Preparing to implement the Rome statute

PREPARING TO IMPLEMENT THE ROME STATUTE A STUDY OF THE LAWS AND PROCEDURES IN PLACE IN NEPAL AND NEED FOR REFORM

Preparing to Implement the Rome Statute A study of the laws and procedures in place in Nepal and need for reform

Study Team Dr Anand Mohan Bhattarai Til Prasad Shrestha Nripa Dhwoj Niroula

National Judicial Academy (NJA)

Informal Sector Service Centre (INSEC)

Supported by

Publication Year 2012 Impressions 500 Publisher Avocats Sans Frontières (ASF Nepal) 4th Floor, Nepal Bar Association Building Ramshah Path, Kathmandu, Nepal Tel/fax: + 977 1 426 0827 © Avocats Sans Frontières ISBN 978-9937-2-5717-6

The views expressed in this report are those of the authors and do not necessarily reflect the views of Avocats Sans Frontières, or those of the donor, the European Union.

The reproduction or redistribution of parts or all of the content of this publication in any form without authorization of Avocats Sans Frontières is prohibited (English version) except as stated below. The work may be reproduced or redistributed, in whole or in part, without alteration and for personal, non-profit, administrative or educational purposes provided the source is fully acknowledged.

Translated from Nepali, designed and printed by: PagePerfect, Kathmandu, Ph.: 4442191

BACKGROUND Civil society has been voicing its demand that Nepal become a party to the Rome Statute for a long time. As a result, the parliament formed in the wake of the People’s Movement of 2007 directed the government to take the necessary steps for Nepal to become a State Party to the Rome Statute. However, this matter has yet to become a priority for the government.

Considering the interest shown by the international community in becoming party to the Rome Statute, as well as the growing relevance of the International Criminal Court (ICC) in establishing the rule of law worldwide, there is no reason for us to isolate ourselves from the global community by not becoming party to the Rome Statute.

According to Chapter VII of the Charter of the United Nations, the United Nations Security Council cannot be prevented from recommending the ICC to investigate into and prosecute cases merely on ground that a nation is not party to the Rome Statute. The recommendation recently made by the Security Council with reference to Libya makes this clear. Therefore, delaying or hesitating to become party to the Rome Statute seems to have no substantive meaning.

The most important aspect of becoming party to the Rome Statute is ending impunity in the country by reforming domestic laws. It isn’t that cases will be initiated at the ICC merely because a country is party to the Rome Statute; such possibilities are quite remote. Its primary aim is to strengthen the domestic legal provisions. As Nepal is currently engaged in state restructuring after about a decade-long conflict and as a code has been drafted and has been tabled before parliament, it would be quite timely for Nepal to create legal and iii

institutional frameworks to allow the ratification of the Rome Statute.

In this endeavour, I’m quite happy to see the collaboration between the National Judicial Academy and the leading human rights organization, Informal Sector Service Centre (INSEC). I hope that this report will be useful for all involved in drafting of necessary policies, including legislation, on this topic, as well as in capacitybuilding.

The present study was coordinated by Hon’ble Judge Dr. Anand Mohan Bhattarai, with the participation of Hon’ble Judge Til Prasad Shrestha and Nripa Dhwoj Niraula, Registrar, Court of Appeal, Patan.

I would like to sincerely thank the study team for industriously preparing the report, in consultation with stakeholders, within a very short time. Along with this, I would like to express my special thanks to Subodh Raj Pyakurel, president of INSEC, and Vidya Chapagain, Senior Officer, for taking an initiative to enter into a partnership with the Academy. Last but not least, I hope that the partnership with INSEC will further deepen and bear fruits in the days to come.

Thank you 2068 Jeth Raghav Lal Baidya Executive Director National Judicial Academy

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BACKGROUND On July 25, 2006, the reinstated House of Representatives (HoR) passed a motion of resolution and issued a directive to the Government of Nepal (GoN) to immediately ratify the International Criminal Court’s (ICC) Rome Statute. When the then Foreign Affairs Minister, on February 11, 2009, tabled a motion for ratification of the Statute before the Council of Ministers, the Nepalese people felt that the Government was moving ahead with the process of ratifying the Statute. In the course of the United Nations Worldwide Periodic Review in early 2011, the GoN displayed a positive eagerness to become party to the Rome Statute. This demonstrated the GoN’s commitment to ensure the rule of law, despite the conflict in the country, by ending impunity prevalent in the country. However, as the process has not been pushed forward till now for implementing the motion, concerted efforts are lacking to establish the rule of law by ending impunity.

Effective implementation of the Rome Statute requires the state to frame or amend domestic laws to comply with the Statute in order to strengthen the criminal justice system of the State Party. The study of the obligations and implications of the adoption of the Rome Statute by a three-member inter-ministerial taskforce makes it clear that homework has been done for adoption of the Rome Statute.

This study offers suggestions and recommendations on behalf of the civil society in order to support the Government in this endeavour. In 2066, INSEC reviewed the prevalent laws in Nepal, especially criminal laws, on the basis of the Rome Statute, the report of which was made available to various stakeholders for study. As a follow-up to that study, in order to offer necessary recommendations v

for revising the legal and judicial systems, this study offers recommendations in relation to the implementation of the provisions of the Statute in domestic laws, adoption of the Statute and the obligations to be fulfilled by Nepal, as well as the reforms to be introduced in the judicial system. It is hoped that this study will be a supporting document in maintaining full compliance with the Rome Statute.

I would like to extend my sincere thanks to the National Judicial Academy (NJA) for accepting our proposal and to Hon’ble Judge Dr. Anand Mohan Bhattarai, Coordinator, Hon’ble Judge Til Prasad Shrestha, Court of Appeal and Nripa Dhwoj Niroula, Registrar, for taking part in the study on behalf of the NJA. I would like to express my special thanks to Senior Officer of INSEC, Advocate Vidya Chapagain, for submitting a proposal for this study to INSEC and for coordinating the study. Similarly, Yogish Krishna Kharel, Senior Officer of INSEC, deserves thanks for editing this study report and Gita Mali, Officer at this office, for designing the cover/layout of the Nepali version I believe that this book will benefit the individuals committed to establishing the rule of law by ending impunity. I also look forward to suggestions and comments on the book.

2068 Jeth Subodh Raj Pyakurel President Informal Sector Service Centre

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CONTENTS

Background: Raghav Lal Baidya, Executive Director, NJA Background: Subodh Raj Pyakurel, President, INSEC Abbreviations and Acronyms

iii v x

Chapter 1: Introduction

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Background Objectives of the study Scope of the study Study methodology Organization of the study report

Chapter 2: The Criminal Justice System of Nepal Nepal’s judiciary Constitutional provision related to Nepal’s Criminal Justice Nepal’s Criminal Justice System Investigation procedure Prosecution Procedure for action against case Trial Provision related to evidence Other provisions relating to collection of evidence Provision for in camera hearing Provision regarding reprieve, exemption, suspension and remission of sentence

1 3 4 5 5

7 7 11 13 14 16 17 17 23 21 21 27 vii

Provisions regarding protection and compensation for victim and protection of witness Other provisions regarding implementation of verdict Miscellaneous Challenges before the Nepalese Criminal Justice System in the context of International Criminal Justice

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Chapter 3: Rome Statute and Prevalent Law

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Crimes referred to in the Rome Statute Jurisdiction Investigation and prosecution Trial and punishment Appeal and review Provisions of Rome Statute, Nepalese law and reforms needed

43 45 46 50 58

Chapter 4: Obligations Created by The Rome Statute and Required Provisions Domestic investigation and prosecution Cooperation with the court Procedure for requesting for cooperation Ensuring confidentiality Resolving problems in execution of request Assisting in arrest Recognizing ICC’s warrant of arrest under the domestic law Hearing before competent judicial authority after arrest Interim release Assisting in serving summons Cooperating in surrender of the accused Cooperating in cases of competing requests Cooperating in handing over a person using one’s territory Cooperating in collection and protection of evidence viii

28 32 33

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121 121 124 125 127 127 128 130 131 131 132 133 134 134 135

Maintaining confidentiality of information received in special circumstances Cooperating in witness examination Physical and written evidence and criminal property Execution of verdict Enforcement of punishment of imprisonment Recovering fine and confiscating Review of punishment

Chapter 5: Conclusion and Recommendations Conclusion Recommendations Implementation of the obligations arising out of the conventions related to human rights to which Nepal is party Constitutional provisions and their implementation Amendment to constitution Reforms in other laws New legal and structural provisions Legislation regarding cooperation in court proceedings Empowerment of domestic criminal justice system Reforms in prison administration Capacity development of government officers Building or improvement of new structure Groundwork for building consensus and improving style of functioning Building or improvement of new structure Others

References

136 136 137 138 139 143 142

145 145 146

147 147 148 149 150 151 152 153 154 154 155 154 155

156

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ABBREVIATIONS AND ACRONYMS ASF BS CA GoN HoR ICC INSEC NGOs NHRC NJA UNSC

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Avocats Sans Frontières Bikram Samvat Constituent Assembly Government of Nepal House of Representatives International Criminal Court Informal Sector Service Centre Nongovernmental organizations National Human Rights Commission National Judicial Academy United Nations Security Council

Chapter

INTRODUCTION

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BACKGROUND Persons who commit crimes must be booked under law and punished in every respect. Impunity must not be allowed to flourish. Giving reprieve to those who commit crimes, whether governmental personnel occupying posts in agencies of the state or rebel leaders or their activists dissatisfied with the ruling party, gives rise to a state of impunity and insults and nullifies the spirit of the rule of law.

Common citizens or people can be prosecuted and punished in accordance with the country’s criminal laws for committing crimes.

However, it is not simple or easy, as in the case of common criminals, to bring before the courts those holding a country’s high political or executive posts or positions of power for committing heinous crimes in the pretext of performing their duties or rebel leaders or activists for committing grave violations of human rights with a view to overturning the political power or those guilty of common crimes under the pretext of fulfilling political ends. If such people are not booked under the law, the state of lawlessness and impunity will further be aggravated. Furthermore, in post-conflict societies, impunity receives a boost because the state organs are not fully functional. Even where the state machinery is working, such structures might act in a biased manner. In conditions where the domestic law or judicial system cannot function smoothly, those guilty of international crimes cannot be brought within the ambit of the law.

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

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There are many examples of incidents in which ruling or rebel parties have committed grave violations of human rights and humanitarian laws, but those guilty of committing these international crimes have not been prosecuted or punished. To address such a state of affairs, after the Second World War, the victorious nations brought the war criminals before courts of law and held them personally accountable for crimes. However, the trials those days were not beyond criticism.

Doubts were raised over the neutrality of the trials held in Nuremberg and Tokyo. Those tribunals were even christened as the ‘courts of the victorious’. Therefore, since the 1950s, efforts are being made at the global level to hold those involved in crimes of an international nature and concern personally responsible. In the 1990s, deeming it necessary to prosecute and punish those guilty of grave international crimes in situations when the domestic criminal justice system cannot bring criminals within the ambit of law, the United Nations Security Council (UNSC) established tribunals of an ad hoc nature so that such criminals could be prosecuted and punished at the international level. However, such short-term courts or tribunals were no replacement for a universally recognized permanent international criminal court. Consequently, an international criminal court of permanent nature was established through the Rome Statute 1998 on the initiative of the United Nations and its member nations. The Rome Statute provides that the Court will exercise concurrent jurisdiction in relation to international crimes, in particular crimes against humanity, genocide and war crimes. Enforced on July 1, 2002, the number of states party to the Statute has reached 121 so far.1 The Rome Statute vests important obligations in the State Parties in that the jurisdiction of the International Criminal Court (ICC) will be concurrent and the State Parties are to assist the Court. Only when the State Party demonstrates lack of interest or ability in the investigation, prosecution or trial of the crimes referred to in the Statute that the ICC can exercise its concurrent jurisdiction. In situations when the Court exercises its jurisdiction, the State Parties 1

2

http://en.wikipedia.org/wiki/states_parties_to_the_ Rome_Statute_of_ the_International_Criminal_Court

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

must fully cooperate with the Court in the investigation, prosecution or trial of crimes. To implement the related provisions of the Rome Statute, the states that have become party to the Rome Statute have enacted, apart from the Rome Statute Implementation Act and the Act on aiding the court in their domestic laws, distinct laws to address the crimes referred to in the Rome Statute.

OBJECTIVES OF THE STUDY It is not that the crimes defined by the Rome Statute have never been committed in Nepal. Data have been made public that show deaths of more than 13,000 people and disappearance and forced displacement of thousands during the ten-year armed conflict.

However, the people guilty of such crimes have not been prosecuted and punished under the country’s criminal law. Since Nepal is not a party to the Rome Statute, the Court cannot generally exercise its jurisdiction in case of the crimes referred to in the Statute. In such a situation, if the domestic justice system is unable or genuinely incapable of bringing the perpetrators of crimes of an international nature to justice, under the concurrent jurisdiction, the ICC, governed by the Rome Statute, may exercise its jurisdiction over the case. The House of Representatives (HoR) of the Parliament of Nepal, reconstituted following the successful culmination of the Peoples’ Movement of 2006, on July 25, 2006, directed the Government to take necessary actions for Nepal to become party to the Rome Statute. Nongovernmental organizations (NGOs), including the Informal Sector Service Centre (INSEC), and civil society organizations have been vociferously demanding that Nepal become party to the Rome Statute. However, despite these calls, Nepal has not become party to the Statute yet. Once the country becomes party to the Rome Statute, it will have to declare the crimes referred to in the Rome Statute as crimes in its domestic laws, too, and provide for appropriate punishments, as well as introducing appropriate structural and policy reforms. As the Rome Statute has the hallowed objective of ending impunity by all means, it is only in Nepal’s interest that it becomes party to the Statute. Therefore, Nepal must Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

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lay the groundwork for this. Once the country becomes party to the Rome Statute, it will be necessary to assess whether or not the prevalent criminal laws encompass these crimes within their ambit. Apart from this, it will be necessary to declare the crimes referred to in the Rome Statute as crimes, as well as urgently considering the revisions, reforms or new provisions that are needed in the existing processes and techniques of investigation, prosecution, decision and execution of the Court’s decisions. Not only the government, but also the nongovernmental sector, intellectuals and rights activists must take up this task. The present study is an outcome of this shared thought.

The objective of this study is to assess how Nepal’s criminal justice system can be reformed or revised to comply with the standards of the ICC’s Rome Statute by analysing it in relation to the legal and judicial norms established by the Statute. The study will look at what, how much and where the areas of revision or new provisions or intervention could be, what other areas of review in the current criminal law or criminal justice system could be or what groundwork needs to be done in relation to the Rome Statute, and based on all of this, offer suggestions for reform.

SCOPE OF THE STUDY Nepal will eventually have to become party to the Rome Statute.

Therefore, it is necessary to soon start deliberating on the legal, institutional and human resources that will be needed to fulfil the national obligations arising from the country becoming party to the Statute. This study has been carried out within the scope of the revisions or reforms needed in Nepal’s criminal justice system for the implementation of the Rome Statute, what new laws and structures need to be formulated, how the existing human resources can be properly managed and empowered, that is, what groundwork should be done in connection with the implementation of the Rome Statute. In spite of time and resource limitations, efforts have been made to make the present study comprehensive and appropriate to the extent possible in terms of groundwork.

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Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

STUDY METHODOLOGY The present study is based on theoretical research. It draws on the currently available study materials, including scholarly articles, on the groundwork done by several states party to the Rome Statute in the course of its implementation, being based on Nepal’s criminal justice system. With a view to complementing the study, the feedback received during consultative meetings and formal and informal discussions with distinguished personalities from justice and law sectors have also been incorporated in the study report.

ORGANIZATION OF THE STUDY REPORT This study report is divided into five chapters. Chapter 1 is the introductory chapter. In Chapter 2, Nepal’s judicial and domestic criminal justice systems are briefly described. Chapter 3 is about the principal provisions of the Rome Statute and prevalent laws, whereas Chapter 4 discusses the obligations arising from the adoption of the Rome Statute and the provisions required for addressing them. In Chapter 5, which is the last chapter, conclusions and recommendations are presented.

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

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Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

Chapter

THE CRIMINAL JUSTICE SYSTEM OF NEPAL

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NEPAL’S JUDICIARY The 2007 Interim Constitution of Nepal lays down that powers relating to justice in Nepal shall be exercised by courts and other judicial institutions in accordance with the provisions of this Constitution, the laws and the recognized principles of justice.2 The Constitution provides for a Supreme Court, Appellate Court, District and other courts, and it stipulates that judicial bodies or tribunals may be established and constituted under the law for hearing and settling special types of cases.3 Our judicial system does not envisage hearing of international crimes through special courts or international courts in case the country’s justice system cannot address such crimes through its existing mechanisms.

At the apex of Nepal’s judiciary is the Supreme Court. The Constitution stipulates that the Supreme Court shall be a Court of Record, that it may impose penalties for contempt of itself and of its subordinate courts or judicial bodies, and that the final authority for interpreting the Constitution and other prevalent laws except on the matters that fall under the jurisdiction of the Constituent Assembly (CA) is vested in it. If a Nepalese citizen files a petition to have any law or any part thereof declared void on the ground that it imposes unreasonable restrictions on the enjoyment of a fundamental right conferred by the Constitution or contradicts it on any ground, the Supreme Court has the extraordinary power to 2 3

Article 100(1) The Constitution, however, lays down that no court, judicial body or tribunal shall be constituted for a specific case.

