to gather information, deliver aid and provide even basic health and education services for rural people.

Business persons and laborers were also severely affected groups during the armed conflict.

In the conflict period a month long general strikes were very common. Many industries/ factories

439 Supra Note 8, p. 38. 440Supra Note 401, p. xii. 441 Supra Note 10, p.70. 130 were shut down. The industries were padlocked by the Maoists for substantial donations from the owner. Many were threatened for their lives for donations thus they either had to pay or face the consequences. Due to the regular strikes laborers were unable to earn their livings. When the industries were shut down they were not paid. In the same time security forces suspected them as a possible Maoist and many times they arbitrarily arrested them and detained with out any evidences.

The situation of refugees was worst in the conflict. There was a complete lack of infrastructure in the cities and camps to deal with the influx of refugees. There were no possibilities to find work. They were often suspected of being informers, and again were targeted based on those suspicions. The living conditions of the refugees were very bad. Many members of a family might be living jammed into an apartment meant for one or two people. They couldn't buy food or water, find jobs or go to school, and women and young children were increasingly finding themselves forced into the sex trade or what amounts to slave labor. Life in organized camps was much the same. There was a lack of food, water, health facilities, good hygiene and sanitation, as well as educational possibilities for a population that had been traumatized by violence and conflict. Sickness and disease was on the rise, including cholera, malaria, diarrhea, HIV-AIDS, and tuberculosis. Newborns and their mothers lack care.

Conclusion

To sum up, both Maoist rebels and Security forces were active in hurting the dignity of civilians. Civilians were sandwiched in the activities of them. The parties in conflict had disregarded humanity and resorted to extreme and humiliating actions against civilians. Both security forces and

Maoists had not provided adequate attention for assisting ordinary citizens not caught in the crossfire. Many civilians were killed, caught in crossfire, and victimized due to the indiscriminate 131 attacks on civilian areas. Extrajudicial killing, serious atrocities, torture, disappearances, summary executions maiming, arbitrary arrest and detention, sexual violence and child recruitment into the military and armed groups was very common during conflict. Such acts not only threaten the physical life but also play negatively in the psychological and social status of the people.

Only in the conflict more than 13,000 people were killed, and tens of thousands of people were displaced. This figure includes civilians, political workers, police personnel, security personnel, students, civil servants, workers, social workers, business persons, health workers, agricultural workers, teachers, army personnel, prisoners, photographers, and journalists and law professionals. Approximately 447 children were killed directly by the warring parties and many children were injured in the conflict. Many were killed or injured during armed clashes or through extrajudicial executions carried out by each side. Dozens of children were killed as a result of indiscriminate attacks by the combatants. Similarly, 1013 women were killed in the conflict through the end of 2006 with 820 of those death attributed to the security forces and 193 to Maoist. Armed conflict of Nepal created enormous upheaval at the personal, family, societal, and country level. It had destroyed physical infrastructure and social harmony. It caused immense pain, both physically and mentally on civilian people.

The next section deals with findings for Question 2. It explores the issues of serious violations of IHL by Maoist rebels and Government security forces during the time of armed conflict. 132 Question 2

To what extent did the Maoist rebels and Government security forces commit serious

violations of IHL?

Introduction

This question was to find out the violations of international humanitarian law by Maoist rebels and security forces in the decade long armed conflict of Nepal. Analysis of documents revealed that

Nepal had experienced gross violations of IHL committed by Maoists in the course of its insurgency and by Security Forces in the state’s response. The violent conflict was main reason for the widespread violation of human rights and the disregard for humanitarian laws. The decade long armed conflict was marked by bloody murders, disregard of humanitarian values and impunity for those responsible for the violations and indiscriminate killings. In the period of war, the Maoists and

Security Forces committed serious violations of IHL, principally endangering the lives of the civilian population including through attacks in civilian areas, using civilian houses and school as a shields, indiscriminate shooting and bombing, mass abduction, forced recruitment, rape, extortion, unlawful killings, and forced displacement. The wanton destruction of basic infrastructure, looting and pillage, and the disruption of humanitarian relief all turned Nepal into the humanitarian nightmare it is remembered for.

Table 3: No. of Victims district wise killed by State and Maoists

(13 Feb 1996 – 31 Dec 2006)

SN Districts By By Maoists SN Districts By By Maoists State State

1 Jhapa 47 65 38 Lamjung 175 91

2 Ilam 86 60 39 Syangja 76 33 133 3 Panchathar 79 36 40 Kaski 50 52

4 Taplejung 67 30 41 Nawalparasi 88 101

5 Morang 144 72 42 Rupendehi 55 93

6 Sunsari 48 22 43 Palpa 95 31

7 Dhankuta 18 40 44 Kapilvastu 56 111

8 Terhathum 56 18 45 Arghakhanchi 179 81

9 Bhojpur 140 67 46 Gulmi 34 32

10 Sankhuwasabha 92 40 47 Banglung 79 35

11 Saptari 24 51 48 Parvat 38 18

12 Siraha 119 77 49 Myagdi 211 54

13 Udaypur 72 46 50 Dang 420 266

14 Khotang 75 34 51 Pyuthan 32 21

15 Okhaldhunga 96 24 52 Rolpa 506 242

16 Solukhumbu 90 56 53 Salyan 222 78

17 Dhanusha 95 84 54 Rukum 733 171

18 Mahottari 27 35 55 Banke 212 139

19 Sarlahi 98 83 56 Bbardiya 254 83

20 Sindhuli 118 96 57 Surkhet 230 80

21 Ramechhap 106 39 58 Jajarkot 131 78

22 Dolakha 89 92 59 Dailekh 148 91

23 Rautahat 92 80 60 Dolpa 32 30

24 Bara 49 67 61 Jumla 170 79

25 Parsa 13 60 62 Kalikot 210 118

26 Chitawan 102 94 63 Mugu 39 9 134 27 Makawanpur 79 74 64 Humla 17 13

28 Lalitpur 14 43 65 Kailali 248 169

29 Kavre 125 154 66 Achham 170 160

30 Bhaktapur 25 2 67 Doti 144 8

31 Kathmandu 36 62 68 Bajura 85 54

32 Dhading 103 77 69 Bajhang 66 24

33 Sindhupalchowk 106 112 70 Kanchanpur 117 68

34 Nuwakot 106 62 71 Dadeldhura 61 34

35 Rasuwa 26 3 72 Baitadi 70 13

36 Tanahu 54 41 73 Darchula 43 18

37 Gorkha 165 94

Continue to right … Total 8377 4970

Source: INSEC

Attacks against Public Transportation

During the insurgency, landmines were excessively used by both the sides to hurt each other.

The use of the landmines was most common trick used by the Maoists to delimit the security force operations. Security Forces, sometimes in large numbers, in both uniform and civilian clothes and with weapons, had often used public buses as a means of transportation and Maoists targeting the civilian buses as a counter insurgency and ambushed the civilian buses in many places of a country.

Attacks against civilian transportation in Chitwan, Kabhrepalanchok, and Rautahat Districts were so heartbreaking and the example of grave violation of IHL. According to the report of Human Rights

Treaty Monitoring Coordination Committee (HRTMCC), a total of 38 persons including 35 civilians and 3 security persons died in the incident where Maoists trapped bus in landmine at Bandarmudhe 135 stream of Kalyanpur VDC, which lies at Madi area of Chitwan District in Mid-region of Nepal. 16 women, 15 men and 7 children were among those killed.442

Civilian bus in Madi valley, Chitwan ambushed by Maoists Source: Bimal Chandra Sharma/INSEC Similarly, in Kabhrepalanchok district on 10th June of 2005, the 9th Brigade patrol left

Nepalthok on foot at around 15.30 travelling in the direction of Bakhunde. At approximately 16.00 a civilian public transport bus left Nepalthok with approximately 6 civilian passengers and picked up 5 additional passengers en route. Several kilometres further, in Manghaltar, the RNA personnel boarded the bus, as well as a passing truck, with their weapons and wearing their uniforms. At about

16.30, the bus and truck were ambushed as they approached Narke Bazaar, Mangaltar VDC. An estimated 13 civilians were in the bus, with 2 civilians in the truck. The RNA personnel were distributed between the bus and the truck, with some seated on the roof of the bus. A large number of attackers situated on both sides of the road attacked the bus and truck with guns and socket bombs. The RNA personnel returned fire. Both the bus and the truck continued moving for another

442 Human Rights Treaty Monitoring Coordination Committee (HRTMCC) Nepal. Field Report on Maoists Trapped a Civilian Bus in Landmine at Bandarmudhe Stream in Madi of Chitwan District. 14 June, 2005.2. 136 500 meters before stopping. As a result of the attack 2 civilians and 4 RNA personnel were killed, and 3 civilians and 22 RNA personnel were severely wounded.443

Likewise, on 9 April 2005, in the early afternoon at Sakhuwa in Rautahat district a public bus was ambushed by Maoists. The bus unfortunately faced blast and plunged some ten meters away.

Hasnara Khatun, Sahad miya and Mukesh kumar lost their lives on the spot. Thirteen others were seriously injured, among them; two lost their lives while undergoing treatment in kathmandu the next day.444

Injured child in hospital after bus ambushed in Madi Source: Bimal Chandra Sharma/INSEC Maoists were responsible for the killing of civilians and in the breached of its international humanitarian law obligations. It was the obligations for the Maoists to make a distinction between civilian objects and military objectives and to respect the fundamental guarantees of persons who do not take a direct part in hostilities, including obligations related to the protection of civilians.

Similarly, Security Forces were equally responsible to breach the IHL. They violated their IHL

443 United Nations Office of the High Commissioner for Human Rights in Nepal. Investigation Report on Attacks against Public Transportation in Chitwan and Kabhrepalanchok Districts. 18 August, 2005. 444 Human Rights Treaty Monitoring Coordination Committee (HRTMCC) Nepal. Field Report on Blast of Public Vehicle at Sakhuwa in Rautahat District A Field survey. 5 April, 2005. 137 responsibilities through their failure to take precautions to protect the civilian population and civilian objects under their control against the effects of attacks, in the context of the Security Forces’ repeated and regular used of public transport facilities.445

Indiscriminate aerial bombing and shooting by the Maoists and Security Forces

The RNA had regularly made use of helicopters with machine guns strapped to the sides to attack groups of suspected Maoists, or Maoists fleeing the scene after combat with the security forces. They had also dropped 81mm mortar bombs from helicopters. Such operations from the air appear to have often disregarded the basic requirement under international humanitarian law to take every precaution to distinguish between civilian persons and objects, and military objectives, or seem to have ignored the principle of proportionality. In some instances, the bombing or shooting appears to have deliberately targeted civilians and civilian objects.446 In one incident at Beni, the headquarters of Myagdi district, a helicopter was used to drop mortar bombs in the aftermath of a

Maoist attack in the night of 21 March 2004. In total, 19 civilians were killed during the attack, of which at least 6 were killed by a mortar dropped from an RNA helicopter on the densely populated

Beni bazaar.447

The Maoists frequently used populated areas to launch attacks or to seek shelter while fleeing a counterattack by Security Forces without taking measures to remove the civilian population to safety. On February 28, 2006, the Maoists launched an attack on RNA forces from civilians’ houses in the village of Padena, Palpa District, which resulted in a heavy crossfire in the village. Terrified

445 Ibid. 446 Amnesty International. Nepal: Military Assistance contributing to grave human rights violations. (AI Index: ASA 31/047/2005). June 2005.p.14. 447 Ibid. 138 villagers fled from one house to another, hiding beneath their beds. The walls of their houses were marked by bullet.448

Indiscriminate attack on Civilian house Source: Bimal Chandra Sharma/INSEC

During the war, the Maoists routinely used civilians’ houses, school and public spaces without removing the population to safety endangers civilians who became subject to Security Forces fire.

On many of the cases, civilian casualties were unnecessary occurred when Security Forces deployed helicopters using indiscriminate methods of aerial bombardment while pursuing retreating Maoists.

The Security Forces dropped mortar shells by hand from the side of helicopters, which did not allow proper targeting in populated areas. On March 27, 2006 a civilian Bam Bahadur Khatri, 63, resident of Thokarpa VDC-4, Sindhupalchowk district, and 2 Maoist cadres were killed when security forces initiated an indiscriminate aerial attack by helicopters on the different parts of Thokarpa VDC. Due to the indiscriminate attack there were many holes of the bullet on the roof and walls of the school,

448 Supra Note 29. 139 Ayurvedic Health Post, and around a dozen houses of civilians. The attack damaged walls, computers, furniture and books of the library and windows of the school.449

On February 26 and 28, 2006, RNA helicopters had indiscriminately bombed and had fired shots from helicopters in civilians. As a result, in Khidim VDC, a remote hilly area in Palpa district, a 14 years old child Pawan gautam was killed and six civilians including four children were injured.450

In a similar incident on 12 April 2004, there was bombing and shooting from a helicopter on

Bidhya Mandi High School in Achham district where Maoists were gathered. Seven civilians and 40

Maoists were killed. Among them were at least three children. The use of helicopters to attack mass meetings in the context of this conflict is extremely worrying given that the CPN (Maoist) routinely forces villagers to attend such meetings.451

In another case, there was a clash between security forces and Maoists at a school in Kichnas

VDC, Syangja District on 13 January 2006. Some PLA members, while under attack from an RNA helicopter, took refuge in a class of primary school children at Thanapathi while 130 school children and five teachers were present in the school. As a result, three classrooms were damaged by bullets fired from the RNA helicopter. The RNA fired through a classroom window, injuring in the thigh one member of the PLA who had taken refuge among the children.452

Similarly, on 13 October 2003, a incident took in Sharda higher secondary school, at

Mudbhara, Doti district, when Maoist were engaged in a cultural show in school premises, security forces launched an offensive and killed 10 people among them 6 were Maoist cadres and 4 were

449 Human Rights Treaty Monitoring Coordination Committee (HRTMCC) Nepal. Summary of the field Report ‘Aerial Attack in Sindhupalchowk District’. March, 2006. 450 Supra Note 22, p.15. 451 Supra Note 450, p.15. 452 Supra Note 22, p.14. 140 students. Another five students were also injured in the shooting.453 Life in the remote areas was paralyzed by the types of attack. Both the warring parties had violated IHL norms and principles during the clash. It was found that Maoists had taken shelter at civilians’ houses while escaping away from the Security Forces where as Security Forces attacked indiscriminately in the civilian areas.

Table 4: No. of victims killed by State Month wise

(13 Feb 1996 – 31 Dec 2006)

Year/Mon Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total

1996 0 8 14 3 4 4 2 8 2 1 5 8 59

1997 9 2 0 0 0 0 0 1 0 3 1 0 16

1998 3 3 9 3 21 79 21 21 10 50 61 53 334

1999 26 23 51 23 15 22 25 14 43 17 30 39 328

2000 36 44 11 12 16 6 5 19 9 11 6 5 180

2001 6 5 5 20 3 5 15 0 0 0 60 124 243

2002 140 232 369 483 614 304 103 168 221 290 260 82 3266

2003 80 6 4 6 3 19 4 137 232 340 227 159 1217

2004 130 187 312 76 161 75 77 77 122 90 129 170 1606

2005 79 153 59 121 115 88 38 72 31 16 15 28 815

2006 131 44 68 62 1 0 2 1 1 2 0 1 313

Total 640 707 902 809 953602 292 518 671 820 794 669 8377

Sourse: INSEC

453 National Human rights Commission, Nepal, Annual report 2004. p.33 . available on www.nhrcnepal.org 141 Endangering civilian populations through launching attacks in civilian areas and use of civilian houses and schools as shields

The distinction between civilians and combatants is a key principle of IHL. It is the obligations for the warring parties to make a distinction between civilian objects and military objectives and to respect the fundamental guarantees of persons who do not take a direct part in hostilities, including obligations related to the protection of civilians. But in many cases, Maoists were responsible for the killing of civilians and in the breached of its IHL obligations. In a same way, Security Forces were equally responsible to breach their IHL responsibilities through their failure to take precautions to protect the civilian population and civilian objects under their control against the effects of attacks, in the context of the Security Forces’ repeated and regular used of public places and facilities.454 During insurgency, security forces and Maoists committed serious violations of IHL, principally endangering the lives of the civilian population, including through launching attacks in civilian areas; using civilian houses and schools as shields; indiscriminate bombing; the placing or abandoning of explosive devices in areas frequented by civilians; and the use of children.455 During the conflict, there were many incidents of clashes between both sides in civilians’ areas including schools.

Maoists' choice of location to engage or attack the security forces in most of the clashes examined endangered the lives of civilians causing several deaths and numerous injuries. For example, on 21 January 2006, at around 6.30 pm, PLA members attacked a security forces patrol at a populated area in Phaparbari VDC, Makwanpur District. During the clashes, one civilian was killed by the RNA while his arms were raised. The PLA were engaged in a firefight from occupied civilian

454 Supra Note 447. 455 Supra Note 22, p.7-8. 142 houses with the RNA at the time the civilian came out with his arms raised, and he was between the

RNA and the PLA.456

Like wise, in the case of Tansen DHQ (Palpa District), the PLA launched simultaneous attacks on the RNA military camp, the district jail, and District Police Office and government offices on 31 January 2006 around 11 pm about the presence of at least 50 children within the armed forces of the PLA. Members of both the PLA and the RNA used civilian houses and properties during the clashes, thereby putting civilians in danger. One civilian was killed and found with a bullet injury to the neck inside the CDO office and several government offices were set on fire and destroyed.

During the attack, the RNA forces received reinforcement from helicopters which dropped 120mm mortar bombs causing damage to civilian property.457

Similarly, on 6 February 2006 at 8.30pm, the PLA launched simultaneous attacks in populated areas around the Panauti Municipality building, on the RNA camp in Panauti and on the

9th RNA Battalion camp in Dulikhel, Kavre District with the presence of large numbers of children among the PLA forces. During the operation, PLA members took up positions in several civilian houses from where they attacked the security personnel stationed at the Municipality building. One civilian was killed in the crossfire and the Municipality building was partially destroyed.458

In the case of Dhankuta DHQ (Dhankuta District), on 7 February 2006 around 8.45pm, PLA forces attacked Dhankuta, the Eastern Regional HQ. The attack lasted until the early hours of the following morning. During the attack, approximately 16 buildings were set on fire. Among them were 13 public buildings, while three were private offices or residences. Twelve public and court

456 Ibid. p.12. 457 Ibid. p.15. 458 Ibid. p.13. 143 officials and three police officers were abducted by PLA troops. During the attack, the PLA forces used civilian houses to engage the security forces.459

By using houses and shops as shields, the PLA knowingly put civilians in the line of any return fire by making it impossible for security forces to effectively distinguish between military and civilian objects of fire. The PLA used civilian houses for their own protection putting civilians in danger. The PLA took up positions in or behind civilian houses to attack the security personnel in many places of a country all over the conflict.

Table 5: No. of victims killed by Maoists Month wise

(13 Feb 1996 – 31 Dec 2006)

Year/Mon Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total

1996 0 2 4 3 0 1 2 0 2 7 1 22

1997 2 7 0 3 5 5 4 0 0 3 0 3 32

1998 3 0 7 3 7 4 2 9 5 11 9 15 75

1999 13 7 25 10 22 12 10 9 16 7 4 6 141

2000 32 39 7 32 5 27 9 11 25 5 24 3 219

2001 12 25 6 77 15 15 79 1 1 4 99 56 390

2002 66 237 71 163 190 50 56 38 182 64 169 51 1337

2003 59 9 3 2 7 8 14 56 185 154 91 58 646

2004 74 61 170 82 149 79 95 86 62 27 93 135 1113

2005 127 64 51 83 85 130 39 105 7 2 6 10 709

2006 59 66 74 46 5 7 3 7 6 7 5 1 286

Total 447 517 418 501 493337 312 324 489 286 507 339 4970

Sourse: INSEC

459 Ibid. p.16. 144 Enforced Displacements and Disappearances

Displacement was most common consequence of decade long conflict. Forced internal displacement was the result of violations of human rights and IHL committed by both parties during the conflict. Forced recruitment, extortion and credible threats of other violations against politically- affiliated civilians, vulnerable professional groups and those seen to be collaborating with either party to the conflict had led to long-term displacement from rural areas to the district headquarters and from the hill-districts to the Terai, India and further abroad.460 There were not exact figure of internal displacement people (hereafter IDPs) in Nepal due to the conflict. The Report of Secretary - General on the request of Nepal for United Nations Assistance in Support of it's Peace Process said that as a result of the conflict, there were tens of thousands people were internally displaced.461 There is not the report of exact number of child displacement during conflict. However, according to the reports of human rights organizations working in Nepal during conflict comprise 70-80% of IDPs. It is different from organization to organization. During the conflict IDPs were compelled to undergo severe trauma and hardship due to the very condition of their displacement. Especially, the condition of children, women and elderly people was so horrible.462 Due to the displacement, IDPs children had been engaged in various form of worst labour. Conflict had led to increase child domestic workers. In many cases, girls’ child had been harassed by local youths. Children from all over the countries lose their rights to go to school. The Geneva Convention is intended principally to protect every individual or category of individuals who are not actively involved in the conflict from the effect of war.

