Individual Criminal Responsibility in International Law and Nepal

The concept of International criminal responsibility evolved from the idea of criminality against aggressive war and responsibility for the violation of laws and customs of war during national and international crisis. Although the rights of individuals in international law have evolved significantly in the post 1945 era, the placing of obligations directly upon persons as opposed to states has a distinct, if narrow, pedigree. International criminal responsibility of individuals is the bridge between two elements, traditional international law, International Human Rights Law (IHRL) and International Humanitarian Law (IHL). IHRL aims at preserving claims and demands that are inalienable rights of individuals from within the state mechanism whereas IHL aims at preserving human rights directly arising from international or non-international arm conflict.  It involves consideration of domestic as well as international enforcement mechanisms but it should be remembered that the individual’s responsibility for international crime does not affect the responsibility of the state at all.

The concept that evolved after second war remains unknown to many in developing world. The 1945 Nuremberg Charter lists three categories of International Law (IL) crimes: Crimes against peace, Crime against humanity, and War crimes. This list has been expanded to include genocide and apartheid as well. Genocide convention, 1948 considers genocide a crime against IL, convention on non applicability of statutory limitations to war crimes 1968 and conventions on suppression of apartheid qualify apartheid the crime against humanity. Nepal once proposed Zone of Peace by Late King Birendra in 1975 was supported by more than 100 nation states. The world community would have hardy imagined that in years to come Nepal will suffer at the hand of political disorder and ultimately civil war leading into humanitarian crisis. The Fund for peace (FfP) report in 2009 declared Nepal ranked 25th position in failed state index. The Maoist insurgency period saw major setback in Nepalese history where even non-combatant were often targeted. The values of IHL were not only challenged but individuals were found violating law that in general prescribes to law against international criminal responsibility of individuals.

Considering the above crime as crime against humanity, Nepalese legal system has failed to punish those held for humanitarian crisis in Madhesh. Amnesty International recently submitted a report suggesting excessive use of force by state during Madhesh revolution.

The establishment of Truth and Reconciliation Commission (TRC) which aimed at submitting reports on the basis of human rights violations in the course of armed conflict during Maoist insurgency period has failed to deliver reports based on facts. The rise of Maoist as one of the key stake-holders in Nepalese political system has undoubtedly contributed to make the commission weaker and less accountable. In 2014, Nepal’s Ministry of Law, Justice, Constituent Assembly and Parliamentary Affairs tabled five bills, including a bill on the Criminal Code, to the Legislative-Parliament. The bill on the Criminal Code sets out numerous reforms to the laws contained in the National Code (Muluki Ain). Amongst the key reforms, the Criminal Code Bill criminalizes enforced disappearance, rape and other forms of sexual violence. The proposal which aimed at improving standard of IHRL has been victimized amidst political turmoil and major ethnic conflict within the state. In 2015 after promulgation of constitution   major conflict arose within the state which was notable during Madhesh revolution. The loss of control of its territory and the monopoly on the legitimate use of physical force their in best describes the situation in Madhesh. International criminal responsibility of individuals was violated where more than 50 lost their life during peaceful protest. The use of unnecessary force on ground of orders from superior is equally punishable and one among seven principle of the judgment of the Nuremberg tribunal. Considering the above crime as crime against humanity, Nepalese legal system has failed to punish those held for humanitarian crisis in Madhesh. Amnesty International recently submitted a report suggesting excessive use of force by state during Madhesh revolution. This has led into severe criticism of Nepal in international community. The recent proposal of British Parliament seeking probe of Saptari incident is one prime example of international concern into human rights abuse in Nepal. It remains interesting on how things shape up in future but individuals responsible for violating international criminal responsibility must be identified and punished to avoid future humanitarian crisis.