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declare that law void ab initio or from the date of its decision if it appears that the law in question is inconsistent with the Constitution.

In fact, the Supreme Court has been described as an upholder of the fundamental rights that are conferred by the Constitution. The Constitution empowers the Supreme Court to issue appropriate orders and writs, including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto, for the enforcement of the fundamental rights conferred by the Constitution or any other legal right for which no other legal remedy has been provided or, even if provided, is inadequate or ineffective for settling any constitutional or legal question involved in a dispute of public interest or concern.

The Supreme Court is equipped with various writs for the protection of citizens’ fundamental rights or for the protection of public rights by resolving public concerns that entail a constitutional or legal question.

In the past, the Court has issued decrees to the GoN to fulfil its obligations arising from the various international conventions ratified

by Nepal. In the same manner, in accordance with Article 9(1) of Nepal Treaties Act 2047 [AD1990], it has issued directives for revising or amending those domestic laws that are inconsistent with the international conventions to which Nepal is party.

In addition to the extraordinary jurisdiction mentioned above, the Constitution has conferred the Supreme Court with the general right to hear original and appellate cases, to examine referrals, review cases and hear petitions. There is even a provision for the Supreme Court to review its own judgements or final orders subject to the conditions and in the circumstances prescribed by law.

The Administration of Justice Act provides that an appeal may lie in the Supreme Court against the judgments or final orders made by the Court of Appeals that reverse, fully or partially, the decisions of the Appeals Chamber in the cases that were originally heard or settled by an Appeals Chamber, cases that entail punishment of imprisonment of ten years or more, or decisions of the trial chamber or officer and the appeal against that decision.4 The Act has made 4

8

Section 9 of the Administration of Justice Act 2048

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

provision for the Supreme Court to hear cases that entail punishment of life imprisonment along with confiscation of property or life imprisonment, delivered by the Appeals Chamber, if the case is referred to it or if a party files an appeal. The Supreme Court may review its verdict or final order only if a party concerned discovers a fact that may has evidence that may have material implications for the judgement of the case or if its verdict or final order is contradictory to a precedent set by it or to legal principles.5 Likewise, pursuant to petitions for review of the case, the Supreme Court may review the judgement or final order of the Appeals Chamber in cases where appeal cannot be heard by the Supreme Court against the decision of the Appeals Chamber upholding the decision of a lower court.6 Whereas an Appeals Chamber had the authority to hear the initial decision or final order in a case heard by any authority or officer within its provincial jurisdiction, examine referrals and, if any authority or officer infringes on the lawfully granted right within its provincial jurisdiction, to issue the writs of habeas corpus, mandamus or injunction7, an amendment to Section 8 of the Act for Amending Some Nepal Acts Related to Judicial Administration 2067 has added the writs of certiorari, prohibition and quo warrant by amending Section 8 of the Administration of Justice Act 2048.8 There is a provision granting district courts the right to initiate proceedings and settle all cases within its area of jurisdiction, except when a prevalent law has made other provision.9 The Act for Amending Some Nepal Acts Related to Judicial Administration 2067 in the Administration of Justice Act 2048 has embraced the assumption of decentralization in judicial jurisdiction with the district court having the right to issue writs of habeas corpus or injunction within its jurisdiction. A number of laws grant initial jurisdiction to different quasi-judicial bodies. In such cases, the decision taken by such 5 6 7 8

9

Ibid, Section 11 Ibid, Section 12 Ibid, Section 8 Amendment of Some Nepal Acts Related to Judicial Administration 2067, Nepal Gazette, Section 60, Kathmandu, 28 March 2011, Supplementary issue 37 Ibid, Section 7

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authorities becomes a subject of appellate jurisdiction in the Appeals Chamber. The law provides that the territory delineated for administrative purposes shall be the jurisdiction of the district court.

There is a provision for hearing disputes by a single bench at the original district court and by a single bench, a two-member joint bench and a bench of a third judge for hearing and settling cases. In the Supreme Court, cases are heard and settled by a single bench, a joint bench comprising two magistrates or a full bench or special bench of three or more magistrates.10 The original district court is taken as the court of adjudication, Appeals Chamber and court of correction and the Supreme Court as the court of interpretation.

Looking at the organizational structure, Nepal has a Supreme Court, sixteen Appeals Chambers and seventy-five district courts. Different courts, tribunals and quasi-judicial bodies have been constituted to hear and settle cases of special type and nature. Special courts have been constituted for original hearing and settlement of corruption cases, administrative courts for hearing appeals on sentences on civil servants, a Labour Court for hearing appeals and settling labourrelated disputes, a Credit Recovery Tribunal for resolving disputes related to loan recovery in banking transactions, a Foreign Employment Tribunal for hearing disputes related to foreign employment, and a Revenue Tribunal for hearing disputes related to revenue recovery. In addition, different administrative bodies are delegated by law to initiate proceedings and settle disputes of special types and nature. Such bodies are also components or part of the judicial structure.

Provision of specialized benches within the court system has been introduced in Nepal in the past few years. Separate civil and criminal benches are maintained in a few model courts at district level. At appellate level, commercial benches have been constituted in a few courts to hear commercial cases. Provision has been made for a special bench at the Supreme Court to hear disputes related to 10

10

As per the provisions made in the District Court Regulation 2052, Appeals Chamber Regulation 2048 and Supreme Court Regulation 2049.

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

review of the Constitution and laws, whereas the practice of setting up a panel of judges for hearing cases of different nature by segregating them is being maintained since last year.

CONSTITUTIONAL PROVISION RELATED TO NEPAL’S CRIMINAL JUSTICE In Nepal’s current constitutional framework, the Constitution has been declared as the supreme law. Having accepted the principle of constitutional supremacy by laying down that other laws shall be null and void to the extent they are inconsistent with the Constitution, it is declared that it shall be the duty of each and every person to abide by the Constitution.

Referring to the right to justice, the Constitution stipulates that no person shall be detained in police custody without being informed of the ground for such an arrest, the arrested person shall have the right to consult a legal practitioner of her or his choice at the time of the arrest and she or he shall not be deprived of the right to be defended by her or his lawyer. The Constitution further stipulates that the arrested person shall be produced before a judicial authority within twenty-four hours of such arrest, excluding the time of travel, and such person shall not be held in custody except under an order of such authority.

The Constitution has laid down that no person shall be made to suffer a punishment in lieu of an act for which no prevalent law prescribes a punishment and no punishment may be handed down exceeding what is prescribed in the prevalent law. It stipulates that no person accused of any offence shall be assumed guilty11 until proven guilty. Apart from this, no person shall be prosecuted or punished for the same offence in a court of law more than once. A fair trial has been guaranteed to a person who has been accused of 11

There is a provision that the Attorney General shall have the right to make the final decision on whether or not to initiate proceedings in any court or judicial authority and the Attorney General may delegate such right to a subordinate officer (Article 135).

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any offence by granting her or him the right to not to be compelled to give testimony against herself or himself. In addition, it has been guaranteed that a person shall have the right to a fair trial by a competent court or judicial authority and that any indigent person shall have the right to free legal aid in accordance with law.

In addition to the aforementioned rights, it is provided that no woman shall be inflicted physical, mental or any other form of violence and that such an act shall be punishable by law. It is guaranteed that no child shall be subjected to physical, mental or any other form of exploitation; any such acts of exploitation shall be punishable by law and any child so treated shall be compensated as determined by law. Provision has been made that no person shall be subjected to physical or mental torture during investigation, trial or interrogation or in detention and she or he shall not be treated in a cruel, inhuman or degrading manner; any such act shall be punishable by law and any person so treated shall be compensated in a manner determined by law. Likewise, constitutional guarantee has been made that every person shall have the right against exploitation, that no person shall be exploited in the name of custom, tradition and practice or in any other way, and that nobody shall be engaged in work against her or his will.

In the Responsibilities, Directive Principles and Policies of the State, as responsibilities of the State, it is mentioned that the international treaties and agreements to which the state is party shall be effectively implemented, that provision shall be made for appropriate relief, recognition and rehabilitation for the families of those killed or wounded in the course of the armed conflict, that relief shall be made available to the families of disappeared persons, on the basis of the report of the Investigation Commission constituted to investigate the cases of persons who were the subject of enforced disappearance in the course of the armed conflict, and that a high-level Truth and Reconciliation Commission shall be constituted12 to investigate facts

12

12

Article 33(R) of the Responsibilities, Directive Principles and Policies of the State in Part 4 of Nepal’s Interim Constitution 2063.

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

about those persons involved in grave violations of human rights and crimes against humanity in the course of the armed conflict and to create an atmosphere of reconciliation in society.

NEPAL’S CRIMINAL JUSTICE SYSTEM If we look at the history of Nepal’s criminal justice system, it is found that, with the demise of the Rana oligarchy, an adversarial legal system was adopted. In Bikram Samvat (BS) 1997, a chief court was established13, separating the judiciary and the executive, whereas the promulgation of the Nepal Government Baidhanik Kanoon [BS] 2004 Government of Nepal (Constitution) 1948 paved the way for a common law, whereas the Nepal Interim Constitution 1951 ushered in the western legal system.

The principal characteristic of the justice system of the Rana period was the inquisitorial procedure, that is, judges were responsible for prescribing punishments after examining and assessing evidence.

Pradhan Nyayalaya Ain 2008 [The Apex Court Act BS2008] closely resembled the Anglo-American legal system (common law/ adversarial system). The change of BS2007 transformed the judges in Nepal’s justice system to decision-makers that take decision in favour of the parties that furnish evidence. The Government Cases Act 2017 [AD1961] encompassed the tasks of investigation and prosecution within the duties and rights of the government, thereby including justice delivery among the autonomous rights of the court.

The responsibilities of collecting evidence and establishing guilt were assigned to the state.

Following the promulgation of the Evidence Act 2031 [AD1974], the introduction of the provision that the onus of proof in criminal cases shall vest in the plaintiff indirectly adopted the criminal law principle that the accused shall be treated as innocent until proved otherwise 13

‘Nepal Kanun Pranali ra Kanuni Itihas: Ek Anubhav’ [Nepal Legal System and Legal History: An experience], Kanun [Law], Issue 36, Paush 2059, Nepal Legal Professionals Club, Kathmandu, p.35.

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and shall not be forced to confess. Until the promulgation of the Constitution of Kingdom of Nepal 2047 [AD1990] and the Government Cases Act 2049 [AD1992], the public prosecutor of the Government of Nepal (GoN) and police investigators used to jointly carry out investigation, inquiry and prosecution in the listed criminal cases.

In case the opinions of these two contradicted each other on the question of prosecution, the decision was taken by the officer dealing with the case. If the situation demanded, the court could even issue an order for reinvestigation. However, the promulgation of the Constitution of the Kingdom of Nepal 1990 and the Government Cases Act 2049 put to an end the provision of reinvestigation, thereby establishing the court as an independent and neutral umpire. In the current provision, the tasks of investigation and prosecution have been separated and the prosecutor can issue directions to the investigating police. The court, being autonomous, shall treat the police as a part of the Executive; the police shall carry out investigation on behalf of the government; and, since the government was to be the plaintiff, conditions were imposed on the admissibility of the statements made outside the court. The Evidence Act 2031 introduced similar provisions.14 Furthermore, the courts have also established legal principles accordingly.

Investigation Procedure Nepal’s legal system provides for initiating criminal cases with individuals or government as plaintiff [state case]. By considering crimes of ordinary type that affect a person’s rights and interests as criminal cases with individuals as plaintiff, provision has been made for individuals to file a case for seeking remedy and to sentence punishments on defendants. Crimes that are of the type that affect society and the whole state and that cannot be properly investigated and prosecuted at the individual level are considered criminal cases with government as plaintiff, and provision has been made to institute cases on behalf of the government in such cases. Provision has been made for a person who has knowledge of any of the crimes 14

14

Evidence Act 2031, Section 9

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

listed in Schedule 1 of the Government Cases Act 2049, which was promulgated to introduce provisions with regard to the cases that have the GoN as plaintiff and to defend the cases that have the GoN as defendant, or who has knowledge of any crime that is taking place or is going to take place, to submit a written application or furnish oral information, along with any evidence she or he may possess, to the nearest police station as soon as possible. Upon receiving such information, it is stipulated that the police shall immediately take measures to prevent the crime from taking place, prevent disappearance or loss of evidence and prevent perpetrators from escaping. Before starting investigating into a crime, the police official should submit a preliminary report to the Office of the Attorney General concerned, disclosing the matters to be investigated, and carry out investigation according to the necessary instructions available.

In the course of investigation, the police official should prepare an affidavit, describing the crime scene, state of the crime scene and its association with the crime or criminal, other remarkable things seen or found at or around the crime scene, and collect other necessary evidence. Similarly, if, in the course of investigation into a crime, the police official has to record the statement of the accused concerned in the presence of the public prosecutor concerned; search a person or place; examine a corpse, in case a person has died; examine the blood, semen or any other part of the body of the arrested person or any other thing; seek the advice of experts on a matter related to the crime; hold in custody a person arrested in relation to a crime for more than twenty-four hours, the arrested person should be held in custody only after producing her or him before a court and obtaining the permission of the court. After completing the investigation, decision should be taken on whether or not a case should be instituted and a charge-sheet prepared and, along with the file of the case, sent to the Office of the Attorney General, keeping in mind the time it takes to file a case at the court.15 Several special acts have also made provision for the agency concerned to prosecute the case at the court once the public prosecutor decides in favour of initiating a case.

15

The Government Cases Act 2049, Section 17

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Prosecution After receiving the file of the lawsuit from the investigation agency conducting the investigation and examination, and after the file, together with opinion, is sent to the Office of the Attorney General, the public prosecutor should make a decision whether to file a case or not. While studying the case file, the public prosecutor, if she or he deems it necessary, should issue orders to the investigating police officials to collect additional evidence or ask any personal questions and if a lawsuit is warranted without any such inquiries, she or he may file a charge-sheet at the relevant court, mentioning, among others, the charge against the accused and relevant evidence, with a description of the case file, the punishment the accused is liable to under the law and, if compensation is to be paid to the victim of the crime, the amount of such compensation.

Looking at the recourse to the said legal provision, the rights of the accused are violated as soon as she or he is taken into police custody by recording her or his confession and questioning her or him. On the one hand, the misconception that the confession of the accused is the most credible evidence has established its roots within the police and, on the other hand, since the courts acquit those who deny their confession, if supported by other evidence, most of the accused who, it is claimed, have been proved guilty by the police deny their statements. The fact is, although the Government Cases Act 2049 grants the public prosecutor the right to file lawsuits based on the evidence and documents produced and their nature against the accused by the police, lawsuits are initiated demanding maximum punishment without taking recourse to it.

If the police do not investigate or the public prosecutor doesn’t prosecute those who seem to have committed grave violations of human rights and humanitarian law, there is no provision for the victim or her or his representative to file a complaint or appeal to bring the guilty to book in case the national mechanism concerned is incompetent, unwilling or incapable to investigate or prosecute, 16

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

apart from the fact that the Supreme Court can issue a writ of mandamus16 to initiate prosecution acting on a petition filed with it if an investigation duly carried out as per law shows them as guilty.

No investigation or prosecution has ever been practised in Nepal through international framework or tribunal in such a situation.17

Procedure for Action against Case Trial The court procedure in criminal cases of a grave nature listed in Schedule 1 of the Government Cases Act 2049 starts after the investigation or inquiry is completed and the public prosecutor initiates prosecution. In fact, an accused who has been arrested can be held in custody for more than twenty-four hours only after obtaining the official hearing the case grants permission for extension of time. No. 118, 94 and 99 of the chapter ‘On Court Proceedings’ of the Muluki Ain (Civil Code) make provision for recording the statement of the accused after the filing of prosecution in the court, ordering for judicial custody, determining whether to carry out the proceedings of the case by holding the accused in custody or serving summons on her or him for reporting during the trial, issuing a warrant of arrest or summons and other processes.

In crimes entailing a punishment of imprisonment for life or imprisonment for three years or more, based on the available 16

17

Examples are available that show that the Supreme Court, acting on writ petitions demanding issue of mandamus alleging that investigation proceedings have not been initiated or prosecution has not taken place in accordance with the FIR filed with the police, has issued writs of mandamus to the police and public prosecutor to file FIR and initiate investigation and proceeding and institute prosecution.

Provision of concurrent jurisdiction of the Court is made in the tenth paragraph of the preamble and Article 17 of the ICC’s Rome Statute 1998. In other words, the crimes referred to in the Rome Statute should be declared as crimes in the laws of the State Party, provision made for punishments against them, investigation carried out against those involved in such crimes, prosecution and action taken against them in the domestic courts of the country; and, there is provision for the ICC to exercise its jurisdiction only if the domestic mechanism is incapable or unwilling to take action by carrying out investigation and prosecution.

