The International Criminal Court aims to end impunity, and through international criminal justice, hold those responsible accountable for their crimes and help prevent these crimes from happening again. The ICC stands in solidarity with victims of crimes against humanity, genocide and war crimes. 124 states have joined the Court and the number keeps growing. Historic advances have been made in ending impunity for the worst crimes under international law.

To date, only 17 states in Asia and Oceania, including Australia, Afghanistan, Bangladesh, Cambodia, Cook Islands, Fiji, Japan, Maldives, Marshall Islands, Mongolia, Nauru, New Zealand, the Republic of Korea, Samoa, the Philippines, Timor Leste and Vanuatu have become state parties to the ICC. Although the Salomon Islands and Thailand have signed the statute, they still need to ratify the ICC treaty.

Despite the active participation of many Asian and Pacific governments at the Rome Assembly of States Parties, as well as current representation at the ICC by Judge Sang-Hyun Song of the Republic of Korea and Judge Fumiko Saiga of Japan, the Asia-Pacific region remains significantly underrepresented at the ICC.

Limited influence

The reach and impact of the ICC and international justice is mostly limited to countries that have opted in to the Rome Statute system. Most of Europe, Latin America, and Africa have joined the ICC, but big gaps remain in the Middle-East, North Africa and Asia. Major powers such as China, India, Russia, and the United States, as well as most dictatorships and authoritarian governments remain outside the system.

Much work remains to be done. Mass killings and war crimes continue all over the globe. Justice is uneven. Political attacks are continually mounted on the Court. The ICC is not perfect. The Court needs to improve its delivery of justice to victims, speed up trials, be more transparent in its decision-making, and communicate more effectively to the world.

The United Nations General Assembly first recognised the need for a permanent mechanism to prosecute mass murderers and war criminals in 1948, following the Nuremberg and Tokyo trials after World War II. Since then, numerous laws and conventions have defined and prohibited everything from war crimes to poison gas and chemical weapons, yet no system was proposed to enforce these norms by holding individuals criminally responsible for the most serious violations of international law until the adoption of the Rome Statute of the International Criminal Court (ICC) in 1998. In addition to bringing justice to victims of such atrocities, the ICC hopes to serve as a deterrent to the future Hitlers, Milosevics and Pol Pots by bringing an end to the culture of impunity.

Over the past century, we have witnessed the worst violence in the history of humankind. In the past 50 years alone, more than 250 conflicts have erupted around the world; more than 86 million civilians, mostly women and children, died in these conflicts; and over 170 million people were stripped of their rights, property and dignity. Most of these victims have been simply forgotten and few perpetrators have been brought to justice.

Necessary steps

During the period of armed conflict in Nepal (1996-2006), more than 13,000 people were killed and 1,227 went missing. Security forces and the Maoists were equally responsible for committing atrocities in the name of political ideology. Now, the war is over and the nation is in the process of institutionalising peace and democracy. However, the state has been remiss in providing justice to the families of victims. Not a single perpetrator of the conflict period has been prosecuted in a proper manner. Many forces, either identified or hidden, are working to fulfil their individual interests at the cost of justice to the people.

Nepal is state party to a significant number of international instruments pertaining to human rights. In July 2006, the then House of Representatives issued a directive to the government to accede to the Rome Statute of ICC. Since then, there has been little progress towards Nepali accession to the statute. On  February 11, 2009 the then Minister of Foreign Affairs tabled an ICC accession motion to the Cabinet. However, Nepal is yet to accede to the ICC.

Prior to the armed conflict, the image of Nepal was very positive in the international community, but now this image has deteriorated. For a long time, efforts have been made to ensure ratification of the ICC by Nepal. There is no disagreement about the need to accede to the ICC. Various task forces formed by the government in the past have pointed out this need. The civil society is continuously exerting pressure on the government. The government and the political parties have expressed their commitment, but nothing significant has happened till now.

Accession to the Rome Statute of ICC has a multiplier benefit for Nepal. We can address serious international and national crimes through this instrument. Being state party to the ICC helps us avert possibilities of future violation of human rights. It is also important for Nepal to accede to the ICC for purposes of managing the transitional justice process.

The ICC does not replace or intervene in the jurisdiction of the national courts; rather it is a complementary mechanism. The ICC becomes active on the request of concerned individuals or institutions, and only if national judicial systems are unwilling or unsuccessful in dealing with a case related to serious human rights violations. Nepal should immediately ratify the ICC treaty; this plays a very important role to strengthen the international as well as the national justice system.

Siwakoti is Executive Director of the Human Rights and Democratic Forum (FOHRID)