Regarding the IDPs, there are a few provisions furnished in article 49 of the Geneva Convention and

460 Report of the United Nations High Commissioner for Human Rights on the human rights situation and the Activities of her Office, including technical cooperation, in Nepal. 22 September 2006. 461 Supra Note 11. 462 Internally Displacement Information Booklet, December 2008, National Human rights commission Nepal.p.1. 145 in the article 17 of its second optional protocol.463 Article 17 of Additional protocol II, talks about the prohibition of forced displacement of the civilian population both with in a country and across a border in non-international armed conflicts unless the security of the civilians or imperative military reasons so demand.464 But in practical, both the warring parties had frequently broken such limitation. Both the sides seem reckless in showing humanly behaviour. Hundreds of incidents of such inhuman behaviour from both the sides have been documented. Mostly the incidents of excesses such as murder, torture, rape, sexual assault, kidnapping, forceful recruitment in the army were perpetrated against the IDPs.465

Since the outset of the armed conflict, there had been a widespread pattern of

“disappearances” by warring parties, including children under age 18, as part of the insurgency and counterinsurgency operations. Amnesty International claimed that during 2003 and 2004, Nepal had had the highest rate of reported ‘disappearances’ in the world.466 The crisis of disappearances in

Nepal had become more severe since the breakdown of the last ceasefire on august 2003-hundred had been detained or abducted since then, and many remain missing.467

Table 6: No. of persons disappeared by State and Maoists

(13 Feb 1996 – 31 Dec 2006)

S Districts By By Maoists SN Districts By By Maoists N State State

1 Jhapa 06 0 38 Lamjung 08 0

2 Ilam 0 06 39 Syangja 03 01

3 Panchathar 02 0 40 Kaski 12 0

463 Ibid. p. 5. 464 See, Annex to the Guidance Document, General and Specific Protection of Women under International Humanitarian Law. p.176. 465 Supra Note 466, p.1. 466Supra Note 28. 467 Supra Note 7, p.64. 146 4 Taplejung 01 0 41 Nawalparasi 0 0

5 Morang 06 04 42 Rupendehi 02 0

6 Sunsari 07 0 43 Palpa 0 0

7 Dhankuta 0 0 44 Kapilvastu 0 0

8 Terhathum 0 0 45 Arghakhanchi 0 0

9 Bhojpur 03 0 46 Gulmi 0 0

10 Sankhuwasabha 01 01 47 Banglung 4 0

11 Saptari 08 0 48 Parvat 0 0

12 Siraha 07 0 49 Myagdi 01 0

13 Udaypur 02 0 50 Dang 70 05

14 Khotang 01 03 51 Pyuthan 03 0

15 Okhaldhunga 01 0 52 Rolpa 43 18

16 Solukhumbu 0 0 53 Salyan 27 0

17 Dhanusha 01 01 54 Rukum 23 06

18 Mahottari 27 35 55 Banke 88 15

19 Sarlahi 0 0 56 Bardiya 183 16

20 Sindhuli 7 0 57 Surkhet 18 02

21 Ramechhap 09 01 58 Jajarkot 14 03

22 Dolakha 0 0 59 Dailekh 06 0

23 Rautahat 06 03 60 Dolpa 04 0

24 Bara 0 0 61 Jumla 04 0

25 Parsa 0 04 62 Kalikot 17 0

26 Chitawan 23 05 63 Mugu 0 0

27 Makawanpur 07 0 64 Humla 02 0

28 Lalitpur 06 0 65 Kailali 17 01

29 Kavre 16 0 66 Achham 05 0 147 30 Bhaktapur 06 0 67 Doti 0 0

31 Kathmandu 35 0 68 Bajura 0 0

32 Dhading 34 04 69 Bajhang 0 0

33 Sindhupalchowk 09 03 70 Kanchanpur 15 0

34 Nuwakot 22 02 71 Dadeldhura 01 0

35 Rasuwa 01 0 72 Baitadi 0 0

36 Tanahu 10 0 73 Darchula 0 0

37 Gorkha 20 0 74 Manang 0 0

75 Mustang 0 0

Source: INSEC

Arrest and torture of hundreds and at least 45 disappearances in Kathmandu from late 2003 into 2004 attributed primarily to the Bhairabnath battalion of the RNA’s 10th Brigade. Those selected for detention and torture were largely but not all active Maoists, many of them from party’s student wing and civilians.468 People who were arrested and detained for varying periods in Maharajgunj barracks were subjected to severe and prolonged ill-treatment and torture, with a principal role played by the Bhairabnath battalion. Torture and ill-treatment of detainees during interrogation at

Maharajgunj barracks was routine and systematic, with a special team carrying out the tasks of torture and interrogation. Numbers of detainees were subjected to conclude that a significant number of detainees were subjected to various methods of torture, including beating with plastic pipes on the lower back, legs, and soles of the feet, submersion in water, and electric shocks. In almost all cases, victims of this torture, including women, were made first to remove their clothing, and were subjected to continuous abusive and degrading language. In addition, there were acts of torture involving sexual humiliation of both male and female detainees. Detainees were subjected to torture

468 Supra Note 36, p. 8 148 and other cruel, inhuman or degrading treatment while permanently blindfolded and handcuffed for up to eighteen months. At least 49 of those detainees were known to have been held by the battalion and to have disappeared on 20 December, 2003 or shortly thereafter, never to be seen again since.469

The principle of habeas corpus470, which was established in domestic legal system, had not been effective in the time of conflict. So, the relatives and families of abducted persons still have faced unbearable situation. In spite of national and international norms governing detentions of suspected insurgents, including in times of internal armed conflict, these hundreds of detentions were consistently denied by the RNA. National and International appeals for information and classification were ignored. Detainees were hidden from inspection. The fundamental guarantee of judicial control over detentions was denied.471

Similarly, disappearances had also been attributed to the Maoists, who had abducted many people and whose fate remained unknown. Thousands of people were abducted by the Maoists and many of them were disappeared in the name of their 'People's War' during the decade of the conflict.

They simply abducted the people who refused to join their group. Most of the people who were abducted and disappeared by Maoists were the relatives of security forces. Many families of the

“disappeared,” especially rural villagers, were desperately poor and illiterate, which means that formal mechanisms of complaint, such as filing petitions for writs of habeas corpus through a lawyer, were unavailable to them.472

469 See, United Nations, Office of the High Commissioner for Human Rights in Nepal, Report of Investigation into arbitrary detention, torture and disappearances at Maharajgunj RNA barracks, Kathmandu in 2003-2004, May 2006. p.54, 55 and 66. 470 The government did not response of the Supreme Court's order, continued arbitrary arrest and kept into incommunicado detention (www.nba.org) 471 Supra Note 473, p.47. 472 Supra Note 7, p.65. 149 …in the spring the new birds start singing, the cloud comes up and the cuckoo starts singing. The mother has the feeling that “may be this cuckoo is my daughter who is still alive and has come to see me. (Father of missing girl, Gorkha.) Disappearances of children under the age of 18 were common. Many children were abducted and still their fate remained unknown. Nepali Tharu, a 15-year-old boy, permanent resident of

Bhimapur-7, Bardiya district, was arrested from his own house by a group of approximately 70 security forces who came from Manpur Barrack on January 7, 2003. While he was sleeping, they surrounded the house on all sides, entered, and arrested him for an unknown reason. His whereabouts remain unknown.473 Kumari Damai, 13, of Masuria VDC-1, was arrested by the security personnel on

24 September. Her whereabouts was not known till the last of the year.474 Similarly, Harka Rokaya,

18, of Ramaroshan VDC-8 was arrested and disappeared by the security personnel on 23 February.

He has not been seen by anybody since her arrest and his whereabouts remain unknown.475 The act of detaining, bargaining and disappearing for a long period was increased. Those victimized in arbitrary arrest and disappearance had been further victimized through physical and mental torture. Breaking the limit of humanity, both the sides had been involved in degrading treatment; as a result a large number of children not involved in war were being victimized.476

Use of children

The use of children in armed conflict is a violation of the convention on the rights of the child

(CRC), which Nepal ratified in 1990.477 Since 2000 international law has banned the recruitment and use of children under age 18. The International Labour Organization has prohibited the forced recruitment of children under the age of 18 for use in armed conflict in its convention on the Worst

473 Supra Note 45, p.32. 474 Informal Sector Service Center. Human Right Year Book. Katmandu, Nepal: 2003. p. 207. 475 Ibid.p.209. 476 Ibid.2005.p.127. 477 Supra Note 7, p.62. 150 Forms of Child Labour, which Nepal ratified in 2002.478 The Optional Protocol to the CRC on the involvement of children in armed conflicts, to which Nepal is a signatory, prohibits states parties from compulsorily recruiting children under age eighteen or having them take a direct part in hostilities.479 The protocol, which explicitly applies to non-state armed groups in addition to government forces, established 18 as the minimum age for any recruitment into nongovernmental armed groups.480

Both the Maoists and the government had denied the recruitment of children. However, reports are widespread of recruitment of children by the Maoists, as well as use of children as informants by the government forces. Such activities by both parties had likely increased since the end of the cease-fire in 2003.481 According to the Report of the Secretary-General on 'children and armed conflict in Nepal', Maoists had recruited several thousand children over the years and that they form a large part of the PLA troops, as well as a large number of the cadres in the other organizations inside Maoists. There was trend that Maoist conducts both forcible and voluntary recruitment of children. During the decade long conflict, Maoists instituted special recruitment campaigns, such as the “one house one person policy”, where children were recruited forcibly or voluntarily. The report argues that 40 per cent of the child soldiers were girls. According to received information regarding the composition of Maoists and allied militia groups indicates a large presence of females, approaching 50 per cent in some cases. A 16-year-old girl from Sindhupalchowk district stated that she had trained with nine other persons to produce and operate socket bombs; half of the trainees were female. The youngest child was an 8-year-old schoolboy from a disadvantaged community of 478 Supra Note 32, p.6. 479 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflicts, G.A. Res. 54/263, Annex I, 54 U.N. GAOR Supp. (No. 49) at 7, U.N. Doc. A/54/49, Vol. III (2000), entered into force February 12, 2002, art. 1 and 2.cited in Human Rights Watch, Between a Rock and a Hard Place: Civilians Struggle to Survive in Nepal's Civil War. Vol.16. October 2004.p.62. 480 Supra Note 32, p.6. 481 Supra Note 45, p.37. 151 the Mid-western Region, used as messenger for over a year and a half. Of these 512 children, only

172 are known to have returned to civilian life. The most affected areas were the Mid-western Region and the Far-western Region.482 In addition to the use of children in combat, there were frequent news reports that Maoists abducted thousands of school students from schools for political indoctrination.

Children and adults who had been abducted describe being given lectures on ideological indoctrination and military training. There was also a cultural program during indoctrination, where

Maoist songs and dances were taught. 483 The problems of Nepali children recruited by the Maoists were compounded by the government of Nepal’s failure to provide any assistance whatsoever to children who escaped the Maoists.

There are only a small number of reports of recruitment of children into the security forces; however, the use of children by the security forces as messengers, spies or informants has been well documented.484 Security forces established a terrible record for human rights violations and abuse through the course of the conflict as they engaged in routine and systematic arbitrary arrest, unlawful detention, extrajudicial executions, and torture and mistreatment of detainees.485 Children, who were arrested by security forces, sometimes after having escaped from Maoists, were subsequently detained illegally in locations such as RNA barracks because of their previous association with

Maoists. A large majority reported that they were subjected to threats, ill-treatment or torture by army personnel to extract information. Some were detained under anti-terrorist legislation, in violation of international standards.486

482 Report of the Secretary-General on children and armed conflict in Nepal. Security Council. 20 December 2006. 483 Supra Note 7, p.62. 484 Supra Note 486. 485 Supra Note 32, p.7. 486 Supra Note 486. 152 There were many cases reported that both parties, occurred rape and sexual abuses. According to the report by secretary-general in children and armed conflict points out that security forces were involved in several incidents of rape and sexual abuses. One 16-year-old girl was sexually assaulted while being interrogated in army custody late in 2005 in the central region.487 A girl, aged 13, was raped by a Constable Barn Bahadur Kathayat, working in the District Police Office, on 28 September

2002 in kailali District.488Similarly, a girl, aged 17, of Ramroshan VDC, was arrested and taken to a nearby jungle and raped by the security personnel on 22 February 2002 on charge of being Maoist in

Achham District.489 A girl child, aged 7, resident of Hatilet VDC-3 in Mahottari District was attempted rape by Khadga Bahadur Katuwal, 28, police personnel of Police Post, Hatilet on 2

August.490There were several cases of sexual violence by the Maoists too. In Kanchanpur, a 15-year- old girl was reportedly lured into the jungle in the night on the pretext of meeting a friend. While being raped, her hands were tied and she was threatened with death.491 In many cases, there was less chances to register the case in front of police because Maoists pressured the victims not to register the case with the police, arguing that the incidents were under Maoists investigation.492 One female child health volunteer from the far-western region was raped by Maoists cadres after her abduction at night.

She had to be on medication for two years to treat the physical consequences of rape and she still suffers mental trauma.493 In a way, one woman from Western region described how her daughter was raped by a young Maoists cadre:

In 2001, my five-year-old daughter was raped by a 14-year-old Maoist. We’ve heard that he did that to others too. The whole family of the boy is loyal to the Maoist party and they did not let us live in the village. The rapist came with his 487 Ibid. 488 Supra Note 478, p. 208. 489 Ibid.p.210. 490 Ibid.2004.p.191. 491Supra Note 486. 492 Ibid. 493 Supra Note 184, pp. 55-56. 153 mother to kill my daughter so we were forced to move. My daughter’s physical Condition hasn’t improved yet. We went to Pokhara for her treatment. My Daughter still experiences bleeding while defecating.494

These are the some representative stories of grave violation of IHL during the decade long conflict. The warring parties committed many atrocities with complete disregard of the common article 3 of Geneva Conventions. All over the conflict, children health was not concern of warring parties. There was no proper arrangement of supply of food grains and medical treatment for children.

In one-hand Maoists, looting medicine and other hand security forces banned medical supply in many rural areas. Children had been most vulnerable to the psychological effects of violence. Children were compelled to undergo the critical circumstances due to the very condition of violence like depressive reactions, aggressive behaviour, social withdrawal and fear. Warring parties used landmines in large scale. Many children were died and injured because of landmines. Most of the incidents related to improvise explosive devices were related to Maoists activities during their military operation against security forces. Many children were killed while playing with an improvised explosive device left behind by PLA after an attack in police post and army barracks.495 Indiscriminate attack on civilian areas, extra judicial killing and unlawful Detention and Torture of children were the trends created by the decade long conflict. There were many incidents where children had been killed in the condition where they could be detained. In some incidents the warring sides used unnecessary force and killed many in detention after unarming them.

Arbitrary arrest, Torture, and Extra-judicial killings

The common article 3 prohibits killing, mutilation and cruel treatment and torturing anyone.

Such behaviors are against the humanitarian law and directly violets the humanitarian assumptions.

But, the act of extra judicial killing, terror, attack, arrest and torture were the trends created by the 494 Ibid. 495 Supra Note 486. 154 decade long ‘people’s war’ of Nepal. During the period of conflict the trend to kill after detaining or by torturing in custody had widely increased. Civilians routinely endured the atrocities during the conflict. Arbitrary arrest, torture, and extra-judicial killings had been a constant feature of the conflict in Nepal and had been carried out by both sides. Security forces were responsible for extrajudicial executions of civilians and suspected members of the Maoists in their custody. Maoists had abducted and killed civilians who were associated with political parties or the state, who defied its orders or whom it accused of certain 'crimes', as well as hors de combat security forces personnel.

Torture had been a longstanding concern in Nepal and was reported almost daily. Torture methods include rape, electric shock treatment, belana, (rolling a heavy weighted stick along the thigh muscles) and falanga, (beatings on the soles of the feet), random beatings and mock executions.496 Torture, including rape, and ill-treatment of detainees in the custody of the army, armed police force and civilian police regularly reported. Several people released from detention in army barracks had reported being subjected to torture including beatings with polythene pipes, denial of food, having water poured over the face making it difficult to breathe and being kicked with boots. Some were threatened not to reveal how they were treated while in custody.497Torture and ill-treatment of detainees during interrogation at Maharajgung barracks by RNA was routine and systematic, with a special team carrying out the task of torture and interrogation. For example, one detainee described a typical torture session as:

My husband was tied. I was necked. They asked if I knew about certain killings”. Were you there? Did you help any one? If you didn’t say the truth; they told me, “We have SLRs (self- loading rifles). After a half hour you will go to heaven. Two persons, one on my arms, another on my legs, took me and drowned (submerged) me, for half an hour in the water pond. It was dirty water. Then they pulled me outside and started to beat me. First legs apart, 496 Amnesty International. Further Information on UA 353/03 (ASA 31/093/2003, 2 December 2003) Fear of torture/possible "disappearance". 14 January 2004. 497 Amnesty International. 2004 UN Commission on Human Rights Mission: to promote and protect human rights Addendum. AI Index: IOR 41/010/2004. March 2004. 155 all privacy (gone). They used an iron rod; many times, I forget. I became unconscious. (Two days later) I became conscious. Slowly I moved my hands. My whole body was covered in blood. My vest was stuck to my skin. I couldn’t move my legs because of the swelling.498 In complete disregards of the common article 3 of Geneva Conventions, people arrested by the security forces had been shot dead while being brought to the custody, or had died after brutal beatings while in custody. Although the government had claimed that many of those deaths occurred in clashes between security forces and Maoists; in reality, people sleeping inside their houses or merely walking on the road had been shot dead. There had been arrests without warrants, and people had been even collectively implicated in false cases.

There were numbers of extrajudicial killing by the security persons. The security forces, by shooting an unarmed suspicious person while trying to run, had violated their own rules. Many reports have pointed the fact that security persons were responsible in many incidents of killing including killing in custody by torture. A much publicized story was of 15 years old Maina Sunuwar, who was taken by the security forces. That Maina was subjected to torture in the presence of seven army officers and soldiers, including two captains who ordered the Maina’s head be submerged in a large pot of water for one minute six or seven times, then she was given electric shocks in her breast, hands, and feet several times lasting one and half hours. She was blindfolded and handcuffed at a building where she was tortured and left to die. She was killed on 17 February 2004 in the military custody.499

Similarly, in Ward No. 4, Pokhari Chaur VDC, Kavre district on 13 February, 18-year-old school student Reena Rasaili was arrested by security forces. Witnesses said that about 20 men in plain clothes arrived at Reena Rasaili’s home at midnight. They broke down the door before it could

498 Supra Note 473, pp. 54, 59 and 56. 499 See, United Nations, office of the high Commissioner for Human Rights in Nepal, Report on the Torture and Death of Maine Sunuwar, press Release of 21 December, 2006. p.2. 156 be opened and about 10 men went in. They questioned the family, searched the house, and took

Reena outside. They interrogated her about activities of the Maoists in the village. At 5am, she was brought out of the cowshed and taken to a spot some 100 metres from the house. Three shots were heard. Villagers found her naked body after the security forces left the village. There were bloodstains on her discarded clothes and underwear.500

Like wise, another school student, 17-year-old Subhadra Chaulagain of Pokhari Chauri

VDC Ward No.3 was arrested in the early hours of 13 February when she was sleeping at home. Security forces personnel came into the house and forced her outside. Witnesses report that she was crying and pleading with her attackers to let her go to the district headquarters to

“surrender”. She was then reportedly interrogated before being taken to a spot further away from the house. At around 4 am nine shots were heard. Her body was discovered two hours later, about ten metres from the house. There were gunshot wounds to her face and stomach. A relative was beaten by the security forces personnel and sustained serious injuries during the incident.501

In another case, an armed group, locally known as Ghumuwa, took control of Trilochan

Poudel, 22 on 8 April 2005 as he was having meal. Raising hands, he started pledging his innocence.

He produced his identity card asking them to listen to him. But, no one gave heed to his plea. A group of 40 security forces arrived on motorcycles at Bhainsahi of Laxmaniya VDC-9 from Bankul

Security Base Camp shot five bullets, first at his leg, then at his hands, in his chest and abdomen.

After killing him, the security forces manhandled the civilians in their houses.502

500 Amnesty International. Fear for safety/ possible "disappearance". AI Index: ASA 31/044/2004. 20 February 2004. 501 Supra Note 504. 502 Human Rights Treaty Monitoring Coordination Committee (HRTMCC) Nepal. Field Report on the death of Trilochan poudel, shot dead by the security forces at Bhaisahi Tole, Laxmaniya VDC-9, Rautahat. 5 April 2005. 157 The story of Benbehda, kailali District was also so heartbreaking. Six civilians, including, three women, two men and one year old child were abducted, abused and brutally murdered by unidentified perpetrators on 14 June, 2005. All but one of the victims was related to Armed Police

Force (APF) personnel. The sixth, along with one of the other victims, had recently arrived in the area in order to be recruited by APF. The essential fact was that during the hours of darkness, a group of assailants entered a cluster of houses 150 meters from the APF Badamalika base and abducted the six civilians. They were marched to a nearby forested area, abused and murdered.503

Apart from the baby, all others killed were handcuffed and their throats slit. Their bodies were pierced on various parts with sharp weapons. Intestine of one year old child was badly spread.504 In committing these acts, the perpetrators showed a complete lack of respect for life and human dignity.