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evidence, any accused appears to be guilty of the offence or if there are reasonable grounds based on such evidence for believing that such person is guilty, there is provision for trying the case by holding the accused in detention until proved to the contrary.18 Similarly, if, on the basis of available evidence, there are reasonable grounds to believe that an accused who is not a permanent resident of Nepal is guilty of a crime that entails punishment of six months or more, there is a provision for the court to hold her or him in custody during the trial. Apart from this, there are provisions for the court to demand security or bail from an accused if, based on available evidence, there are reasonable grounds to believe that she or he is guilty or, in the case of an accused who is not on bail, demand her or his detention or security, or security or bail, as the situation demands, if, based on evidence subsequently found, there are grounds to believe that she or he is guilty, any time during the trial and, in case of an accused who is in custody, to release her or him from custody if, based on evidence subsequently found, there are reasonable grounds to believe that she or he is not guilty. However, these provisions are rarely exercised. Several special acts make special provision for holding an offender and an accused in custody during trial. The Arms and Ammunition Act 2019 [AD1963] provides for keeping an accused of a case under this Act in custody during trial based on the evidence available there and then, notwithstanding what is mentioned in any prevalent act.19 Whereas the Human Trafficking and Transportation (Control) Act 2064 [AD2007] has a mandatory provision for holding a defendant in custody, the Supreme Court has repealed this provision. 20

Provision related to evidence It is a principle of law that a case that has been brought up must be supported by evidence. In criminal cases, since the onus of proof 18 19 20

18

118 (2) of the chapter ‘On Court Proceedings’ Section 24(a) Advocate Kamalesh Dwivedi vs GoN, writ Number 064-WS-0027, including certiorari, Special Bench, order dated June 25, 2006. In this, the court annulled the provision of Section 8 that stipulates trying with the case by keeping the accused in detention.

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

lies on the prosecuting party, the accused is considered innocent and should get the benefit of the doubt until and unless the prosecuting party proves the guilt backed with evidence. Since our constitutional provisions have adopted the principle of presumption of innocence until proven guilty and since a person who has been accused of an offence may not testify against herself or himself, that is she or he has the right to remain silent, the onus of proof lies on the prosecuting party, ie the government. However, this principle has not yet been accepted as an overarching principle by Nepal’s legal framework.21 As per the provisions of the Evidence Act 2031, the statements of an accused made about a case outside the court may be admitted as evidence if there are reasonable grounds to believe that she or he made the statement in a conscious state of mind and when she or he could understand the implications of the things said or done by her or him and she or he did not make the statement under duress or by being forced due to torture or threat of torture against herself or himself or any other person and by being compelled to give the statement without her or his volition.

There is a provision for admitting as evidence a statement made by the victim of an act, incident or situation about that act, incident or situation on the spot or immediately before or after the incident and the statement about her or his death made by any dead person in the dying moment. Similarly, there is evidentiary value of the statements made by a person who is witness to or is cognizant of an act, incident or situation immediately before or after the incident. 22 Apart from this, the facts mentioned in public documents, etc, regularly maintained books of accounts, private entries, books or other records, facts written in books or articles, special types of data, index, descriptions, etc, statement of witnesses in other cases, and if the person appears before the court and records her or his statement as a witness, the documents prepared under the 21

22

See the Drugs (Control) Act 2033, Section 12, Human Trafficking and Transportation (Control) Act 2064, Section 9.

Evidence Act 2031 [AD1974], Section 10

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prevailing law in the course of an inquiry or examination of any act, incident or situation may be admitted as evidence. There is provision of admitting as evidence any affidavit issued by any person who has the legal duty of issuing affidavit, any note or report written by a person who has the duty of reporting to any specific place or office in the course of discharging her or his duty by preparing a note or report about any incident or situation in accordance with prevailing Nepalese law, and, if the opinion of an expert has to be obtained about a foreign law, science, arts, signature or fingerprint, the expert expressing the opinion herself or himself presents herself or himself before the court as witness.

In criminal cases, the onus of proof against the accused lies on the plaintiff.23 If the plaintiff is unable to bear the onus of proof against the defendant in a manner beyond doubt, the accused receives the benefit of the doubt. Since we have adopted the principle of considering a person innocent until she or he is proven guilty, the onus of proving the charge is that of the prosecutors, and if the charge cannot be proved, the benefit of the doubt goes to the accused. However, if the accused argues for remission of or exemption from punishment, the onus of proof will lie with her or him. 24 Apart from written evidence, evidence can also be oral. However, oral evidence must be given directly. If the aim is to furnish proof of anything seen, heard or otherwise known through the senses, the person seeing, hearing or having knowledge of that direct evidence must furnish its oral evidence.25 However, a person ascertained to be unable to understand the questions or provide rational answers due to tender age, senility or physical or mental illness or any other similar reason cannot testify as a witness.26

23 24 25 26

20

Ibid, Ibid, Ibid, Ibid,

Section Section Section Section

25 27(1) 37 38

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Other provisions relating to collection of evidence Section 25 of the Evidence Act 2031 stipulates that, in criminal cases, the onus of proof lies in the plaintiff. Because of its role as a neutral umpire, the court passes the verdict in favour of the one who can furnish evidence. Although our legal system follows the prosecution system, and not the investigative system, there are a few exceptions.

No. 115 of the chapter ‘On Court Proceedings’ of the Muluki Ain stipulates that a witness may be issued summons and questioned in lawsuits with government as the prosecutor or in cases where it is imperative to summon witnesses. Unless there are reasonable grounds, a witness who doesn’t present herself or himself before the court despite being served a summons shall be fined fifty rupees, arrested and produced and made to testify. If she or he cannot be traced even after a warrant of arrest is issued against her or him, another summons shall be served, with a statute of limitation of seven days, excluding days for travel, and if, even after that summons, she or he doesn’t present herself or himself on the specified date, she or he shall be arrested, brought and her or his statement recorded and she or he may be punished from 15 days to 45 days and if she or he cannot be arrested even after, verdict shall be passed based on the evidence furnished, with punishment for her or him. Comments are also occasionally made that, due to this provision, which is adopted in the investigative legal system, our criminal legal system, which follows adversarial or prosecution system, has become formless. It is often argued that, whereas the recourse to this provision should have been an exception rather than a rule, its rampant exercise has made both prosecution and defence ineffective and meaningless.

Provision for in camera hearing There is a general provision for the court to try and adjudicate cases in open bench.27 However, for maintaining confidentiality of the parties to a case, the practice of hearing cases in camera is increasing.

Many of our laws have made provision for in camera hearing. Number 27

On Court Proceedings, Number 6

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10b of the chapter ‘On Rape’ stipulates that, In the course of hearing of a case filed pursuant to this Chapter, only the lawyer, accused, victim woman and her guardian and police or court employee so permitted by the case hearing authority may appear before the bench. Children’s Act 2048 [AD1992], Domestic Violence (Offence and Punishment) Act 2066 and Human Trafficking and Transportation (Control) Act 2064 [AD2007] provide for hearing such cases in incamera sessions, whereas the court regulations lay down that cases related to children, divorce, establishment of relationship, rape or other cases which the courts have held not appropriate for hearing in open bench have to be held in in-camera sessions. In a writ petition, the Supreme Court has even issued a decree and guidelines for hearing cases involving child victims, women and HIV/AIDSinfected persons in in-camera sessions.28

Provision for passing verdict in the absence of the accused According to the Government Cases Act 2049, if an accused is being held in custody after being arrested, there is provision for producing her or him before the court after being arrested with a charge, and in case of an absconding accused, demanding a warrant of arrest or summons and then filing a charge-sheet. In cases of homicide, looting, currency counterfeiting, rape, human trafficking, drug peddling, misappropriation in cash or kind by a public servant, or arson of government property, the court may also issue a seven-day warrant of arrest for the arrest of the accused and, if the accused is not arrested within that period, issue a 70-day summons. If the accused doesn’t produce herself or himself or cannot be arrested within six months, there is provision for attaching her or his property pending settlement, or until she or he is arrested or presents herself or himself, and if, even after two years of attachment of property, she or he doesn’t present herself or himself before the court, the court may issue a verdict according to the available evidence.29

28

29

22

Advocate Sapana Pradhan Malla vs GoN and others, BS 2063, Writ Number 3561, Mandamus, etc, order dated December 25, 2007 On Court Proceedings, Number 190

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

Provisions related to verdict and appeal After admission of evidence, the case enters the decision phase.

For this, a date of hearing is fixed and the public prosecutor representing the plaintiff, ie GoN, and the defendant in detention are notified, and the case is instituted. Hearings generally take place in open court, except in cases specified by the law and ordered by the bench. If the case is presented by legal professionals, the judge hears arguments, discusses them and reaches a conclusion. In criminal cases that have government as plaintiff, the losing party may file an appeal within seventy days of receiving the verdict. The subpoena may be postponed for up to seventy days. Although the law generally recognizes one level of right to appeal, an appeal may lie in the Supreme Court in cases liable to a punishment of imprisonment of ten years or more.30 In cases where the verdict may vary, our law has developed the practice of summoning the party that last won the case, pleading the case and giving a verdict.

Also, if the accused is acquitted by the trial chamber, the defendant who is in detention has to be immediately set free even if the prosecuting party files an appeal, that is there are no conditions for waiting for an appeal to be filed or for the verdict by the appellate level. The Supreme Court may review its judgment or final order in certain circumstance.31

Provisions relating to punishment Confiscation of property, imprisonment and fine Nepal’s criminal justice system provides for imprisonment, fine and confiscation of property of an accused whose guilt has been established. There is also a provision for paying compensation to the victim in many cases. There is no provision for providing a lump 30 31

Administration of Justice Act 2048, Section 9 Ibid, Section 11

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sum package of damages to the victim. Regarding punishment, the chapter ‘On Court Proceedings’ of the Muluki Ain, which is a general code, mentions life imprisonment as 20 years and confiscation of the entire property of an accused person’s property as 18 months.32 If the law provides that punishment of imprisonment for life with confiscation of entire property shall be imposed, the offender shall be sentenced to imprisonment for life and then confiscation of his or her entire property shall be made in accordance with law.33 There are provisions for merging crimes of lesser gravity with the crimes of more severe gravity;34 if imprisonment in lieu of non-payment of fine is to be determined in case both imprisonment and fine are sentenced, imprisonment of maximum four years should be sentenced; if imprisonment is to be determined in lieu of nonpayment of fine where only fine is sentenced in a crime which calls for either or both fine and imprisonment, imprisonment not exceeding maximum half of the upper limit of the imprisonment in such crimes, where fine imprisonment is to be sentenced, maximum two years35 is to be determined. If an accused who is not in custody produces herself or himself within sixty days of the verdict, having accepted to pay the fine or serve imprisonment, there is also provision of remitting the sentence by 20 per cent. 36 If the punishment of confiscation of the entire property or life imprisonment seems to be severe and the sentence needs to be remitted, there is provision for remitting the punishment stipulated

32

33 34 35 36

24

In the proposed Penal Code 2067, in the punishments in lieu of committing the listed crimes, punishments such as life imprisonment, imprisonment, fine, compensation, imprisonment in lieu of non-payment of fine or compensation, communal service in lieu of imprisonment are stipulated; the punishment of confiscation of all property has been removed (Section 39); and life imprisonment has been divided into lifelong, ie till the time the perpetrator is living, and imprisonment of thirty years are stipulated. Proposal has been made for imprisonment till the death of the perpetrator in cases of extremely torturous or heinous murder, killing by hijacking or blowing up an aeroplane and, killing by mixing toxics in beverage or edible substances of public consumption, killing by kidnapping or holding somebody hostage, committing genocide or with an act with motive of genocide. In other cases, it has proposed imprisonment of thirty years. (Sections 40, 41) Punishment, Number 7 Ibid, Number 8 Ibid, Number 38 Punishment, Number 41A

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

by the Act, petition can be made by noting the opinion and recommendation with justification in the note and if the judge delivering the final verdict sees any reason for remitting the sentence, she or he may do so.37 The courts have not been helping those who assist the judicial process by speaking the truth and repent their crimes by remitting their punishments. The provision of plea bargaining has not been introduced yet. No alternative measures of punishment have been introduced yet. The practice of mechanically pronouncing punishment as soon as guilt is established prevails.

Provision of punishment for those concocting and furnishing false evidence or perjury and contempt of court In criminal cases, if it is established that a person filed the lawsuit out of animosity by furnishing concocted evidence or without any justified reason or facts, she or he is sentenced to half of the punishment she or he demanded for the defendant. While determining punishment, if the imprisonment amounts to more than five years, she or he should be punished only for five years. If the court is convinced that the complaint was not filed out of animosity or the complainant filed the complaint with reasonable facts, it may not punish the complainant with all or any of the punishments stipulated by disclosing the reasons for the exemption from punishment or imposition of lesser punishment to be recorded.38 Where a litigant has not mentioned a matter with specification but his or her witness makes statement adducing sufficient evidence in support of the matter, and it is proved that the statement made and set down by the witness is false, the witness shall be liable to punishment of imprisonment for a term ranging from six months to two years if the statement made and set down by the witness results in punishment to the litigant of imprisonment for life with

37 38

On Court Proceedings, Number 188 On Punishment, Number 18

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confiscation of entire property or imprisonment for life, to punishment of imprisonment for a term ranging from three months to one year if such statement results in punishment to the litigant of imprisonment for a term of six years or more or punishment of confiscation of entire property and that of imprisonment for a term ranging from five days to five months if such statement results in other imprisonment to the litigant. If the litigant has mentioned a matter with specification and makes a statement adducing sufficient evidence in support of the matter, and it is proved that the statement made and set down by the witness is false, the witness shall be liable to punishment of imprisonment and fine.39 Our judicial administration doesn’t provide for different punishments for acts, such as unduly influencing witnesses, taking revenge for testifying, obstructing collection of evidence, obstructing court officials from performing their duties or unduly influencing them, demanding or accepting a bribe, by categorizing them as offences against the judiciary.40 There is no explicit provision of punishment against a person who furnishes false or wrong evidence despite knowledge, unduly influences or prevents a witness from presenting herself or himself at the court or testifying, records false statement as against the duty to speak the truth.

If any party attending the court or any other person disrupts the proceedings of the court or intentionally disobeys an order of the court, the court may itself initiate proceedings of contempt of court as a plaintiff and punish the guilty in accordance with the Administration of Justice Act 2048.41 In accordance with that Act, if the court issues an order to furnish or send any file, document or any other thing and the office doesn’t abide by the order so that it 39 40

41

26

On Court Proceedings, Number 169.

Section 91 of the proposed Penal Code 2010 (2067 BS) stipulates that nobody shall make a forced evidence or create a false situation or make any false print or electronic documentation or display anything false in any print or electronic documentation, and anybody who has been deemed to have committed such an offence shall be imposed an imprisonment of up to five years and a fine of up to fifty thousand rupees.

Administration of Justice Act 2048, Section 18.

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affects the proceedings of the court or settlement of the case within reasonable time or if it causes harassment or unfavourable effects on any party, there is provision for the court to impose a fine of Rs 500 for every count on the chief or an employee of the office concerned.42 In the same vein, in no. 210 of the chapter ‘On Court Proceedings’, if an office that has been requested by another office to send a case file and documents or asked to clarify any such matter as required for evidence in a case fails to send the case file and document or reply despite reminder or follow-up, and this inability has resulted in difficulty with trying or disposing of the case or in any grievance or detriment to any party, the chief or other employee of the office concerned that has not sent such case file and document or reply may be liable to a fine of up to Rs 50 for each instance.

Provision regarding reprieve, exemption, suspension and remission of sentence Wilful reduction of punishment or reprieve of the verdict of the court by other agencies in the name of pardon and amnesty after an authorized court has handed out punishment in accordance with law is not consistent with the principle of independent judiciary, except when a superior court has remitted the punishment or cleared the accused after review. However, there is practice of granting pardon after a person against whom guilt has been established has served certain duration of punishment of imprisonment. As in the Constitution of 1990, Nepal’s current constitution, Interim Constitution 2007 has a provision allowing President to grant pardon, suspend, commute or reduce any sentence imposed by any court or any other judicial, quasi-judicial, or administrative authority or body.43 Our law has made provision for the executive organ to grant, without permission or consent of the court, reprieve on the sentences of imprisonment delivered by court by remitting the remaining punishment, not exceeding 50 per cent of the punishment

42 43

Ibid, Section 29 Article 151

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of imprisonment in the case of prisoners displaying good conduct, except in ten crimes, including prostitution, rape, escape from prison and drug peddling.44

Provisions regarding protection and compensation for victim and protection of witnesses The modern criminal science has been promoting the norm that the victim must be protected by all means. Although there is no separate legal provision regarding protection of victims, certain laws have provision for protection of victims. The chapter ‘On Homicide’ of the Muluki Ain provides that, if death is caused in the course of defending oneself in a situation of use of force against oneself, the person causing it shall not be liable to indictment.45 The chapter ‘On Rape’ of Muluki Ain provides for protection of the victim by laying down: ‘In cases where a person with intention to attempt rape assaults, rounds up (chhekthun), ties up (bandchhand) or uses force

44

45

28

In the draft report of the proposed Penal Code, Criminal Procedure Code and Criminal Offence and Punishment (Determination and Implementation) Act 2067, there is provision for reprieve, suspension, alteration of a sentence of punishment by the President, whereby a person against whom a sentence of imprisonment has been passed by the verdict of the court may file a plea, through the Ministry of Law and Justice, to the President for reprieve, suspension, alteration or remission of the sentence and the Ministry of Law and Justice, considering the nature of offence and the circumstances leading to the offence, age and physical conditions of the offender, extent of punishment sentenced to the offender, whether or not the offender had received a sentence of imprisonment for committing any offence earlier in the past, and if she/had received punishment, the nature of such offence and the punishment she or he had served, whether or not the offender was in prison, among other factors, shall submit it to the President, by disclosing the grounds and reasons for submitting it to the Government of Nepal, for decision.

