Culture of Impunity: A Threat to Peace and Justice
- Bishweshwar Prasad Bhandari
The Rayamajhi Commission which was constituted to investigate the atrocities committed during popular upsurge in April 2006 and recommend punitive action against those found responsible in suppression of the movement has submitted its report to the Prime Minister. Though the report is yet to be disclosed, there is pressure from the members of parliament and the civil society to implement the report and bring those responsible to the justice. Nonetheless, punitive action must not be limited only to those responsible for suppression of Jana Andolan.
The fact is that severe crimes have been committed by state actors as well as non-state actors during thirteen years of conflict in the country. The gravity and extent of crimes committed over this prolonged period is such that about fourteen thousands people have lost their lives, thousands have been tortured physically and psychologically, many women have been raped and hundreds of thousands have been displaced from their homes. Likewise private and public properties were either occupied illegally or destroyed. The executions have been carried out outside the norms and standards set by international instruments. The cases of disappearance present the worst case of human rights violation in the country. Forced displacement of large number of people against their will was a common phenomenon during the time of insurgency. There was forced recruitment of school children specifically on the part of non state actors. Some of the persons who were not engaged in the fighting or
horse de combat were killed after their capture.
These crimes were not isolated cases, rather carried out in a widespread and systematic manner throughout the country. The difference between an ordinary crime and Crime Against Humanity (CAH) is that former is committed in an isolated manner and targeted against one or few persons whereas latter is committed in a widespread or systematic manner and targeted against civilian population. These crimes have been committed by violating the rules set by four Geneva Conventions and international human rights covenants. Four Geneva Conventions, which the international community accepted on 12 August 1949 , determine the conduct of parties in war (jus in belo). Although the Geneva Conventions were designed to regulate the conduct of parties in war of an international character but the provisions of Article 3 common to all (four conventions) which deal with the hostilities of non-international character are of specific importance in the context of Nepal . The Article included provisions that civilians in war zone and wounded and horse de combat need to be protected and cared, violence to life (including murder, mutilation, torture, outrage upon personal dignity), passing of sentence / carrying out of execution without following the norms of criminal justice is prohibited. Principally speaking these provisions in the Article provide a legal basis to initiate action against the atrocities committed during insurgency period for the reason that Nepal
is one of the signatories to the Conventions. Unfortunately, no further effort has been made to translate the provisions of Article 3 in practice in spite of the provision of the Section 9 in Treaty Act 1990 which states that any law of Nepal inconsistent with a treaty or convention accorded or ratified by Nepal is not applicable, and provision of such treaty or convention prevails. As regards to the Crime Against Humanity no specific statutory law has been passed by Nepalese legislature so far.
A question may be raised whether or not the parliament can make law to deal with such crimes committed in the past. This question of retrospective effect of international criminal law was raised in Nuremburg and Tokyo trials. This issue has been settled for ever with the adaptation of the "Principles of International Law" by UN General Assembly through the Resolution 95(1) on 11 December 1946 . The Resolution in fact endorsed the 'Principles' recognized by Nuremberg Tribunal and its judgments. The 'Principles' are seven in number. Principle VI made 'Crime Against Peace', 'War Crimes' and 'Crimes Against Humanity' punishable crimes under international law. Thus the CAH and War Crimes, committed during more than a decade long conflict in Nepal , are forbidden acts and forms the part of customary international law. Therefore any law to deal with the CAH and War Crimes cases if adopted in
Nepal will not be new but only restatement of international criminal law agreed by the community of nations.
This practice of reinstatement of international criminal law at national level has been exercised in many jurisdictions in recent years. For instance Regulation 15/2000 came into effect in year 2000 to deal with the crimes committed between 1 st of January to 25 th October during popular consultation in 1999 in East Timor . Special Representative of Secretary General (SRSG) was authorized by Security Council to make laws required for UN Transitional Administration in East Timor . This law has been endorsed by Timorese constitution in 2002 and forms part of Timorese law. Likewise, International Criminal Tribunal for Former Yugoslavia (ICTY) was set up by the UN Security Council in 1993. The incidents that took place within the territory of Former Yugoslavia were considered by international community as a threat to international peace and security. The Security Council therefore exercised its power under Chapter VII (Art 55/56) of the UN Charter to set up ICTY as its subsidiary organ in order to contribute to the restoration and maintenance of peace in the Former Yugoslavia. Later International Criminal Tribunal for Rwanda (ICTR) was set up to deal with the crimes committed in
Rwanda in line with ICTY. Both the ICTY and ICTR have been governed by separate statutes. The trial of aging Khmer Rogue leaders after 33 years of commission of crime is latest example that perpetrators responsible for violating 'international criminal law' can be brought to justice by formulating laws even after the extended period of thirty years of commission of the stipulated crimes. This practice has been followed in Sierra Leone as well. Following the practice of other jurisdictions it can be said that the international criminal law regime can be extended to Nepal to bring the perpetrators of CAH and War Crimes to justice.
Traditionally it was understood that community of nations had to deal with its member states only and not with its subjects. There has been growing realization after the World War II that state responsibility and individual criminal responsibility under international criminal law is not the same thing. Nuremberg Tribunal made it clear that crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crime can the provisions of international law be enforced. The Resolution (95(1)) through Principle I makes it clear that a perpetrator of an act which constitutes a crime under international law is responsible, therefore, liable for punishment. More interestingly Principle II states "The fact that domestic law does not punish an act which is an international crime does not free the perpetrator of such crime from responsibility under international law.'' This means a person responsible for the commission of any of crimes enumerated in Principle VI may be the subject matter of international community if national authorities do not take or is reluctant to take action against such perpetrator(s).
Various modes of courts are in practice in many jurisdictions to deal with the CAH and war crimes. Much debated statute of International Criminal Court is not an option for the reason that Nepal has not yet ratified it. The best way would be through establishment of a credible special court. Alternatively, the country may opt for Cambodian/ Sierra Leone model or East Timor hybrid model of court. The trials of Khmer Rogue leaders are being conducted under special agreement between UN and the government of Cambodia . Same practice is applied in case of Sierra Leone . East Timor Special Panel was set up through Regulation 15/2000 which was made by Special representative of Secretary General under the power given to him to issue necessary rules and regulation.
Lack of enthusiasm in the part of government shows less likelihood that Nepal will have special court or will follow any of the above delineated models unless there is immense pressure put on the government from human rights groups and the international community to take action to bring the perpetrators to justice and discourage the culture of impunity. Punitive action is also important to promote harmony and reconciliation in the society where mistrust and suspicions continue to exist.
(Mr. Bhandari served the Office of Deputy Prosecutor General for Serious Crimes in East Timor as a Prosecutor during UNMSET period. He can be reached at bhandarib80@hotmail.com)
