During this century, millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity. This is a harsh reality the Rome statute of the International Criminal Court ('ICC' or the 'Court') has enshrined in its preamble. Furthermore, it maintains that the court is determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.
The adoption of the Rome Statute in 1998 is considered as a milestone in the creation of a global criminal justice system. It confirmed the will of the international community to create a culture of individual criminal accountability by bringing those individuals responsible for committing the most serious crimes known to humanity to justice. It was recognized from the off-set however that the Court could not accomplish this alone. The core nature of the ICC being complementary to national criminal justice systems paralleled with the Court’s dependence upon universal ratification and preservation of integrity of the Rome Statute, which necessitated the creation of a system of international cooperation, which is the very crux - and the Achilles heel - of the newly established global criminal justice system. In this regard, states, civil society, international and regional intergovernmental organisations correspondingly all have an important role to play.
Perpetrators of the most serious crimes under international law, namely, genocide, crimes against humanity and war crimes must be held accountable for their actions, it is globally recognized principle. In parallel, there is international consensus that victims of such crimes have the inherent right to a remedy and adequate, prompt and effective reparation. These two levels of consensus in essence require the state that the crime took place in to provide the judicial fore to bring justice to the victims and to give rise to individual criminal accountability by trying the perpetrator in question. This however is not always carried out in practice for a number of reasons ranging from the inability to unwillingness of a state to do so. This as a result has demanded the international community to take collective action to put an end to impunity and to enhance individual criminal accountability.
The Comprehensive Peace Accord signed between Government of Nepal and CPN (Maoist) in November 2006, was supposed to end the violation of human rights and instill peace and order in country by bringing the then Maoist rebels into the mainstream politics as a responsible political force. Similarly, the Interim Constitution of Nepal 2007 has also shown its respect for human rights by maintaining provisions compatible with international human rights principles, standards and its wide practices. The very motto of this constitution is to pave the way for new constitution of new Nepal through the constituent assembly which can internalize the spirit of change shown by Nepali people in JanaAandolan-II and its mandate. These had raised the hope among people regarding the future peace and improvement of their long suffered living in the midst of fear.
Unfortunately, the ray of hope vanished shortly while the signatories of the agreement did not observe the spirit of accord; one would hardly believe that both the parties agreed to uphold the fundamental principles and standards of human rights. Despite that, several armed groups emerged in Terai region with differing so-called political motive, but with criminal act, have worsen the circumstances. People are being threatened for forced charity; victims of abduction, robbery, rape, torture, etc have been increasing day by day. Rule of jungle has become common phenomena.
Even in the post conflict period, hundreds of people have been victimized by armed groups, being forced to flee their place to somewhere secured place to save life. Right to life, one of the fundamental rights of the citizen is preserved only in the black letter of the constitution. Government seems to be failed in controlling such atrocities, and assuring of minimal level of security through its organs. In fact, all these situations are disappointing and below of standard to the state's efficiency. Culture of impunity has posed a great threat to the entire systems of the country.
An international crime is an act universally recognized as criminal, which is considered a grave matter of international concern and for some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances. Nepal has acceded to a number of global and regional human rights treaties. The rights protect individuals from violations committed by the state through the obligations following ratification of these conventions. The de facto protection of individuals’ human rights lies at the core of the efforts to protect human rights. Therefore, the realization of protection is a big challenge facing Nepal, as it is in all other parts of the world.
National criminal justice system remains the primary component but Nepal’s existing legal system has been proven insufficient to prosecute and punish the perpetrators involved in violation of human rights and humanitarian law. The victims are yet to get justice. Due to the dysfunction of the system, the perpetrators are left without any criminal, civil, administrative, or disciplinary action, de jure or de facto. Those involved in crimes such as forced disappearance, rape, abduction, torture, war crime and extrajudicial killings have largely remained outside the jurisdiction of law. This kind of situation has challenged very fundamentals of rule of law and criminal justice system in Nepal.
For the ending of the culture of impunity; it requires respect for human rights. The rapid return to democracy is impossible without real action on human rights and the full enjoyment of democratic rights. Democracy without these will be nothing more than a return to the status quo ante. Nepali people would be destined to further erosion of their rights and gross violations by different armed parties, and resolution of the conflict would remain a pipedream. The deteriorating human rights situation in the land supports this statement of doubt. Certainly, Nepal could have done much more in the past, for the improvement of the situation but nothing has been done to keep people' aspiration for peace and prosperity alive. This is due to the lack of willpower on the part of ruling political class, who could not move a step ahead to address the people's expectation to change.
So, it's the high time to strengthen our own criminal justice system, to fill the pores in our law, to enlarge the jurisdiction of the court, to have a better foundation for rule of law and democracy, and to combat injustices and impunity. For that, Nepal needs to ratify Rome Statute without further delay.
(Laxman Lamichhane is an Advocate. He is pursuing LL.M. in International Human Rights Law at Tribhuvan University)