However, there is provision prohibiting reprieve, suspension, alteration or remission of sentence of punishment of offenders who are convicted for corruption, rape or attempted rape, homicide or attempted homicide, arms and ammunition, explosive substances, kidnapping or abduction, trafficking in or peddling in national or public property, forest and wildlife, drugs (Section 159(4)). In addition, proposed provision has been made whereby the Ministry of Law and Justice cannot recommend for action in cases that are pending in the course of appeal, witness examination or review or repeat of case or when the court on the basis whose verdict the punishment was determined is not the final court.

Chapter ‘On Homicide’, Number 7

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(jorjulum) by any other means to a victim and it is not possible to save the chastity (dharma) for the victim upon rescuing herself from the offender by shouting, requesting for the help or by any other means immediately, or where the victim is in a situation that if she does not do anything with her idea (akkal) or power (barkat) she may not be able to save her chastity due to serious fear or threat so create over there before the commission of rape or even after the commission of rape where she could do nothing due to lack of her power or force immediately, if such a victim, out of anger of such act, strikes a weapon, stick (latho) or stone at the place of commission of rape immediately or within one hour upon pursuing the offender from place and the offender dies over there, such an act shall not be deemed to be an offence.’46 Similarly, the Human Trafficking and Transportation (Control) Act 2064 [AD2007] provides that, if a person, upon realizing the fact of her being trafficked or being forced into prostitution, seeks help but doesn’t receive it or encounters obstruction while doing so, and if she has reasonable grounds to believe that she cannot escape from the perpetrator without using force and does any act that causes death or injury to the perpetrator, such person shall not be liable to any punishment.47 However, there are no separate units in the court for victim and witness protection for providing advice, protection and other support to victims of crimes and witnesses who visit the court for testifying.

Our criminal law has made provision for punishment up to imprisonment for life with compensation of entire property. In many offences, apart from imprisonment, provision of fine is made. There is no provision for paying compensation to victims from the property of the criminal that is confiscated. The confiscated property is entered in the state treasury, but no provision is made for payment of compensation to victims of crime. A few acts have made provision for securing compensation for the victim from the perpetrator, but in situations where the victim cannot pay compensation, no obligation has been imposed on the state to pay compensation;

46 47

Chapter ‘On Rape’, Number 8 Section 16

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neither is there an effective remedy of compensation for victims of illegal arrest or detention. Furthermore, there is no provision for securing compensation for the victim in case of miscarriage of justice.

Among the laws that provide for securing compensation for the victim from the perpetrator or criminal, no. 10 of the chapter ‘On Rape’ of the Muluki Ain provides that if it is established that a person is guilty of raping a woman, the court may secure appropriate compensation for the victim from the offender, considering the physical and mental loss she has suffered. Our law has made provision for the Executive organ to remit the punishment of imprisonment sentenced by the court except in ten types of crime, including prostitution, rape, escape from and aiding escape from prison, drug peddling, without permission or approval of the court.

In criminal cases, if it is established that a person has filed suit against any person by forging evidence out of animosity or without any justified reason or fact, it is provided that, in lieu of the false complaint, in addition to punishment, paying compensation at the rate of Rs 50 for a day’s imprisonment to the person against whom the false case was instituted. If compensation is not paid in accordance with that, compensation shall be secured from her or his property and if it cannot be recovered from that, imprisonment of up to three months is prescribed.48 In the chapter ‘On Kidnapping/Abduction and Hostage-taking’, inserted by the twelfth amendment to the Muluki Ain, if it is proved that a person is guilty of killing, inflicting injuries by beating, rape or unnatural sexual intercourse, sale, servitude, forcibly engaging in work, torturing, engaging in prostitution, compelling to carry out or cause to carry out any act, extracting ransom, or acquiring the property of a person who has been held captive or her or his successors, forcing to surrender business, or forcing to engage in any act that is an offence according to the prevalent law, with the twin objectives of kidnapping and keeping a person hostage, the 48

30

On Fine and Punishment, Number 19

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office hearing the case shall also order payment of compensation by the offender to the victim at the rate of not less than 500 rupees per day from the day of commission of the offence.49 The Human Trafficking and Transportation (Control) Act 2064 [AD2007] provides for securing compensation for victim from the perpetrator. The Domestic Violence (Offence and Punishment) Act 2066 provides for securing reasonable compensation for the victim from the perpetrator. The Compensation Relating to Torture Act makes a controversial provision of securing compensation from the government instead of the government official guilty of torturing.

In addition, although a few other acts have made provision for securing compensation for victims of criminal cases, they do not cover all aspects of damages, rehabilitation or resettlement and other protection measures.

Responding to a writ petition, the Supreme Court, in accordance with Articles 100, 107(2) of the 2007 Interim Constitution of Nepal, issued an order to the GoN, Prime Minister and Council of Ministers, asking them to make available a sum ranging from Rs 100 thousand to 200 thousand as interim immediate relief, even if in a token manner, with the restricted objective of helping victim families in meeting the obligation borne in accessing justice, without taking into account the amount and type of legal remedy to be provided in the form of immediate relief that is proper and appropriate to be provided, even if partially, in order to discourage the families of the disappeared who have become disappointed in their search for their relatives from taking recourse to illegitimate means and to assist and encourage adoption of legitimate measures for searching relatives.50 No criminal prosecution can be effective without the cooperation of witnesses and victims. Usually, witnesses do not want to take part in the judicial system due to fear, terror, threat and coercion of 49 50

On Kidnapping/Abduction and Hostage Taking, Number 12 Rajendra Prasad Dhakal and others on behalf of Advocate Rajendra Prasad Dhakal vs Ministry of Home Affairs, Writ of habeas corpus, Order date 2064/2/18, Nepal Law Journal 2064, Decision Number 7817, p.249

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perpetrators and even those who do take part are found to be giving hostile testimony. Looking at the legal provisions, although provisions related to witnesses are made in the Evidence Act 2031 and the chapter ‘On Court Proceedings’ of the Muluki Ain, no Nepalese law has any provision regarding protection of the witness.

Neither Nepal’s criminal law have been able to consider the acts of issuing fear, terror or threat to witnesses and discouraging them by whatever possible means as criminal offences nor are there protection mechanisms or protection plan or incentive provisions for witnesses in place. Although the Government Cases Regulation 2055 provides for the police station concerned to bear the cost incurred on producing witnesses at the court and making available to them the daily travel allowance equivalent to that received by non-gazetted first class government employees, no instance has come to light when such allowance has been paid. Some legal provisions mentioned above have been made in respect of victim witnesses. The Bill on Provision of Protection of Witnesses 2067, drafted by Nepal Law Commission, has made some proposals regarding encouraging witnesses to assist the judiciary in the course of enquiry, investigation, probe and court proceedings by stating facts, introducing witness protection programmes to provide protection to witnesses from dangers and undue influence from individuals accomplice in the crime or criminals and preventing offences against witnesses.51 If this bill takes the shape of an act, it will prove to be an important milestone in the security and protection of witnesses.

Other provisions regarding implementation of verdict The implementation of court verdicts in Nepal is an important facet of judicial proceedings. However, the practicality of such an important aspect is full of problems. According to the Supreme Court Annual Report 2066/67, only 10.26 per cent of the fines imposed by different courts of Nepal have been paid. As for imprisonment, 18.93 per cent of them are found to be cleared. This shows that the implementation 51

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http://www.lawcommission.gov.np/, visited on April 30, 2011

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

of verdicts in criminal cases is suffering from problems, with only a small portion of the imprisonment and fines imposed by verdicts being settled. There is provision of a tehsil (revenue collection) branch under a tehsildar (revenue collector) to implement verdicts through imprisonment and recovery of fines imposed on the defendants by the courts in Nepal in criminal cases.52 The tehsil branch of the district court has to implement verdicts of, apart from its district court, Appeals Chamber, special court and Supreme Court, assess the fine and punishment, imprisonment, amount of lawsuit, and recover them in areas under its jurisdiction.53 Apart from judicial bodies, the verdicts delivered by quasi-judicial bodies in criminal cases are implemented by the same bodies. However, there are no legal bases for executing requests by any foreign court or any international court or tribunal for executing punishments delivered against a person in criminal cases.54

Miscellaneous Withdrawal of case The Government Cases Act 2049 provides that the public prosecutor may, with order of the GoN and with the consent of the opponent party, negotiate reconciliation of cases that have it as plaintiff under the prevalent Nepal law or that have been instituted by the GoN or that have been instituted against it, or, with permission of the court, may withdraw criminal cases that have it as plaintiff among such cases.55 If cases are thus withdrawn, the defendant gets reprieve following withdrawal of criminal charge or claim.56 In the context of the international practice and norms barring withdrawal of criminal cases of grave and serious nature, this provision of the Government 52 53 54

55 56

District Court Regulation 2052, Rule 68 Ibid, rule 69 As per the ICC’s Rome Statute, the verdicts of punishment imposed by courts in the cases mentioned in the Statute must be implemented.

Government Cases Act 2049, Section 29(1) Ibid. Section 29(1)(b), however, as per the provision in Section 29(2), if the property of any nongovernmental person is affected, such cases should not be withdrawn from the court.

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Cases Act, allowing withdrawal of criminal cases of even grave nature at the order of the GoN and on the approval of the court and its indiscriminate exercise are not above controversy. It is difficult to institute cases in a number of crimes that have political hues, and the trend of withdrawing cases after they are filed is widespread.57 Seeking the opinion of Attorney General is not mandatory for withdrawing cases.

Provision of the superior office-bearer issuing the order bearing responsibility in criminal cases The Police Act 2012 [AD1955] lays down that a Chief District Officer or police personnel will not be liable to serving punishment or paying fine for an act performed with bona fide intention while discharging her or his duty under the said act or any other act.58 The Army Act 2063 [AD2006] stipulates that, if any act done with bona fide intention by a personnel falling in its jurisdiction in the course of fulfilling her or his duty results in the death of or harm to any person, no case may be instituted against such personnel in any court. 59 However, commission of corruption, theft, torture and forced disappearance are deemed offences.60 In case of crimes such as murder and rape that belong to the jurisdiction of other courts, except when it solely concerns military personnel, there is provision of handing over the accused to the 57

58 59 60

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Although under Section 116(2) of the Penal Code of the proposed Penal Code 2067 prohibits withdrawing of cases of forged passport or citizenship, immigration, corruption, human trafficking and transportation, drugs, illegal hunting of and trade in wildlife, mixing of toxic substances in public consumption goods, killing by using poison, cases related to the Ancient Monument Conservation Act and Public Property or Public Morals, offences related to arms and ammunition, offences related to explosive substances, offences related to public and national heritage, offences related to marriage, offences related to life, offences related to forced disappearance of person, offences related to kidnapping and holding hostage, offences related to rape, offences related to currency, offences related to stamps, cases, which withdrawn, might have adverse effect on the property rights of any person and which do not have the approval of such person to the extent of such effect. (p192) Police Act 2012, Section 37 Army Act 2063, Section 22 Ibid, Section 62

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

investigating officers concerned as per the demand. 61 Noncompliance of lawful order of a superior officer or negligence in fulfilling the order of a superior officer is deemed an offence of disobedience. 62 The aforementioned acts have not made the provision for making the superior officer responsible and bearing criminal responsibility if an act done by a subordinate officer or personnel in the course of executing a superior officer’s order results in a criminal act.

Extraterritorial Jurisdiction Point no. 2 of no. 29 of the chapter ‘On Court Proceedings’ of the Muluki Ain lays down that, generally, criminal cases with government as plaintiff shall be tried by the court within the territory where the crime was committed. Apart from the said provision of the Muluki Ain, which is a general code, provision has been made for application of extraterritorial jurisdiction in some special laws. Special laws have made provision for application of extraterritorial jurisdiction, especially in case of inter-country organized crimes. Provision for application of extraterritorial jurisdiction of the act has been made in the Human Trafficking and Transportation (Control) Act 2064 [AD2007], Narcotic Drugs (Control) Act 2033 [AD1976], Prevention of Corruption Act 2059 [AD2002], Money Laundering Act 2064 [AD2008], among other acts. However, there is no provision and practice of Nepal’s courts adopting universal jurisdiction. 63 Section 2 of the proposed Penal Code 2067 stipulates application of extraterritorial jurisdiction in case a person commits offences, including an offence against the state, kidnapping, by operating outside Nepal, and such 61 62 63

Ibid, Section 66 Ibid, Section 45 Extra-territorial jurisdiction is the condition of prosecuting in a court of Nepal an accused who has committed a crime in Nepal irrespective of where she or he is living or staying and an accused who is a Nepali citizen who has committed a certain crime outside Nepal. Such jurisdiction is exercised in crimes of inter-country nature, whereas under universal jurisdiction, the court of any country can exercise its national jurisdiction in international criminal crimes. Particularly, such jurisdiction is exercised in crimes against humanity, war crimes, genocide, torture,

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offences shall be punished as if they were committed within Nepal, and in case a Nepalese citizen commits offences, including those of rape or incest, she or he shall be punished as if the crime were committed within Nepal. In respect of cases related to offences attracting universal jurisdiction in accordance with any treaty or law to which Nepal or GoN is party, the proposed Criminal Procedure Code 2067 has introduced the concept of universal jurisdiction (Sec. 46(p)) by providing for a court designated by the GoN to try the case.

Provision of statute of limitation Our legal system has not separately codified the law on statute of limitation. Statute of limitation has been determined for crimes individually.

Particularly in criminal cases, the statute of limitation starts from the date of incident, the date on which the incident came to light and the date on which the complaint was filed. No criminal offence is deemed to have taken place if no complaint is filed against the offender. So much so that, according to no. 20 of the chapter ‘On Homicide’, except in the case of murder (kartabya) where the offender (accused) has confessed the offence, with evidence, a case shall not be registered if it is not filed within 20 years of the cause of action where the complaint shows that it is a case of murder and the investigation does not identify any accused and within two years if the complaint does not mention it as a murder case. Sec. 189 of the proposed Penal Code 2067 proposes nonapplicability of the statute of limitation in cases of homicide irrespective of the date on which the complaint is filed. As per the norms of the international law, international crimes such as genocide, crimes against humanity and war crimes should not be limited or restricted by the statute of limitation. The ICC’s Rome Statute also excludes genocide, crimes against humanity and war crimes from the statute of limitation.64 In many countries, including the USA, there is provision of non-applicability of the statute of 64

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Rome Statute, Article 29

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

limitation in grave crimes such as homicide and torture. In Nepal, the need for an integrated system on statute of limitation has been realized, but no law has been framed as of yet.

Prison administration In criminal cases, after a competent court or judicial authority pronounces an accused as guilty and delivers her or his punishment, she or he is kept in a prison for serving the imprisonment term. In fact, accused in custody for trial are also kept in prison. The undertrials and convicts whose guilt have been established are to be kept separately in prison; dignified provisions are to be introduced even for prisoners; treatment of prisoners has to be institutionalized; universally recognized standards of international convention have to be exercised and abided by. No doubt, detainees and prisoners are denied some the human rights, but provision must be made for exercise of the right to human treatment even as prisoners. As the treaties Nepal is party to have the force of domestic law, 65 it is mandatory that the obligations created by such treaties are fulfilled.

The Convention on the Civic and Political Rights 1966,66 to which Nepal is a party, has imposed on the State Parties the obligation to treat all those deprived of freedom with recognition and with the dignity inherent in human beings.

Looking at the domestic laws in this respect, Nepal’s Jail Act 2019 [AD1963] provides for segregating and keeping male and female prisoners in separate homes. If they must be kept in the same home due to unavailability of separate homes, they should be kept in different parts of the home; if detainees and prisoners must be kept in the same prison, they have to be segregated and kept in separate sections, as far as possible; and prisoners of civil and criminal cases have to be kept in separate sections, as far as possible; prisoners or detainees below 21 years or above 21 years have to be segregated and kept in separate sections, as far as possible; lunatic and semi-

65 66

Nepal Treaties Act 2047, Section 9, Subsection (1) Article 10(1)

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lunatic detainees and prisoners have to be segregated and kept in separate sections, as far as possible.67 There are provisions for paying food and cloth allowances to detainees or prisoners and their minor children; officials hearing the case may send offenders who have been sentenced to imprisonment of community service of up to three years; a designated official may permit prisoners who have been sentenced to imprisonment of above three years and have served one-third of their sentence to stay in open prison.68 Provision has been made, among others, for treatment of detainees or prisoners who are physically or mentally ill through government doctors; releasing, on bail, pregnant women detainees or prisoners69 who are in the sixth month of their pregnancy70; allowing prisoners or detainees to meet their relatives and legal consultants71; not incarcerating for a period exceeding the term, etc. Similarly, the Jail Regulation 2020 has provision for keeping prisoners in open prisons and engaging them in community services.72 Nominal rates have been fixed for the cloth, beddings and food to be given to pregnant women.73 Although there are provisions for making arrangements for primary, secondary and adult schools for the children, elderly and other adults incarcerated in the prison, as needed 74 ; for maintaining a library and radio listening centre so that detainees and prisoners can utilize their time 75 ; allowing prisoners and

67 68

69

70

71 72 73 74

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Jail Act 2019, Section 6 However, those convicted for cases of human trafficking and transportation (control), rape, escaping or aiding in escaping from prison, smuggling, drug peddling, corruption, espionage, protected wildlife and archaeological goods shall not be sent to community service or open prison (Section 10): Section 10a 10b, Ibid Only a applicable to cases of women except in cases related to state offence or who have received life imprisonment or detainees who are liable to punishment accused of such crimes or homicide.

There is provision for keeping women thus released again in prison at two months after she delivers her baby if the term has not been served.

