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