The human rights of the victims were violated in multiple ways and, if party to the armed conflict, involved violations of their rights to security of person and to liberty and the killing of each victim was an arbitrary deprivation of life in violation of the right to life.505

Conclusion

The decade long conflict produced a tumultuous humanitarian crisis in Nepal. The parties to the conflict committed serious violations of IHL, principally endangering the lives of the civilian population. Civilians were abducted, murdered, detained, tortured, displaced, and disappeared in large number during the conflict.

What ever may be the concern shown from national and international level, there was no any improvement in the behavior of the warring sides. Though both the sides had shown their

503 See, United Nations, Office of the High Commissioner for Human Rights in Nepal, Killing of civilian in Benbehda. Investigation Report of 18 August, 2005. p.3. 504 See, Human Rights treaty Monitoring Coordination Committee (HRTMCC) Secretariat: INSEC, 21 june, 2005 p.2. 505 Supra Note 507.p.9. 158 commitment on International Humanitarian Law, Geneva Convention and common article 3, but there was lack of trend and mechanism to monitor and evaluate its implementation. There were dozens of reports of alleged violations of IHL by Maoists and Security Forces during the war. These allegations of IHL have been received in the context of indiscriminate attacks by the Maoists and the

Security Forces in urban, highly populated areas and on government buildings with civilian status, as well as clashes between the two sides. In the period of conflict there were large numbers of extrajudicial killings, enforced disappearances, torture, and other abuses committed by both sides of the war. Many civilians were killed, caught in crossfire, and victimized due to the indiscriminate attacks on civilian areas. This was particularly so after November 2001 when the Royal Nepal Army (RNA) was deployed for counter-insurgency operations. Analysis of the documents found that both warring parties were responsible for the killing of civilians and violation of their international humanitarian law obligations.

The next section presents findings for Question 3. It examines the involvement of IHL in the war of Nepal.

Question 3

What was the role of IHL in the war of Nepal?

Introduction

This question was intended to examine the involvement of IHL in the war of Nepal. The incidents of abuses in terms of execution, extrajudicial killings, rapes, tortures, arbitrary arrests, disappearances, the use of civilians as human shield, and child soldiers in the conflict were shockingly enormous although the comprehensive data to confirm the actual level of human rights and IHL violations is not available. An analysis of available documents revealed that in the centre of 159 war and chaos IHL involved in the armed conflict of Nepal to protect the civilians through many organizations. There were a number of national and international humanitarian organizations dedicated to the cause of securing the human rights and protection of civilians. The involvement of the humanitarian bodies, such as National Human Rights Commission (NHRC), Informal Sector

Service Centre (INSEC) and other human rights groups, along with United Nations System agencies,

International Committee of Red Cross, Amnesty International (AI), the Human Rights Watch and others, had been significant and their role had been obvious in monitoring, cautioning, and even warning the warring parties, which had substantially contributed in scaling down the degree of the human rights and IHL violations. These organizations played a central role in the practical implementation of IHL to achieve IHL purpose, in particular under Geneva Conventions. These organizations were working to save lives and alleviate the suffering of civilians, who were deprived of the basic necessities of life as a result of the hostility.

Applicability of International Humanitarian Law in Nepal Case

The decade, which had long armed conflict between government of Nepal and Maoist rebels falls under the international humanitarian law. IHL provides rules regulating the method and means of combat and the treatment of captured combatants and civilians.506 The conflict of Nepal meets the

Geneva conventions definition of an internal armed conflict. It can be argued that the decade long conflict of Nepal was a classical example of a non-international armed conflict; a political party decided to take up arms to fight the established authorities. The Maoist rebels had an identifiable and organized command of a significant part of Nepalese territory, and had repeatedly stated their willingness to abide by the Geneva conventions.507

506 Supra Note 7, p.22. 507 Ibid. 160 Table 7: Situation of Common Article 3 of Geneva Convention in Nepal508

Positive Shortcomings

x Ratification of Geneva Convention by x Not ratifying the optional protocol of the Government Geneva Convention x Commitment to implement x No practical implementation of the Humanitarian Law commitment made by both the warring x Written/Verbal commitment by both sides the warring sides x Systematic violation from both the x Respect of the Convention by both the sides sides in some incidents and contexts x Impunity x Establishment of Human Rights cells x Contempt of court in government/security department x Laws promoting violation x Establishment of ICRC office and its x Negative attitude of both sides towards activeness Human Rights Organizations x Establishment of National Human x Negligence by both the warring sides Rights Commission and its activities on the questions raised by International x Activeness of Human Rights Community, National Human Rights Organizations Commission and Human Rights x International solidarity and concern Organizations x Publicity of Geneva Convention x Lack of fairness and effectiveness of x Positive decision of the Supreme Court the Human Rights organizations of government/ security department

Article 3 common to the four Geneva Conventions applies to armed conflicts ‘not of an international character’. It contains provisions governing the minimum protection of all persons not taking an active part in hostilities, including civilians and members of the armed forces in non- international situations.509 Common Article 3 is binding to both states parties to the Geneva conventions and rebel groups. Both the government of Nepal, which ratified the Geneva conventions in 1964, and the Maoist rebels are obligated to abide by its provisions. One party to the conflict cannot excuse its own violations of common Article 3 on the basis that the other party to the conflict

508 Supra Note 401.p. 103. 509 See, Supra Note 22, p. 7. 161 is similarly violating common Article 3.510 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 date, Nepal has not signed the Two Additional Protocols of 1977.511 The Additional Protocols II regulates the application of IHL in non-international armed conflict. Although Nepal is not a signatory to Additional Protocol II, many of the Protocol’s provisions are accepted as part of

Customary International Law.512 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 cause harm disproportionate to the civilian population beyond the expected military advantage.513

International Humanitarian Law Involvement in the War of Nepal

Human rights violation and activities against the International Humanitarian Law during armed conflict in Nepal was criticized by the national and international community. Organizations like United Nations System agencies, International Committee of Red Cross, Amnesty International

(AI), the Human Rights Watch, International Crisis Group and some national human rights organizations had shown their serious concern on Nepal's armed conflict. These organizations involved in the armed conflict to monitor and implement the international humanitarian law concerning civilians' rights. Organizations that were working during the conflict, publicized different reports and statements revealing facts about violation of human rights and humanitarian laws in

Nepal, and appealed both warring sides to follow the minimum humanitarian standard as pursuant to common article 3 of Geneva Conventions.

510 Supra Note 7, p.23. 511 Human Right Treaty Monitoring Coordination Committee (HRTMCC), Nepal Status of Ratification of Key International Instruments, Katmandu Nepal. Available in www.inseconline.org. 512 Supra Note 507.p. 10. 513 Supra Note 7, p.23. 162 In 2004, the UN Commission on Human Rights (UNCHR) issued a Chairperson’s Statement on the situation in Nepal, and the government made a high-profile 25-point commitment to respect human rights. As concerns mounted, there were a number of visits by UN bodies and diplomatic delegations focusing on human rights. The 2005 session of the UNCHR saw much stronger initiatives on Nepal, largely because of the imposition of the state of emergency on 1 February 2005 and the lack of implementation of the 25 commitments made by the government in 2004.514

Table 8: Government's commitment on the implementation of Human Rights and International Humanitarian Law515

1. The Government will guarantee the human rights protection without prejudice to race, color, gender, ethnicity, language, religion, political or other ideologies, race or social origin, disability, property, birth or on any other grounds.

2. Every person shall have the right to life, dignity and security. Right to life shall be respected under all circumstances. For this purpose, immediate instructions shall be issued to implement and respect the provisions of the Geneva Conventions, in particular, Common Article 3

3. No-one shall be subjected to arbitrary arrest or detention. Measures will be undertaken to prevent illegal or arbitrary detention and forced disappearances.

4. A detainee shall be informed of the reason for the arrest. No one shall be arrested during the night except in accordance with the prevailing laws. Information about the whereabouts of the detainee and his/her transfer shall be made available to the members of his/her family, legal practitioner and the person eligible to receive such information. Every place of detention will maintain a registry containing the name of every person detained and the dates of entry, discharge or transfer.

5. Right to unhindered legal defence shall be honored and protected. The detainee shall be allowed to speak with the family, legal practitioner and any other person within prescribed legal provisions.

514 Supra Note 450, p.17. 515 Reproduce from Informal Sector Service Center. Human Right Year Book, Katmandu, Nepal: INSEC: 2005. p. 107. 163 6. Any detained person shall be held in an officially recognized place of detention.

7. The accused shall have the right to be tried in the court that has all the attributes for conducting free and fair proceedings within a reasonable period of time.

8. The accused held in detention shall not be subject to torture or to cruel, inhuman or degrading treatment or punishment. Any person so treated shall be provided with the compensation stipulated by the law and any person responsible for such treatment shall be punished and prosecuted according to the law.

9. While releasing from detention, the dignity and rights of the person shall be guaranteed providing credible evidence of the release from detention.

10. For the effective judicial remedy, the injunction issued by the Court, including the writ of habeas corpus shall be honored. The right to verify the status of the detainee, his/her health condition, and the right to identify the authorizing and arresting authorities shall be guaranteed.

11. No person shall be prosecuted and punished more than once for the same offence. For the dispensation of justice, only the competent court complying with all judicial proceedings shall have the right to pronounce the verdict.

12. Every person shall have the right to freedom of movement and the choice of domicile. The right of the displaced persons to return their homes or choice domicile shall be guaranteed.

13. The supply of human necessities of all types including food and medicines shall be ensured throughout the Kingdom.

14. Recognizing the educational institutions as the "Zone of Peace”.

15. Every person shall have the right to freedom of opinion, expression and religion.

16. Every person shall have the right to form associations and right to peaceful assembly.

17. Women and children shall enjoy the rights of special protection. Convention on Child Rights of the Child and the Convention on Eliminating All Forms of Discrimination against Women will be honored and concerned mechanism will be improved to eradicate such discrimination.

18. Human rights groups, other non-government organizations and human rights activists working for the implementation of the principles of human rights and international humanitarian laws shall be protected. 164 19. Training to the security agencies, on human rights and international humanitarian laws, will be continued.

20. Any anti-terrorist legislation will be in line with established international human rights principles.

21. HMG will establish an appropriate mechanism for dealing with past human rights and international humanitarian laws violations and to review the necessary measures.

22. His Majesty's Government assures full cooperation to establish the fate and whereabouts of reported missing persons and ICRC will have the access to visit all the jails.

23. A high level Human Rights Protection Committee shall be formed to facilitate human rights monitoring and investigations undertaken by the NHRC, and to help implement the recommendations of the NHRC. The works to be carried out by the committee are:

a. Investigation into human rights violations and prosecute perpetrators;

b. Abide by the law of slavery;

c. Protection of human rights of all persons coming into contact with the security forces;

d. Immediate release of those in arbitrary or illegal detention;

e. Immediate implementation of the orders and decision of judiciary;

f. Taking necessary legal action against responsible for human rights violations;

g. Recommend compensation for the victims.

24. His Majesty's Government facilitates National Human Rights Commission to carry out the following activities:

a. Investigate on the applications of human rights violation

b. Visit or monitor any institution or jail or association

c. Suggest for reviewing and implementing legal provisions

d. Suggest on the report to be send as accordance with the treaties of which Nepal is a state party

e. Conduct research on subjects of human rights 165 f. Promote human rights

g. Analyze human rights situation

h. Monitor whether human rights commitment are follower or not

i. Increase the efficiency of the Commission

j. Permit employee or representative of the Commission to move through out the country and permit to take secret or open interview with person suspected to be detained in any jail

k. Protect the person passing information to the Commission

l. Respond quickly to the appeal of Commission for human rights protection

m. In case to carry out criminal investigation and legal action after the investigation of

Commission, send it to the concerned legal institution

n. Facilitate to acquire assistance from the UN to the cooperative and human resource development of the commission

25. HMG will take necessary measures to stop human rights violation and make the perpetrator accountable for the it.

26 March 2004 (Prime Minister Surya Bahadur Thapa)

In 2005, while the civil rights were curtailed within the country, grave concern over the deteriorating situation of human rights in Nepal was expressed during the 61st session of UN Human Rights

Commission in Geneva. In the meantime, the United Nations High Commissioner for Human Rights and the Government of Nepal reached an agreement on establishing an office in Nepal. Then,

Agenda Item- 19 was passed on Nepal under the special procedure of UN.516 The UNCHR called the authorities to reinstate all civil and political rights; to cease all State of Emergency related and other arbitrary arrests; to lift the far-reaching censorship; to restore freedom of opinion, expression

516 Supra Note 8. 166 and the press as well as the freedom of association; to immediately release all detained political leaders and activists, human rights defenders, journalists and others; to allow all citizens to enter and exit the country freely and to respect all international and national obligations as well as the 25 points of the commitment of 26 March 2004. The UNCHR urged the authorities to give the clarification of the fate of all “disappeared”; the amendment of security legislation to bring it in line with international standards; the combating of impunity by prompt, independent and impartial investigations of all alleged violations of human rights and international humanitarian law and, as appropriate, the initiation of prosecutions through the criminal justice system.517

During the session of the UNCHR of 2005, the Government of Nepal signed a Memorandum of Understanding with the Office of the High Commissioner for Human Rights (OHCHR) to establish an OHCHR Office in Nepal. OHCHR in Nepal established in April 2005 according to agreement between OHCHR and government of Nepal. The representative of high commissioner arrived in Nepal on 7 May 2005. According to agreement, OHCHR had set up office at different locations in Nepal. Main mandate of OHCHR was to monitor human rights situation throughout the country and including carried out investigation.518 As mentioned in the agreement, the OHCHR

Office in Nepal monitored the observance of human rights and international humanitarian law, bearing in mind the climate of violence and the internal armed conflict in the country.519 The first group of about twelve human rights monitors and support staff arrived in Nepal in early May 2005.

According to the UNCHR resolution, the High Commissioner should submit periodic analytical reports on human rights abuses committed by either side of the conflict in Nepal to the UNCHR, the 517 Supra Note 450, p.17. 518 United Nations Commission on Human Rights. Report of the United Nations High Commissioner for Human Rights on the situation of human rights and the activities of her Office, including technical cooperation, in Nepal. (E/CN.4/2006/107). 16 February 2006. p.6. Available in http://nepal.ohchr.org/en/index.html 519 OHCHR press release, UN High Commissioner for Human Rights appoints Chief for Nepal Monitoring Operation, 29 April 2005. Accessed in http://www.un.org/News/Press/docs/2005/hr4832.doc.htm 167 General Assembly and the UN Secretary-General.520 The physical presence of the Office of the

United Nations High Commissioner for Human Rights in Nepal had affected both the state and the

Maoists. The office pressurized both the warring parties to respect human rights and humanitarian law. With the establishment of the office, national and international human rights community was optimistic that Nepal's vibrant civil society would continue to play crucial role in promoting, protecting and documenting human rights violation.521 The Government had shown good cooperation to OHCHR-Nepal in terms of access and availability, and had responded to communications, although some responses had fallen far short of the information requested. The

Maoists had committed to allow OHCHR-Nepal staff freedom of movement and access. OHCHR-

Nepal had met with Maoists leaders and cadres and raised concerns with them. Maoists had responded and taken action with respect to a number of individual cases, but the majority have not received any response.522

On 25 August 2006 the Secretary-General appointed Ian Martin, then head of the OHCHR office in Nepal, as his Personal Representative. The Council had been watching the situation in

Nepal, but had not sought to become actively involved in the peace process preferring to leave the matter with OHCHR as long as that path was proving fruitful.523 On 9th August the Seven Party

Alliance of Nepal and the Maoist rebels requested the Secretary-General for UN-provided monitors to oversee arrangements to manage arms and armed personnel and to assist in the peace process,

520 Supra Note 450, p.18. 521 Supra Note 8. 522 United Nations Commission on Human Rights. Report of the United Nations High Commissioner for Human Rights on the situation of human rights and the activities of her Office, including technical cooperation, in Nepal. (E/CN.4/2006/107). 16 February 2006. p.2. Available in http://nepal.ohchr.org/en/index.html 523 Security Council Report. Monthly Forecast . January 2007. P.9.. Pulished in 22 December 2006. Available in http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3- CF6E4FF96FF9%7D/Jan%2007%20Forecast.pdf 168 including the proposed Constituent Assembly elections of 2007.524 On 1st December, the Council took up Nepal for the first time and finalized a resolution. The resolution was likely to endorse the

Secretary-General’s recommendations for the mandate and focus of a UN Mission in Nepal

(UNMIN). The draft resolution was circulated by the UK on 15 January and at the time of writing was being discussed at the experts' level.525

The draft resolution sets out the mandate for UNMIN as follows:

x monitoring the management of arms and armies in accordance with the Comprehensive Peace Agreement (includes confinement of Maoists and their arms, registration of combatants and weapons and monitoring the Nepal army in its barracks); x assisting in implementing the agreement on the management of arms and armies through a Joint Monitoring Coordinating Committee (to be chaired by UNMIN); x assisting in monitoring the ceasefire arrangements (together with Office of the High Commissioner for Human Rights); x providing technical support to the national electoral authorities for the conduct of the election of a Constituent Assembly in a free and fair atmosphere (involves deploying technical experts, providing assistance for the coordination of international support for the electoral process, deploying UN police advisers and developing and implementing confidence- building measures); and x providing a team of electoral expert monitors to review technical aspects of the electoral process and report on the conduct of the election.526

The Council decided to send a technical assessment mission to Nepal to assess the number of

UN personnel, logistical support and resources required.527 The 35 UN military experts, whose deployment was approved by the Council in December, were arrived in Nepal and began registering

524 Ibid. 525 Security Council Report.Update Report No. 3.17 january 2007. P.1. Available in http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2423965/k.AFFF/update_report_no3brNepalBR17_Januar y_2007.htm 526Ibid,. pp.1-2. 527 Supra Note 527. 169 weapons from the Maoists on 17 January. More than a hundred ex-Gurkhas (Nepali soldiers who served with the Indian and British armies) were recruited temporarily to begin the arms management process and deployed in the seven cantonment sites until the full-fledged UN arms monitoring team was in place.528 UNMIN completed registering and storing the weapons of Maoist forces on 7 March and Nepalese army weapons on 12 April, concluding the registration phase. Some 3,500 weapons had been stored and 31,000 guerrillas confined in camps.529 On 14 June, UNMIN began the second phase of registering and verifying former Maoist combatants and their weapons. It was expected to verify that there were no Maoist soldiers under the age of 18 as of 25 May 2006. Under the

Comprehensive Peace Agreement, both sides committed to discharge child soldiers by that date. The first phase of registration and verification was completed in April.530 Radhika Coomaraswamy, the

Special Representative of the Secretary-General for Children and Armed Conflict, visited Nepal from 14 to 17 December 2009 to try to accelerate the release of almost 3,000 individuals who were in cantonments for the last three years despite having been verified as minors by the UN.531 On 16

December 2009 the government and the Maoists signed an action plan committing both sides to release the former child combatants over a forty day period starting on 27 December 2009.532 On 15

December UNMIN wrote to both Prime Minister Madhav Kumar Nepal and the Chairman of the

Maoists encouraging all parties to reach an agreement on the reintegration of Maoist army personnel

528 Supra Note 529. 529 Security Council Report. Monthly Forecast. May 2007. Available in http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2701397/k.8580/May_2007BRNepal.htm 530 Security Council Report. Monthly Forecast. July 2007. Available in http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.2876609/k.8FB8/July_2007brNepal.htm 531 Security Council Report. Monthly Forecast. January 2010. Available in http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.5709477/k.8923/January_2010brNepal.htm 532 Ibid. 170 and encouraged the parties to expedite an agreement on monitoring and supervision of arms and armed personnel in the cantonments following UNMIN’s departure.533

Similarly, the ICRC involved in the war of Nepal with the aims to protect civilians from the effects of the conflict; monitor the living conditions and treatment of security detainees; promote

IHL; assist wounded, displaced people or other civilians with the Nepal Red cross society; and support the National society’s efforts to strengthen its capacity and its credibility as a neutral humanitarian organization.534 The ICRC initially worked in Nepal out of regional delegation in New

Delhi, opening a delegation in Katmandu in 2001. Its primary aim in Nepal was to protect and assist people affected by the struggle between the government and the Maoists.535 It assisted the Nepal Red cross society financially in reaching out to victims of the conflict and raising awareness as to the importance of the Red Cross emblems as a symbol of protection among the population. Assistance activities were organized to help the civilian population as well as war-wounded on both sides. It included improving water supply system in remote village affected by the conflict and in prison.

Accessibility and quality of treatment for wounded fighters and civilians was improved by assisting rehabilitation services and the provision of war surgery training to medical personnel.536

The ICRC had urged the parties to the conflict (in Nepal) to respect the basic rules of IHL enshrined in Article 3, common to the universally accepted 1949 Geneva conventions to which

Nepal is a party.537 The mandate of the ICRC is to alleviate the suffering of people who do not or no longer fight. So, throughout the conflict, the focus of the ICRC operation in Nepal was protection.

