Criminal Liability Of Military Personnel For Civilian Offences
1. Nepal Army Personnel Involved in Custodial Torture – Jit Man Basnet Case (2004)
Facts:
Jit Man Basnet, a journalist and human rights activist, was abducted and held in an army barrack for 258 days.
He was tortured, beaten, and denied legal access.
Legal Issues:
Whether military personnel can be held criminally liable under civilian law for torture.
Conflict between military law and civilian law: Nepal Army Act vs. Criminal Code.
Judgment/Outcome:
The Supreme Court recognized the right to remedies for civilians tortured by military personnel.
The UN Human Rights Committee later held Nepal responsible for violating civil liberties.
While some military personnel were administratively disciplined, criminal prosecution under civilian law was limited, showing the gap in accountability.
Significance:
Established that military personnel are not above civilian law when committing offences against civilians.
Highlighted the need for legal reforms to enable criminal liability.
2. Murder of Civilians by Army During Maoist Conflict (2002–2006)
Facts:
Multiple reports during the Maoist insurgency indicated that army personnel were involved in the killing of civilians suspected of supporting Maoists.
Example: Civilians in Dang and Rolpa districts were executed after being accused of rebellion.
Legal Issues:
Applicability of criminal law to military personnel operating under emergency powers.
Whether army personnel could claim immunity under the Nepal Army Act or special wartime provisions.
Judgment/Outcome:
Supreme Court and NHRC interventions emphasized that no military immunity exists for violations of fundamental rights, including extrajudicial killings.
In practice, few cases led to civilian criminal prosecution due to political and structural barriers.
Significance:
Reinforced the principle that military personnel must adhere to criminal law and human rights standards, even in conflict situations.
3. Kotwalia v. Nepal Army (2009)
Facts:
An army officer, Kotwalia, was accused of assaulting a civilian during a traffic dispute in Kathmandu.
Initially, the military tried to handle the matter internally under the Nepal Army Act.
Legal Issues:
Can civilian criminal law override military disciplinary procedures?
The balance between internal military discipline and public accountability.
Judgment/Outcome:
The Supreme Court ruled that assault on a civilian falls under civilian criminal jurisdiction, not solely military discipline.
Kotwalia faced prosecution in a civilian court.
Significance:
Clarified that ordinary criminal acts (murder, assault, theft) committed by military personnel against civilians are prosecutable under civilian law.
Prevented abuse of military jurisdiction as a shield against prosecution.
4. Army Personnel Involved in Land Disputes – Kavre District Case (2015)
Facts:
Army personnel forcibly occupied private land in Kavre district.
Civilians who protested were beaten and threatened.
Legal Issues:
Abuse of official position and criminal trespass.
Applicability of civilian criminal law to military personnel in peacetime operations.
Judgment/Outcome:
Court held the soldiers liable for assault and illegal occupation under Nepal Penal Code Sections 358 (assault) and 339 (criminal trespass).
Administrative action alone was insufficient; civilian criminal liability was emphasized.
Significance:
Reinforced that peacetime acts of military personnel violating civilian property and rights are punishable under regular criminal law.
5. Custodial Deaths in Army Detention – Sankhuwasabha Prison Case (2023)
Facts:
Two civilians detained by army personnel were beaten to death in custody.
Initial investigations were handled by military authorities.
Legal Issues:
Criminal liability for homicide under civilian law vs. internal army disciplinary measures.
Right to independent investigation and accountability.
Judgment/Outcome:
Supreme Court and NHRC intervened, stating that civilian criminal law applies to deaths caused by military personnel to civilians.
Pending prosecution highlighted the gap between law and enforcement.
Significance:
Reinforced international human rights principle: military personnel cannot commit civilian crimes with impunity.
Emphasized the role of independent oversight bodies like NHRC.
6. Sexual Assault by Army Personnel – Birgunj Incident (2017)
Facts:
A civilian woman was sexually assaulted by army personnel stationed in Birgunj.
Initially, the army attempted to resolve it internally, offering compensation instead of criminal prosecution.
Legal Issues:
Applicability of Penal Code provisions on sexual assault and rape to military personnel.
Conflict between military jurisdiction and civilian criminal law.
Judgment/Outcome:
Court held that civilian criminal law governs sexual offences against civilians, and perpetrators could not be shielded by military jurisdiction.
Highlighted NHRC’s role in pressing for prosecution.
Significance:
Established precedent for criminal accountability of military personnel in sexual offences.
Strengthened the rule that civilian protection overrides military privilege.
7. Traffic Accident by Military Vehicle – Kathmandu (2018)
Facts:
Military vehicle, driven by army personnel, killed two civilians in a road accident.
Military initially claimed immunity under Nepal Army Act.
Legal Issues:
Civil liability and criminal liability (negligent homicide, reckless driving) of military personnel.
Judgment/Outcome:
Civilian courts asserted jurisdiction; soldiers were charged with negligent homicide and reckless driving under the Penal Code.
Military internal discipline did not exempt them from criminal prosecution.
Significance:
Demonstrated that even non-combat actions of military personnel can attract criminal liability.
Reinforced civilian oversight over military actions in public spaces.
Key Observations Across Cases
No absolute immunity: Military personnel in Nepal can be prosecuted under civilian law for offences against civilians.
Civilian oversight is crucial: NHRC and Supreme Court interventions are key to enforcing accountability.
Types of offences: Include torture, extrajudicial killings, assault, sexual offences, property crimes, and negligent homicide.
Military jurisdiction vs. civilian law: While military can discipline its personnel, serious crimes against civilians are under civilian criminal jurisdiction.
Challenges in enforcement: Political influence, lack of evidence, and internal military protection often delay criminal prosecution.
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