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They’ll get you
JUL 07 -
Nepal is in the process of formulating a new constitution. The major challenges include promotion of accountability, guarantee of human rights and strengthening the rule of law. Peace is central to all, yet the rule of law must be ensured so as to institutionalise democracy; only then can a prosperous Nepal be envisioned. This is possible only by institutionalising the mandate and spirit of the April 2006 movement. Taking effective steps to end the impunity that has been prevalent for decades and ensuring justice to the victims have become the need of the hour.
An effective criminal justice system becomes a must to address the root cause of impunity and serious crimes under international law. For this, the scope of rights regarding justice in the new constitution has to be widened. Within this scope, the constitution should provide for making laws to criminalise the serious crimes of international concern that have been committed in the past. The past, therefore, must be addressed, and the victims provided adequate reparations.
The serious crimes which are of international concern under international law should be dealt with through the criminal justice system. As these crimes fall under the purview of national and international criminal jurisdiction, the right to seek justice for such offences should be guaranteed as the right to criminal justice. The phrase “serious crimes under international law” encompasses grave breaches of the Geneva Convention of August 12, 1949 and the Additional Protocol I thereto of 1977 and other violations of international humanitarian law that are crimes under international law, genocide, crimes against humanity and other violations of internationally protected human rights that are crimes under international law and/or which international law requires states to penalise, such as torture, enforced disappearance and extrajudicial execution. As these are defined crimes since 1948, we can incorporate provisions to take action against such crimes with a law having retrospective effect.
The right regarding justice should be in accordance with the international criminal justice system. For this, we must expand the principle and jurisdiction of the existing rights regarding justice. The existing constitutional framework states, “No person shall be punished for an act which was not punishable by law when the act was committed, and no person shall be subjected to a punishment greater than that prescribed by the law in force at the time of the offence.” This provision of the constitution should not obstruct seeking accountability for serious violations of human rights which are crimes against humanity.
Generally, a criminal justice system cannot have retrospective effect; but the international community and national laws have accepted that the already defined crimes and crimes under international laws can be prosecuted through laws with retrospective effect. The proceedings of the Nuremburg and Tokyo Tribunals had retrospective effect. Similarly, Article 15 (2) of the ICCPR 1966 states, “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.”
The constitution of the Republic of Kosovo, Article 13, states, “No one shall be charged or punished for any act which did not constitute a penal offence under law at the time it was committed, except acts that at the time they were committed constituted genocide, war crimes or crimes against humanity according to international law.” Likewise, the constitution of South Africa, Article 35 (I), states, “Every accused person has a right to a fair trial, which includes the right not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted.”
Impunity must be brought under the periphery of the criminal justice system if we wish to make the state accountable for crimes of international concern in the past, present and future. There should be a clear demarcation regarding use of retrospective effect. A number of countries that went through conflict followed by a peace process in the post-1990 period have a provision to prosecute perpetrators of crimes against humanity of a certain period in national and international courts. The constitution of East Timor, Article 170, has a provision to prosecute perpetrators of crimes against humanity that occurred between April 23, 1974 and December 1999 in national or international courts. Such a provision prevents states from assuming unlimited power and misusing this provision.
Retrospective provisions and the right to legal remedy for serious crimes under international law and impunity fall within the concept of the rule of law. This is not limited to incidents that occurred during armed conflict. This is a strong preventive mechanism against possible incidents in the future. For instance, the state and the then insurgent group have agreed to form a Truth and Reconciliation Commission in order to address the incidents that occurred between February 1996 and Nov. 21, 2006. Hence, incidents of this period fall within the jurisdiction of the Truth and Reconciliation Commission.
Statutory limitations are not applicable to serious crimes under international law regardless of when they were committed. Action with a law having retrospective effect can be formulated for such crimes where statutory limitations are not applicable. International law has established that statutory limitations are not applicable to war crimes and crimes against humanity. Some national constitutions have incorporated provisions not to allow amnesty and non-applicability of statutory limitations against those involved in crimes against humanitarian law.
The Ethiopian constitution does not allow amnesty for crimes against humanity and statutory limitations are also not applicable in such cases. Article 24 of the constitution states, “Criminal liability of persons who commit crimes against humanity so defined by international agreements ratified by Ethiopia and by other laws of Ethiopia, such as genocide, summary executions, forcible disappearances or torture shall not be barred by the statute of limitations. Such offences may not be committed by amnesty or pardon of the legislature or any other state organ.”
Therefore, it would not be against established jurisprudence and standards of international law for Nepal to incorporate provisions to prosecute and punish through a law with retrospective effect by preparing a list of certain crimes. Against this backdrop, the following provisions and rights to legal remedy should be incorporated in the new constitution to implement this principle: “No person shall be convicted for committing any act which is not punishable according to the existing law and no person shall be punished more than what is applicable at the time of the offence provided that it shall not hinder prosecution and punishment by formulating a law with retrospective effect regarding offences related to genocide, war crimes and crimes against humanity. Every person shall have the right to seek legal remedy against impunity or the offence of genocide, war crimes and crimes against humanity.”
(The author is secretary general of FOHRID, Human Rights and Democratic Forum)
Posted on: 2010-07-08 08:23
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