The ICRC visited persons deprived of freedom in connection with the conflict in prisons, police

533 Security Council Report. Monthly Forecast. January 2011. Available in http://www.securitycouncilreport.org/site/c.glKWLeMTIsG/b.6453283/k.8803/January_2011brNepal.htm 534 Supra Note 38, p. 156. 535 See ICRC, Annual Report 2005. p. 173 536 Supra Note 14, p. 409. 537 See, BBC Monitoring South Asia. London: Feb 12, 2005. p.1. 171 stations, military detention facilities and Maoist detention facilities. Furthermore the ICRC followed up violations of IHL allegedly committed by the security forces and PLA against the civilian population or against persons hors de combat. ICRC teams, in writing to the parties to the conflict, reminding them of their obligations under IHL. To promote the Geneva conventions, the ICRC gave training to warring parties, civil society and Red Cross personnel on IHL and on human rights as far as they are applicable in internal armed conflict. The ICRC encouraged the government to ratify the

IHL instruments and their incorporation into legislation.538

In the same way, Amnesty International involved in the war with the concerned about a deterioration in the human rights situation in Nepal since the CPN (Maoist) launched a “people’s war” in February 1996.539 Considering the culture of impunity as a worst part of the conflict of

Nepal Amnesty International had called the government to act urgently to ensure that members of the security forces abide by international human rights and humanitarian law, which prohibit torture and other ill-treatment in all circumstances. It urged the senior government officials to make clear public statements that torture and other ill-treatment would not be tolerated, and that those responsible for committing such violations would be prosecuted.540 This concern had heightened after the army was called out and the state of emergency imposed in late November 2001. Since then, a number of reports of alleged unlawful killings, disappearances, torture and arbitrary arrests and detention by the security forces had increased dramatically.541 Humanitarian crisis escalated after the army was mobilized and a state of emergency imposed between November 2001 and

August 2002. Many people were arrested under the 2002 Terrorist and Disruptive Activities (Control

538 Supra Note 14, p. 408-409. 539 Amnesty International. Further Information on UA 108/04 (ASA 31/069/2004, 15 March 2004) Fear for safety / possible disappearance" / Incommunicado detention. 26 March 2004. 540 Amnesty International. NEPAL Amnesty International Briefing for the United Nations Committee against Torture. (AI Index: ASA 31/079/2005). October 2005 541 Amnesty International. Fear of torture. (AI Index: ASA 31/056/2002) 7 August 2002. 172 and Punishment) Act, which gave the security forces the power to arrest without warrant and detain suspects in police custody for up to 90 days.542 In this situation, Amnesty International recognized the grave security threat posed by the conflict within Nepal and urged the international community to put together a holistic strategy which aims to ensure the protection of the full range of human rights, including access to education, services and economic development as well as the protection of the right to life, physical integrity and fair legal process.543Amnesty International had documented the mounting human rights violations by the security forces and the Maoists since the beginning of the "people’s war". The erosion of the rule of law had resulted in an intolerable situation for civilians and had increased the internal volatility of Nepal. International insistence on upholding human rights and humanitarian law standards would assist in moves to de-escalate the violence and protect vulnerable civilians.544

Similarly, the National Human Rights Commission was involved in monitoring and reporting on human rights violations and atrocities perpetrated to suppress the violence. After the declaration of emergency on May 14, 2001, the NHRC deemed necessary to activate itself in the matters of human rights violation and, hence, decided to monitor on human rights situation. The result was that the NHRC undertook the monitoring task by visiting different districts of a country.545 During the period of emergency, the NHRC endeavoured to draw the serious attention of both, the governmental forces and the Maoists, towards guaranteeing minimum human rights of people. Even at such a critical period the NHRC proved itself successful in marching ahead by undertaking

542 Supra Note 543. 543 Amnesty International. Nepal: Human rights should be at the heart of London conference agenda. (AI Index: ASA 31/046/2002) 19 June 2002. 544 Ibid. 545 National Human Rights Commission. Annual Report 2002. p. ii. 173 diverse activities like carrying out investigation and action on the complaints, research and study works on human rights problems, torture and disablity resulted out by the conflict.546

The NHRC had faced serious obstruction by the government and security forces in the last few years of the conflict. In violation of its mandate, NHRC staff and commissioners had been repeatedly prevented from visiting detainees. Following the King’s seizure of power in February,

2005, some NHRC commissioners were also prevented from travelling outside Kathmandu to carry out their duties. The government and the security forces were also consistently refusing to engage with the NHRC to implement its recommendations.547

Even in such a bad situation the NHRC involved actively in monitoring & investigating about HR situation in the country. The NHRC monitored the ceasefire of 2006. The Program of monitoring & investigation had been completed altogether 29 Districts with the objectives of recommendation to concerned parties on the basis of available facts by such monitoring & investigation.548 During the ceasefire period, NHRC found that civilians were killed by both parties.

Six people were killed by the blind firing of army in Belbari, Morang, a person died due to the torture in the custody of Chitawan National Park. Similarly, it was found that, both parties had continued giving torture in different cases, according to a report, it was found that CPN (Maoist) had killed people after kidnapping, given torture & forced them to be present in Peoples’ Court. In the case of death of a person, beaten in public in Saptari & Sindhupalchowk by army, the Government

546 Ibid. 547 Supra Note 544. 548 National Human Rights Commission. The Report of Human Rights situation during the period of Ceasefire between the Governments of Nepal& CPN (Maoist). May-June 2006. p.1. 174 was found to be unable to maintain peace & security properly on time, so called it negligence of health institutions & breaking/damaging over these things.549

Similar to UNCHR, OHCHR, ICRC, AI, and NHRC, many international and national organizations like International Crisis Group, Asian Human Rights Commission, Asian Centre for

Human Rights, Human Rights Watch, Nepal Red Cross Society, INSEC and many others organizations involved in the armed conflict as agents of IHL and played important role on the implementation of IHL. During the conflict they published several reports about human rights and

IHL violation by the warring sides and suggested them to abide the minimum rules of IHL. All of them recommended the state to protect and promote civilian’s rights. Almost all reports mentioned about the large scale of disappearance and adduction of civilians, arbitrary arrest and illegal detention, child soldier, extra-judicial killing, maiming, and sexual abuses in time of conflict. The mission of these organizations was to relieve human suffering and to reduce vulnerability through community participation and mobilization of an increased number of volunteers, by expanding and strengthening the organizational structure of the society and by building links with governmental and non-governmental organizations. These organizations were working to save lives and alleviate the suffering of civilians, who were deprived of the basic necessities of life, as a result of the hostilities.These organizations worked in monitoring, cautioning, and even warning the warring parties, which had substantially contributed in scaling down the degree of the human rights and IHL violations. Their role in the practical implementation of IHL to achieve IHL purposes, in particular, under Geneva Conventions was significant.

549 Ibid,. p.16. 175 Conclusion

The international humanitarian law played very important role in the protection of civilians in the war of Nepal. IHL involved in the armed conflict of Nepal through many organizations to achieve its goal. There were a number of national and international humanitarian organizations dedicated to the cause of securing the human rights and protection of civilians. These organizations involved in the armed conflict to monitor and implement of international humanitarian law concerning civilians' rights. Organizations that were working during the conflict published different reports and statements revealing facts about violation of human rights and humanitarian laws in

Nepal. Over the years of conflict, these organizations as agents of IHL, received a large number of allegations carried out by warring parties against civilians. They recognized the obligation of the warring sides to ensure the security of the country’s inhabitants and to prevent violent attacks, and appealed both warring sides to follow the minimum humanitarian standard as pursuant to common article 3 of Geneva Conventions.

The next section presents findings for question 4. It deals with the performed role of the IHL in the civilians' protection in the time of armed conflict of Nepal.

Question 4

What was the performed role of IHL in the protection of civilians in the war of Nepal?

Introduction

The objective of this question was to find out the performed role of international humanitarian law in the protection of civilians in the decade long war of Nepal. Analysis of collected documents revealed that IHL performed a significant role in the protection of civilians. The organizations that were working as agents of IHL during the armed conflict urged the warring parties to find a peaceful solution that would put an end to the widespread suffering in Nepal. They recalled 176 Article 3 common to the four Geneva conventions 1949, which is binding to all parties to a non- international conflict, and enshrines the protection of life and all physical integrity of a person, including the prohibition of cruel treatment and torture at any time and place. They reminded the warring parties to abide by international human rights and humanitarian norms that strictly prohibit the use of torture and other forms of ill-treatment under any circumstances.

Performed role of International Humanitarian Law in the period of conflict

United Nations System Agencies

The United Nations has major human rights organs such as the UN Commission on Human

Rights, with several sub-commissions, and the High Commissioner of Human Rights. It has also developed procedures to deal with serious violations of human rights.

The UN Commission on Human Rights (UNCHR)

The protection of civilians was the central purpose of IHL in the war of Nepal. To achieve this purpose IHL involved in armed conflict through many organizations.

During the conflict, the UNCHR experts visited Nepal and reiterated grave concern over situation in Nepal. Visits were conducted by the Working Group on Enforced or Involuntary

Disappearances (WGEID) in December 2004, the Representative of the Secretary-General on the human rights of internally displaced persons (IDPs) in April 2005, and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in September 2005. A number of requests from other mechanisms, including those made by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, in December 2003, the

Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, in June 2004, the Special Rapporteur on extrajudicial, summary or arbitrary executions, 177 in September 2004, and the Special Representative of the Secretary-General on the situation of human rights defenders, in December 2004, remain outstanding.550

On 9 March 2004, three independent experts of the United Nations Commission on Human

Rights' reiterated their profound concern over the deteriorating human rights situation in Nepal in the light of the reported intensification of the conflict between the Government and the Communist

Party of Nepal (Maoist). They noted that since 12 November 2003, when they drew attention publicly to reports of secret detention in Nepal, 47 urgent appeals relating to approximately 100 persons had been sent out, most of them concerning detentions in unknown locations. Many reports referred to an increasing incidence of harassment including house searches, arrests and detention of journalists, teachers, lawyers and trade unionists for expressing themselves on the conflict. A number of former detainees alleged that they had been tortured or subjected to other forms of ill- treatment while being held incommunicado. The experts had received disturbing reports of impunity of the security forces responsible for human rights violations. The Commission's experts referred to international human rights norms that strictly prohibit the use of torture and other forms of ill- treatment under any circumstances. In its resolution 2003/32, the Commission "reminds all States that prolonged incommunicado detention may facilitate the perpetration of torture and can, in itself, constitute a form of cruel, inhuman or degrading treatment, and urges the States to respect the safeguards concerning the liberty, security and the dignity of the person".551

On 14 July 2004, eight independent experts of UNCHR reiterated their serious concern regarding the extremely grave human rights situation in Nepal. The experts indicated that since the beginning of 2004, they had transmitted 146 urgent appeals and other communications to the

550 Supra Note 526, p.7. 551 UN Commission on Human Rights. “UN rights experts deeply concerned about the deteriorating situation in Nepal”. News and Press Release. 9 March 2004. Accessed in http://reliefweb.int/node/143723 178 government of Nepal regarding reported violations of human rights. Many of the communications concerned individuals arrested by security forces, often on suspicion of supporting or being involved with activities of Maoists. It was reported that those individuals were taken to undisclosed locations, which puts the detainees at risk of being tortured or of suffering from other forms of cruel, inhuman or degrading treatment including rape. The experts concluded that the government had failed to respond many of their appeals, and provided virtually no information on the fate or location of people detained in unknown locations.552

The Working Group of UNCHR visited Nepal from 6 to 14 December 2004 at the invitation of the Government. The purpose of the visit was to discuss the cases of enforced or involuntary disappearance received and transmitted by the Working Group to the Government of Nepal and to examine the situation of disappearances in Nepal in the light of international human rights standards.

During the visit, the Working Group met with the state officials, representatives of local non- governmental organizations from Kathmandu and across the country, as well as representatives of the international community. The Working Group visited the Kathmandu Central Jail, and the

Sundarijal Detention Centre. The group requested to meet with specific detainees, who had been the subject of cases of disappearance submitted to the Working Group, were granted. This contributed to the clarification of the whereabouts of the persons concerned. In addition, the Royal Nepalese Army provided new information that could lead to the clarification of 52 cases under consideration by the

552 UN Commission on Human Rights. “UN Commission on Human Rights experts Reiterate grave concern over situation in Nepal”. Press Release. 14 Jul 2004. Accesses in http://www.unhchr.ch/huricane/huricane.nsf/view01/AFC3926A388BD422C1256ED10045331E?opendocument 179 Working Group. The Working Group was also provided with copies of the first three reports of the

Investigative Commission on Disappearances.553

The Office of the High Commissioner for Human Rights (OHCHR)

Establishment of the Office of the High Commissioner for Human Rights in Nepal was an important achievement for human rights in Nepal. The Office of the High Commissioner for Human

Rights was mandated by agreement with Government to monitor and report on the situation of human rights and observance of international humanitarian law in Nepal and engage all relevant actors for the purpose of ensuring the observance of relevant international human rights and humanitarian law. This helped Nepali citizens and human rights defenders to fight against the planned violation of human rights, both by the state and the Maoists.

OHCHR-Nepal focused on the three priority areas: supporting and strengthening national institution, as well as civil society; tackling impunity and establishing accountability for past and ongoing human rights violations, including by helping to strengthen the role of law both through the legal framework and through supporting an emphasis on respect for human rights within security forces; and addressing discrimination and improving the enjoyment of economic, social and cultural rights.554 During the People’s movement II, OHCHR-Nepal closely monitored the demonstrations and helped to minimize violence. It had continued through its presence in all regions to monitor and support the implementation of the human rights elements of the Comprehensive Peace Agreement

(CPA), investigate serious incidents, advocate for justice for the victims of human rights violations, and it had focused on supporting the strengthening of national capacity, especially that of the

553UN Commission on Human Rights. “Working Group on Enforced or Involuntary Disappearances of the United Nations Commission on Human Rights concludes visit to Nepal”. Press Release. 14 Dec 2004. Accessed in http://www.unhchr.ch/huricane/huricane.nsf/0/EC0E26503958D6B1C1256F6A005B28CF?opendocument 554 See, Richard Bennett. Nepal’s Journey towards Respect for Human Rights. Accessed in http://nepal.ohchr.org/en/resources/Documents/English/other/2008/December/2008_12_OHCHR_Vision_E.pdf 180 NHRC.555 OHCHR-Nepal monitored the human rights situation in Nepal. It had reported the serious violations committed during the conflict, such as large scale of disappearances. OCHR-Nepal published several reports and press releases. On August 2005, it published "Investigation Report on

Attack against Public Transportation in Chitwan and Kabhrepalannchok District. In a same date it published the investigation report on "Killinng of Civilians in Benbehda". Similarly, on March 2006, it published field report on "Investigation into Violation of International Humanitarian Law in the

Context of an Attacks and Clashes between the Communist party of Nepal (Maoist) and Government

Security Forces". On May 2006, it published report on "Investigation into arbitrary detention, torture and disappearances at Maharanngunnj RNA barracks, Kathmanndu, in 2002-2004". Similar to these reports OHCHR-Nepal published other many reports and recommended the warring parties to abide the minimum humanitarian norms in the context of insurgency and counter insurgency. OHCHR-

Nepal helped the government to build its capacity to implement and report on the treaties it has ratified, and advised to ratify further treaties. There were some incidents in which the Office deserves credit as well. For instance, there were 313 persons who disappeared in the year 2004, whereas this number had been reduced in the year 2005 and recorded as 120. The main cause behind reduction of disappearances was the physical presence of the respective office where needed.556similarly, In a statement issued on 17 August 2005, the OHCHR urged the government to transfer promptly all detainees out of army custody, reminding the authorities of a public pledge issued in March 2004, Government’s commitment on the implementation of Human Rights and

International Humanitarian Law which stated that “any detainee shall be held in an officially recognized place of detention.557

555 Ibid,. 556 Supra Note 8, p.13. 557 UN OHCHR in Nepal Press Release, 17 August 2005, http://www.un.org.np/index.php 181 International Human Rights Organizations

International Committee of Red Cross (ICRC)

The ICRC played a central role in the practical implementation of IHL to achieve civilians' protection purpose, in particular under Geneva Conventions. It promoted the 1864 and all subsequent Geneva Conventions and the Additional Protocols. Throughout the conflict, the focus of the ICRC operation in Nepal was protection. The ICRC visited persons deprived of freedom in connection with the conflict in prisons, police stations, military detention facilities and Maoist detention facilities. For instance, in 2004 ICRC extended its services to more areas affected by the conflict, ICRC field teams monitored the security and living conditions of civilians in these areas and gave feedback on its findings to the civilian and military authorities and Maoist leaders.558

Similarly, The ICRC visited detainees in many jails, police stations and army camps around the country as well as some people held by the Maoists. It sought full access to those held by the army and by the Maoists. The ICRC started to assist a physical rehabilitation centre at a hospital in

Pokhara and assessed the problem of mines and explosive remnants of war.559 In 2004, the surgeon unit of ICRC had trained around 200 surgeons on surgery during war. Artificial legs were joined to around 60 persons who had lost their hands and legs. Around 400 people of the country were given primary treatment and volunteer trainings and 3 ambulances were provided to Nepal Red Cross

Society.560

In 2005, ICRC provided detention facilities around the country by registering 1,492 detainees and improving water quality in 18 prisons. It also registered 116 people held by the Maoists and facilitated the release or handover of 99 people captured by the Maoist movement. The ICRC

558 Supra Note 38, p. 156. 559 Supra Note 38, p. 156. 560 Nepal: Appeal of ICRC to respect International Humanitarian Law, Press Release, January 11, 2005 182 monitored the conditions of civilians in conflict-affected areas and made numerous representations to remind both parties of their obligation under IHL to protect civilians. It rehabilitated the water- supply systems in 17 villages in the Mid-Western Region; in cooperation with the Nepal Red Cross

Society, provided relief supplies for nearly 8,700 victims of conflict.561 In 2006 too, the ICRC visited detainees held by warring parties and relayed message between them and their families. It also provided physical rehabilitation services and financial support to victims of mines and explosive remnants of war.562 The objective of these actions of ICRC was to ensure that detainees were kept in good physical and psychological conditions of detention, were treated humanely in accordance with

IHL and other internationally recognized standards and were in contact with their family which was the great achievement of ICRC under IHL in protection role.

Amnesty International (AI)

Amnesty International had publicly condemned the deliberate and indiscriminate attacks on civilians by members of the Maoist and security forces which occurred during the conflict. The organization had repeatedly appealed to the warring sides to abide by the principles of international humanitarian law as reflected in Article 3, common to the four Geneva Conventions of 1949 which promotes respect for civilians in times of conflict and in particular prohibits the taking of hostages.

Regularly, AI called the government and the leadership of the Maoists to sign a Human Rights

Accord which gave the NHRC a mandate to set up five regional offices to monitor human rights with technical assistance provided by the UN.563 It called the Nepal government to invite the United

Nations (UN) Human Rights Commission's experts to the country as a matter of urgency in view of

561 Supra Note 38, p. 173. 562 Ibid., p. 189. 563 Amnesty International. Nepal: Civilians sucked into ongoing conflict. Press Release. (AI Index: ASA 31/072/2003). 20 November 2003. 183 the increase in reports of human rights violations by both sides to the conflict.564 The organization was gravely concerned at the sharp rise in reports of arbitrary arrests and detentions and

"disappearances" in Nepal since the collapse of the cease-fire and the resumption of fighting between the security forces and the Maoists.565 During the conflict, research team of AI repeatedly visited Nepal, and met government authorities including the Prime Minister and members of the

RNA human rights cell. The delegates expressed grave concern about reports of an escalation of extrajudicial killings by the security forces, and other human rights violations including arbitrary arrests, "disappearances" and torture in the context of armed conflict between the security forces and the Maoists. It urged the government to take immediate measures to prevent the country sliding towards a human rights catastrophe.566 It also investigated abuses by the Maoists including the abduction and killing of civilians and the forced recruitment and indoctrination of school students.

