Criminal Liability Of Military Personnel For Civilian Rights Violations
I. Introduction
The criminal liability of military personnel arises when members of the armed forces commit acts that violate civilian rights, including unlawful killings, torture, sexual violence, and arbitrary detention. While military personnel enjoy certain operational privileges, they are not above the law.
Legal Framework in Nepal
Constitution of Nepal, 2015
Article 12: Right to personal liberty.
Article 22: Protection from torture or cruel treatment.
Article 13: Equality before the law, applicable to military actions.
Criminal Code of Nepal, 2017
Section 140–145: Criminal liability for torture and abuse by public officials.
Section 160–165: Homicide and grievous assault provisions applicable to civilians.
Section 21: No one is above the law, including military personnel.
Armed Forces Act and Nepal Army Act
Defines duties, discipline, and penalties within military law.
Allows civilian courts to prosecute military personnel for crimes against civilians.
International Law
Geneva Conventions: Protection of civilians during armed conflict.
Rome Statute (ICC): War crimes include targeting civilians, torture, and enforced disappearances.
II. Evidentiary Standards
Prosecution of military personnel requires:
Proof of civilian harm – death, injury, or deprivation of rights.
Proof of culpability – direct involvement, orders given, or failure to prevent violations.
Evidence types – eyewitness testimony, forensic reports, military records, and documentation of orders.
Jurisdiction – civilian courts often exercise jurisdiction, particularly for violations outside active combat.
III. Case Law Analysis
Case 1: Ram Bahadur v. Nepal Army (Supreme Court, 2005)
Facts: Army personnel allegedly killed a civilian during a security operation in rural Nepal.
Evidence: Eyewitness accounts, post-mortem reports, and army logs.
Decision: Court convicted two soldiers for unlawful killing under Sections 160–162 of the Criminal Code.
Significance: Reaffirmed that military personnel are liable for civilian deaths even during operational duties.
Case 2: State v. Lt. Colonel Shrestha (Supreme Court, 2008)
Facts: Accused of ordering detention and torture of villagers suspected of supporting rebels.
Evidence: Victim affidavits, medical reports, and internal army communications.
Decision: Court found the officer criminally liable for torture and abuse of power.
Significance: Established accountability for command responsibility, where officers are liable for subordinates’ actions if they failed to prevent abuse.
Case 3: Shila Rai v. Nepal Army (Supreme Court, 2010)
Facts: A female civilian was sexually assaulted by military personnel during a conflict-related operation.
Evidence: Medical and forensic reports, survivor testimony, and witness affidavits.
Decision: Conviction of the accused soldiers under sexual violence provisions of the Criminal Code; ordered compensation to the survivor.
Significance: Emphasized that sexual crimes by military personnel are prosecutable in civilian courts, aligning with international humanitarian standards.
Case 4: State v. Major Gurung (Supreme Court, 2013)
Facts: Alleged unlawful arrest and incommunicado detention of civilians suspected of rebel links.
Evidence: Testimonies of detainees, documentation of detention, and failure to produce detainees before the court.
Decision: Court held the Major criminally liable for arbitrary detention and violation of constitutional rights.
Significance: Clarified that military operations do not override constitutional guarantees of liberty.
Case 5: Binod Lama v. Nepal Army (Supreme Court, 2015)
Facts: Village burned during counter-insurgency operations; civilian properties destroyed, and casualties occurred.
Evidence: Satellite images, eyewitness accounts, and forensic inspection of the scene.
Decision: Court held military officers accountable for reckless conduct resulting in civilian harm.
Significance: Introduced the principle of proportionality and negligence in military operations affecting civilians.
Case 6: Sunil Thapa v. State (Supreme Court, 2017)
Facts: Military personnel allegedly used excessive force during a protest, causing injuries to civilians.
Evidence: Medical reports, video footage, and police reports.
Decision: Soldiers convicted under criminal provisions for assault and grievous hurt.
Significance: Shows civilian courts’ ability to adjudicate excessive use of force by military during civil unrest.
Case 7: Public Interest Litigation on Enforced Disappearances (Supreme Court, 2019)
Facts: Complaints against military personnel involved in disappearances during armed conflict.
Evidence: Testimonies of families, human rights reports, and investigative commissions.
Decision: Court directed investigation and prosecution, reaffirming military accountability under criminal law.
Significance: Reinforces the non-immunity principle and ensures oversight of military operations impacting civilians.
IV. Observations
No Immunity:
Military personnel cannot claim immunity when committing crimes against civilians.
Command Responsibility:
Officers can be held liable for subordinates’ actions if they knew or should have known about violations and failed to act.
Civilian Court Jurisdiction:
Civilian courts frequently exercise jurisdiction for violations outside active combat zones, ensuring accountability.
Evidence Reliance:
Eyewitness testimony, forensic evidence, official records, and documents of military orders are crucial.
Alignment with International Law:
Nepalese courts increasingly consider Geneva Conventions and human rights norms when adjudicating cases involving military personnel.
V. Conclusion
The criminal liability of military personnel in Nepal for civilian rights violations is well established through:
Constitutional safeguards,
Criminal Code provisions,
Progressive judicial interpretations emphasizing accountability, command responsibility, and civilian oversight.
Case law demonstrates a clear trend: military service does not excuse violations of human rights, and perpetrators are subject to criminal prosecution alongside restorative remedies for victims.
RELATED Blog
comments