Perspective (Spotlight Weekly)

Operations beyond Human Rights: An Eagle does not Catch Flies

By Bipin Adhikari

The National Human Rights Commission had a free and frank discussion on 22 October 2003 with a team of senior officials of the Royal Nepal Army and the Ministry of Defence about the human rights violations in the ongoing military operations. The Army team comprised the officers of the legal department and human rights cell, which bears principle responsibility in the context of international humanitarian law and human rights.

The meeting was taking place in the background of the Doramba and Doti incidents, which created fresh controversies on the handling of the Maoist conflict by the Royal Nepal Army. The Doti incident, which resulted in the killing of four under-age school students by the Army, cast a heavy shadow on the meeting. While a number of issues were discussed, the Commission during the meeting categorically argued that just as military operations have principles of attack, defence, and withdrawal, so does the law of the internal armed conflict contain a set of clearly defined principles. These principles, the Commission said, are practical, reflect the realities of conflict and, most important of all, do not include anything that a professional soldier could not apply in battle. They strike a balance between humanity and military necessity, and are valid at all times, all places and under all circumstances. The Commission also argued that the legitimate force of the state – the Royal Nepal Army - is under compulsion to conduct their operations according to the established norms, and should not compare themselves with the rebels challenging the state authority.

What has gone wrong in the official Army of Nepal that was once a byword for self-discipline? Why there is a delay to regain its shine? Is there any caution in order? Referring to the fact that Nepal has enough laws and procedures regarding arrest, search and seizure, pre-trial detention and referral to the regular or special courts, the Commission asked the Royal Nepal Army that all its operations must comply with these norms of the criminal justice system, and the basic fundamental rights of the people. Only the security system that is under the civilian control, in our case, the control of the Chief District Officer and regional civil commissioners, that the operations of the Army can be properly monitored, and those responsible for deviations are brought to the processes of justice. Most of the human rights abuses remain unchecked at present because the army has been made to go beyond the existing legal framework to deal with the Maoists, and the civil regime is not able to counter the increasing pace of militarization. The system of unified command, in essence, gives the Army the leadership in all security matters and virtually ends the relevance of the civil administration in the security system without declaring a formal military rule.

The only legitimate object which the state should endeavour to accomplish during war is to weaken the forces of the enemy and that for this purpose it is sufficient to disable the greatest possible number of men and women. Weapons and tactics that are of a nature to cause unnecessary suffering of superfluous injury should not be relied on. As customary international law imposed no requirements with regard to the treatment of the participants of civil conflict, the Geneva Conventions of 1949 has tried to ensure the minimum protection to be given to the victims of non-international armed conflicts. The idea projected in these Conventions and by the subsequent state practice is that to the international armed conflicts the Hague and Geneva regime would apply and to non-international conflicts common article 3 of the Geneva Conventions of 1949 and Protocol II to Geneva Conventions would apply. The norms regarding non-international conflicts are also increasingly influenced by efforts made towards lowering the threshold of applying international humanitarian law; and convergence of humanitarian law and human rights law.

Drawing the attention of the Royal Nepal Army on Articles 48 and 52 of the Additional Protocol, the Commission said that they expect that military personnel always clearly distinguish between combatants and civilians or the civilian population as such. Whether they consider the ongoing fight as the ‘people’s war’ (in the Maoist sense) or the war against terrorism, civilians should always be protected. Similarly, military personnel must always distinguish between military objects, which can be attacked, and civilian objects which must be respected. When military objectives are attacked, civilians and civilians objects must be spared from incidental or collateral damage to the maximum extent possible. Incidental damage must not be excessive in relation to the direct and concrete military advantage anticipated from the operations. Excessive use of force quite clearly violates the law of armed conflict.

The Commission also made a point that the perception of the independent media that there is a fight between National Human Rights Commission and the Royal Nepal Army, and that the later does not give due regards to the field reports of the former, must be countered by the Army by initiating concrete actions against human rights abusers, and by submitting to the values of accountability and openness rather than patronage, concealment and impunity. This point deserves serious consideration.

The Maoist dream of a communist republic is a mirage in the desert, an artificial creation which is loosing its political capital in unbearable speed. But the sort of military operations that are being conducted to crush them down only proves what has been proved through ages: “An eagle does not catch flies.” A separate strategy must also work together.

[Adhikari is a lawyer. He may be accessed at human_rights_nepal@yahoo.co.uk]