The organization made public twenty steps which if implemented by the government and CPN

(Maoist) could significantly improve the human rights situation. Amnesty International was particularly urging that in the case of the Doramba incident, those individual members of the security forces believed to be responsible and be brought to justice under normal criminal procedures and not before a court martial. This made the process more just and more transparent. A public trial contributed to prevent further such human rights violations and break the cycle of impunity prevailing in Nepal.567

Amnesty International considered that the prevailing culture of impunity significantly contributes to the ongoing and widespread torture and ill-treatment in Nepal. AI called the 564 Amnesty International. Nepal: Escalating reports of human rights violations must be examined by United Nations experts. Press Release. (AI Index: ASA 31/083/2003). 11 November 2003. 565 Ibid. 566 Amnesty International. Nepal: Inquiry into more reports of extra-judicial killings urgently needed. Press Release. (AI Index: ASA 31/033/2004). 16 February 2004. 567 Amnesty International. Nepal: National Human Rights Commission's findings must be published. Press Release. (AI Index: ASA 31/031/2003). 12 September 2003. 184 government to act urgently to ensure that members of the security forces abide by international human rights and humanitarian law, which prohibit torture and other ill-treatment in all circumstances. It urged the senior government officials to make clear public statements that torture and other ill-treatment would not be tolerated, and that those responsible for committing such violations would be prosecuted. It recommended the government to take concrete action to undertake independent and impartial investigations into all allegations of torture and other ill-treatment, and make security personnel accountable for human rights violations committed by them.568

During the period of conflict, Amnesty International heard numerous reports and first hand testimonies of grave human rights violations by security forces, which had gone unpunished. The

Amnesty International delegation found a growing pattern of extrajudicial killings as well as large numbers of illegal detentions and “disappearances”. The team of Amnesty International met detainees who had been illegally detained and tortured in RNA barracks, and who had been severely beaten in RNA custody, where they were kept in arbitrary detention, unaware of any charges against them and with no prospect of release. Similarly, the Amnesty International delegation met with families of those killed by the Maoists, as well as those who had fled away from Maoists violence and were living in IDP camps. The delegation also met children who had been forcibly recruited, beaten, and compelled to participate in Maoist military activities.569

In different times, during meetings with government officials, the AI delegation was informed about recent steps taken by the authorities to investigate human rights abuses. The committee to investigate “disappearances”, established under the Home Ministry in August 2004 which had reported the whereabouts of more than 300 people who had been reported as

568 Supra Note 544. 569 Amnesty International. Nepal: On the brink of catastrophe. (AI Index: ASA 31/022/2005). February 2005.p.3. 185 “disappeared”. In discussion with relevant officials, AI stressed the need for this committee to make specific recommendations for the prevention of “disappearances” as well as recommendations for criminal prosecutions on those cases where prima facie evidence points to the culpability of the security forces for such “disappearances”.570

Human Rights Watch (HRW)

Human Rights Watch, one of the world’s leading independent organizations dedicated to defending and protecting human rights published reports like, “Nepal between a Rock and a Hard place” on October 2004, Nepal: Civil war Atrocities Follow Royal takeover" on 24 February 2005, and "Clear Culpability: 'Disappearances' by Security Forces in Nepal on 1 March 2005, pointing the events and trends of killing, disappearances, torture and arbitrary arrest from both the government and Maoists. These reports show that during the decade long armed conflict, both security forces and the Maoist rebels were responsible for human rights and IHL abuses. Security forces committed hundreds of extrajudicial killings, widespread torture, and, in some years, the largest number of

"disappearances" in the world. Maoist forces abducted, tortured, and killed civilians suspected of being "informers" or "enemies of the revolution," extorted "donations" from villagers, recruited children as soldiers, and abducted students for political indoctrination. Maoists often executed their victims in public, forcing the victim's relatives and other villagers to observe the killing. In such a humanitarian crisis, Human Rights Watch recommended the government to take all steps necessary to ensure that military, police and other security forces comply in full with the requirements of international human rights and humanitarian law. In particular, bring an end to the widespread practice of extrajudicial and summary executions, “disappearances” and unlawful arrest and detention. Forces must not conduct direct or indiscriminate attacks on civilians or civilian

570 Ibid. 186 objects.571It further suggested government to conduct prompt, independent and impartial investigations into serious allegations of violations of human rights and humanitarian law by the security forces. Discipline or prosecute as appropriate all those implicated for their direct participation in abuses or as a matter of command responsibility in accordance with international due process standards.572 Similarly, it recommended the leaders of the Maoist rebels to issue immediate instructions to their forces to cease the abduction, torture and killing of civilians, including but not limited to persons suspected of being “informers,” or members of other political parties who advocate against the Maoists. It further suggested them to take all necessary steps to ensure the compliance of their forces with international humanitarian law. In particular, this includes abiding by

Common Article 3 of the Geneva Conventions which prohibits, among other things, the killing, torture or other ill-treatment of all persons in their custody. Human Rights Watch requested them not to conducts direct or indiscriminate attacks on civilians or civilian objects, including the abduction of civilians.573

International Crisis Group (ICG)

International Crisis Group (Crisis Group), an independent, multinational organization, had worked in Nepal during armed conflict through field-based analysis and high level advocacy to prevent and resolve deadly violence. Based on information and assessments from the field, it produced various analytical reports.

International Crisis Group’s Nepal reports closely followed the ups and downs of the political process in that country through 2003. The report "Nepal Backgrounder: Ceasefire – Soft

Landing or Strategic Pause?" published on 10 April, laid out the background of the conflict and 571 Supra Note 7, p.96. 572 Ibid, pp.96-97. 573 Ibid, p.99. 187 analyzed the positions of the various actors, domestic and international. Another report "Nepal:

Obstacles to Peace" which was published on 17 June, went a step further with broad-ranging policy prescriptions on constitutional issues, the political process, control of the army and the important roles for regional and international actors in ameliorating the chances for conflict prevention.

Similarly, Following the collapse of the ceasefire, ICG produced "Nepal: Back to the Gun" on 22

October, mapping the reasons behind the plunge back into violence and summing up the evolving positions of all the actors. Through these reports ICG helped raise international awareness of this under-reported Conflict and highlighted the urgency of international engagement with Nepal.574

Crisis Group continued to focus on all the parties to the conflict: the palace, the Royal Nepalese

Army, the mainstream political parties, and the Maoists.575 During the conflict period, ICG produced various reports regarding the issue of armed conflict. The reports like "Nepal's Royal Coup: Making a Bad Situation Worse" (9 February 2005), "Nepal's Maoists: Their Aims, Structure and Strategy"

(27 October 2005), "Nepal: Dangerous Plans for Village Militias" (17 February 2004), "Nepal's

Royal Coup: Making a Bad Situation Worse" (9 February 2005), "Nepal: Dealing with a Human

Rights Crisis" (24 March 2005), "Nepal's Maoists: Their Aims, Structure and Strategy" (27 October

2005), "Nepal’s Crisis: Mobilising International Influence" (19 April 2006) etc. by ICG has pointed the fact that series of killing through impunity had escalated in Nepal. Different reports and statements revealing facts about violation of human rights and humanitarian laws in Nepal, had been appealing both the sides to follow the minimum humanitarian standard as pursuant to common article 3 of Geneva Conventions.

Throughout the conflict, through various reports, ICG recommended warring parties to cease human rights violations and adhere in full to international humanitarian law. The ICG recommended

574 International Crisis Group, Annual Report 2004, p. 19. 575 International Crisis Group, Annual Report 2006. p.19. 188 Maoists to respect the rights of the civilian population, to halt the intimidation, torture and killing of political workers, journalists, activists and others, to give and enforce clear instructions to their forces on human rights and international humanitarian law, to sign the Human Rights Accord, and to cooperate with national and international human rights monitors.576 In a similar way, ICG recommended Government of Nepal to end the practice of enforced disappearances by security forces, to investigate all disappearance cases and prosecute perpetrators, to cooperate with the international community to tackle the human rights crisis, to take immediate steps to demonstrate concrete commitment to end the culture of impunity towards human rights abusers, to strengthen the legal framework for human rights and international humanitarian law, and to strengthen the capacity of the National Human Rights Commission.577Not only had this, but also ICG also encouraged member states of the United Nations Commission on Human Rights (UNCHR) to establish an effective international human rights monitoring presence in the country through deployment of a clearly mandated mission of the Office of the High Commissioner for Human Rights (OHCHR) staffed by international monitors and national support staff sufficient to work across Nepal's difficult terrain and led by a head of mission of sufficient UN rank and ability to collate, evaluate and act on the information gathered by monitors, appointing a Special Rapporteur, and encouraging the royal government to issue a standing invitation to the thematic mechanisms of the Commission to visit

Nepal.578

Asian Centre for Human Rights (ACHR)

Asian Centre for Human Rights (ACHR) which is dedicated to promotion and protection of human rights and fundamental freedoms in the Asian region expressed serious concerns about

576 International Crisis Group, NEPAL: DEALING WITH A HUMAN RIGHTS CRISIS, Asia Report No. 94 of 14, 24 March 2005, pp. ii and iii. 577 Ibid, p. ii. 578Ibid., p. iii. 189 human rights and humanitarian law violations during the conflict of Nepal. The ACHR published several reports and press releases regarding the issues of human rights and humanitarian law violations.

On 4 November 2003, Asian Centre for Human Rights (ACHR) condemned the action of government on the establishment of a "National Human Rights Promotion Centre" under the Prime

Minister's Office of Nepal. The ACHR sought the intervention of the United Nations High

Commissioner for Human Rights to persuade the government of Nepal to scrap the establishment of such a center. It requested the UN High Commissioner for Human Rights to urge the government of

Nepal to strengthen the NHRC by giving financial resources and autonomy to establish its sub- offices in all the districts to monitor human rights violations both by the security forces and the

Maoists rather than establishing a centre to whitewash the atrocities of the security forces.579 In another case, ACHR expressed its disagreement on the issue of formation of the Village Defence

Force (VDF) by the Royal Nepal Army and urged the government of Nepal to disband the VDFs and find a political solution to the crisis rather than promoting more violations of human rights and fundamental freedoms. The formation of VDFs was a concrete step towards leading the country to full scale civil war as it blurs the distinctions between civilians and combatants. Due to this action of the government, the civilians were being forced to decide whether they were with the government or not as refusal to join the VDFs will be construed as supporting the Maoists 580 In this ongoing worse scenario, ACHR urged India, the United States and European Union, especially United Kingdom, to freeze all assistance especially military assistance to Nepal unless King Gyanendra lifts emergency and restores all democratic freedoms and institutions including the immediate release of all the

579 Asian Centre for Human Rights. Nepal urged not to set up the cover up commission. ACHR Index: PR/NEP/01/11/03. 14 November 2003. Accessed in http://www.achrweb.org/press/2003/November2003/NEP011103.htm 580 Asian Centre for Human Rights. Nepal urged to disband counter insurgency Village Defence Forces. ACHR Index: PR/NEP/01/12/03. 3 December 2003. Accessed in http://www.achrweb.org/press/2003/December2003/NEP011203.htm 190 political leaders and lifting of the ban on press freedoms. ACHR also urged UN Secretary General

Kofi Annan to act decisively by sending a special envoy to Kathmandu, and request the Commission on Human Rights to hold a Special Session on the situation of human rights in Nepal to order to authorise sending of an international team to Nepal to report to the forthcoming 61st session in

March and April 2005.581

In the conflict period, ACHR recommended the warring sides to end the human rights and humanitarian law abuses through various reports. It recommended the government of Nepal to end the impunity and ensure that those responsible for human rights violations and grave breaches of international humanitarian law to bring into justice, to cooperate fully with the OHCHR for implementation of the technical cooperation agreement signed on 13 December 2004, to end the systematic enforced disappearances, to take immediate action, to eradicate the practice of extrajudicial executions by ensuring compliance with the UN principles on United Nations

Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary

Executions, to ensure safe and unhindered access to all parts of Nepal for the United Nations and international humanitarian organizations, to cooperate fully with all sectors of society, to ensure the provision of humanitarian assistance and to guarantee that it actually reaches the most vulnerable groups of the population, to appoint members of the National Human Rights Commission consistent with Article 3 of the Human Rights Act, and to pursue through dialogue and peaceful means the immediate suspension and permanent end of conflict with the Maoists.582 Similarly, ACHR recommended the Maoists to respect human rights and international humanitarian law, in particular, as applicable to them, the Geneva Conventions of 12 August 1949 for the protection of victims of

581 Asian Centre for Human Rights. Cut off aid to Nepal. ACHR Index:PR/NEP/03/02/05. 3 February 2005 . Accessed in http://www.achrweb.org/press/2005/NEP0205.htm 582 Asian Centre for Human Rights. Nepal: Impending Humanitarian Crisis US, UK and India must not play foul. The 5th weekly briefing paper on the key human rights concerns in Nepal from 4-9 March 2005. 10 March 2005. p.6. 191 war and the Additional Protocols thereto of 1977, the Hague Convention of 18 October 1907 concerning the Laws and Customs of War on Land, the Convention on the Prevention and

Punishment of the Crime of Genocide and other relevant provisions of international humanitarian and human rights law, and in particular to respect the rights of women and children and to ensure the safety of all civilians, to stop recruitment and use of child soldiers, to stop indiscriminate killings of the civilian populations including the members of the Maoist Victims Association, targeting to hospitals and schools and other public properties in areas held by the Maoists, and extortion of exorbitant “taxes” through coercion, intimidation and physical violence, and to allow free and secure access to areas under their control in order to permit investigations of violations of human rights and international human rights law.583

Asian Human Rights Commission (AHRC)

Asian Human Rights Commission emphasized its concern on the grave human rights and humanitarian crisis in which Nepal had gone through significant degradation. AHRC assumed that the human rights situation in Nepal was one of the most serious issues in Asia. Over the years of conflict, AHRC had raised its voice at number of occasions that warring parties resorted violence against each other in course of conflict, which was absolutely unnecessary. Through various reports and press releases, AHRC condemned security forces which had carried out tactics such as arbitrary arrests, torture, extra judicial killings and disappearances. Security forces were targeting journalists and human rights defenders on the pretext of maintaining law and order in the country.584 Similarly,

AHRC Strongly condemned the repeated practices of members of the Maoists, such as: Unlawful killings, rape, extortions, forced displacement, mass abduction and forced recruitment and labour

583 Ibid,. pp.6-7. 584 Asian Human Rights Commission. NEPAL: Immediate domestic and international intervention needed to protect lives of people and avoid a humanitarian catastrophe in Nepal. (AS-26-2004). August 22, 2004. Accessed in http://www.humanrights.asia/news/ahrc-news/AS-26-2004/?searchterm= 192 targeted at civilians; Persecution and attacks against the life, integrity and safety of political leaders and party members, human rights defenders, journalists, peace activists and others.585 AHRC was particularly concerned by the rapid growth in numbers of forcibly disappeared persons in Nepal.586

In such situation, AHRC recommended the warring sides to respect human life and not to target any civilians.587 It urged the parties to respect human rights and international humanitarian law, in particular common article 3 of the Geneva Conventions of 12 August 1949, as well as to act in conformity with all other relevant standards relating to the protection of civilians, particularly of women and children, and to allow the safe and unhindered access of humanitarian organizations to those in need of assistance.588 At the same time AHRC urged the International Community to consider on going events as a sign of warning and intervene to encourage parties for peaceful talks.

It further requested international community to condemn summary executions and aggression targeting the civilians both by the Maoist and the government forces.589 The AHRC requested to all concerned international agencies and officials, including the International Criminal Court, UN

Human Rights Committee, Working Group on Disappearances and Special Rapporteurs to pay special attention to the situation of Nepal, specifically the continuous disappearances and crimes against humanity being committed on a large scale.590

585 Asian Human Rights Commission. NEPAL: UN Commission on Human Rights adopts resolution on Nepal. ( FA-13- 2005). April 21, 2005. Accessed in http://www.humanrights.asia/news/forwarded-news/FA-13-2005/?searchterm= 586 Asian Human Rights Commission. NEPAL: New TADO the latest instrument to facilitate disappearances and other gross abuses . October 20, 2004. Accessed in http://www.humanrights.asia/news/ahrc-news/AS-40-2004/?searchterm= 587 Supra Note 588. 588 Supra Note 589. 589 Supra Note 588. 590 Supra Note 590. 193 National Human Rights Organizations

National Human Rights Commission (NHRC)

During the conflict period NHRC visited several places of a country to investigate the human rights violations by warring parties. For example, on April 17 and 18, 2002 a team consisting the chairperson of NHRC, visited to Satvariya, Lamahui and Ghorahi of Dang district. The situation was that, after the imposition of emergency, the innocent civilians were found suffering from arrest, torture and assassination. The persons, who the security forces had taken into custody, were killed and thrown in the sand of the river. In a similar way, Maoists had massively used the civilians in the process of launching encounters and made peoples' life very critical by destroying their most necessary physical structure. In this visit, NHRC found both security forces and Maoists were responsible in the violation of human rights and humanitarian law.591 Similarly, in order to study the condition of wounded, arrested and surrendering persons during the time of emergency, the NHRC sent a team comprised of two commission members to Nepalgunj, Banke district for the spot visit. In the visit, the team met the head of the local administration, police and Royal Nepal Army and then arranged interaction and meetings with the representatives of civil society and the tortured persons.

The team visited the jails and hospitals and collected information on the true fact.592

NHRC had attempted to sensitize security forces and other concerned authorities through human rights trainings, interactions, and also by providing them the expertise on several human rights issues and also humanitarian law. For example, on January 10, 2003, a discussion was organized between the NHRC and Royal Nepal Army on human rights and humanitarian law in present situation. On that occasion, the team of army expressed its commitment to work together

591 National Human Rights Commission. Annual Report 2002. pp.34-35. 592 Ibid,. p.35. 194 with the NHRC on human rights protection.593 The NHRC also attempted to reach out to the Maoist leaders through press releases or direct interaction with the Maoist leaders to persuade them to abide by humanitarian law. It had always condemned the violent activities of the Maoists, and other threats to common people. The NHRC took various initiatives to make its role more effective in the process of peaceful resolution of the conflict. This included the dialogues and discussion with the parties that were directly involved with the conflict. NHRC provided practical advice to the government in the implementation of the 25 points human rights commitment and encouraged Maoists to ensure their human rights commitments.594

During the cease-fire of 2003, when both sides agreed to observe a “Code of Conduct” the

NHRC proposed a Human Rights Accord (HRA) to both parties, the objective of which was to bind both sides to a series of concrete human rights commitments with the NHRC as the independent body monitoring compliance.595 But, this cease-fire collapsed in august 2003 in an atmosphere of mutual mistrust. After the dismissal of the negotiation, the armed conflict took a new height with both competing in gross and grave human rights and IHL violations. On 17 August 2003, while a cease-fire was in force, in Doramba, Ramechap district the security forces summarily executed 19

Maoist cadres after arresting them.596 In this case, the NHRC formed an investigation team with the mandate for on-the spot investigation. An investigation team reported that the people had been shot in the head. Some had even no skulls. They were all blindfolded and led to a remote hilly area where the bodies were later found.597 The NHRC made the government wary about its rampant violation of human rights in action to quell the violent conflict. On 1 January 2004, Manoj Rai was released by police on condition that he report to the Hanuman Dhoka District Police Office (DPO) on a daily 593 National Human Rights Commission. Annual Report 2003. p.12. 594 National Human Rights Commission. Annual Report 2004. p.2. 595 Supra Note 450, p.5. 596 Supra Note 181, p.34. 597 Supra Note 197. 195 basis. He was arrested on 27 September 2003 and initially held at the DPO, where he was reported to be severely beaten. In late November 2003, not only did the police deny that they had arrested

Manoj Rai, but also they denied any knowledge of his whereabouts. During a surprise visit to the

Ward Police Office in Baudha, Kathmandu on 24 December, however, the Nepalese National

Human Rights Commission discovered that Manoj Rai was in fact being detained there. The

Commission later stated that he had been held illegally by the police. On 1 January Manoj Rai’s mother was reportedly taken into a van by police officers and told to sign a document, which she was not allowed to read, in return for her son’s release. This release procedure was apparently designed to pre-empt a Supreme Court hearing on Manoj Rai’s case. When the hearing occurred on

2 January, the Supreme Court ordered Manoj Rai’s release even though it had already taken place.598

On 10 March, 2004, it had given some suggestions to the government regarding the immediate measures that it had to take for the protection of human rights. On 26 March 2004, government had also promulgated its 25 point commitments so as to comply with the human rights and the

International Humanitarian Laws.599

In accordance with the Article 11 (6) of Human Rights Commission Act, 1996, the NHRC formed a committee in order to make a study on the missing persons. This committee was being formed in order to trace out the situation of the missing persons abducted by the warring parties after the starting of the people's war.600 In the case of internally displaced people, NHRC conducted a number of investigations, monitoring and visits among the IDPs in order to bring about public awareness towards human rights, visited the IDP camps and forwarded the recommendations to the concerned authorities. It received complaints of gross violations of human rights and conducted

598 Supra Note 500. 599 Supra Note 598, p.86. 600 Supra Note 595, p.37. 196 investigation and study. It coordinated and collaborated with the various NGOs and INGOs working in the field of human rights and inculcated encouragement to work on the rights of IDPs. Thereafter, it created pressure through the press release among the parties involved in the incidents of human rights violations.601

Nepal Red Cross Society (NRCS)

Nepal Red Cross Society (NRCS) came into being in 1963. It was recognized by the ICRC in

1964 and affiliated to the International Federation of Red Cross and Red Crescent Societies in the same year. NRCS has, over the years, grown to be the largest humanitarian organization in Nepal.602

The mission of the Nepal Red Cross is to relieve human suffering and to reduce vulnerability through community participation and mobilization of an increased number of volunteers, by expanding and strengthening the organizational structure of the society and by building links with governmental and non-governmental organizations.603

The Nepal Red Cross was one of the few organizations that were able to continue its humanitarian throughout the country during the conflict. With the support of the ICRC, the Nepalese

Red Cross launched a national campaign to combat misuse of the Red Cross emblem. On the basis of

Common Article 3 to the Geneva Conventions, an impartial and humanitarian organization such as the ICRC can offer its services to the parties in the conflict. Both parties accepted the ICRC and the protection and assistance package it offered.604 The 1996-2006 conflict, in Nepal, brought tragedy for many families: thousands of people were killed during the conflict, and over a thousand families still do not know what happened to their relative. Since 1999, Nepal Red Cross Society (NRCS), has

601 Supra Note 466.p.16. 602 Nepal Red Cross Society. Annual Report 2010-2011.p.3. Available in http://www.nrcs.org 603 Ibid. 604 Supra Note 14, p. 407. 197 been supporting the International Committee of the Red Cross (ICRC), to maintain contact with the families of missing persons across Nepal and has been encouraging the former parties to the conflict to clarify the fate of those who remain unaccounted for. Over the years, the ICRC with the help of the NRCS had received 3819 reports from families regarding the disappearance of a relative in relation to the conflict.605The Nepal Red Cross Society worked closely with the ICRC in the promotion of humanitarian values, the Fundamental Red Cross and Red Crescent Principles and the principles of the IHL which was essential for strengthening the role of Nepal Red Cross Society as a neutral and independent organization in conflict-affected Nepal.606

Informal Sector Service Centre (INSEC)

The Informal Sector Service Centre (INSEC) was associated with local human rights organizations that were working during the period of armed conflict. It made alliance with Human

Rights Treaty Monitoring Coordination Committee (HRTMCC)607 which is a coalition of human rights organizations established to monitor the implementation of the international human rights treaties ratified by Nepal. With alliance with HRTMCC , INSEC Monitored the international conventions, treaties and national laws on HR and IHL. INSEC conducted various researches and recommended to the concerned law enforcing authority for implementation of the provisions of international HR law and IHL. It had Coordinated and cooperated with the GOs & NGOs, and advocated for legal remedies in national and international level on HR issues.