Section 14 Prison Regulation 2020, Para 2a Ibid, Rule 22, 23, 24 Ibid, Rule 31

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

detainees to meet their families, relatives and friends two times a week under the supervision of the jailor 76 ; the government establishing a workshop on cottage skills so that prisoners can utilize their time and become self-reliant77; involving them in health, skill development and educational training and in prison workshop 78; making proper arrangements for food and water for health; making provision for entertainment, sports79; letting them practise their faith under the prevailing law80, there is little evidence to show that prisoners and detainees have been availing of them or that physical infrastructure exists in accordance with them.

The report prepared by the National Human Rights Commission (NHRC) based on monitoring of different districts in BS2062 mentions that, due to the absence of standards on physical construction as well as due to the conventional approach to criminal justice, prisoners are suffering from problems. It mentions that prisoners are tortured, kept blindfolded, arrested without arrest warrants, held in custody for more than twenty-five days, kept in detention for longer periods than what is mentioned in their detention orders, are not produced in court hearings, no provision is made for legal consultation, are deprived of the free services of legal professionals. Apart from these, prisoners of all categories are kept at the same place; many die due to lack of access to health examination, medicines and treatment; and mentally ill prisoners are deprived of treatment.

The report further mentions that cloths and newspapers are not distributed and prisoners are deprived of the use of communication media such as radio, television, telephone, etc. Furthermore, prison buildings are dilapidated; walls do not meet the required specifications; prisons are overcrowded; there is no provision for prisoners to sleep; and proper arrangements are not made for cloths, quilts and bedsheets, fans, anti-mosquito nets, clean drinking water, 75 76 77 78 79 80

Ibid, Ibid, Ibid, Ibid, Ibid, Ibid,

Rule Rule Rule Rule Rule Rule

33 26 34 35 38 41

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ventilation, etc. The prison administration, which is an important component of the criminal legal system, is waiting for policy and structural reforms.

In a nutshell, a structural provision that consists of the police for investigation and probe, public prosecutor for prosecution, and courts for decision and their enforcement exists for institutional development of Nepal’s criminal justice system. A range of special acts and provisions of the Muluki Ain and their enforcement are lending momentum to Nepal’s criminal justice system. In fact, Nepal’s criminal judicial administration is not able to address the international crimes through its domestic laws. Although Nepal has become party to various international conventions concerning human rights and humanitarian laws, conditions do not exist for bringing grave violators of human rights and humanitarian laws to book. There are various problems from investigation to prosecution to evidence determination and decision enforcement and conditions do not exist for practising according to the international human rights standards. Legal, institutional and structural reforms are necessary to harmonize Nepal’s criminal justice system with the international human rights standards.

CHALLENGES BEFORE THE NEPALESE CRIMINAL JUSTICE SYSTEM IN THE CONTEXT OF INTERNATIONAL CRIMINAL JUSTICE In Nepal, the criminal justice system has legal and structural provisions that should be adopted and applied. Apart from the Constitution—the fundamental law of the land, there are provisions related to this in various acts. In criminal cases, there are legal and institutional provisions for the police agency to carry out investigation, for the public prosecutors to prosecute, for the court to decide cases on the basis of available evidence as well as for implementing the decisions of the judicial bodies all over the country. Nevertheless, proper implementation of legal provisions remains our first and foremost challenge.

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Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

In addition, a number of international conventions that Nepal has ratified as a party are related to the criminal justice system. In spite of ratification of various international conventions concerning international human rights and international humanitarian laws, domestic laws consistent with them haven’t been framed or implemented. Our criminal law does not provide punishment for violations of international human rights and international humanitarian laws by considering them as grave international crimes.

In this regard, the order of the Supreme Court is still to be abided by. 81 In Nepal, during the ten-year-long armed conflict, large-scale loss of life and property took place, people were forcibly displaced and disappeared. Although the country is moving forward in the peace process, new chains of events of forcible displacement and disappearance and abductions are taking place.

81

Writ regarding withdrawal of property forcibly seized, with Liladhar Bhandari as one of the petitioners (Nepal Kanuni Patrika 2065), writ of habeas corpus, with Rajendra Dhakal (Nepal Kanuni Patrika 2064, Issue 2, p169), writ by Rajaram Dhakal, demanding issue of legislation of law in pursuance of obligation arising out of ratification of Geneva Convention (Nepal Kanuni Patrika 2060, Issue 8/9, p781).

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Chapter

ROME STATUTE AND PREVALENT LAW

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What are the crimes that are referred to in the Rome Statute? What are these crimes and what types of crimes are covered by them? In this chapter, the provisions for investigation into and prosecution and trial of these crimes, as well as possible penalties and appeal will be discussed. Lastly, the provisions made in the Nepalese laws and code of criminal law in accordance with the stipulations of the Rome Statute or the areas in the Nepalese laws that need reforms on account of not being made or being made but in an inappropriate manner will be discussed.

CRIMES REFERRED TO IN THE ROME STATUTE Article 5 of the Rome Statute names genocide, crimes against humanity, war crimes and aggression as the crimes refers to by the Court. Articles 6, 7 and 8 are related to genocide, crimes against humanity and war crimes. In respect of aggression, although it is not referred to at the time of issue of the Statute, the review meeting of the party states held in the Ugandan capital, Kampala, in 2010, referred to it, with provision of its enforcement from 2017.

In the Rome Statute, genocide has been taken in the collective form of some grave crimes. Under this, crimes such as killing, physical destruction or causing serious damage with that intent, preventing births or forcible transfers are covered. Even if these crimes are not termed as genocide, they can be considered as criminal acts. The laws of a number of countries consider all these offences as crimes.

However, for these crimes to become genocide, the act must have been committed with intent to destroy, in whole or in part, a national, Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

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ethnical, racial or religious group. The crimes referred to in the Rome Statute under the title of genocide are not any new crimes, but are in essence the crimes referred to in the Convention on the Prevention and Punishment of the Crime of Genocide 1948. In the Element of Crimes framed under the Statute, to be established as genocide, such an incident must explicitly demonstrate the pattern of incident or initial act in an emerging pattern.82 Article 7 of the Statute, the ‘Crimes against humanity’ also covers crimes such as murder, extermination, enslavement, rape, sexual slavery. As in the case of genocide, these acts are in themselves crimes in criminal law. However, for these acts to be established as crime against humanity, they must have been intentionally targeted and must be widespread against the civilian population or planned as part of aggression. In addition, the criminal responsibility can be determined on the ground whether the person ordering the execution of the incident had knowledge of crime or not. The elements of crime have been explicitly mentioned in this regard.

It is not that the crime against humanity was encompassed in the Rome Statute for the first time. Provisions related to it have been made in the various international conventions and customary international laws. These very provisions have been incorporated in the Statute in a refined form.

Article 7 of the Statute terms the crime against humanity as an extremely grave crime for the global community as a whole. Article 8 of the Rome Statute defines war crimes. Under war crimes, basically any of the acts against persons or property protected under the provisions of the relevant Geneva Convention of 1949 committed in a large-scale manner under a certain plan or policy, other serious violations of the laws and customs applicable in international armed 82

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In the Elements of Crime, issued under Article 9 of the Rome Statute, it is stipulated that, to be established as genocide, among the necessary inter-elements, such a criminal act must manifest one of the trends of such acts. In the Element of Crimes, it is mentioned: ‘The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

conflict, in the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions are mentioned. In Article 8, a long list of crimes under war crime is given.

In the Rome Statute, although aggression is not defined in the beginning, the term was defined unanimously in the course of reviewing the Statute at the Kampala Summit 2010.83 Accordingly, aggression will be held to have taken place if planning, preparation, launching and implementation of attack is done at leadership level against the UN Charter. Similarly, to be held as aggression, one state must have used military might against another, but aggression will not be deemed to have taken place if such might is exercised with the authorization of the UN Security Council or for self-defence.

Some examples of aggression are shelling of bombs by using military might, invading another country by the military or forcing a blockade.

JURISDICTION Among the crimes defined under the Rome Statute, in respect of acts other than aggression, the Court may only exercise its jurisdiction with respect to crimes committed after the entry into force of this Statute for that State. In addition, after becoming a party to the Statute, the State Party concerned shall be deemed to have automatically accepted the jurisdiction of the Court in genocide, crime against humanity and war crimes.84 In respect of aggression, however, the jurisdiction of the Court may be rejected or opt out may be exercised. Not only that, following the insertion of a provision that the Court may exercise its jurisdiction even if the State Party accepts it after the relevant act came into force in 2017, it cannot be deemed that by becoming a party to the Rome Statute, the jurisdiction of the Court is accepted.

83

84

This will come into force upon ratification of Article 2017 by State Parties. www.iccnow.org/ Rome Statute, Article 11(2), 12(3) in certain circumstances even countries that are not party to the Statute may accept jurisdiction of the Court.

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In respect of the exercise of the jurisdiction of the Statute, both the prevalent territoriality and nationality have been accepted under the international laws. That is to say, it shall attract the jurisdiction of the Court if the crime is committed within the territory of the State Party or if the accused person is a national of that State.85 Thus, jurisdiction, by making provision for institution of a case anytime in the future, by investing individual responsibility for crime and by explicitly defining crime, has encompassed all three aspects of jurisdiction, viz temporal, personal and subject matter. By introducing a provision that, not only persons committing a crime, but also persons who have the obligation of discharging their duties shall be individually responsible for failure to discharge their duties, it has made provision for enforcing it in case of persons of any rank, including the commanding authority.

The Statute doesn’t offer reprieve to anybody over 18 years of age.86

INVESTIGATION AND PROSECUTION The Rome Statute covers crucial aspects of the continental approach to investigation and prosecution in a case. Although investigation is done by the prosecutor, provision has been made for participation of the court in crucial phases of investigation. In spite of operational independence of the prosecutor, this is an important office under the Statute. It takes part in investigation under the supervision of the Pre-Trial Chamber. As per the provisions made in the Statute, the Court may exercise its jurisdiction in the following situations, allowing the prosecutor to initiate investigation:87

85

86 87

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Article 12: However, the Court may exercise jurisdiction in a situation referred by the Security Council and against a person over 18 years old, whether civilian or non-civilian.

Articles 25, 26, 27 and 28.

Article 13.

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

• A situation which is referred to the Prosecutor by a State Party; • A situation which is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or • The Prosecutor has initiated an investigation in respect of such a crime on the basis of information on crimes filed by the victim or any other person.

In respect of a crime of aggression, the jurisdiction of the Court will come into force only if the Security Council refers the dispute. The Prosecutor may investigate the dispute itself or on the request of the Security Council in the following situations: • Only after the Security Council has determined whether the situation is that of aggression or not and after waiting for six months; • If it is a situation of aggression between State Parties; and • If the Pre-Trial Chamber of the Court authorizes initiation of investigation.

Seen from this perspective, the right of the Prosecutor to investigate, acting on a complaint of aggression is somewhat narrow.

The Rome Statute has broadly determined two approaches in relation to jurisdiction. First, on referral of the UN Security Council and, second, on the initiative of the country concerned, victim or the Prosecutor herself or himself. A cursory glance of the Statute would show that the first approach is more powerful; however, the second approach has been taken as a novel experiment in the Statute for ending impunity and for establishing the rule of law globally. Under the second approach, the jurisdiction of the Court is deemed to be concurrent and not a substitute. This jurisdiction is exercised only when the local authorities seem to be incompetent or unwilling to investigate or prosecute in relation to a crime. That is to say, the complaint is admissible only when: • The case is not being investigated or prosecuted by the State Party Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

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• The State Party is unwilling or genuinely unable to carry out investigation or prosecution; • The person concerned has not already been tried for case; • The case is of sufficient gravity to justify further action by the Court.

Under the second approach, it is necessary to demonstrate that the conditions do not exist where the state concerned or its law enforcement structure has not fully or substantively collapsed or where the national judicial system is unable to bring the accused to book, collect evidence or examine witnesses, for the court to not exercise its jurisdiction when a request has been made or when the prosecutor has received information about the crime.

In respect of cases that fall within the jurisdiction of the Court, before commencing investigation, the Prosecutor must notify the State Party about the commencement of investigation by her or him.88 After such a notification, if the State Party concerned notifies within a month that it is investigating the case, the Prosecutor must allow such an investigation to take place and should wait for a period not exceeding six months. However, if the Prosecutor convinces the Pre-Trial Chamber that the claim made by the State Party is wrong, she or he need not wait. Appeal can be filed before the Appeal Chamber demanding an interim order on the decision of the Pre-Trial Chamber.

The articles of the Rome Statute defining crime have made some provisions about the conditions in which jurisdiction is attracted. For instance, as per Article 8 (1) of the Statute, the Court shall have jurisdiction in respect of crimes of grave nature only if war crimes are committed as part of a plan or policy or as part of a widespread commission of such crimes. Similarly, concerning “crime against humanity”, under Article 7(1), only if the act is committed as part of a widespread or systematic attack, the jurisdiction can be exercised.

Hence, before proceeding with investigation, the Prosecutor must ascertain the gravity and scale of the crime and whether or not it was committed with knowledge. Even after collecting information about 88

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Article 18

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

the crime after ascertaining these matters, she or he should secure the support of the Pre-Trial Chamber before commencing investigation.89 The Statute grants the UN Security Council the right to defer the investigation by the Prosecutor by 12 months, which can also be renewed. In other words, even if the Statute does not grant the State the right to close the investigation by the Prosecutor, it has granted to the Security Council the right of collective veto.90 If, upon completion of preliminary investigation into a subject of the Court’s jurisdiction, the Prosecutor doesn’t deem it appropriate to proceed with the investigation, she or he shall close the file and notify the parties. 91 However, if there are reasonable basis for proceeding with investigation, application must be filed to the PreTrial Chamber, requesting authorization for investigation.

After study of the Prosecutor’s request as well as the materials supporting it, if the Pre-Trial Chamber is convinced that there are reasonable grounds for proceeding with the investigation, it may grant an order for doing so.92 If, upon completion of investigation, the Prosecutor determines that there is no ground for prosecution, information about it should be provided to the Pre-Trial Chamber as well as the State demanding investigation or the Security Council. The State concerned or the Security Council may request the Prosecutor to reconsider her or his decision. The Pre-Trial Chamber also may request the Prosecutor to reconsider her or his decision of closing the investigation. In such an event, the victim of the incident may file an application to the Bench.

The Prosecutor’s decision of not instituting a trial will be final after adoption by the Pre-Trial Chamber.

89 90 91 92

Article 15 Article 16 Article 15(6) Article 19 (4), The admissibility of a case or the jurisdiction of the Court may be challenged by the State concerned or an accused or person who has been issued a summons. The challenge shall take place prior to or at the commencement of the trial and thereafter only with the permission of the Court.

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TRIAL AND PUNISHMENT If, upon completion of investigation, the Prosecutor finds sufficient ground and evidence to institute a trial, she or he presents a report to the Pre-Trial Chamber. Upon acceptance of the report by the PreTrial Chamber, the case enters the pre-trial phase. In this phase also, the question of admissibility of the case may come up.93 The Court should proceed further only after resolving this question. During the pre-trial, the Court shall apply the Rome Statute, elements of crime, and its Rules of Procedure and Evidence, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict, and general principles of law derived from domestic laws.94 After a decision is taken to commence a trial, the Court may issue a warrant or summons, as necessary, for the presence of the accused.

The accused may present herself or himself at the Court. If a summons or warrant is issued, it is the duty of the State Party concerned to serve the warrant or summons and to produce, hand over or surrender the accused to the Court.95 If the State where the accused is facing a trial or a third party calls for extradition of the accused or if it is not possible to extradite her or him due to a treaty with a third state that is not party to the Rome Statute, the State Party concerned must notify the Court about the matter. However, if the demand has been made after resolving the questions raised by the Court, the State Party concerned cannot avert or reject the request.

In the Rome Statute, an attempt has been made to ensure independence, autonomy, legally determined but fair hearing in the establishment and functioning of the ICC. For this purpose, provision has been made for some universal principles of criminal justice in the Statute, which must compulsorily be abided by in the

93 94 95

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Articles 17, 18, 19 Article 21 Articles 58, 59

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

investigation, prosecution and trial phases. A few of these principles have been recognized in Nepal’s Constitution and laws, apart from incorporating a few of them in the Penal Code in some detail.

Nevertheless, the form in which they have been incorporated in the Rome Statute is exemplary in the context of legal reforms in Nepal.

The principles that are incorporated in the Statute are as follows:96 • A person who has been established guilty or cleared by the Court once shall not be tried again.

• If the conduct in question is not a crime within the jurisdiction of the Court, the person shall not be responsible.

• The definition of a crime shall be strictly construed and in case of ambiguity, the definition shall be interpreted in favour of the accused.

• A person convicted by the Court may be punished only in accordance with this Statute.

• No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.

• In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.

• The Court shall have jurisdiction over natural persons pursuant to this Statute.

• A person who commits a crime within the jurisdiction of the Court shall be individually liable. In other words, a person shall be criminally liable for a crime if that person commits such a crime, whether as an individual, jointly with another or through another person; orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;97

96 97

Articles 22, 23, 24 and 25 Article 25 (a), (b) and (c)

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• In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or be made in the knowledge of the intention of the group to commit the crime;98 • In respect of the crime of genocide, directly and publicly incites others to commit genocide; • Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions;99 • The Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime; 100 • This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.101 • Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.102 Apart from the principles of criminal justice mentioned above, the Rome Statute has made important provisions about the responsibility of commanders and other superiors. These provisions have not found a place in Nepal’s laws till now. As per the provisions 98 99 100 101 102

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Article 25(d). This provision will be useful for dealing with organized crimes.

