Practice Relating to Rule 139. Respect for International Humanitarian Law
In its order in the Foundation for Human Rights, Environment and Alternative Development case in 2004, the Supreme Court of Nepal stated:
In considering whether the enactment of the national laws regarding the subject … is rational, the Geneva Conventions state that “the high contracting parties must undertake to respect and to ensure respect for the present convention in all circumstances” and art 49 of the first convention, art 50 of the second convention, art 129 of the third convention and art 146 of the fourth convention also state that “the high contracting parties can undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any grave breaches” … The above-mentioned articles and common article 1 of the Geneva Conventions provide that the high contracting parties have to respect the notion of the convention in all circumstances and enact laws at national level as well. Moreover, Art 9(1) of the Treaty Act 2047 provides that “if the provisions of the international treaties, which Nepal is party to, come in conflict with the acting law of nation, the acting law will be nullified to the extent of conflict and the provisions of the treaties will act as national law in this regard.” …
As this court on 2059/01/19 has already delivered its verdict that the laws have to be enacted in order to implement the agreements Nepal has signed in the previous case of certiorari writ registered as case no. 55, 2058 by Mira Dhungana against the opponents including Ministry of Law, Justice and Parliamentary System, the treaties and agreements Nepal has signed apply as the national laws and the acting laws of nation will be nullified to the extent that they come in conflict with these treaties and agreements. In this context, after the consideration of art 9(2) of the Treaty Act, it was noted as appropriate and necessary to enact the national laws in order to implement the Geneva Conventions and respect their spirit.
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated:
Reaffirming the priority of His Majesty’s Government for the fulfilment of its obligations and responsibilities in accordance with the international human rights and humanitarian laws, His Majesty’s Government (HMG) reaffirms its commitments as follows:
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 which provides for the protection of people who have laid down their arms, who are sick, wounded or detained, or who have abandoned or are not actively engaged in the armed activities.
20. Any anti-terrorist legislation will be in line with established international human rights norms.
21. HMG will establish an appropriate mechanism for dealing with past human rights and international humanitarian laws violations and to review the necessary measures.