605 Nepal Red Cross Society. "Missing persons of Nepal the Right to Know". ICRC and NRCS. August 2011. Availale in www.nrcs.org 606 Supra Note 14, p. 408. 607 HRTMCC was established in September 2003 through a consultation in Kathmandu to build stronger human rights forum for all major human rights NGOs in Nepal and to create a human rights network to address the situation collectively towards making the state accountable to its international human rights obligations and the non-state actors accountable to international human rights and humanitarian laws. 198 INSEC has published the Human Rights Yearbook, as an annual Human Rights report of the country. These annual Human Rights reports provided information on Human Rights violations of the country during the insurgency. INSEC organized fact-finding missions, inspection of jails and on-the-spot visits during the conflict and published the analysis and interpretation of events on the overall Human Rights situation.608 During the conflict, INSEC was concerned with warring parties' atrocities and total disregard for Human Rights, despite the pronouncement of allegiance to different international instruments. It has recorded countless instances of violations of Human Rights by both parties in the conflict, which can be roughly grouped as: Displacement (internal and external),

Increase in the cases of "Disappearance" after arrest by the State forces, "Disappearance" after abduction by Maoists, and hostage taking, Killing after arrest of Maoists by the State Forces, Illegal detentions and arrest by the State, Disregard of rule of law, Impunity, Increase in criminal activity, and Concern on other basic rights of citizens declined except for right to life.609

Conclusion

IHL performed a significant role in the protection of civilians in the war of Nepal. The organizations that were working as agents of IHL during the armed conflict urged the warring parties to find a peaceful solution that would put an end to the widespread suffering in Nepal. Throughout the war in the Nepal, humanitarian and human rights organizations continued to urge government as well as the Maoists to do more to ensure respect for IHL.

Organizations like United Nations System agencies, International Committee of Red Cross,

Amnesty International (AI), the Human Rights Watch, International Crisis Group and some national human rights organizations had shown their serious concern on Nepal's armed conflict and urged

608 Supra Note 8, p.9. 609 Informal Sector Service Center, Human Right Year Book. Kathmandu, Nepal, 2004. 199 warring sides to differentiate between combatants and civilians and to avoid the destruction of objects indispensable to the survival of the common people. In various reports, the ICRC continued to draw attention to the humanitarian situation in the Nepal. In addition, the ICRC undertook numerous assistance initiatives, providing medical care, food and drinking water to the wounded.

Human Rights Watch, Amnesty International, International Crisis Group and other organizations produced reports on the violations of IHL in the war in which they appealed to the warring parties to do more to ensure protection of the victims of the conflict. They regularly sent letters to members of the UN Security Council urging action on violations of IHL. They issued various reports characterizing the humanitarian crisis of conflict. Overall, they had minimal influence in shaping warring parties' policies and provided humanitarian relief to victims of the war. The works carried out by these organizations was praiseworthy but it was not sufficient. But it was not sufficient though, the activities of these organizations had helped and pressurized in following the common article 3.

Summary

Chapter 4 gave a brief description of how the research was executed and the presentation of findings that yielded from the analysis. Question 1 explored how Civilians were affected in a decade long war of Nepal. Collected documents were analyzed in response to this question. It was found that the parties to the conflict had disregarded humanity and resorted to extreme and humiliating actions against civilians. The conflict had exacerbated fear among the civilians especially people of a rural areas of a country. Specially, in the year of 2003 and the first half of 2004, civilians' right to life was massively violated due to the conflict. Civilians were frequently targeted and children sometimes were forced to serve as child labourers, child militia, messengers, cooks, and members of cultural troupe in the interest of war. This conflict had left the bad impact on the lifestyle of the 90% 200 of the people living in the rural areas. The armed conflict affected all the citizens, especially the weaker groups of the society like, women, children, elderly, indigenous and dalits (untouchables).

During conflict, they lacked adequate security, safety and protection.

Question 2 was to find out the violations of international humanitarian law by warring parties in the decade long armed conflict of Nepal. Analysis of documents revealed that between 1996 to

2006 Nepal was gripped by conflict between government forces and Maoist insurgents and experienced widespread, and in some cases, systematic human rights violations. Violation of human rights and IHL in different forms was rampant in Nepal during armed conflict. Regardless of numerous appeals and pressure from the human rights community and civil societies, a series of human rights and the IHL violations were occurred from both parties of the armed conflict.

Widespread use of torture and other ill-treatment, abduction, disappearancess, arbitrary arrests, the use of children in military activities, indiscriminate attacks, extra-judicial killings, and among other abuses of civilians were the most common incidents in every day life of the country during the conflict. Almost every day, dozens of people were appealed to the human rights organizations to help them to defend the lives of their family members and relatives. Due to such fear, thousands of people were forced to leave their birth place in search of a safer place. The conflict had badly erupted humanitarian services like health, nutrition, drinking water and other humanitarian need of the people. In a number of remote mountainous areas, where there was food shortage, people could not receive food supply and medicines from the government and other humanitarian support programs due to the security problems. Despite high profile pledges of commitment to human rights, both the Nepali government and the Maoists leadership were failed to investigate human rights abuses or take appropriate action against who were responsible. 201 Question 3 explored the issue about the involvement of IHL in the war of Nepal. An analysis of available data showed that in the centre of war and chaos IHL involved in the armed conflict of

Nepal to protect the civilians through many organizations. There were a number of national and international humanitarian organizations dedicated to the cause of securing the human rights and protection of civilians. Despite the problem of security, a number of humanitarian and human rights organizations were involved in conflict areas in order to deliver humanitarian services for people in need. Involvement of humanitarian organizations like United Nations System agencies, International

Committee of Red Cross, Amnesty International (AI), the Human Rights Watch, International Crisis,

National Human Rights Commission, Nepal Red Cross Society, Informal Sector Service Center and others many national and international organizations helped to reduce the impunity of human rights and IHL abuses. These organizations recommended the warring parties to abide the humanitarian norms and values in the time of insurgency and counter-insurgency. They played a central role in the practical implementation of IHL to achieve IHL purpose, in particular under Geneva Conventions.

They worked to save lives and alleviate the suffering of civilians, who were deprived of the basic necessities of life as a result of the hostility.

The objective of question 4 was to find out the performed role of IHL in the protection of civilians in the war of Nepal. Analysis of collected documents revealed that IHL played a significant role in the protection of civilians. The involvement of human rights and humanitarian organizations in Nepal war helped to protect the civilians. The organizations that were working as agents of IHL during armed conflict urged the warring parties to find a peaceful solution that would put an end to the widespread suffering in Nepal. During the period of conflict, time and again, they recommended warring parties to recall Article 3 common to the four Geneva conventions 1949, which is binding on all parties to a non-international conflict, and enshrines the protection of life and all physical 202 integrity of the persons, including the prohibition of cruel treatment and torture at any time any place.

Chapter 5 summarizes the findings and discusses how the dissertation has expanded the knowledge of International humanitarian law and its role in the protection of civilians in this area of research. Policy implications from the findings will also discuss. Finally, it will recommend for where future research goes. 203 CHAPTER 5:

DISCUSSION, IMPLICATIONS AND RECOMMENDATIONS

Introduction

The purpose of this study is to provide a deeper understanding of the role of international humanitarian law in the protection of civilians in the internal war of Nepal. To this end, the study examined in detail how the war of Nepal affected the civilians and what was the role of IHL in the protection of civilians. The following research questions guided the study:

1. To which extent did the decade long war of Nepal affect the Civilians?

2. To what extent did the Maoist rebels and Government security forces commit serious

violations of IHL?

3. What was the role of IHL in the war of Nepal?

4. What was the performed role of IHL in the protection of civilians in the war of Nepal?

Context of the Study

The qualitative case study methodology was employed as the most appropriate method to ground the research because of the purpose of the study and the type of data required for it. This methodology was used because it provided multiple sources of data to build a comprehensive picture of what happened in the decade long war of Nepal?, what was the condition of civilians during the war?, how did IHL involve in the war of Nepal? And, what was the performed role of IHL in the protection of civilians? Such detailed information required to provide an understanding of the role of international humanitarian law in the protection of civilians in the war of Nepal would not have been 204 possible if a quantitative survey had been used. Two data utilized for this study was from documentary sources. Documents used for the study were compiled official statistics with the reports from various international and local human rights organizations and their statements and press releases. These documents were collected, analyzed and reviewed to make sure the performed role of IHL in the time of conflict In Nepal. Findings were validated through the use of multiple sources of data.

This chapter consists of three sections. The first section discusses the findings of the study.

The second section reviews its implications for social change with specific recommendations for stakeholders, and the final section makes recommendations for future research. It should be pointed out that this research was grounded in the conceptual framework of IHL and armed conflict of

Nepal. It was not set out to test any particular theory(s). The IHL in the war of Nepal constituted the lens through which researcher viewed and examined the dynamics about the armed conflict of

Nepal. The findings from this case study basically are lessons learned from IHL experiences in civilians' protection in Nepal. It will contribute and add to the knowledge base on humanitarian law and internal armed conflict.

Discussions on Findings for Question 1

Research Question 1 asked: To which extent did the decade long war of Nepal affect the

Civilians? It was revealed that civilians were the major brunt of the conflict. One of the most common abuses committed by both the government and Maoist forces was the systematic and indiscriminate targeting of the civilian population. Both the government and the Maoist rebels had carried out acts of extreme violence, and human rights and IHL abuses had been common across the country as increasingly civilians were the major victims of the conflict. 205 Question 1 established the truth that civilians had faced many challenges on rights to life, liberty, security, and dignity as human rights and humanitarian law violations and abuses became a rule of the day. Human rights situation during the conflict of the country was at crossroads, as thousands of extra-judicial killings, thousands of arbitrary arrests and detentions, thousands of cases of torture, cruel, inhuman and degrading treatment, and hundreds of involuntary disappearances had been reported. Women were particularly vulnerable to sexual harassment and other forms of violence. Examples of Maina Sunuwar and Reena Rasaili proved that several female even the age of below 18 years old lost their lives and had suffered physically and psychologically after being gang raped in a very pathetic condition. Many females were killed after being gang raped whether in custody or while being brought to police post or transferred one place to another. During the security forces operation many women were raped even in front of their family members.

The living standards of children, women, and elderly people was affected in the absence of guardianship, as most of the energized youths were either voluntarily or involuntarily migrated towards urban centres seeking security. Children and women were particularly vulnerable whose close family members were killed in front of them. Many children were grown up in an environment shaped by guns, bombs, bandhs (strikes), killings, the sight of dead bodies and the fear of war, leading them to be preoccupied with thoughts and fear about violence and other psychosocial consequences. Large numbers of minors, including girls, were used in the conflict as Maoist's army combatants, while the armies of both sides utilized minors as messengers, informers, cooks and in other support functions. In the period of coflict youth were viewed as 'the lost generation' because they lost their youth-hood in conflict. The fear of being in the middle of attacks and counter attacks between security forces and Maoist rebels, fear of abduction by either of the parties, looting, 206 shortage of food supplies due to the conflict and unemployment huge number of youths had been displaced from their local areas.

Civilians arrested in front of the court or in public places were disappeared immediately despite the concern of human rights organizations and civil society. Many civilians were being handicapped due to the indiscriminate attack of warring parties. Civilians lived their life in extreme pain. There were uncountable arbitrary arrests and detentions. Most of those in custody and jail were kept with out warrant. After the imposition of state of emergency in 2001, marginal people suffered a lot from the double curfew in district headquarters and other urban places by the state and in rural areas by the Maoists. Thousands of people were abducted and detained against their wishes for periods ranging from several days to several months. Disappearances emerged as a major among the several serious human rights issues in Nepal. Generally people arrested by the Security forces were not brought to the court as required by the domestic laws of the country and the relatives and friends of the family were not informed about their whereabouts.

The findings of question 1 conclude that the decade long violence and unrest had affected the lives of civilians. The conflict had exacerbated fear among the civilians especially people of a rural areas of a country. This conflict had left the bad impact on the lifestyle of the 90% of the people living in the rural areas. The armed conflict affects all the citizens, especially the weaker groups of the society like, women, children, elderly, indigenous and dalits (untouchables). During conflict, they lack adequate security, safety and protection.

Discussions on Findings for Question 2

Question 2 asked: To what extent did the Maoist rebels and Government security forces commit serious violations of IHL? Analysis of documents revealed that Nepal had experienced gross 207 violations of IHL committed by Maoists in the course of its insurgency and by Security Forces in the state’s response. The violent conflict was main reason for the widespread violation of human rights and the disregard for humanitarian laws. The conflict of Nepal was marked by bloody murders, disregard of humanitarian values and impunity for those responsible for the violations and indiscriminate killings. In the period of war, the Maoists and Security Forces committed serious violations of IHL, principally endangering the lives of the civilian population including through attacks in civilian areas, using civilian houses and school as a shields, indiscriminate shooting and bombing, mass abduction, forced recruitment, rape, extortion, unlawful killings, and forced displacement. During the period of conflict the question of following common article 3 of Geneva

Convention received importance since the conflict broke out. Both the warring parties had claimed that they were followed the norms of IHL from their side and charged each other for violating it. The statements issued by both the sides in course of their insurgency appealed the opposition to follow common article 3 of Geneva Conventions. But they were not paid attention to follow themselves.

Findings of the study revealed that disappearance, arbitrary arrest, killing after detention, torture, beating, indiscriminate attack on civilian areas, rape, aerial bombing, attack on school, use of excess and arbitrary force etc were the major techniques in the incidents of violation by the state. On the other hand Maoists engaged in the violation of IHL by killing, abduction, beating, intimidation, involving in war forcefully, making the school as battlefield by organizing armed program in school, use of child soldiers, collecting donation forcefully, lootings, excessive and uncontrolled use of landmine and explosives, strike/blockade, attack on passenger bus and vehicle with Red Cross sign.

The common article 3 prohibits inhuman treatment to persons taking no active parts in hostilities. Such persons should be treated humanly. The common article 3 prohibits behaving in such manner against the civilians not involved in the war. But in practical, both the government and 208 Maoists were frequently violated such limitation. Both the sides recklessly showed inhuman behavior to the civilians. There were hundreds of incidents where civilians not taking part in the war were violently killed. Security Forces arrested civilians in allegation of being Maoists or abducted by the Maoist on charge of spying, the victims were not only treated inhumanly but also their fundamental right of right to life was widely violated.

The common article 3 prohibits the violence to life and person, in particular murder of all kind, mutilation, cruel treatment. Such behaviors are against humanitarian assumptions. The acts of killing, mutilation, cruel treatments are the behaviors are inexcusable which bring high impact in the society. The aim of common article 3 of Geneva Convention is to eradicate such behaviors. But, such behaviors and trends were widespread in Nepal. Warring parties extremely violated the minimum standards of these humanitarian assumptions. Extra judicial killing, terror, indiscriminate attack, arbitrary arrest and torture were the major trends created by the conflict and actions to control them. Both the sides violated such subjects of common article 3 of Geneva Conventions. People said to be killed in crossfire by the security forces were actually killed in custody or unarmed or after surrender or while surrendering. The trend to kill after detaining or by torturing in custody was the rule of the day. Many reports have pointed the fact that security forces were responsible in many incidents of thousands of extrajudicial killings. Similarly, the Maoists flouted their obligations under international law. As part of their insurgency they had deliberately targeted and killed civilians suspected as informers. Most of the victims were members of opposition political parties, persons suspected of having informed against them, and persons who opposed them in any other way. The

Maoists often tortured and executed the victims in public, to show civilians what could happen to those who dare stand against the Maoists. Many incidents can be taken as examples where people, 209 apart from being civilians, professionals like political activists, human right defenders, social workers, teachers, health workers, and journalist were also targeted.

The common article 3 states that the warring sides should not carry on degrading treatment and any type of discrimination to the people not taking part in armed struggle or who are not in the condition to do so. But there were many incidents of subjugating dignity of citizens during the conflict. Behaviors such as forcefully asking to provide food, forcefully making to participate in programme, humiliating publicly, were carried out by the warring parties. Both the parties violated people’s right to dignified life. Such incidents revealed that both the warring sides were reckless in distinguishing the civilian and combatants in order to protect civilians and their properties and not to target them. The trend of using human as shield was routine. This had threatened the life of innocent civilians.

But complete disregard of the Common Article 3 of Geneva Conventions 1949, its

Additional Protocol II and the Rome Statute of the ICC the parties to the conflict committed serious violations of IHL, principally endangering the lives of the civilian population. Civilians were abducted, murdered, detained, tortured, displaced, and disappeared in large number during the conflict.These allegations of IHL have been received in the context of indiscriminate attacks by the

Maoists and the Security Forces in urban, highly populated areas and on government buildings with civilian status, as well as clashes between the two sides. In the period of conflict there were large numbers of extra-judicial killings, enforced disappearances, torture, and other abuses committed by both sides of the war. Many civilians were killed, caught in crossfire, and victimized due to the indiscriminate attacks on civilian areas. Both the warring parties were responsible for the killing of civilians and violation of their international humanitarian law obligations. 210 Discussion on Findings for Question 3

Question 3 asked: What was the role of IHL in the war of Nepal? An analysis of available documents revealed that in the centre of war and chaos IHL involved in the armed conflict of Nepal to protect the civilians through many organizations. There were a number of national and international humanitarian organizations dedicated to the cause of securing the human rights and protection of civilians. The involvement of the humanitarian bodies, such as United Nations System agencies, International Committee of Red Cross, Amnesty International (AI), International Crisis

Group, the Human Rights Watch and others, along with National Human Rights Commission

(NHRC), Informal Sector Service Centre (INSEC) and other national human rights groups, was significant and their role of monitoring, cautioning, and even warning the warring parties, substantially contributed in scaling down the degree of the human rights and IHL violations. These organizations played a central role in the practical implementation of IHL to achieve IHL purpose, in particular under Geneva Conventions. These organizations were working to save lives and alleviate the suffering of civilians, who were deprived of the basic necessities of life as a result of the hostilities.

The ability of these organizations to encourage adherence to international humanitarian law had been successful in the conflict of Nepal. Publicizing human rights violations report, warning the warring parties to abide the humanitarian norms and recommended the solution to terminate on going violence on an individual basis or sometimes together these organizations operated their works during the conflict.

Publications of data and records of serious violations and massacres evolved into an acknowledgement by significant parts of the international community that the application of IHL could no longer be denied to the Nepal conflict. Fact-finding missions and observation teams were 211 sent during the period of conflict by several organizations, including official human rights groups like United Nations agencies and Amnesty International.

All of them recommended warring parties to protect and promote civilians' rights. In this regards, their reports showed there was impact on civilians during conflict period. Especially all mentioned in time of conflict there was large scale of disappearance and adduction of civilians, illegal detention, child soldier, killing, maiming, and sexual abuses. One of the important monitoring mechanisms was to appoint special rapporteurs to report on human rights mechanism within particular themes in Nepal. During the conflict, there were some rapporteurs visited and submitted their reports in line agency. Although they did their important mission but impact of their work in case of civilians in Nepal need to be assessment. UN agencies involved to monitor the civilians' rights in the period of conflict and attempted interventions, and to some extent succeed to improve the lives of civilians during conflict period. Nepal Government's commitment on the implementation of Human Rights and International Humanitarian Law in 2004, and sign of a Memorandum of

Understanding with the Office of the High Commissioner for Human Rights (OHCHR) to establish an OHCHR Office in Nepal in 2005, was a big achievement of UNCHR. Main mandate of OHCHR was to monitor human rights situation throughout the country and including carried out investigation. The involvement of OHCHR-Nepal helped a lot to reduce the civilians’ casualties.

The involvement of ICRC in the war of Nepal was adding support in the civilians’ protection role of

IHL. The ICRC involved in the war with the aim of protecting civilians from the effects of the conflict; monitor the living conditions and treatment of security detainees; promote IHL; assist wounded, displaced people or other civilians with the Nepal Red cross society; and support the

National society’s efforts to strengthen its capacity and its credibility as a neutral humanitarian organization. Similarly, Amnesty International had involved in the war considering the culture of 212 impunity as a worst part of the conflict of Nepal. In course of conflict period AI had called the warring parties to act urgently to ensure that members of the parties abide by international human rights and humanitarian law, which prohibit torture and other ill-treatment in all circumstances.

