Tweet
WHERE TO LOOK
Republica, Kathmandu, Nepal
April 8 2014
BISHWESHWAR P BHANDARI
Transitional justice
The maxim nullum crimen sine lege (no crime without law) is a well
founded principle of criminal justice system. According to this
principle, an individual must know beforehand whether his acts are
lawful or liable to punishment. There was difficulty in bringing
leaders of Turkey to justice as their attempted extermination of
the Armenian people in 1915 could not be established due to lack of
consensus on the international legal status of the nature of crimes.
In 1919, at the end of WWI, a proposal to take criminal action against
the German Emperor Kaiser Wilhelm II and other collaborators involved
in crimes during the war was opposed by the US, which contended that
dealing with war crimes by international tribunals would violate the
principle of legality; that the laws would amount to ex post facto
laws since they had not been in existence before.
The principles of international criminal law recognized by the Charter
of the Nuremberg Tribunal no doubt had ex post facto character.
Nevertheless, in 1946 UN General Assembly unanimously adopted the
charter and the Judgments of the Tribunal. The seven principles that
came out of it were subsequently taken up by the International law
Commission (ILC) and accepted by the UN General Assembly in 1950. The
sixth Principle recognized following crimes under international
law: a) Crimes against Peace; b) War Crimes; and, c) Crimes against
Humanity. The Geneva Conventions (1949), Convention on the Prevention
and Punishment of The Crime of Genocide (1948) and Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1984) have solidified themselves in the International Criminal
Law regime.
The International Criminal Tribunal for Former Yugoslavia (ICTY)
was established by Security Council on May 25, 1993 by exercising
its authority under Chapter VIII of the UN Charter in response to the
threat to peace in former Yugoslavia. It took primacy over national
courts. ICTY statute deals with crimes committed since January 1,
1991. Under this statute, grave breaches of Geneva Conventions of
1949, Violations of Laws of Customs of War and Genocide are liable
for prosecution.
The International Criminal Tribunal for Rwanda (ICTR) was also set up
by UN Security Council in 1994, in response to atrocities committed
between Jan 1-Dec 31, 1994 in Rwanda and neighboring states targeting
the members of Tutsi ethnic group and their sympathizers. Under this
statute, crimes of genocide, crimes against humanity, and violations
of Article 3 common to the Geneva Conventions (1949) and Additional
Protocol II (1977) are liable for prosecution.
International Criminal Court (ICC), unlike ICTY and ICTR, is a
multilateral effort, therefore is binding only on the signatories to
the statute of the Court. It entered into force on July 1, 2002. The
crime of genocide, crimes against humanity, war crimes and crimes of
aggression are regarded as international crimes under this statute.
The limitation of this statute is that it does not accept ex post
facto jurisdiction for the crimes committed before it came into force.
There are other categories of statutes that apply international
criminal law regime within national jurisdiction for past crimes.
Regulation No 2000/15 of United Nations Transitional Administration in
East Timor was created by UN Security Council, covering crimes between
January 1 and October 25, 1999. The Regulation has listed genocide,
crime against humanity, war crime, torture and sexual offence as
punishable. The Regulation now forms part of Timorese law as Section
163 of the Constitution of Timor-Leste has endorsed it.
Following the MoU between the United Nations and Royal Government of
Cambodia the statute for the 'Establishment of Extra Ordinary Chambers
in the Courts of Cambodia to Prosecute Senior Leaders of Democratic
Kampuchea' came into effect in 2000. This Law is designed to bring
Justice to those who committed serious violations of Cambodian and
international law between April 17, 1975 and January 6, 1979. The
crime of genocide, crime against humanity, and grave breaches of
Geneva Conventions are the categories of crime enlisted in the statute.
Similarly, following an agreement signed on January 16, 2002 between
the UN and the Government of Sierra Leone a statute came into effect
that established the Special Court for Sierra Leone (SCSL). The statute
covers crimes committed since November 30, 1996 and during the civil
war. The crime against humanity, serious violation of international
humanitarian law, serious violations of Laws of Sierra Leone, crimes
prohibited by Art 3 common to Geneva Conventions and protocol II are
the categories of crimes enumerated in the statute.
In all situations mentioned above, the laws have been passed after
crimes were committed. Since war crimes, crimes against humanity,
genocide and aggression have been regarded as a part of customary
international law, their reception in national jurisdiction is only
reinstatement of existing laws. Therefore, if laws are enacted by
national legislature even after the occurrence of aforesaid crimes
legality is no more an issue.
The Nepali Legislature is at the final stage of enacting laws on truth
and reconciliation and on disappearance of the people during conflict.
The bills drafted in the past dealt mainly with the issue of truth and
reconciliation and the crime of disappearance, leaving other crimes
outside the purview of the draft. If we look into the nature of crimes
committed during insurgency by both state and non-state actors, most
serious of these were murder, disappearance, rape, torture, illegal
detention, forced recruitment of people into Maoist army, forced
displacement of people from their homes, and capture/destruction of
private and public property. The crimes committed during conflict were
widespread, systematic and targeted mostly against civilian population.
The very nature of these crimes constitutes crimes against humanity.
The recent Supreme Court decision in the case of Madhav Kumar Basnet
instructed the Government to draft two separate pieces of laws--one
for truth and reconciliation and one for disappearance. This is an
opportune moment to incorporate the whole gamut of crimes that took
place during the conflict period in Nepal. For this, reception of
contents of ICC Statute, the way it was done in East Timor (which
incorporates most of its provisions) may be one option. The other
option may be hewing close to the models in Cambodia and Sierra Leone.