Article 25(f) Article 26 Article 27(1) Article 27(2)

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

of the Statute, commanders and other superiors are responsible not only for commission but also for omission of commission.

Accordingly, the commander or other superiors shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, if:103 • The military commander or person knew that the forces were committing or about to commit such crimes; • The military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter.

• The military commander or person did not submit the matter to the competent authorities for investigation and prosecution.104 With respect to superior and subordinate relationships not described in paragraphs above, a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates105, where: • The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; • The crimes concerned activities that were within the effective responsibility and control of the superior; • The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution; or • The matter was not reported to the competent authorities for investigation and prosecution.

103 104 105

Article 28 Article 28(a) Article 28(b)

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In the context of criminal responsibility, the Rome Statute considers mental elements, ie intent and knowledge, as mandatory elements for establishing an act as a criminal act. In other words, if a person, in relation to an action, means to engage in the conduct or, in relation to a result, desires such a result or is aware that such a result generally emerges, that person is deemed to have engaged in the act with intent.

Similarly, in respect of knowledge, if the person is aware that such a result will emerge or the circumstances are such that such a result will emerge, the said person is deemed to have the knowledge. 106 In common parlance, in the Rome Statute, intent is linked to an action and knowledge to result. However, a person shall not be criminally responsible if, at the time of that person’s conduct:107 • The person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law; • The person is in a state of intoxication that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law, unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court; • The person acts to defend himself or herself or another person or, in the case of war crimes, property; • The person acted under duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person; • The person commits any crime under a legal obligation to obey orders of the superior, without knowing that the order was unlawful, and the order was not manifestly unlawful; 106 107

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Article 30 Articles 31, 32, 36, however, all subordinate persons must have the knowledge that an order for committing genocide or a crime against humanity are clearly against law. Ignorance is no ground for getting exemption from accountability.

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

• If a person has the legal obligation to obey the order of the superior, and if she or he commits a crime without knowing that such an order is contrary to law and the order is not seemingly not contrary to law.108 Regarding trial, the trial chamber takes a decision about issuing a warrant of arrest against the accused and handing over of such person.

Before issuing a warrant of arrest, the trial chamber must assure itself that grounds exist for arrest, including reasonable grounds to believe that the accused has committed the offence109 and the State Party must assist the Court in arresting and handing over/surrendering such person.110 Upon the surrender of the person to the Court, or the person’s appearance before the Court voluntarily, the court must hold confirmation hearing to ascertain that the produced person is the accused person and the prosecutor filing charge against her or him has sufficient evidence.111 Such person arrested shall have the right to apply for interim release during the pre-trial stage.112 Another thing that needs consideration during the hearing and trial stage is that the Rome Statute provides certain rights to the accused, victim and witnesses.113 The right to a hearing that is fair, open and held within appropriate time, which is granted by the Convention on Civil and Political Rights, is also guaranteed by the Rome Statute.

Some of these rights are: • To have the right to be present during the trial, that is the trial shall be held only in the presence of the accused, • The accused shall be presumed innocent until proven guilty in accordance with law.

• The onus is on the Prosecutor to prove the guilt of the accused, and, in order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

108 109 110 111 112 113

Article 33 Article 57, 58 Article 59, 60 Article 60 Article 61 Article 55, 66, 67, 68

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• The decision of the Court shall be in writing and must mention the grounds and reasons.

• As far as possible, the verdict and punishment to be pronounced in the presence of the accused.

• The witnesses and victims that may be physically assaulted or are vulnerable to be given protection • The victim may also state her or his point of view personally or through legal professionals during trial and hearing.

The trial and hearing of the case is done by the Trial Chamber.114 Before the hearing starts, the charges laid down by the Pre-Trial Chamber are read out to the accused.115 It is the duty of the Chamber to ensure that the trial is held in a fair, speedy and efficient manner.

The Chamber determines the language to be used in the trial, and to disclose the written evidence or information not disclosed up to that stage. In this stage, the Chamber may issue orders, as necessary, for discussion with the parties, taking testimony of witnesses, presenting confidential information and victims and witnesses and for their appropriate protection. Generally, hearing is done in open court. The Statute, however, provides that certain proceedings may be conducted in closed session in special circumstances to protect witnesses or victim or to protect confidential or sensitive information to be given in evidence.116 After the charges are read out at the trial stage, the onus of ensuring that the accused has understood the charge and its nature is that of the trial chamber. The Statute guarantees the accused the right to remain silent.

After the charge is read out, the accused may admit or plead not guilty.

Where the accused makes an admission of guilt, it must be determined that she or he understands the nature and consequences of the admission of guilt; the admission is voluntarily made by the accused after sufficient consultation with defence counsel; and the admission of guilt is supported by the facts of the case and evidence presented.117 114 115 116 117

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Article 64 Article 64 8(a) Article 64(7), 68 Article 65

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It has already been mentioned that, in the event of the accused pleading not guilty, the onus of proof lies on the prosecutor. In addition, the Statute explicitly mentions that the accused shall not bear the onus of reversing or refuting the burden of evidence.118 In the context of furnishing evidence, generally witnesses themselves have to give testimony in person. In extraordinary circumstances, testimony may be given viva voce (oral) or by means of video or audio technology.119 Like their opponent witnesses, the accused have the right to take testimony of their own witnesses and cross-question opponent witnesses. The Statute does not explicitly state that the evidence obtained under coercion in violation of the internationally recognized human rights shall not be admissible. Such evidence shall not be admissible only in the following conditions:120 (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.

The Statute provides for appropriate punishments for acts directed at corrupting the proceedings of the court or interfering with it, deeming them offences against its administration of justice.121 It encompasses the following offences: • Giving false testimony • Obstructing or interfering with the attendance or testimony of a witness, interfering, corruptly influencing a witness, retaliating against a witness for giving testimony • Destroying, tampering with or interfering with the collection of evidence; • Impeding, intimidating or corruptly influencing, retaliating against an official of the Court for forcing the official not to perform; • Soliciting or accepting a bribe.

118 119 120 121

Article 66, 67 Article 69 Article 69(8) Article 70, under this punishment of up to five years may be sentenced.

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After the end of the trial, the judges hear the arguments of both parties, deliberate and reach a decision. Their deliberations are kept confidential. The decision is based on the furnished evidence and evaluation of the proceedings. While taking a decision, it is not permissible to go beyond the accusation and the circumstances related to it. Decision is taken, as far as possible, unanimously and, if it is not possible, by majority. In such cases, the perspectives of both majority and minority are mentioned. The decision or its summary is delivered in open court.122 The decision must mention if the victim is to receive any reparation from the accused.123

APPEAL AND REVIEW If the accused is held guilty or if the accused herself or himself admits her or his guilt, the trial chamber, before delivering its verdict, should determine an appropriate punishment, keeping in mind, among others, the evidence furnished about appropriate punishment and the arguments of the parties. The elements that deepen the gravity of the crime, the individual circumstances of the convicted person or the victim’s perspective, etc should also be considered in this phase.124 The hearing related to the punishment may be done by the Court on its own initiative or on the request of the parties. After hearing is over, punishment shall be pronounced in open court and in the presence of the convicted person, as far as possible.

In offences referred to in the Rome Statute, the Court may pronounce imprisonment of specified years, not exceeding a maximum of 30 years, on the convicted person. However, the convicted person may be sentenced punishment of life imprisonment, considering the gravity of the crime and her or his individual circumstance. The Court may take a decision of imposing a fine or forfeiture of the proceeds, property and assets derived from that crime, etc.125 122 123 124 125

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Article Article Article Article

74 75 75, 78 77

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Appeal against the decision of the trial chamber can be filed at the Appeal Chamber. The appeal may raise the argument of error of fact or error of law. Apart from this, in the appeal filed on behalf of the accused, anything that affects the fairness or credibility of proceedings or decision and the disproportionate ratio between the crime and punishment may be argued as a point.126 The victim may file an appeal on an order for compensation.127 The accused has to file an appeal while remaining in custody within the period of appeal unless the trial chamber orders otherwise. Even in situations when the trial chamber acquits her or him, the prosecutor may petition for holding the accused in custody until the validity of the period of appeal, by pointing out the real risk of the accused fleeing, gravity of crime and likelihood of an appeal.128 While hearing the appeal, the Appeals Chamber may summon the public prosecutor or the accused if it feels that the verdict of the trial chamber may be reversed, totally or partially, or the punishment is likely to be reduced.129 However, the Appeals Chamber must not suspend or postpone the verdict of the trial chamber, except when it has issued an order to the contrary, merely because an appeal has been filed. 130 After the hearing, the Appeals Chamber may issue order for overturning or altering the verdict of the trial chamber or holding a new trial from another trial chamber. 131 In the same vein, on receiving an appeal on a punishment, the Appeals Chamber may remit, amend or modify the punishment.

Like the trial chamber, the Appeals Chamber must deliver a verdict with its decision and the grounds relied on. In case judges are not unanimous, it must pronounce the perspectives of both majority 126 127 128 129 130 131

Article Article Article Article Article Article

81 82 81 83 82(3) 83

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and minority. However, on question of law, every judge may pronounce her or his own opinion. Decisions must be pronounced in open court, but the presence of the accused is not mandatory during decision.132 Apart from the hearing of an appeal, the Appeals Chamber may review its prior decision in the following circumstances: • A piece of evidence which was not found or available during trial has been found, which, if it had been furnished during the hearing, could have led to reversed results. The applicant party is not responsible, fully or partially, for such evidence not being furnished.

• If it is subsequently found that the decisive evidence that had its basis in the trial stage is false, forged or untrue.

• If it is found that one or more of the judges involved in decision are not qualified under Article 46.

During such review, if, based on the newly found fact or evidence, it is found that the person who has been punished has been erroneously punished, she or he is entitled to compensation.133 If the court can see a clear and serious injustice taking place, the court may provide compensation to the accused determined at its own discretion.134

PROVISIONS OF ROME STATUTE, NEPALESE LAW AND REFORMS NEEDED The first and most important aspect of becoming party to the Rome Statute is to carry out within the country investigation into and prosecution of crimes related to genocide, war crimes, crime against humanity and aggression referred to in the Statute or inchoate crimes related to them or crimes against the judiciary. The Rome Statute

132 133 134

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Article 83 Article 85 Article 85

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mentions that if the member nation is unable or unwilling to carry out investigation into and prosecution against the perpetrator under the domestic law or if the investigation into and prosecution of the crime is done with the motive of protecting or concealing the crime and criminals, investigation into the offence shall be initiated within the jurisdiction of the Court. In that sense, the jurisdiction under the Statute is not substitute but only concurrent. It has already been made clear that the first responsibility of investigating and prosecuting in the cases under the Statute is that of the state. In addition, the Rome Statute has introduced the provision that extends it jurisdiction over individuals and bars the member nations from introducing reservation in the ICC’s subject matter jurisdiction. From this perspective, it is necessary to weigh the reforms that need to be introduced in the domestic laws once the country becomes party to the Rome Statute. Apart from this, it becomes the duty of the member states to assist the ICC in the investigation of crime, collection and preservation of evidence and execution of decisions.

From this perspective, in the context of national preparation, it becomes necessary and relevant to review the main provisions, prevalent Nepalese laws, proposed Penal Code, and provisions of the Criminal Offence (Punishment Determination and Implementation) Act as well as the reforms that need to be introduced in the Nepalese laws. Therefore, these provisions are described in sequential order here.

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Prevalent Nepalese Law

Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group.

•

•

‘Genocide’ means any of the following acts comThere is no mi ed with intent to destroy, in whole or in part, a specific law na onal, ethnical, racial or religious group: on this. The Muluki Ain ap• Killing members of the group; plies.

• Deliberately inflic ng on the group condi ons of life calculated to bring about its physical destruc on in whole or in part;

Genocide: Ar cle 6

Part 2: Jurisdic on, Admissibility and Applicable Law

Provision in Rome Statute

Comparative Table

It is not defined, but if the offence is commi ed with intent to generate hatred against a na onal, ethnical, racial, religious or cultural group, the gravity of the offence intensifies (Chapter 4).

A person commi ng such an act may be imprisoned for life (Sec. 40(e))

Provisions made in the Proposed Penal Code

Legal provision on this is needed by adopting the said defini on in the Rome Statute Implementa on Act.

Provision necessary to fulfil obliga ons under the Rome Statute

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•

•

•

•

•

•

Torture;

Crime against humanity is not defined; however, legal provisions Murder; exist on killing, Extermina on; forced slavery, kidnapping, Enslavement; hostage keeping, illegal Deporta on or forcible transfer of popula- deten on, on; torture, rape, etc.

Imprisonment or other severe depriva on of physical liberty in viola on of fundamental rules of interna onal law;

‘Crime against humanity’ means any of the following acts when commi ed as part of a widespread or systema c a ack directed against any civilian popula on, with knowledge of the a ack:

Crimes against humanity: Ar cle 7 Along with killing, forced slavery, illegal deten on, kidnapping, hostage keeping, enforced disappearance and torture, discriminatory treatment, sexual enslavement, enforced pros tu on, torture, disturbing social customs, etc are determined as crimes.

Legal provision on this is needed by adopting the said defini on in the Rome Statute Implementa on Act.

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Rape, sexual slavery, enforced pros tu on, forced pregnancy, enforced steriliza on, or any other form of sexual violence of comparable gravity;

Persecu on against any iden fiable group or collec vity on poli cal, racial, na onal, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under interna onal law, in connec on with any act referred to in this paragraph or any crime within the jurisdic on of the Court;

Enforced disappearance of persons;

The crime of apartheid;

Other inhumane acts of a similar character inten onally causing great suffering, or serious injury to body or to mental or physical health.

•

•

•

•

•

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Torture or inhuman treatment, including biological experiments;

Willfully causing great suffering, or serious injury to body or health;

Extensive destruc on and appropria on of property, not jus fied by military necessity and carried out unlawfully and wantonly;

•

•

•

2. For the purpose of this Statute, “war crimes” means: (a) Grave breaches of the Geneva Conven ons of 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Conven on: • Willful killing;

1. The Court shall have jurisdic on in respect of war crimes in par cular when commi ed as part of a plan or policy or as part of a large-scale commission of such crimes.

War crimes: Ar cle 8

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Compelling a prisoner of war or other There are no protected person to serve in the explicit laws on forces of a hos le Power; this, but when a military perWillfully depriving a prisoner of war sonnel comor other protected person of the mits a crime rights of fair and regular trial; against a civilian outside the Unlawful deporta on or transfer or legal sphere, unlawful confinement; it is liable for suit.

Taking of hostages.

Direc ng a acks against the civilian popula on not taking direct part in hos li es;

Inten onally direc ng a acks against civilian objects;

•

•

(b) Other serious viola ons of the laws and customs applicable in interna onal armed conflict, within the established framework of interna onal law, namely, any of the following acts:

•

•

•

• There are no explicit laws on this, but if a criminal act is committed by exceeding the authority granted by the military law, a suit may be ins tuted.

Legal provision on this is needed by adopting the said defini on in the Rome Statute Implementa on Act.

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Direc ng a acks against personnel, involved in a humanitarian assistance;

Inten onally launching an a ack on civilians or damage to civilian objects;

A acking or bombarding towns, villages, dwellings or buildings which are undefended and which are not military objec ves;

Killing or wounding a combatant who, having laid down his arms or has surrendered;

Making improper use of the military insignia and uniform;

Transfer of civilian popula on;

Inten onally direc ng a acks against historic monuments, hospitals, etc that are not military objec ves;

Subjec ng persons who are in the power of an adverse party to medical experiments;

Killing or wounding treacherously individuals belonging to the hos le na on or army;

•

•

•

•

•

•

•

•

•

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Declaring abolished, suspended or inadmissible in a court of law the rights and ac ons of the na onals of the hos le party;

Compelling the na onals of the hos le party to take part in the opera ons of war directed against their own country;

Pillaging;

Employing poison or poisoned weapons;

Employing toxic gases;

Employing bullets which expand or fla en easily in the human body;

Employing weapons, projec les and material and methods of warfare which are comprehensively prohibited;

Commi ng humilia ng and degrading treatment;

•

•

•

•

•

•

•

•

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Using civilians as human shields;

Inten onally using starva on of civilians as a method of warfare by impeding relief supplies;

Conscrip ng or enlis ng children under the age of fi een years into the armed forces.

•

•

•

(c) In the case of an armed conflict not of an interna onal character, serious viola ons of ar cle 3 common to the four Geneva Conven ons, namely, any of the following acts commi ed against persons taking no ac ve part in the hos li es, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, deten on or any other cause:

Commi ng rape, sexual slavery, enforced pros tu on, forced pregnancy, enforced steriliza on, or any other form of grave violence;

•

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Humilia ng and degrading treatment;

Taking of hostages;

Passing of sentences and carrying out of execu ons without previous judgement.

•

•

•

Direc ng a acks against the civilian popula on or individual civilians not taking direct part in hos li es;

Direc ng a acks against dis nc ve

•

•

(e) Other serious viola ons of the laws and customs applicable in armed conflicts not of an interna onal character, namely, any of the following acts:

(d) Paragraph 2 (c) applies to armed conflicts not of an interna onal character, but does not apply to internal disturbances and tensions, such as riots, isolated and sporadic acts of violence.