Furthermore, National Human Rights Commission involvement in the war with the aim of civilians’ protection was the great achievement of IHL. After the declaration of emergency on May 14, 2001, the NHRC deemed necessary to activate itself in the matters of human rights violation and, hence, decided to monitor on human rights situation. The result was that the NHRC undertook the monitoring task by visiting different districts of a country. The NHRC succeeded in winning the confidence of national and international spheres along with the Nepalese people and the civil society by monitoring human rights situation in the violence prevailing districts. The NHRC endeavoured to draw the serious attention of both the warring parties towards guaranteeing minimum human rights add step in the protection role of IHL. Even at such a critical period the NHRC proved itself successful in marching ahead by undertaking diverse activities like carrying out investigation and action on the complaints, research and study works on human rights problems, torture and disabled resulted out by the conflict. Many human rights and humanitarian organizations like International

Crisis Group, Asian Human Rights Commission, Asian Centre for Human Rights, Human Rights

Watch, Nepal Red Cross Society, and INSEC involved in the war to implement the norms of IHL.

They published several reports about human rights and IHL violations by the warring sides and suggested them to abide the minimum rules of IHL. These organizations were working to save lives and alleviate the suffering of civilians, who were deprived of the basic necessities of life as a result of the hostilities. Their involvement in the war substantially contributed in scaling down the degree of the human rights and IHL violations. 213 In conclusion, the discussions on findings to question 3 has revealed and or affirmed that the involvement of IHL in the war of Nepal through various human rights and humanitarian organizations was itself great achievement in civilians’ protection. Their role in the practical implementation of IHL to achieve IHL purposes, in particular under Geneva Conventions was significant.

Discussion on Findings for Question 4

Question 4 asked: What was the performed role of IHL in the protection of civilians in the war of Nepal? The study found that IHL performed a significant role in the protection of civilians.

Protection of civilians was the central purpose of IHL in the war of Nepal. The organizations that were working as agents of IHL during the armed conflict urged the warring parties to find a peaceful solution that would put an end to the widespread suffering in Nepal. They recalled Article 3 common to the four Geneva conventions 1949, which is binding on all parties to a non-international conflict, and enshrines the protection of life and all physical integrity of the persons, including the prohibition of cruel treatment and torture at any time any place. They reminded the warring parties to abide international human rights and humanitarian norms that strictly prohibit the use of torture and other forms of ill-treatment under any circumstances.

It is fact that neither state nor treaty bodies are always capable or willing to enforce human rights and humanitarian law. However, responsibility of enforcement goes to a variety of local, national, regional and international bodies. In the case of Nepal several human rights and humanitarian organizations were involved and performed their role in regards to civilians' protection.

The organizations that were working as agents of IHL during the armed conflict were an important source of information on the humanitarian conditions. Organizations, such as UN 214 commission on Human Rights, Human Rights Watch, Amnesty International, International

Committee of the Red Cross, International Crisis Group, National Human Rights Commission, and others issued statements or produced reports, detailing the suffering of victims of the conflict and appealed warring sides to respect the IHL norms. This information was used by the media as well as government officials in policy formulation. Moreover, these organizations worked with other actors, such as concerned government officials and suggested them to take action to reduce the civilians' casualties in conflict.

For instance, during the conflict, the UNCHR experts visited the Nepal and reiterated grave concern over situation in Nepal. Different time visits of the experts of UNCHR reiterated their profound concern over the deteriorating human rights situation in Nepal, in the light of the reported intensification of the conflict between the Government and the Communist Party of Nepal (Maoist).

The experts had received disturbing reports of impunity of the security forces responsible for human rights violations. The Commission's experts referred to international human rights norms that strictly prohibit the use of torture and other forms of ill-treatment under any circumstances. The visits of experts and working groups really help to protection of civilians in armed conflict of Nepal.

The OHCHR Office in Nepal monitored the observance of human rights and international humanitarian law, bearing in mind the climate of violence and the internal armed conflict in the country. The physical presence of the Office of the United Nations High Commissioner for Human

Rights in Nepal had affected both the state and the Maoists. The office pressurized both the warring parties to respect human rights and humanitarian law. With the establishment of the office, national and international human rights community was optimistic that Nepal's vibrant civil society would continue to play crucial role in promoting, protecting and documenting human rights violation. 215 Throughout the conflict, the focus of the ICRC operation in Nepal was protection. It played a central role in the practical implementation of the IHL, in particular under the Geneva Conventions.

The ICRC gave remarkable contribution by appealing to the parties to armed conflict to respect humanitarian norms. It is notable that, during the confronted period, the ICRC had promoted the application by urging the confronting parties to abide basic principles of humanitarian law. The

ICRC visited persons deprived of freedom in connection with the conflict in prisons, police stations, military detention facilities and Maoist detention facilities. The objective of these actions of ICRC was to ensure that detainees were kept in good physical and psychological conditions of detention, were treated humanely in accordance with IHL and other internationally recognized standards and were in contact with their family which was the great achievement of ICRC under IHL in protection role.

Amnesty International recognized the grave security threat posed by the "people’s war" within Nepal and urged the international community to put together a holistic strategy which aims to ensure the protection of the full range of human rights, including access to education, services and economic development as well as the protection of the right to life, physical integrity and fair legal process. International insistence on upholding human rights and humanitarian law standards assisted to reduce the violence and protect vulnerable civilians.

Other organizations like Human Rights Watch, International Crisis Group, Asian Centre for

Human Rights, Asian human Rights Commission, National Human Rights Commission and others significantly played an important role in civilians’ protection, conflict prevention, conflict resolution, and post conflict reconstruction. These organizations had supported the civilians with courage, devotion and compassion. Implementation of humanitarian law in the conflict was clearly effective 216 due to their activities during the conflict period. Many of them offer professional services which was indispensable for the victims of armed conflict.

Implications

The findings of this research carry two main implications for the management of armed conflict of Nepal. First, implication is the enforcement of law. More attention needs to be paid to the possibilities of enforcement of law in armed conflict. Article 3 common to the Geneva Conventions of 1949, and Additional Protocol II of 1977, represent a considerable body of rules for the protection of civilians in non-international armed conflict. The main problem facing the international community today lies not in the content of those rules, but rather in their enforcement.610 There is no world government to enforce the law and there will always be breaches in law, even if it is effective.

The lack of adequate enforcement and the consequent culture of impunity are the significant reason for the ineffectiveness of law in any armed conflicts. Sometimes, the international and national human rights organizations are slow at enforcing the law. However, their effort in the implementation of law has a major impact on the reduction of civilians' rights abuses, proving that law enforcement is possible. Adequate enforcement of the law is a crucial aspect of a post-conflict society and accurately punishing war criminals is important to peace, justice, and reconciliation.

Second, in Nepal, already there is the existence of National Human Rights Commission. It is the national human rights monitoring mechanism. The international community should support the

NHRC, financially, technically and politically. Support should be provided on an urgent basis to the

NHRC to fulfill its mandate to investigate human rights abuses.

610 Lindsay Moir. The Law of Internal Armed Conflict. Cambridge: Cambridge University Press, 2002. 217 Still in Nepal there is not any truth seeking mechanism, in this context there will need to establish truth-seeking and reconciliation mechanism. However, there has been much discussion within Nepal about establishing a Truth and Reconciliation Commission (TRC) to address crimes committed during the conflict. Recently, the political parties have agreed to make the TRC all powerful by granting it the right to recommend the prosecution of those who have committed grave human rights violations during the insurgency. The creation of a successful Truth and reconciliation commission would achieve transitional justice in a post-conflict situation. The future TRC must not be allowed to become a tool for legitimizing gross actions during the conflict, thus allowing their perpetrators to escape. The allegations of violations of human rights and international humanitarian law should be investigated promptly, independently and impartially and, as appropriate, prosecuted through the criminal justice system, in accordance with the Constitution of Nepal and international standards of justice, fairness and due process of law. Nepal should ratify Statue of Internal criminal court. The Government of Nepal should provide urgent protection and assistance to internally displaced persons, taking account of the particular needs of women and children, to facilitate their safe return, reintegration and resettlement elsewhere in the country, as appropriate, and to develop appropriate policies and legislation in this regard, using the Guiding Principles on Internal

Displacement.

The impact of armed conflict on civilians must be everyone’s concern and everyone’s responsibility. One of each individual and each institution must initiate and support global action to support and protect civilians in armed conflict. 218 Recommendations for Future Research

This dissertation has answered several key questions with regard to international humanitarian law role in the protection of civilians in the war of Nepal. In a same time it has equally provoked several questions that call for further research.

First, this dissertation raised the question of necessity of more empirical work on the role of the IHL in the non-international armed conflict. This kind of research requires interviews with policy elites and the analysis of policy documents that were not available in this dissertation. That kind of information would shed light on the extent to which officials debated the questions of legal obligation and appropriate state behavior.

Second, this research has identified a gap in research on implementation of IHL in on going conflict. Yet some international and national human rights and humanitarian organizations played significant roles in the management of conflict and implementing the IHL norms in the armed conflict. Inadequate research in this area does not only reduce our overall understanding of all aspects of armed conflict management, but also raise the question of protection that would help to avoid repeating past mistakes.

Third, international law scholarships can benefit from further empirical study on whether a focus on regulating the conflict rather than addressing its causes holds greater promise for the protection of victims of internal armed conflict. This case study can be generalized to other non- international armed conflicts. Finally, this dissertation calls for further comparative research involving different types of armed conflicts. 219 Personal Reflections

The proposed study was based on certain basic assumptions. Firstly, it was assumed that decade long armed conflict between Government of Nepal (GoV) and the Communist party of Nepal

(Maoist) falls under the international humanitarian law in which a political group decided to take up arms to fight against the established authorities. Secondly, it was assumed that armed conflict of

Nepal was characterized by consistent patterns of impunity for serious human rights and humanitarian abuses. The parties to the conflict committed serious violations of IHL, principally endangering the lives of the civilians. Civilians were abducted, murdered, detained, tortured, and displaced in large number during the conflict; hence the role of IHL was necessarily significant in the protection during the conflict. Lastly, it was assumed that the views expressed by the researcher will be correct and not influenced by the changed political situation. The political situation of a country has changed a lot after the warring parties signed a Comprehensive Peace Accord (CPA).

Maoist rebels of that time have now become a legitimate political mainstream party which is the biggest party in Nepal after the election of Constituent Assembly (CA) of 2008.

The research outcome confirmed some of the researcher’s assumptions as well as revealing the simplistic nature of the assumptions about the IHL role in the protection of civilians. It became clear that Nepal had experienced gross violations of IHL committed by Maoists in the course of its insurgency and by Security Forces in the state’s response. The violent conflict was main reason for the widespread violation of human rights and the disregard for humanitarian laws. Civilians were the major brunt of the conflict. They were suffered, tortured, abducted, displaced and even killed by the parties to the war. The conflict was marked by bloody murders, disregard of humanitarian values and impunity for those responsible for the violations and indiscriminate killings. International

Humanitarian Law played a significant role to reduce the casualties of civilians' during the time of 220 conflict. The involvement of the IHL through various organizations itself was the great achievement in the context of conflict in Nepal. Their work on protection lives and alleviates the suffering of civilians, who were deprived of the basic necessities of life as a result of the hostility was really appreciable.

Summary

This exploratory case study on the topic "The role of international humanitarian law in the protection of civilians: The case of Himalayan people's war " came by as a result of that during the conflict, the civilian abuses were conducted in a grave, systematic, and widespread manner, showing that international humanitarian law in Nepal played significant role in the protection of civilians.

Nepal got succeed in ending the decade long conflict in 2006 and, consequently, ending the abuse of civilian rights.

This study has provided a clear picture of the decade long armed conflict of Nepal and examined the rights of civilians in times of war as well as outlines the duties and obligations of the armed forces towards civilians. It critically analyzed the international legal obligations that the state has assumed for the protection of the right of civilians in case of Nepal.

It also confirmed existing literature which indicated that during the war, parties to the conflict had carried out acts of extreme violence, and human rights and IHL abuses had been common across the country as increasingly civilians were the major victims of the conflict.

Similarly, the reviewed literature about IHL showed that being a law of armed conflict the IHL is designed to regulate the treatment of the individual- civilian or military, wounded or active- in armed conflicts. It seeks to protect persons not engaged in or no longer participating in hostilities. The main purpose of it is to protect combatants and non-combatants from unnecessary suffering and to 221 safeguard the fundamental human rights of persons, who are not, or are no longer, taking part in the conflict and of civilians.

The study found that the parties to the conflict had disregarded humanity and resorted to extreme and humiliating actions against civilians. The conflict had exacerbated fear among the civilians especially people of a rural areas of a country. This conflict had left a bad impact on the lifestyle of the 90% of the people living in the rural areas. The armed conflict affects all the citizens, especially the weaker groups of the society like, women, children, elderly, indigenous and dalits

(untouchables). Violations of human rights and IHL in different forms were rampant in Nepal during armed conflict. Regardless of numerous appeals and pressure from the human rights community and civil societies, a series of human rights and IHL violations were incurred from both parties of the armed conflict. In such a situation, as agents of IHL a number of national and international humanitarian organizations dedicated to the cause of securing the human rights and protection of civilians. Despite the problem of security, these organizations were involved in conflict areas in order to deliver humanitarian services for people in need. They helped to reduce the impunity of human rights and IHL abuses and recommended the warring parties to abide the humanitarian norms and values in the time of insurgency and counter-insurgency. They played a central role in the practical implementation of IHL to achieve IHL purpose, in particular under Geneva Conventions.

They worked to save lives and alleviate the suffering of civilians, who were deprived of the basic necessities of life as a result of the hostilities.

Conclusion can be drawn that both government and Maoists committed serious violations of

IHL, principally endangering the lives of the civilian population. Despite the protection provided by law, civilians were subjected to killing, maiming, torture, arbitrary arrest and detention, and abuse in so many other ways. Many of the atrocities committed during the war, constitute crimes under 222 international law. Among the most fundamental protections during non-international armed conflicts are those contained in Article 3 common to all four Geneva Conventions. Both government and

Maoists were bound to apply, as a minimum, the fundamental humanitarian provisions of international law contained in Article 3. They were also bound by provisions of the Geneva conventions and the 1977 protocols Additional to the Geneva conventions. So, the warring parties should make a public commitment UN guiding principle on the non-international armed conflict and need to respect the basic principle of IHL. The impact of armed conflict on civilians should be stakeholders' concern and responsibility. Warring parties' policy and operational guidelines should be reviewed and brought fully in line with IHL provisions, widely disseminated amongst the members of the security forces/Maoist insurgents and enforced effectively. 223 BIBLIOGRAPHY

Books

Adhikai, Bipin. "Building Capacity of National Human Rights Institutions: The Case of Nepal".

Right to Education Foundation (RTEF): 2004.

Adhikari, Bipin. “The Context of Conflict and Human Rights Violations in Nepal: Some Preliminary

Observations” in “Conflict, Human Rights and Peace Challenges before Nepal” ed. Bipin

Adhikari. National Human Rights Commission: (2003).

Aust, Anthony. "Handbook of International law". Cambridge University press (2005).

Baker, Therese L. "Doing Social Research". McGraw-Hill, Inc. (1994).

Blokker, Niels. "The Security Council and the Use of Force. Theory and Reality- A Need for

Change? Eds. by Niels Blokker and Nico Schrijver. Martinus Nijhoff Publishers: (2005).

Creswell, John W. "Research Design Qualitative and Quantitative Approach". SAGE Publications:

(1994).

Dawadi, Niraj. “The Conflict and the Peace Process in Guatemala Lessons for Nepal” in “Conflict,

Human Rights and Peace Challenges before Nepal” ed. Bipin Adhikari. National Human

Rights Commission: (2003).

Fleck, Dieter. “The Law of Non-international Armed Conflict” in "The Handbook of International

Humanitarian Law". ed. by Dieter Fleck. Oxford University Press. Oxford, New York:

(2008).

Gellner, David N. “Resistance and the State: Nepalese Experiences". Berghahn Books: (2007). 224 Gurung. D.B. “Ethnic and Socio-Cultural Dimensions to the Maoist Insurgency: An Overview” in

“Conflict, Human Rights and Peace Challenges before Nepal” ed. Bipin Adhikari. National

Human Rights Commission: (2003).

Gasser, Hans-peter. “Protection of the Civilians Population” in "The Handbook of International

Humanitarian Law". ed. by Dieter Fleck. Oxford University Press. Oxford, New York:

(2008).

Greenwood, Christopher. “Historical Development and Legal Basis” in "The Handbook of

International Humanitarian Law" ed. by Dieter Fleck. Oxford University Press. Oxford, New

York: (2008).

Greenwood, Christopher. “The law of War (International Humanitarian Law)” in "International

Law"ed. Malcolm D. Evans. Oxford University Press. Oxford New York: (2006).

Hutt, Michael. "Himalayan People's War: Nepal's Maoist Rebellion. Indiana University Press:

(2004).

Informal Sector Service Center. Human Right Year Book, Katmandu, Nepal: INSEC: (1992).

Informal Sector Service Center. Human Right Year Book, Katmandu, Nepal: INSEC: (1996).

Informal Sector Service Center. Human Right Year Book, Katmandu, Nepal: INSEC: (2001).

Informal Sector Service Center. Human Right Year Book. Katmandu, Nepal: INSEC: (2003).

Informal Sector Service Center. Human Right Year Book. Katmandu, Nepal: INSEC: (2004).

Informal Sector Service Center. Human Right Year Book. Katmandu, Nepal: INSEC: (2005).

Informal Sector Service Center. "Human Right Year Book". Katmandu, Nepal: INSEC: (2006).

Informal Sector Service Center. "Human Right Year Book". Katmandu, Nepal: INSEC: (2007).

Jean-Marie Henckaerts and Louise Doswald-Beck. Customary International Humanitarian Law.

cambridge university press; (2005). 225 Klappe, Ben F. “International Peace Operation”. In “The Handbook of International Humanitarian

Law. Ed. by Dieter Fleck. Oxford University Press. Oxford, New York: (2008).

Kolb, Robert and Hyde, Richard. “An Introduction to the International Law of Armed Conflicts”

Hart Publishing. Oxford: (2008).

Kothari, C. R. "Research Methodology Methods & Techniques". Wishwa Prakashan, New Delhi:

(2004).

Lawoti, Mahendra. “Towards the Democratic Nepal: Inclusive Political Situations for a

Multicultural Society”.Sage Publication, India Pvt. Ltd. (2005).

Meron, Theodor. "The Humanization of International Law" The Hague Academy of International

Law: (2006).

Moir, Lindsey. “The Law of Internal Armed Conflict” Cambridge University Press: (2002).

Pathak, Bishnu. "Politics of People's War and Human Rights in Nepal". BIMPA Publication.

Kathmandu (2005).

Riaz, Ali and Subho Basu. "Paradise Lost?: State Failure in Nepal". Lexington Books: (2007).

Shaw, Malcolm N. “International law”. Cambridge University press. (2008).

Sassoli, Marco and Bouvier, Antoine A. "How Does Law Protect In War? Cases, Documents and

Teaching Materials on Contemporary Practice in International humanitarian law" ICRC.

Geneva: (1999).

Thapa, Deepak. “Radicalism and Emergence of the Maoist” in Himalayan ‘People’s War Nepal’s

Maoist Rebellion". Ed by Michael Hutt. C. Hurts and co. ltd. (2004).

The Editors with Kevin Clements. “Theory, Research, and Practice” in “Conflict” eds. Sandra

Cheldelin. et al. Continuum International Publishing Groups: (2003). 226 UK Ministry of Defence. "The Manual of the Armed Conflict". Oxford University Press. Oxford

New York: (2004).

Upreti, Bhuwan Chandra. “Maoist in Nepal: From Insurgency to Political Mainstream”. Kalpaz

Publications, Delhi: (2008).

Upreti, Bhuwan Chandra. "Nepal: Transition to Democratic Republican State: 2008 Constituent

Assembly". Kalpaz Publications, Delhi:(2010).

Walliman, Nicholas. "Social Research Methods". SAGE Publication:2006.

Whelpton, John. “A History of Nepal". Cambridge University Press: (2005).

Wolfrum, Rudiger and Dieter Fleck. “Enforcement of International Humanitarian Law” in "The

Handbook of International Humanitarian Law". ed. by Dieter Fleck. Oxford University Press.

Oxford, New York: (2008).

Yin, Robert K. "Case Study Research Design and Methods". SAGE Publication:2003.

Research Studies

Baidya, Pratibedan, Impact of Armed Conflict in Women. INSEC. Informal Quarterly. Vol. 26.

(2009).

Barbara Weyermann, “The Vicissitudes of empowerment in Conflict- afflicted Nepal”. Paper

presented at The Third International and Interdisciplinary Trauma Research Net Conference

on “Trauma-stigma and Distinction: Social Ambivalences in the face of Extreme Suffering,

St. Moritz, Switzerland, 14-17 September: (2006).