A holistic approach has to be taken to cover the crimes committed
during conflict era. Particularly the crimes of murder, rape and
disappearance should be prosecuted.
http://www.myrepublica.com/portal/index.php?action=news_details&news_id=72460
Republica, Kathmandu, Nepal
April 8 2014
BISHWESHWAR P BHANDARI
Transitional justice
The maxim nullum crimen sine lege (no crime without law) is a well
founded principle of criminal justice system. According to this
principle, an individual must know beforehand whether his acts are
lawful or liable to punishment. There was difficulty in bringing
leaders of Turkey to justice as their attempted extermination of
the Armenian people in 1915 could not be established due to lack of
consensus on the international legal status of the nature of crimes.
In 1919, at the end of WWI, a proposal to take criminal action against
the German Emperor Kaiser Wilhelm II and other collaborators involved
in crimes during the war was opposed by the US, which contended that
dealing with war crimes by international tribunals would violate the
principle of legality; that the laws would amount to ex post facto
laws since they had not been in existence before.
The principles of international criminal law recognized by the Charter
of the Nuremberg Tribunal no doubt had ex post facto character.
Nevertheless, in 1946 UN General Assembly unanimously adopted the
charter and the Judgments of the Tribunal. The seven principles that
came out of it were subsequently taken up by the International law
Commission (ILC) and accepted by the UN General Assembly in 1950. The
sixth Principle recognized following crimes under international
law: a) Crimes against Peace; b) War Crimes; and, c) Crimes against
Humanity. The Geneva Conventions (1949), Convention on the Prevention
and Punishment of The Crime of Genocide (1948) and Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1984) have solidified themselves in the International Criminal
Law regime.
The International Criminal Tribunal for Former Yugoslavia (ICTY)
was established by Security Council on May 25, 1993 by exercising
its authority under Chapter VIII of the UN Charter in response to the
threat to peace in former Yugoslavia. It took primacy over national
courts. ICTY statute deals with crimes committed since January 1,
1991. Under this statute, grave breaches of Geneva Conventions of
1949, Violations of Laws of Customs of War and Genocide are liable
for prosecution.
The International Criminal Tribunal for Rwanda (ICTR) was also set up
by UN Security Council in 1994, in response to atrocities committed
between Jan 1-Dec 31, 1994 in Rwanda and neighboring states targeting
the members of Tutsi ethnic group and their sympathizers. Under this
statute, crimes of genocide, crimes against humanity, and violations
of Article 3 common to the Geneva Conventions (1949) and Additional
Protocol II (1977) are liable for prosecution.
International Criminal Court (ICC), unlike ICTY and ICTR, is a
multilateral effort, therefore is binding only on the signatories to
the statute of the Court. It entered into force on July 1, 2002. The
crime of genocide, crimes against humanity, war crimes and crimes of
aggression are regarded as international crimes under this statute.
The limitation of this statute is that it does not accept ex post
facto jurisdiction for the crimes committed before it came into force.
There are other categories of statutes that apply international
criminal law regime within national jurisdiction for past crimes.
Regulation No 2000/15 of United Nations Transitional Administration in
East Timor was created by UN Security Council, covering crimes between
January 1 and October 25, 1999. The Regulation has listed genocide,
crime against humanity, war crime, torture and sexual offence as
punishable. The Regulation now forms part of Timorese law as Section
163 of the Constitution of Timor-Leste has endorsed it.
Following the MoU between the United Nations and Royal Government of
Cambodia the statute for the 'Establishment of Extra Ordinary Chambers
in the Courts of Cambodia to Prosecute Senior Leaders of Democratic
Kampuchea' came into effect in 2000. This Law is designed to bring
Justice to those who committed serious violations of Cambodian and
international law between April 17, 1975 and January 6, 1979. The
crime of genocide, crime against humanity, and grave breaches of
Geneva Conventions are the categories of crime enlisted in the statute.
Similarly, following an agreement signed on January 16, 2002 between
the UN and the Government of Sierra Leone a statute came into effect
that established the Special Court for Sierra Leone (SCSL). The statute
covers crimes committed since November 30, 1996 and during the civil
war. The crime against humanity, serious violation of international
humanitarian law, serious violations of Laws of Sierra Leone, crimes
prohibited by Art 3 common to Geneva Conventions and protocol II are
the categories of crimes enumerated in the statute.
In all situations mentioned above, the laws have been passed after
crimes were committed. Since war crimes, crimes against humanity,
genocide and aggression have been regarded as a part of customary
international law, their reception in national jurisdiction is only
reinstatement of existing laws. Therefore, if laws are enacted by
national legislature even after the occurrence of aforesaid crimes
legality is no more an issue.
The Nepali Legislature is at the final stage of enacting laws on truth
and reconciliation and on disappearance of the people during conflict.
The bills drafted in the past dealt mainly with the issue of truth and
reconciliation and the crime of disappearance, leaving other crimes
outside the purview of the draft. If we look into the nature of crimes
committed during insurgency by both state and non-state actors, most
serious of these were murder, disappearance, rape, torture, illegal
detention, forced recruitment of people into Maoist army, forced
displacement of people from their homes, and capture/destruction of
private and public property. The crimes committed during conflict were
widespread, systematic and targeted mostly against civilian population.
The very nature of these crimes constitutes crimes against humanity.
The recent Supreme Court decision in the case of Madhav Kumar Basnet
instructed the Government to draft two separate pieces of laws--one
for truth and reconciliation and one for disappearance. This is an
opportune moment to incorporate the whole gamut of crimes that took
place during the conflict period in Nepal. For this, reception of
contents of ICC Statute, the way it was done in East Timor (which
incorporates most of its provisions) may be one option. The other
option may be hewing close to the models in Cambodia and Sierra Leone.
A holistic approach has to be taken to cover the crimes committed
during conflict era. Particularly the crimes of murder, rape and
disappearance should be prosecuted.
http://www.myrepublica.com/portal/index.php?action=news_details&news_id=72460