OPINION: Search for justice
KATHMANDU (The Kathmandu Post/ANN) - Grave war-era crimes become a matter of international concern in the absence of domestic ability to prosecute them
Today, we commemorate the International Criminal Justice Day, the day on which the Rome Statute of the International Criminal Court (ICC) was adopted. It entered into force in 2002, when we decided that “just putting a lid on the past” and moving forward without addressing gross human rights violations and abuses does not ensure global peace, security and well-being. The Rome Statute reminds us that if we do not want a recurrence of past violations and abuses, we need to hold perpetrators to account.
The ongoing transitional justice process in Nepal has consistently fallen short of demonstrating a willingness or the capacity to investigate and prosecute the perpetrators of gross human rights violations and abuses committed during the conflict, consistent with international human rights law and standards.
During the decade-long internal armed conflict (1996-2006), both parties, the
government security forces and the Maoist rebels, allegedly committed gross human rights violations and abuses, which reach the threshold of international crimes— crimes that include, among others, extra-judicial executions, enforced disappearances, torture and sexual violence. These are crimes that tear at the very
fabric of Nepali society and culture.
In October 2012, the United Nations Office of the High Commissioner for Human Rights (OHCHR) published a report documenting the alleged violations and abuses of international human rights and humanitarian law by both parties to the conflict. That these allegations may amount to international crimes is supported by the UN’s database, which contains over 30,000 documents.
The Supreme Court of Nepal recognised UN reports on enforced disappearances when it made decisions on cases of enforced disappearance in 2007. The UN database is a solid foundation for the further investigation and prosecution of alleged international crimes committed in Nepal during the conflict.
That said, prosecuting conflict-era crimes is a complex task in Nepal, as there is often immense political resistance. Experience from other post-conflict countries suggests that the investigation and prosecution of international crimes is the cornerstone of sustainable peace, the rule of law, democratisation and the realisation of national reconciliation. Holding perpetrators to account also sends the message that gross human rights and abuses will not be tolerated in any circumstances, including under the political guise of a ‘peoples war’ or ‘counter-terrorism’ campaign.
The obligation to investigate and prosecute international crimes is first and foremost the responsibility of the states in which the crimes were allegedly committed. The ICC should only step in if those states are unwilling or unable to do so. Where there exists no political will to prosecute at the domestic level or the domestic legal infrastructure lacks the capacity to do so, it becomes, quite rightly, a matter of international concern.
Willingness to prosecute
The peace deal signed in November 2006 demonstrated, on paper, a commitment to justice. Seven years later, in 2014, Parliament passed a law, paving the way for a transitional justice commission. The Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) were formed in February 2015, with the aim of investigating past atrocities, establishing the truth and recommending prosecutions and reparation measures.
In the light of various controversies, particularly over the amnesties provisions for gross human rights violations, the Supreme Court of Nepal removed the amnesty clause in the TRC Act. Lower courts have ordered investigations and prosecutions despite the inaction of the police and prosecutor’s office. Nepal’s judiciary has played a fundamental role in pursuing justice and acting independently of the government, as it should. These have been welcome steps towards delivering justice at the domestic level.
Despite these efforts, there are quite a few examples of domestic prosecutions that remain unsatisfactory. A lack of the necessary legal and institutional infrastructure has failed alleged victims in these cases. In the case of Dekendra Thapa, a journalist executed by Maoist rebels while in detention, a criminal investigation and prosecution only took place after the intervention of the Supreme Court. Perpetrators were found guilty, but not for first-degree murder. Extra-judicial, summary or arbitrary executions are not yet criminalised under Nepali law.
The most fundamental and basic of human rights is the right to life. Under Article 6 of the International Covenant on Civil and Political rights (ICCPR), to which Nepal is party, “every human being has the inherent right to life”. Article 6 of the ICCPR also says that the right to life “shall be protected by law” and that “no one shall be arbitrarily deprived of his [sic] life”.
In the case of Maina Sunuwar, three out of four alleged perpetrators were found guilty and sentenced to life imprisonment.
Their commander was acquitted, because command responsibility does not exist under Nepali law.
In the case of Krishna Adhikari, all of the alleged perpetrators were released on bail, because the police investigation failed to meet the threshold of evidence required in criminal cases.
Court orders have also not been implemented in certain cases. For example, Bal Krishna Dhungel, who was convicted by the Supreme Court for his involvement in a summary execution, continues to walk free. He even appears at public events, which only underscores his apparent impunity. Arrest warrants also go largely ignored.
According to the National Judicial Academy, over 72 percent of rulings in cases of alleged gross human rights violations and abuses have not been implemented. The government non-compliance with the recommendations of the NHRC and UN mechanisms, including the views of the Human Rights Committee, appears to signal further the government’s unwillingness to end impunity in Nepal.
Nepal has not yet criminalised many international crimes in domestic law, which makes the prosecution of these crimes virtually impossible. For example, crucial elements of the crime of murder in Nepal are fundamentally lacking when compared to the legal standards associated with crimes that are perpetrated during times of conflict or other organised crimes. Aiding and abetting such crimes is not yet recognised under Nepali law either.
Justice through TJ commissions
The core functions of the TJ Commissions, including to investigate, identify victims and perpetrators, determine violations and abuses, examine root causes of conflict and make recommendations for prosecution is yet to be fully realised. That around 60,000 complaints are still to be investigated in the remaining seven months of their mandates has raised serious concerns—particularly in the minds of victims—about the TJ Commissions’ ability to deliver justice ever.
Crimes allegedly committed during the conflict in Nepal are often difficult and complex to prove and require the collection of extensive evidence—ranging from witness statements to forensic verification—which then needs thorough analysis. A credible documentation process should form part of the state’s duty to protect justice actors, human rights defenders, witnesses and, above all, victims.
As Nepal has yet to ratify the Rome Statute, investigations and trials can only be taken place at home. Given that this process has faced many obstacles, one way to ensure that past atrocities do not recur is to ratify the Rome Statute to give effect to our people’s demand for “never again”.
(Bandi is an expert on international constitutional law.)