Bugnion, Francois. “The International Committee of the Red Cross and the Development of

International Humanitarian Law. Chicago Journal of International Law. Vol.5. No. 1.

Summer(2004): 191-215.Web. 227 Crawford, Emily. “Unequal before the Law: The Case for the Elimination of the Distinction between

International and Non-international Armed Conflicts”. Leiden journal of International law:

(2007). 441-465. Web.

Dahal, Dev Raj. “Conflict Resolution, A Note on some Contending Approaches” in “Conflict

Resolution and Governance in Nepal” eds. Ananda Prasad Srestha and Hari Uprety. Nepal

Foundation for Advance Studies (NEFAS): 2003.

Gurung, Harka. "Nepal: Maoist Insurgency and indigenous People", Nepali Journal of contemporary

Studies, Vol.3, No.2 September 2003. P.8.

Kleffner, Jann K. "From 'Belligerents' to 'Fighters' and Civilians Directly participating in Hostilities-

on the Principle of Distinction in Non-international Armed Conflicts One Hundred Years

After the Second Hague Conference". Netherlands International Law Review: (2007): 315-

336. Web.

Kreuttner, Timothy R. “The Maoist Insurgency in Nepal and US Counterinsurgency Doctrine. Small

wars Journal: (2009).

Kellenberger, Jakob. "Overview of the ICRC's operations in 2012: message from the president”. 08-

12-2011 Report, Access in http://www.icrc.org/eng/resources/documents/report/appeals-

2012-message-president-2011-12-08.htm

Lindsey, Charlotte, Women Facing War, ICRC Study on the Impact of Armed Conflict on

Women. Women and War. ICRC, October 2001.

Lopreato, Joseph. "Authority Relations and Class Conflict". Social Forces, Vol. 47, No. 1 (Sep.,

1968).

Manzione, Lara L. “Human Rights in the Kingdom of Nepal: Do They Only Exist on Paper?”

Brookling Journal of International Law, vol. 32, issue 1, 2001-2002. 228 Mack, Michell. “Increasing Respect for International Humanitarian law In Non-International Armed

Conflicts” ICRC. Geneva. February 2008.

Marks, Thomas A. and Palmer, David Scott. 'Radical Maoist Insurgents and Terrorist Tactics:

Comparing Peru and Nepal', Low Intensity Conflict and Law Enforcement: (2005).

Mishra, Chaitanya. “Locating the Structural Causes” of the Maoist Struggle” in Simkhada, Shambhu

R. and Oliva, Fabio: (2006). The Maoist Insurgency in Nepal: A Monograph, Geneva: The

Graduate Institute of International Studies.

Mullerson, Rein. "International Humanitarian law in Internal Conflicts". Journal of armed conflict.

Vol. 2 (1997): 109-133. Print.

Murphy, Ray. "United Nations Military Operations And International Humanitarian Law: What

Rules Apply to Peacekeepers? Criminal Law Forum: (2003):153-194. Web.

Ola, Engdahl. "The Status of Peace Operation Personnel under International Humanitarian Law".

Year book of International Humanitarian law. Vol. 11 (2008): 109-138. Print.

Paulus, Andreas and Vashakmadze, Mindia. “Asymmetrical War and the notion of armed conflict- a

tentive conceptualization”. International Review of Red Cross. Vol.91. No. 873. March 2009.

Pfanner, Toni. "Various mechanisms and approaches for implementing international humanitarian

law and Protecting and assisting war victims".

Vol. 91. No.874. International Review of the Red Cross( 2009): 279-328. Print.

Pyakurel, Sushil. "Nature oh Human Rights violations in Nepal Notes for Further Consideration”,

Conflict, Human Rights and Peace Challenges before Nepal, National Human Rights

Commission, 2003. 229 Pyakurel, Sushil and Adhikari Bipin. "Nepal: Strategies to Implement the Rights to Food in the

Situation of Conflict". Paper presented at the National Seminar on Implementation of the

Rights to Adequate Food in Uganda. January (2003): 22-24. Print.

Roberts, David Lloyd. “Staying Alive: Safety and Security Guidelines for Humanitarian Volunteers

in Conflict Areas”. ICRC: (2005).

Ross, Marc Howard. "A Cross-Cultural Theory of Political Conflict and Violence". Political

Psychology, Vol. 7, No. 3 (Sep., 1986).

Shimkhada, Sambhu Ram. "A Vision of Democracy, Peace and Prosperity Amidst the environment

of Death, Destruction and Despair" in Simkhada, Shambhu R. and Oliva, Fabio: (2006) The

Maoist Insurgency in Nepal: A Monograph, Geneva: The Graduate Institute of International

Studies.

Simkhada, Shambhu R. with Warner, Daniel and Oliva, Fabio. “Causes of Internal Conflicts and

Means to Resolve Them: Nepal a Case Study”. PSIO Occasional paper No. 3/2004,

Graduate Institute of International Studies (HEI), Geneva.

Sharma, Kishor. "Development Policy, Inequity and Civil War in Nepal". Journal of International

Development. J. Int. Dev. 18 (2006): 553-569. Print.

Sivakumaran, Sandesh. “Re-envisaging the International Law of Internal Armed Conflict”. The

European Journal of International Law. Vol.22. no.1. (2011):219-264. Print.

Solomon, Steven. "Internal Conflicts: Dilemmas and Developments". George Washington

International Law Review: (2006):1-5. Web.

Stoffels, Ruth Abril. "Legal regulation of humanitarian assistance in armed conflict: Achievements

and gaps. IRRC. Vol. 86. No.855. September (2004). 230 Thapa, Smiriti. A Focus on the Conflict in Nepal and it's Impact on Women. Women's World.

Kampala: 2007.

Tusicisny, Andrej. "Civilizational Conflicts: More Frequent, Longer, and Bloodier?" Journal of

Peace Research, Vol. 41, No. 4 (Jul., 2004), p. 485-486.

Upreti, Bhuwan Chandra. “The Maoist Insurgency in Nepal: nature, Growth and Impact. South

Asian Survey, July 24, 2006.Also available at

http://sas.sagepub.com/content/13/1/35.refs.htm/

Upreti, Bishnu R. and Dhungana Daman N. “Peace Process and Negotiation in Nepal: Revisiting the

Past and Envisioning the Future” paper prepared for the research study Causes of Internal

Conflicts and Means to Resolve Them: Case Study of Nepal Graduate Institute of

International Studies. February (2004): 175-203. Print.

Upreti, Bishnu raj. "A Decade of Armed Conflict and Livelihood Insecurity in Nepal" in Bishnu raj

Upreti and Ulrike Muller Boker: (2010), Livelihood, Insecurity and Social Conflict in Nepal.

South Asia Regional Coordination Office, Swiss national Centre of Competence in Research

(NCCR), North-South Kathmandu.

Van der oije, Schimmelpenninck P.J.C. "International Humanitarian Law from a Field Perspective –

Case Study: Nepal". Year book of International Humanitarian law. Vol. 9 (2006): 394-417.

Print.

Vite´, Sylvain. "Typology of armed conflicts in international humanitarian law: legal concepts and

actual situations". International Review of the Red Cross Vol.91. No. 873. (2009): 69-94.

Print. 231 Wenger, Andreas. and Mason Simon J. A. "The civilization of armed conflict: trends and

Implications". International Review of the Red Cross Vol. 90. No. 872. (2008): 835-852.

Print.

Young, Kirsten. "UNHCR and ICRC in the former Yugoslavia: Bosnia - Herzagovina. International

Review of Red Cross. Vol. 83. No.843. September (2004): 781-805. Web.

Reports

“Across the Lines: Impact of Nepal’s Conflict on Women". Advocacy Forum and International

center for Transitional Justice. Kathmandu, Nepal. December, 2010.

Amnesty International Annual Report 2006.

Amnesty International Annual Report 2007.

Amnesty International. "Nepal: Children Caught in the Conflict" (July 6, 2005), available at

http://web.amnesty.org/library/index/engasa310542005.

Amnesty International. Fear of torture/ fear for safety/ possible “disappearance”/ medical concern.

(AI Index: ASA 31/049/2002). 5 July 2002.

Amnesty International. Fear for safety/ possible "disappearance". AI Index: ASA 31/044/2004. 20

February 2004.

Amnesty International. Further Information on UA 108/04 (ASA 31/069/2004, 15 March 2004) Fear for safety / possible disappearance" / Incommunicado detention. 26 March 2004.

Amnesty International. Fear of torture. (AI Index: ASA 31/056/2002) 7 August 2002.

Amnesty International. Further Information on UA 353/03 (ASA 31/093/2003, 2 December 2003)

Fear of torture/possible "disappearance". 14 January 2004.

Amnesty International. "Nepal: A decade of suffering and abuse". press Release of 10 February,

2006. 232 Amnesty International. NEPAL Amnesty International Briefing for the United Nations Committee

against Torture. (AI Index: ASA 31/079/2005). October 2005

Amnesty International. Nepal: Escalating reports of human rights violations must be examined by

United Nations experts. Press Release. (AI Index: ASA 31/083/2003). 11 November 2003.

Amnesty International. Nepal: Human rights should be at the heart of London conference agenda.

(AI Index: ASA 31/046/2002) 19 June 2002.

Amnesty International. Nepal: Inquiry into more reports of extra-judicial killings urgently needed.

Press Release. (AI Index: ASA 31/033/2004). 16 February 2004.

Amnesty International. Nepal: Military Assistance contributing to grave human rights violations.

(AI Index: ASA 31/047/2005). June 2005.

Amnesty International. Nepal: National Human Rights Commission's findings must be published.

Press Release. (AI Index: ASA 31/031/2003). 12 September 2003.

Amnesty International. "Nepal: Killing with Impunity" (2005), available at

http://web.amnesty.org/library/index/ENGASA310012005.

Amnesty International. Nepal: On the brink of catastrophe. (AI Index: ASA 31/022/2005). February

2005.

Amnesty International. 2004 UN Commission on Human Rights Mission: to promote and protect

human rights Addendum. AI Index: IOR 41/010/2004. March 2004.

Amnesty International. Nepal: Civilians sucked into ongoing conflict. Press Release. (AI Index:

ASA 31/072/2003). 20 November 2003.

Annex to the Guidance Document, General and Specific Protection of Women under International

Humanitarian Law.

Annual UNDP Human Development Index (HDI) (UNDP, 2011). 233 Asian Development Bank. Economic update, September 2010.

Asian Centre for Human Rights. Cut off aid to Nepal. ACHR Index:PR/NEP/03/02/05. 3 February

2005 .

Asian Centre for Human Rights. Nepal: Impending Humanitarian Crisis US, UK and India must not

play foul. The 5th weekly briefing paper on the key human rights concerns in Nepal from 4-9

March 2005. 10 March 2005.

Asian Human Rights Commission. NEPAL: Immediate domestic and international intervention

needed to protect lives of people and avoid a humanitarian catastrophe in Nepal. (AS-26-

2004). August 22, 2004.

Asian Human Rights Commission. NEPAL: New TADO the latest instrument to facilitate

disappearances and other gross abuses . October 20, 2004.

Asian Centre for Human Rights. Nepal urged to disband counter insurgency Village Defence

Forces. ACHR Index: PR/NEP/01/12/03. 3 December 2003.

Asian Centre for Human Rights. Nepal urged not to set up the cover up commission. ACHR Index:

PR/NEP/01/11/03. 14 November 2003.

Asian Human Rights Commission. NEPAL: UN Commission on Human Rights adopts resolution on

Nepal. ( FA-13-2005). April 21, 2005.

Article 6 of Agreement for the Prosecution and Punishment of the Major War Criminals of the

European Axis, and Charter of the International Military Tribunal. London, 8 August 1945.

BBC Monitoring South Asia. London: Feb 12, 2005.

Bennett, Richard. Nepal’s Journey towards Respect for Human Rights. Accessed in

http://nepal.ohchr.org/en/resources/Documents/English/other/2008/December/2008_12_OHC

HR_Vision_E.pdf 234 "Between a Rock and a Hard Place: Civilians Struggle to Survive in Nepal's

Civil War". New York: Human Rights Watch, 2004.

http://www.hrw.org/sites/default/files/reports/nepal 1004.pdf (accessed March 29, 2009).

"Caught in the middle: Mounting violations Against Children in Nepal's Armed Conflict". WATCH

LIST on Children and Armed Conflict. January 2005.

"Children in the Ranks: The Maoists' Use of Child Soldiers in Nepal". New York:

Human Rights Watch, 2007.

http://www.hrw.org/sites/default/files/reports/nepal0207webwcover.pdf (accessed March

28,2009).

"Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in

the Field," August, 12 1949, 75 United Nations Treaty Series 31.

"Enhancing Protection for Civilians in Armed Conflict and other situation of Violence". ICRC,

September 2008.

Human Rights Treaty Monitoring Coordination Committee (HRTMCC) Nepal. Field Report on

Maoists Trapped a Civilian Bus in Landmine at Bandarmudhe Stream in Madi of Chitwan

District. 14 June, 2005.

Human Rights Treaty Monitoring Coordination Committee (HRTMCC) Nepal. Field Report on

Blast of Public Vehicle at Sakhuwa in Rautahat District A Field survey. 5 April, 2005.

Human Rights Treaty Monitoring Coordination Committee (HRTMCC) Nepal. Summary of the field

Report ‘Aerial Attack in Sindhupalchowk District’. March, 2006.

Human Rights Treaty Monitoring Coordination Committee (HRTMCC) Nepal. Field Report on the

death of Trilochan poudel, shot dead by the security forces at Bhaisahi Tole, Laxmaniya

VDC-9, Rautahat. 5 April 2005. 235 Human Right Treaty Monitoring Coordination Committee (HRTMCC), Nepal Status of Ratification

of Key International Instruments, Katmandu Nepal. Available in www.inseconline.org.

International Committee of the Red Cross. Annual Report, 2004.

International Committee of the Red Cross. Annual Report, 2005.

International Committee of the Red Cross. Annual Report, 2007.

International Committee of the Red Cross (1977), Protocol II: Protocol Additional to the Geneva

Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-

International Armed Conflict (Protocol II), of 8 June 1977.

"Increasing Respect for International Humanitarian Law in Non-International Armed Conflict".

ICRC. Geneva, February. 2008.

Internally Displacement Information Booklet, December 2008, National Human rights commission

Nepal.N

International Crisis Group, Annual Report 2004.

International Crisis Group, Annual Report 2006.

International Crisis Group, NEPAL: DEALING WITH A HUMAN RIGHTS CRISIS, Asia Report No

9124 March 2005.873 M 91 r

International Crisis Group. "Nepal: Dangerous Plans for Village Militias". ASIA Briefing,

Katmandu/Brussels. 17 February, 2004.

International Crisis Group, "Nepal's Royal Coup: Making a Bad Situation Worse". ASIA Report. No

91. 9 February 2005.

International Crisis Group. "Nepal: Peace and Justice". Asia Report No. 184 of 14, January 2010.

International Crisis Group, Towards a Lasting Peace in Nepal, the Constitutional Issues. ASIA

Report. No 99. 15 June 2005. 236 National Human Rights Commission. Annual Report 2002. available on www.nhrcnepal.org

National Human Rights Commission. Annual Report 2003.

National Human Rights Commission. Annual Report 2004.

National Human Rights Commission. The Report of Human Rights situation during the period of

Ceasefire between the Governments of Nepal& CPN (Maoist). May-June 2006.

National Population Census- 2011, made public by the Central Bureau of Statistics (CBS). Available

at http://census.gov.np/

"Nepal's Civil War: The Conflict Resumes". New York: Human Rights Watch,

2006. http://www.hrw.org/legacy/english/docs/2006/03/28/nepal 13 078_txthtm

(accessed March 29,2009).

Nepal Red Cross Society. Annual Report 2010-2011.p.3. Available in http://www.nrcs.org

Nepal Red Cross Society. Missing persons of Nepal the Right to Know. ICRC and NRCS. August

2011. Availale in www.nrcs.org

Office of the Special Representative of the UN Secretary-General on the involvement of children in

armed conflict, “Abduction of Children”, http://www.un.org/special-rep/children-armed-

conflict/English/Abduction.html.

Overview of Operations 2012. ICRC. November: (2011).

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of

Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

Professional Standards for Protection Work Carried out by Humanitarian and Human Rights Actors

in Armed Conflict and Other Situations of Violence. ICRC: ( 2009). 237 Report of the United Nations High Commissioner for Human Rights on the human rights situation

and the Activities of her Office, including technical cooperation, in Nepal. 22 September

2006.

Report of Secretary- General on the Request of Nepal for United Nations Assistance in Support of

its Peace Process. 9 January, 2007.

Report of the Secretary-General on the protection of civilians in armed conflict, UN Doc.

S/2007/643, 2007.

Report of the Secretary-General on children and armed conflict in Nepal. Security Council. 20

December 2006.

Report of the United Nations High Commissioner for Human Rights on the human rights situation

and the activities of her Office, including technical cooperation in Nepal, United Nations

General Assembly. 16 September 2005.

"Rome Statute of the International Criminal Court," July 17, 1998, 2187 United Nations Treaty

Series 90. International Criminal Court: (2011).

Shakya, Anjana. Social Impact of Armed Conflict in Nepal-Cause and Impact. SIRF (2006).

“Storm over Doramba,” Nepali Times. Access in

http://www.nepalitimes.com/issue/2003/10/10/Nation/4639.

The ICRC in Rwanda. 29-10-2010 Overview. International Committee of the Red Cross. Access in

http://www.icrc.org/eng/where-we-work/africa/rwanda/overview-rwanda.htm

The ICRC in Sudan. 16-12-2011 Overview. International Committee of the Red Cross. Access in

http://www.icrc.org/eng/where-we-work/africa/sudan/overview-sudan.htm

THE MISSING PIECE OF THE PUZZLE Caste Discrimination and the Conflict in Nepal. Center

for Human Rights and Global Justice:2005. 238 Security Council Report. Monthly Forecast . January 2007.

Security Council Report.Update Report No. 3.17 january 2007.

Security Council Report. Monthly Forecast. May 2007.

Security Council Report. Monthly Forecast. July 2007.

Security Council Report. Monthly Forecast. January 2010.

Security Council Report. Monthly Forecast. January 2011.

United Nations Commission on Human Rights. Report of the United Nations High Commissioner for

Human Rights on the situation of human rights and the activities of her Office, including

technical cooperation, in Nepal. (E/CN.4/2006/107). 16 February 2006.

Available in http://nepal.ohchr.org/en/index.html

United Nations Commission on Human Rights. Report of the United Nations High Commissioner for

Human Rights on the situation of human rights and the activities of her Office, including

technical cooperation, in Nepal. (E/CN.4/2006/107). 16 February 2006.

Available in http://nepal.ohchr.org/en/index.html

UN Commission on Human Rights. “UN rights experts deeply concerned about the deteriorating

situation in Nepal”. News and Press Release. 9 March 2004. Accessed in

http://reliefweb.int/node/143723

UN Commission on Human Rights. “UN Commission on Human Rights experts Reiterate grave

concern over situation in Nepal”. Press Release. 14 Jul 2004. Accesses in

http://www.unhchr.ch/huricane/huricane.nsf/view01/AFC3926A388BD422C1256ED100453

31E?opendocument 239 UN Commission on Human Rights. “Working Group on Enforced or Involuntary Disappearances of

the United Nations Commission on Human Rights concludes visit to Nepal”. Press Release.

14 Dec 2004. Accessed in

http://www.unhchr.ch/huricane/huricane.nsf/0/EC0E26503958D6B1C1256F6A005B28CF?o

pendocument

United Nations, Office of the High Commissioner for Human Rights in Nepal. "Investigation into

Violation of International Humanitarian Law in the Context of Attacks and Clashes between

the Communist Party of Nepal (Maoist) and Government Security Forces". March 2006.

United Nations, Office of the High Commissioner for Human Rights in Nepal, Report of

Investigation into arbitrary detention, torture and disappearances at Maharajgunj RNA

barracks, Kathmandu in 2003-2004, May 2006.

United Nations Office for the Coordination of Humanitarian Affairs (OCHA) Integrated Regional

Information Network (IRIN): (2003). (To access the web special please go to:

www.irinnews.org/webspecials/civilprotect/default.asp)

"United Nations Peacekeeping Operations Principles and Guidelines" United Nations Department of

Peacekeeping Operations Department of Field Support: (2008).

United Nations, "Special Report: Civilian Protection in Armed Conflict," New York: Office for the

Coordination of Humanitarian Affairs and Integrated Regional Information Network, 2003.

United Nations Office of the High Commissioner for Human Rights in Nepal. Investigation Report

on Attacks against Public Transportation in Chitwan and Kabhrepalanchok Districts. 18

August, 2005.

United Nations, Office of the High Commissioner for Human Rights in Nepal, Killing of civilian in

Benbehda. Investigation Report of 18 August, 2005. 240 United Nations, office of the high Commissioner for Human Rights in Nepal, Report on the Torture

and Death of Maine Sunuwar, press Release of 21 December, 2006.

OHCHR press release, UN High Commissioner for Human Rights appoints Chief for Nepal

Monitoring Operation, 29 April 2005. Accessed in

http://www.un.org/News/Press/docs/2005/hr4832.doc.htm