Violence to life and person, in par cular murder of all kinds, mu la on, cruel treatment and torture;

•

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emblems of the Geneva Conven ons;

Direc ng a acks against personnel involved in a humanitarian assistance or peacekeeping mission;

Direc ng a acks against buildings dedicated to religion, educa on, art, science, historic monuments, hospitals, etc;

Pillaging;

Commi ng rape, sexual slavery, enforced pros tu on, forced pregnancy, enforced steriliza on, and any other form of serious viola on;

Conscrip ng or enlis ng children under the age of fi een years into armed forces or using them in hos li es;

Displacement of the civilian popula on;

Killing or wounding treacherously a combatant adversary;

Declaring that no quarter will be given;

Subjec ng combatant adversaries to medical experiments;

Destroying or seizing the property of an adversary.

•

•

•

•

•

•

•

•

•

•

•

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If a State becomes a Party to this Statute a er its entry into force, to apply only with respect to crimes commi ed a er the entry into force of this Statute for that State.

•

•

The State of which the person accused of the crime is a na onal.

Precondi ons to the exercise of jurisdic on: Ar cle 12 • The Court may exercise its jurisdic on if one or more of the following States are Par es to this Statute or have accepted the jurisdic on of the Court in accordance with paragraph 3:

Applies only with respect to crimes commi ed a er the entry into force of this Statute.

•

Jurisdic on ra one temporis: Ar cle 11

Jurisdic on Provision has been established, made about this—Chapwith territoter 1, Sec on 2 rial influence, in drug and human trafficking.

.

No person shall be punished for an act which was not punishable by law when the act was commi ed —Ar cle 24(4) of the Interim Cons tu on of Nepal 2007

Legal provision on this should be introduced in the Rome Statute Implementa on Act

Legal provision on this should be introduced in the Rome Statute Implementa on Act

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c

b

a

On being referred by the Security Council;b

•

No

No

No

No

Since the accused are foreign na onals in most cases, such referral is made; for this, provision should be made in the Rome Statute Implementa on Act in what situa ons referral should be made, who is to make it, who has the primary responsibility.

Legal provision on this should be introduced in the Rome Statute Implementa on Act

The Court has received three referrals, from Uganda, Congo and Republic of Central Africa so far. These states have made referrals not about incidents in other states but about incidents I their own states.

On the request of the Security Council, referrals for inves ga on have been made to the Prosecutors concerning incidents in Darfur in Sudan and Libya.

The Prosecutor has recently started inves ga ng the conflict that took place a er the general elec ons in Kenya.

2. A referral shall specify the relevant circumstances and be accompanied by suppor ng documenta on as is available.

1. A State Party may request the Prosecutor to inves gate the situa on for the purpose of determining whether specific persons should be prosecuted.

• On ini a ve by the Prosecutor.c Referral of a situa on by a State Party: Ar cle 14

On the request of the state party;a

•

The Court may exercise its jurisdic on in the following manner:

Exercise of jurisdic on: Ar cle 13

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Unless the State is unwilling or unable genuinely to carry out the inves ga on or prosecu on, the case has been inves gated by a State and has decided to prosecute or not to prosecute; the proceedings were being undertaken for shielding the person concerned from criminal responsibility for crimes; the proceedings were not or are not being conducted independently or impar ally, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to jus ce; in order to determine inability in a par cular case, the Court shall consider whether, due to a total or substan al collapse or unavailability of its na onal judicial system, the jurisdic on of the State will not be applicable.

Is inconsistent with Ar cle 29 of the Government Cases Act

The Prosecutor may ini ate inves ga ons No proprio motu on the basis of informa on on crimes within the jurisdic on of the Court.

If the Pre-Trial Chamber considers that there is a reasonable basis to proceed with an inves ga on, it shall authorize the commencement of the inves ga on.

Issues of admissibility: Ar cle 17

•

•

Prosecutor: Ar cle 15

In Sec on 116 of the proposed Criminal Procedure Code, provision barring withdrawal of grave cases

No

The law of the land should be strengthened by reforming it in order to ensure that, underscoring the principle of concurrent jurisdic on, there is in reality independent inves ga on and prosecu on at local level; following the universally recognized principle, inves ga on is carried out to bring the culprit to book before the court of law and not to provide her/him with reprieve; law enforcement agency and judiciary are independent; and no one is above the law.

Legal provision on this should be introduced in the Rome Statute Implementa on Act

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Preliminary rulings regarding admissibility: Ar cle 18 • The Prosecutor shall no fy the States Par- No es informa on about the inves ga on.

• Within one month of receipt of that no fica on, if the State informs the Court that it is inves ga ng the case, the Prosecutor shall defer the inves ga on for six months unless the Pre-Trial Chamber decides otherwise.

• The legi macy of a case concluded with challenge will not be affected.

• The admissibility of a case may be reviewed if addi onal significant facts are found.

Ne bis in idem [no one shall be twice tried for the same offence]: Ar cle 20 No person shall be tried by another court for a No crime for which that person has already been convicted or acqui ed by the Court, but in a case within the jurisdic on of the court, a case may ins tuted if the proceedings (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes ; or (b) Otherwise were not conducted independently or impar ally in accordance with the norms of due process and were conducted in a manner which was inconsistent with intent to bring the person concerned to jus ce.

Provision for appeal should be made on the procedure and me in rela on to protec on of evidence and protec on of witness as well as on prosecutor’s decision under ar cle 19; appropriate provision should be made in the Rome Statute Implementa on Act

Appropriate provision should be introduced in the Rome Statute Implementa on Act

No

No

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These principles are recognized in the Cons tu on and law.

One’s official capacity as Head of State or Government, a member of a Government or parliament, an elected representa ve or a government official shall in no case exempt a person from criminal responsibility.

A person shall be criminally responsible and liable Sca ered profor punishment for a crime within the jurisdic on visions exist. of the Court if that person commits such a crime, whether as an individual, jointly with another or through another person; orders, solicits or induces the commission of such a crime which occurs or is a empted; aids, abets or otherwise assists in its commission or its a empted commission, including providing the means for its commission;

Non-retroac vity ra one personae [No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute]: Ar cle 24 Ar cles 25, 27: Individual criminal responsibility

Nulla poena sine lege [penal law cannot be enacted retroac vely]: Ar cle 23

Nullum crimen sine lege [no crime without a law]: Ar cle 22

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW

Provision of punishment for criminal conspiracy, a empt, abetment and accomplice—Chapter 3 Sec on 32-36 of the proposed Penal Code.

These principles are recognized in the proposed Penal Code.

Amendment to the Cons tu on necessary regarding criminal responsibility of the head of the state or head of the government, member of government or parliament, or elected representa ve or government.

Appropriate provision should be introduced in the Rome Statute Implementa on Act in rela on to the crimes referred to in the Statute

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Persons below the age of 10 years not to be punished; persons below the age of 18 years to be considered as minors and given light punishment (Sec on 44)

sible for crimes within the jurisdic on of the Court commi ed by forces under his or her effec ve command and control, or effec ve authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where: (i) That military commander or person either knew or, owing to the circumstances at the me, should have known that the forces were commi ng or about to commit such crimes; and

Responsibility of commanders and other superiors: Ar cle 28 1 In addi on to other grounds of criminal responsibil- Such acts are The proposed Penal ity under this Statute for crimes within the jurisdicnot deemed Code also doesn’t con on of the Court: crimes by prev- sider it a crime. (a) A military commander or person effec vely ac ng alent Nepalese laws as a military commander shall be criminally respon-

Exclusion of jurisdic on over persons under eighteen: Ar cle 26 The Court shall have no jurisdic on over any Persons above person who was under the age of 18 at the me of the age of 16 the alleged commission of a crime. years to bear full criminal liability.

Appropriate provision should be introduced in the Rome Statute Implementa on Act

Appropriate provision should be introduced in the Rome Statute Implementa on Act

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(i) The superior either knew, or consciously disregarded informa on which clearly indicated, that the subordinates were commit ng or about to commit such crimes;

(b) With respect to superior and subordinate rela onships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdic on of the Court commi ed by subordinates under his or her eec ve authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the ma er to the competent authori es for inves ga on and prosecu on.

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(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the ma er to the competent authori es for inves ga on and prosecu on.

Non-applicability of statute of limita ons: Ar cle 29 The crimes within the jurisdic on of the Court shall One or the not be subject to any statute of limita ons. other type of statute of limita on s pulated for most of the crimes.

(ii) The crimes concerned ac vi es that were within the eec ve responsibility and control of the superior; and

Generally, no statute of limita on not applicable for crimes of heinous and grave nature

Appropriate provision should be introduced in the Rome Statute Implementa on Act

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In rela on to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

•

“Knowledge” means: • Awareness that a circumstance exists or a consequence will occur in the ordinary course of events.

In rela on to conduct, that person means to engage in the conduct;

•

Sta ng that a person shall be criminally responsible and liable for punishment for a crime within the jurisdic on of the Court if the material elements are commi ed with intent and knowledge, intent and knowledge are described, where intent means:

Mental element: Ar cle 30 It has not been It has not been defined defined so so comprehensively. comprehensively.

It would be appropriate to insert a provision about it in Sec on 2 of the Penal Code Appropriate provision should be introduced in the Rome Statute Implementa on Act

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Such grounds exist in the law, but not so comprehensively. In case (a) The person suffers from a mental dis- a person does ease or defect that destroys that person’s something that capacity to appreciate the unlawfulresults in a ness or nature of his or her conduct, or criminal act to capacity to control his or her conduct to defend her/his conform to the requirements of law; property, no (b) The person is in a state of intoxica on immunity from liability will that destroys that person’s capacity to appreciate the unlawfulness or nature of be available. his or her conduct, or capacity to control The chapter ‘On Homicide’ his or her conduct to conform to the of the Muluki requirements of law, unless the person has become voluntarily intoxicated under Ain provides such circumstances that the person knew, for immunity/ reprieve if loss or disregarded the risk, that, as a result of life is caused of the intoxica on, he or she was likely to engage in conduct cons tu ng a crime in course of protec ng priwithin the jurisdic on of the Court; vate or public property.

Grounds for excluding criminal responsibility: Ar cle 31 1. In addi on to other grounds for excluding criminal responsibility provided for in this Statute, a person shall not be criminally responsible if, at the me of that person’s conduct:

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• The acts commi ed under fear and threat not deemed as crime (Sec on 22) An act committed to protecting one’s own or any other persons’ body, life or property not deemed as crime (Sec on 23) An act committed in personal defence not deemed as crime (Sec on 24)

The provisions in the Code should be revised. In addi on, appropriate provision should be introduced in the Rome Statute Implementa on Act.

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(d) The conduct which is alleged to cons tute a crime within the jurisdic on of the Court has been caused by duress resulting from a threat of imminent death or of con nuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. Such a threat may either be:

(c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essen al for the survival of the person or another person or property which is essen al for accomplishing a military mission, against an imminent and unlawful use of force in a manner propor onate to the degree of danger to the person or the other person or property protected.

The fact that the person was involved in a defensive opera on conducted by forces shall not in itself cons tute a ground for excluding criminal responsibility under this subparagraph;

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A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.

Mistake of fact or mistake of law: Ar cle 32

3. At trial, the Court may consider a ground for excluding criminal responsibility other than those referred to in paragraph 1 where such a ground is derived from applicable law as set forth in ar cle 21. The procedures rela ng to the considera on of such a ground shall be provided for in the Rules of Procedure and Evidence.

2. The Court shall determine the applicability of the grounds for excluding criminal responsibility provided for in this Statute to the case before it.

(ii) Cons tuted by other circumstances beyond that person’s control.

(i) Made by other persons; or

No explicit and open provision exists in this regard.

An act commi ed with bona ďŹ de inten on in the belief that it was to be done in accordance with law or is pardonable under a mistake of fact is not deemed a crime (Sec on 8)

The provisions in the Code should be revised. In addi on, appropriate provision should be introduced in the Rome Statute Implementa on Act.

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The person was under a legal obliga on to obey orders of the Government or the superior in ques on;

Appropriate provision should be introduced in the Rome Statute Implementa on Act about the process of extending assistance to the Prosecutor in case of demand.

There is possibly no need to men on anything about the ma ers covered in this Part in the na onal laws.

No explicit pro- No explicit provision ex- Explicit provision vision exists in ists in this regard. should be made in the this regard.

Rome Statute Implementa on Act on this.

Du es and powers of the Prosecutor with respect to inves ga ons: Ar cle 54 The Prosecutor may seek the coopera on to No explicit pro- No explicit provision excollect and examine evidence; request the presvision exists in ists in this regard. ence of and ques on persons being inves gated, this regard. vic ms and witnesses; ensure the confiden ality of informa on, the protec on of any person or the preserva on of evidence.

PART 5. INVESTIGATION AND PROSECUTION

The person did not know that the order was unlawful.

PART 4. COMPOSITION AND ADMINISTRATION OF THE COURT (Ar cles 34 to 52)

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The fact that a crime within the jurisdic on of the Court has been commi ed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

Superior orders and prescrip on of law: Ar cle 33

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Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;

Shall be ques oned in a language the person fully understands, have the assistance of a competent translator or interpreter;

•

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Rights of persons during an inves ga on: Ar cle 55 1. In respect of an inves ga on under this Statute, a person shall enjoy the following rights: • Shall not be compelled to incriminate himself or herself or to confess guilt; A few provisions exist in Ar cle 24 of the Interim Cons tu on.

A few provisions exist in To be conformed to the Chapter 2 of the Penal Statute, Code.

Appropriate provision should be introduced in the Rome Statute Implementa on Act.

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Shall not be subjected to arbitrary arrest or deten on.

(d) To be ques oned in the presence of counsel.

(c) To have legal assistance of the person’s choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her;

(b) To remain silent, without such silence being a considera on in the determina on of guilt or innocence;

2. Where there are grounds to believe that a person has commi ed a crime and that person is about to be ques oned either by the Prosecutor, or by na onal authori es, that person shall also be informed: (a) To be informed, prior to being ques oned, that there are grounds to believe that he or she has commi ed a crime;

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Role of the Pre-Trial Chamber in rela on to a unique inves ga ve opportunity: Ar cle 56, Ar cle 57 No such proviIn addi on to its other func ons in rela on to unique inves ga ve opportunity, the Pre-Trial sion exists in Chamber may at the request of the Prosecutor or the law. on own ini a ve issue orders for overseeing an inves ga on or collect evidence, protect and inquire or depute a judge – Ar cle 56(2)(e) No such provision exists either in the Penal Code or Criminal Procedure Code

No such provision exists, but it is impera ve for full jus ce; Similarly, appropriate provisions must be made about arrest of the accused, collec on and safe-keeping of evidence, protec on of witness and vic m and safeguarding of their interest in the Rome Statute Implementa on Act.

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Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear and its execu on: Ar cles 58 and 59 At any me a er the ini a on of an inves ga on, No the Pre-Trial Chamber shall, on the applica on of the Prosecutor, issue a warrant of arrest of a person. Upon receiving such an order or summons, the State Party shall immediately take steps to serve it on the person and arrest her or him.

In the Criminal Procedure Code, provision made for arrest only with court’s permission except in certain circumstances (Chapter 6)

Appropriate provision should be inserted in the Rome Statute Implementa on Act about demanding necessary details in case for request for coopera on, implementa on of arrest warrant or summons and terms and condi ons of implementa on

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Ensure that the person’s rights have been respected.

•

2. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued.

Ensure that the person has been arrested in accordance with the proper process; and

•

Arrest proceedings in the custodial State: Ar cle 59 1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately arrest the person and shall bring her of him promptly before the competent judicial authority, in accordance with appropriate process and carry out the following tasks: • Determine that the warrant applies to that person; No provision exists in law in this regard.

No provision exists in this regard.

Appropriate provision should be inserted in the Rome Statute Implementa on Act, including about the grounds and work procedure in the event the arrested person is found to be not the person men oned in the arrest warrant, consult the court and that the rights of the arrested person are respected and can be granted interim bail

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The accused shall be en tled to a fair public hearing, having regard to the following minimum guarantees, in full equality: • To be informed of the charge, in a language which the accused fully understands and speaks; • To have adequate me and facili es for the prepara on of the defence and to communicate freely with counsel; • To be tried without undue delay; • To have legal assistance; • To examine, or have examined, the witnesses under the same condi ons as witnesses against him or her; • To have, free of any cost, the assistance of a competent interpreter and such transla ons • Not to be compelled to tes fy or to confess guilt and to remain silent;

Rights of the accused: Ar cle 67

PART 6. THE TRIAL Most of these Most of these rights are men oned in the Penal rights find a Code. place in the Interim Cons tu on.

These rights should be made more comprehensive to conform with the Rome Statute; in addi on, appropriate provision should be inserted in the Rome Statute Implementa on Act

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•

A State may make an applica on for necessary measures to be taken in respect of the protec on of its servants or agents and the protec on of confiden al or sensi ve informa on.

To make an unsworn oral or wri en statement in his or her defence; • Not to have imposed on him or her any reversal of the burden of proof or any onus of rebu al.

Protec on of the vic ms and witnesses and their par cipa on in the proceedings: Ar cle 68 • If the security of a vic m or a witness, No provision protec on of her/his reputa on and con- exists in law in fiden ality, in camera hearing, as needed, this regard. use of electronic and other technologies, representa on through the representa ve of the vic m, grave endangerment to the life of the vic m, the statements of the witnesses shall be withheld un l trial.

