Time to Act

Raj Kumar Siwakoti
Every year on July 17, the world celebrates International Justice Day marking the anniversary of the adoption of the Rome Statute, the founding treaty of the International Criminal Court (ICC). International Justice Day is a reminder of the urgency for all states committed to justice to ensure continued support to the Rome Statute’s international justice system to reaffirm its commitment to end the culture of impunity and take the necessary steps to ratify the Rome Statute.
On this day 12 years ago, the Rome Statute was adopted by an overwhelming vote of 120 states. Today, 111 states have joined the ICC, and the number keeps growing. The world is celebrating this day as a show of solidarity with victims of crimes against humanity, genocide and war crimes. International Justice Day is an opportunity for the world community to celebrate the historic advances made in ending impunity for the worst crimes under international law.
Since 1993, 181 trials dealing with terrible crimes committed in 12 countries, have been held by six international and special tribunals. Similar trials for the gravest crimes are ongoing at the national level. As of the present, three trials are being conducted at the ICC, investigations have been opened in five countries, and 12 arrest warrants and three summons to appear have been issued. Allegations of crimes committed in many other countries are being considered by the ICC Prosecutor.
Nearly all the states, with the notable exception of the US, have strongly supported the establishment of the ICC as an essential mechanism to end impunity for these crimes and to establish an effective deterrent against such crimes being committed in the future. The ICC operates on the principle of complementarity, meaning that national justice systems continue to bear the primary responsibility for prosecuting these crimes. Only when the national system is unwilling or unable genuinely to investigate or prosecute will the ICC be able to act.
Many countries from Asia were actively involved in drafting the Rome Statute and supported its adoption. Many of these countries have ratified the Statute, including Afghanistan, Cambodia, Mongolia, the Republic of Korea, Tajikistan and Timor Leste. Six out of the eight countries of South Asia including Nepal have not criminalised serious crimes under international law and adopted a wider sphere of the criminal justice system to put an end to impunity by prosecuting the perpetrators of these crimes. Serious crimes of international concern go unpunished, because measures to address such crimes have not been implemented at the national level.
All the countries of South Asia have in recent decades seen widespread armed conflict. This region currently stands at a crossroads, between a past that could not honour and enforce human rights and the rule of law, and a future that may merely perpetuate past inaction and abuse. Afghanistan and Bangladesh have ratified the Rome Statute, but the rest of the countries in South Asia have not acceded to the Rome Statute of the ICC, the international instrument to address impunity.
In July 2006, the House of Representatives of Nepal issued a directive for accession to the Rome Statute. Since then, there was little progress toward Nepali accession to the Statute until Feb. 11, 2009 when the then Minister of Foreign Affairs tabled the ICC accession motion at the cabinet. Today marks the completion of four years of unanimous direction adopted by the then House of Representatives to the government to accede to the Rome Statute. On this occasion, we recall the eagerness and positive commitment demonstrated by the government, the political parties and the then house and the present Interim Legislature-Parliament towards the ICC.
Addressing the problem of impunity is particularly difficult as human rights violators are protected by powerful political interests, especially law enforcement organisations, as well as corrupt political elements in the region. The perpetrators are enjoying immunity, and the victims do not have access to justice. The major cause behind the inability to address serious crimes under international law is the indifference of the existing legal framework of the states in the region and Nepal in particular. De facto impunity takes place when a state fails to prosecute those responsible for human rights violation due to lack of capacity or will power, often for political reasons. Even documented cases of serious human rights abuses have not been prosecuted on the basis of the existing laws in the region due to a complex interplay of many factors, including political pressure and interference.
De jure impunity, where the law is either too limited or explicitly provides immunity from prosecution, extends and strengthens the impact of de facto impunity, protecting perpetrators of human rights abuses. Impunity is occurring unabated due to legal and structural hurdles in the way of effective prosecution of the perpetrators involved in serious crimes under international law. Serious violations of human rights are closely associated with peace and democratic development in the region. This process cannot advance effectively till we bring the perpetrators of the past to the justice system.
Impunity has created obstacles in the way of protection and promotion of human rights, the rule of law and institutional development of democracy in South Asia. There is no effective legal system in the region to address serious crimes under international law and impunity. The countries in South Asia have not become a party to the Agreement on Privilege and Immunities of the Court (APIC). Signing of bilateral non-surrender agreements with the US by all the countries of the region is a big obstacle towards their accession to the Rome Statute and its effective implementation.
Judicial institutions and law enforcement agencies in South Asia are unwilling to deal with the vicious cycle of impunity. Prosecution of perpetrators who have committed gross violation of human rights is a critically important component of any effort to deal with a legacy of serious crimes under international law. Prosecution can serve to deter future crimes, be a source of comfort to victims, reflect a new set of social norms, and begin the process of reforming and building trust in government institutions.
Under international law, all states have an obligation to prosecute and punish perpetrators of gross human rights violations and to combat impunity. International human rights law requires that those responsible for gross human rights violations such as extrajudicial killing, torture and ill treatment, enforced disappearance, genocide, crimes against humanity and war crimes should be brought to justice. All the South Asian nations should become state parties to the Rome Statute to fulfil this obligation. Therefore, the South Asian countries need to immediately accede to the Rome Statute to prevent impunity.
(The author is secretary general, FOHRID, Human Rights and Democratic Forum)
Source: The Kathmandu Post – 17.07.2010