Catch them or elseIf Nepal still cannot prosecute war crimes at home, other countries may step in
It has been 12 years since the Maoist conflict ended in Nepal. Thousands became victims of enforced disappearances, torture, sexual violence and unlawful killings between 1996 and 2006. And yet there has been no justice in the form of prosecutions for these crimes.
Nepal’s government—the first elected under its new 2015 constitution—has indicated a key priority is to amend its laws to ensure there can finally be genuine accountability for the serious crimes committed by individuals on all sides during the war. After the laws are passed, courts around the world may need to determine if the Nepali justice system can now investigate and prosecute those most responsible for war crimes. If they decide it cannot, national prosecutors elsewhere, such as in the UK, Australia or the US, may decide to prosecute war crimes cases from Nepal.
Earlier this year, I met with Attorney General Agni Kharel together with other organisations that work on rights and justice to discuss the draft legal changes. Among other issues, we discussed if those accused of the most serious crimes during the fighting could face justice in other countries, especially if Nepal does not show itself capable of prosecuting them at home.
The key principle for those concerned with justice in Nepal is ‘universal jurisdiction’. This means that some crimes—such as torture and war crimes—are considered so serious that many countries ensure their own police and prosecutors are able to investigate and prosecute in their courts the people responsible, regardless of where and when they have committed these crimes. The impact of this principle on Nepalis was made clear when Col Kumar Lama was arrested in the UK in 2013 and tried in a British court under charges of torture allegedly committed during the Maoist conflict in 2005. Lama was effectively kept under house arrest in the UK until after his trial, which was marred by a lack of interpreters.The Crown Prosecution Service was unable to provide evidence beyond a shadow of a doubt, and Lama was acquitted in 2016.
Problems with the Lama case notwithstanding, the UK and some other countries will continue to bring universal jurisdiction cases using police and prosecutors dedicated to investigating and prosecuting such crimes. Improved technology means it is now easier for prosecutors around the world to obtain relevant evidence, and to be aware when potential suspects are in their territory. The likelihood of Nepalis suspected of torture or war crimes facing arrest in other countries may grow.
But justice is often best done as close to the scene of the crime as possible.In principle, crimes committed in Nepal should be tried there. So, if a suspect is arrested in another country under universal jurisdiction, the courts there will normally consider if the country where the crime took place is willing and able to prosecute those responsible.
With that in mind, Human Rights Watch has set out six key tests to assess Nepal’s proposed laws on justice. If Nepal can meet those benchmarks, it is unlikely other countries will need to pursue cases against Nepalis for crimes committed in Nepal—the country’s justice system will be able to do so.
The benchmarks include whether Nepal has incorporated international crimes in its law and joined the International Criminal Court, and whether those responsible for investigating, prosecuting and trying the crimes are able to do so impartially and independently.
The justice system should ensure fair trials, and the protection of witnesses. Another key test is whether Nepal has included the principle of command responsibility in its law, meaning the most senior military commanders and civilian officials can be prosecuted for failing to prevent or prosecute crimes committed by their subordinates.
Unfortunately, our assessment is that the draft laws, although a helpful start, do not yet meet any of the benchmarks. We hope the attorney general and his team will revise the drafts to make them effective, and in particular, that the amendments, and their implementation, will meet the sixth and final test: Whether Nepal actually brings to trial those most responsible for the worst crimes during the conflict.
If Nepal continues to fail to hold those responsible to account, prosecutors around the world will be ready to step in.
Baldwin is a senior legal advisor at Human Rights Watch.