•

The vic m’s iden ty may be kept confiden al (Sec on 184),

In the Criminal Procedure Code, those witnesses who cannot be produced in the court due to security reasons may be examined through audiovisual media (Sec ons 185, 186), If the witness faces danger to her or his life, she or he may apply to the court for security (Sec ons 109, 114)

Provisions conforming with the Rome Statute should be inserted, including on establishment of vic m and witness trust fund, witness security unit or mechanism, witness security plan; In addi on, appropriate provision should be inserted in the Rome Statute Implementa on Act

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The viola on casts substan al doubt on the reliability of the evidence; or

The admission of the evidence would be an the cal to and would seriously damage the integrity of the proceedings.

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Evidence obtained by means of a viola on of this Statute or interna onally recognized human rights shall not be admissible if:

Apart from other things, the Court may also permit the giving of viva voce (oral) or recorded tes mony of a witness by means of video or audio technology.

Evidence: Ar cle 69 The Evidence Act does not say the evidence collected forcibly is not directly non-admissible-Sec 9.

No provision exists, recommenda on made to amend the Evidence Act

Provision for vic m relief and compensa on fund Criminal Offence (Punishment Determina on and Implementa on) Bill, Sec on 48 Provision should be made about the types of evidence that are to be admissible, the types of evidence that are to be kept confiden al, the methods of collec ng evidence

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(e) Retalia ng against an official of the Court on account of du es performed by that or another official;

(d) Impeding, in mida ng or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her du es;

Offences against the administra on of jus ce: Ar cle 70 The Court shall have jurisdic on over the following Other than the ineffec ve offences against its administra on of jus ce: provision of (a) Giving false tes mony when under an punishment obliga on to tell the truth; for witnesses (b) Presen ng evidence that the party for perjury, knows is false or forged; there are no specific provi(c) Corruptly influencing a witness, obsions. struc ng or interfering with the a endance or tes mony of a witness, tampering with or interfering with the collec on of evidence; Comprehensive provision exists about offences against public jus ce (Chapter 4)

Since the court may request the State party to ini ate a trial in a local court, appropriate provision should be inserted in the Penal Code and the Rome Statute Implementa on Act, taking into account the provision of rules 162-172 of the Rules on Work Procedure and Evidence, as well as the punishment execu on and judicial aid

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2. The principles and procedures governing the Court’s exercise of jurisdic on over offences under this ar cle shall be those provided for in the Rules of Procedure and Evidence. The condi ons for providing interna onal coopera on to the Court with respect to its proceedings under this ar cle shall be governed by the domes c laws of the requested State.

Sanc ons for misconduct before the Court: Ar cle 71 Contempt of The Court may sanc on persons present before it who commit misconduct, including disrup on court may atof its proceedings or deliberate refusal to comply tract ac on. with its direc ons, by administra ve measures other than imprisonment, such as temporary or permanent removal from the courtroom, a fine or other similar measures.

(f) Solici ng or accep ng a bribe as an official of the Court in connec on with his or her official du es.

No separate provision exists

Appropriate provision should be made in the Rome Statute Implementa on Act

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Third-party informa on or documents: Ar cle 73

The Court shall establish principles relating to repara ons to vic ms, including res tu on, compensa on and rehabilita on.

The Court may make an order directly against a convicted person or through the Trust Fund.

Before making an order, the Court may hear representa ons from the convicted person, vic ms, other interested persons or interested States.

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Sca ered provisions on repara on exist.

If a State Party is requested by the Court to provide No separate a document or informa on in its custody, possesprovision exsion or control, which concerns a third party, it ists. shall not disclose that document or informa on without the consent of such state.

Repara ons to vic ms: Ar cle 75 Provision for interim compensa on (Sec on 48) Punishment may be reduced if the guilty is ready to pay compensa on (Sec on 38) Reparata on is adopted as an intrinsic part of the jus ce system (Chapter 6)

No separate provision exists.

Implementa on of the Penal Code should be monitored; appropriate provision should be made in the Rome Statute Implementa on Act about the responsibility of execu ng verdicts under Ar cle 109 of the Rome Statute

Appropriate provision should be made in the Rome Statute Implementa on Act

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a fine and forfeiture of property.

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Life imprisonment, imprisonment for 20 Life imprisonment when jus fied years by the extreme gravity of the crime.

Imprisonment up to a maximum of 30 years;

Provision for life imprisonment of 30 years and imprisonment as long as the convict is living in case of crimes such as heinous murder, mass killing, genocide, etc (Sec on 40) Property gained by commi ng the crime and the means used for commi ng the crime to be confiscated (Chapter 6, Sec on 41-59)

No provision of Such a provision is separate hear- made in the proposed ing exists.

Criminal Offence (Punishment Determina on and Implementa on) Bill

•

Applicable penal es: Ar cle 77

PART 7. PENALTIES

In the event of a convic on, a separate hearing may be held

Sentencing: Ar cle 76

Execu on should be monitored; in addi on, appropriate provision should be made in the Rome Statute Implementa on Act

Execu on should be monitored; in addi on, appropriate provision should be made in the Rome Statute Implementa on Act

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Appeal against decision of acqui al or convic on or against sentence: Ar cle 81 The convicted person, or the Prosecutor on that person’s behalf, may make an appeal on the grounds of procedural error, error of fact, error of law, fairness or reliability of the proceedings or decision and on the ground of dispropor on between the crime and the sentence;

PART 8. APPEAL AND REVISION

A Trust Fund shall be established for the benefit of vic ms of crimes, fines or forfeiture may be transferred to the Trust Fund.

Trust Fund: Ar cle 79

In determining the sentence, the Court shall take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.

Determina on of the sentence: Ar cle 78

Provision for appeal exists in almost all of these subjects.

No such provision exists.

This has been accepted in principle.

Provision is made for appeal in almost all topics: Procedure Code, Chapter 14

Provision for vic m relief and compensa on fund is made in Criminal Offence (Punishment Determina on and Implementa on) Bill

Comprehensive provisions are made in Chapter 4 and 5 of the Penal Code and in the Criminal Offence (Punishment Determina on and Implementa on) Bill

Appropriate provision should be made in the Rome Statute Implementa on Act

Execu on should be monitored; in addi on, appropriate provision should be made in the Rome Statute Implementa on Act

Execu on should be monitored; in addi on, appropriate provision should be made in the Rome Statute Implementa on Act

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The State Party, Prosecutor or person concerned may a decision with respect to jurisdic on or admissibility; a decision of the Pre-Trial Chamber to act on its own ini a ve; on the issue of fairness of the proceedings.

As per provision no. 17 of Court Management, to hear appeals and watch court The vic m, the convicted person or owner of prop- proceedings erty adversely aected by an order may appeal to a limited against the order for repara ons. extent No such provision exists.

Compensa on to an arrested or convicted person: Ar cle 85 1. Anyone who has been the vic m of unlawful No such proviarrest or deten on shall have a right to compensa- sion exists. on.

Appeal against other decisions: Ar cle 82 Such a provision in law is desirable; in addi on, appropriate provision should be made in the Rome Statute Implementa on Act

Such a provision in code is desirable; in addi on, appropriate provision should be made in the Rome Statute Implementa on Act

On legal ques on, to limited extent No such provision exists.

No such provision exists.

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States Par es accept the responsibility of fully No such provicoopera ng with the Court in its inves ga on and sion exists. prosecu on of crimes within the jurisdic on of the Court.

2. When a person has by a final decision been convicted of a criminal offence, and when subsequently his or her convic on has been reversed on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of jus ce, the person who has suffered punishment as a result of such convic on shall be compensated according to law, unless it is proved that the nondisclosure of the unknown fact in me is wholly or partly a ributable to him or her.

PART 9. INTERNATIONAL COOPERATION AND JUDICIAL ASSISTANCE General obliga on to cooperate: Ar cle 86 No such provision exists.

Since this provision is concerned not only with Part 9 but also the en re provision of the Statute and since the Statute expects full coopera on, appropriate provision should be made in the Rome Statute Implementa on Act

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The requested State shall keep confiden al a request for coopera on and any documents suppor ng the request, except to the extent that the disclosure is necessary for execu on of the request.

The Court may request that any informa on that is made available under this Part shall be provided and handled in a manner that protects the safety and physical or psychological well-being of any vic ms, poten al witnesses and their families.

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Requests for coopera on: general provisions: Ar cle 87 • The Court may request the States Par es No such provision exists. for coopera on through the diploma c channel or any other appropriate channel as may be designated by each State Party.

No such provision exists.

For this, appropriate provision should be made in the Rome Statute Implementa on Act about what should be the language of request for designa ng a focal point in the implementa on law, confiden ality of request, protec on of informa on, protec on of vic m and witness, etc

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d

The Court may request for the arrest and surrender of a person to any State on the territory of which that person may be found. States Par es shall comply with requests for arrest and surrender.

A State Party shall authorize transporta on through its territory of a person belonging to a third country being surrendered to the Court by another State.d

No

No such provision exists.

No

No such provision exists.

Appropriate provision should be made in the Rome Statute Implementa on Act in rela on to the procedure to be adopted and provision for hearing, if such as request is received;

Such procedure should be men oned in the na onal law, appropriate provision should be made in the Rome Statute Implementa on Act

Such a condi on may be applicable to both an accused that has been arrested and a person against whom punishment has been delivered.

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Surrender of persons to the Court: Ar cle 89

Availability of procedures under na onal law: Ar cle 88 States Par es shall ensure that there are procedures available under their na onal law for all of the forms of coopera on under the Statute.

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A State Party which receives a request No from the Court for the surrender of a person shall, if it also receives a request from any other State for the extradi on of the same person for the same conduct which forms the basis of the crime for which the Court seeks the person’s surrender, no fy the Court and the reques ng State of that fact.

Where the reques ng State is a State Party, the requested State shall give priority to the request from the Court if the Court has made a determina on that the case in respect of which surrender is sought is admissible and that determina on takes into account the inves ga on or prosecu on conducted by the reques ng State in respect of its request for extradi on; or the Court makes the determina on described in subparagraph (a) pursuant to the requested State’s no fica on under paragraph 1.

Compe ng requests: Ar cle 90 No

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103

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Where a case under paragraph 4 has not been determined to be admissible by the Court, the requested State may, at its discre on, proceed to deal with the request for extradi on from the reques ng State.

In cases where paragraph 4 applies except that the requested State is under an existing interna onal obliga on to extradite the person to the reques ng State not Party to this Statute, the requested State shall determine whether to surrender the person to the Court or extradite the person to the reques ng State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to: Where a State Party which receives a request from the Court for the surrender of a person also receives a request from any State for the extradi on of the same person for conduct other than that which cons tutes the crime for which the Court seeks the person’s surrender:

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•

•

•

The requested State shall, if it is not under an exis ng interna onal obliga on to extradite the person to the reques ng State, give priority to the request from the Court; The requested State shall, if it is under an exis ng interna onal obliga on to extradite the person to the reques ng State, determine whether to surrender the person to the Court or to extradite the person to the reques ng State. In making its decision, the requested State shall consider all the relevant factors, including but not limited to those set out in paragraph 6, but shall give special considera on to the rela ve nature and gravity of the conduct in ques on.

Where pursuant to a no fica on under this ar cle, the Court has determined a case to be inadmissible, and subsequently extradi on to the reques ng State is refused, the requested State shall no fy the Court of this decision.

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A copy of the warrant of arrest; and

Such documents, statements or informa on as may be necessary to meet the requirements for the surrender process in the requested State.

In the case of a request for the arrest and surrender of a person already convicted, the request shall contain a copy of the judgement of convic on;

If the person sought has been sentenced, a copy of the sentence imposed and, in the case of a sentence for imprisonment, a statement of any me already served and the me remaining to be served.

•

•

•

•

2. The request shall contain: • Informa on describing the person sought, sufficient to iden fy the person, and informa on as to that person’s probable loca on;

Contents of request for arrest and surrender: Ar cle 91 No 1. A request for arrest and surrender shall be made in wri ng. In urgent cases, a request may be made by any medium capable of delivering a wri en record.

No

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A statement of the existence of a warrant of arrest or a judgement of convic on; and

•

However, the person may consent to surrender before the expira on of this period. In such a case, the requested State shall proceed to surrender the person to the Court.

A statement that a request for surrender of the person sought will follow.

A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents suppor ng the request within sixty days.

•

A concise statement of the crimes for which the person’s arrest is sought and of the facts, where possible, the date and loca on of the crime;

•

Such a request shall contain: • Informa on describing the iden ty and probable loca on of the person;

In urgent cases, the Court may request the provisional arrest of the person sought. The request for provisional arrest shall be made by any medium capable of delivering a wri en record.

Provisional arrest: Ar cle 92 No

No

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The execu on of searches and seizures;

The provision of records and documents,

•

inves gated or prosecuted; The oning of any person being inves Theques service of documents, including gated or prosecuted; judicial documents; Facilita ng the voluntary appearance The service of including of persons asdocuments, witnesses or expertsjudicial documents; before the Court; The temporary transfer of persons; Facilita ng the voluntary appearance The examina on of places or sites, of persons as the witnesses or experts the including exhuma on andbefore examina Court; on of grave sites; The execu on of searches and seizures; The of persons; Thetemporary provision transfer of records and docu ments, including official records and The examina on of places or sites, includdocuments; ing exhuma and on of Thethe protec on ofonvic msexamina and witnesses grave sites; and the preserva on of evidence;

•

• •

• ••

• ••

• •

••

Otherforms formsof ofcoopera coopera on: on:Ar Ar cle cle93 93 Other StatesPar Par shall,under under procedures of naStates esesshall, procedures of na onal law, onal law, requests byprovide the Court comply withcomply requestswith by the Court to theto provide the following assistance in rela toor following assistance in rela on to inves ga on ons inves ga ons or prosecu ons: prosecu ons: • The iden fica on and whereabouts of • The iden or fica and on whereabouts persons theonloca of items; of or the loca on ofincluding items; • persons The taking of evidence, tes mony under oath, and the produc • The taking of evidence, including tes mony

on of evidence, including expert under oath, and the produc on of evidence, opinions and reports necessary to the including expert opinions and reports necCourt; to theoning Court; • essary The ques of any person being Sca ered ered Sca provisions regarding claim, property of crime.

Provisionregarding regarding Provision confisca sca on on of of property propconfi ertyand andaccre and accre ons and ons from fromproperty, that property, Ar that Ar cles cles50, 49,51 50, 51 49,

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The Court may request for coopera on in conduc ng an inves ga on, recording statement or in other ma ers.

The Court should also cooperate with and provide assistance to a State Party conduc ng an inves ga on into or trial in respect of conduct which cons tutes a crime within the jurisdic on of the Court.

The Court shall also ensure the confiden ality of documents and informa on obtained from the State Party.

•

•

•

•

•

The iden fica on, tracing and freezing or seizure of proceeds, property and assets and instrumentali es of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third par es; and Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilita ng the inves ga on and prosecu on.

A State Party may not deny a request for assistance, unless the request concerns the produc on of any documents or disclosure of evidence which relates to its na onal security. If a request for assistance is denied, the requested State Party shall promptly inform the Prosecutor.

The protec on of vic ms and witnesses and the preserva on of evidence;

•

•

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No

No

Where there is an admissibility challenge under No considera on by the Court, the requested State may postpone the execu on of a request pending a determina on by the Court, unless the Court has specifically ordered otherwise.

Contents of request for other forms of assistance under Ar cle 93: Ar cle 96 1. A request for other forms of assistance shall be No made in wri ng. The request shall, contain or be supported by the following: • A concise statement of the purpose of the request, including the legal basis and the grounds for the request;

No

If the immediate execu on of a request would No interfere with an ongoing inves ga on or prosecu on of a case different from that to which the request relates, the requested State may postpone the execu on of the request for a period of me agreed upon with the Court.

Postponement of execu on of a request in respect of an admissibility challenge: Ar cle 95

Postponement of execu on of a request in respect of ongoing inves ga on or prosecu on: Ar cle 94

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A concise statement of the essen al facts underlying the request;

The reasons for and details of any procedure or requirement to be followed;

•

•

Where a State Party receives a request under this No Part in rela on to which it iden fies problems which may impede or prevent the execu on of the request, that State shall consult with the Court without delay in order to resolve the ma er. Such problems may include, insufficient informa on to execute the request; in the case of a request for surrender, the fact that despite best efforts, the person sought cannot be located or the person in the requested State is clearly not the person; or the execu on of the request in its current form would require the requested State to breach a preexis ng treaty obliga on undertaken with respect to another State.

• Any other relevant informa on.

Consulta ons: Ar cle 97

As much detailed informa on as possible about the loca on or iden fica on of any person or place that must be found or iden fied;

•

No

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e

No

No

A er becoming party to the Rome Statute, concluding a treaty for not surrendering with a non-member shall be contradictory to the Statute.

Coopera on with respect to waiver of immunity and consent to surrender: Ar cle 98 The Court may not proceed with a request for surren- No der or assistance under the following condi ons: it would require the requested State to act inconsistently with its obliga ons under interna onal law with respect to the State or diploma c immunity of a person or property of a third State, unless the Court can first obtain the coopera on of that third State for the waiver of the immunity.

It would require the requested State to act inconsistently with its obliga ons under interna onal agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the coopera on of the sending State for the giving of consent for the surrender.5e Execu on of requests under Ar cles 93 and 96: Ar cle 99 Requests for assistance shall be executed in accorNo dance with the relevant procedure under the law of the requested State and, unless prohibited by such law, in the manner specified in the request, including following any procedure outlined therein or permit ng persons specified in the request to be present at and assist in the execu on process.

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(a) When the State Party requested is a State on the territory of which the crime is alleged to have been commi ed, and there has been a determina on of admissibility pursuant to ar cle 18 or 19, the Prosecutor may directly execute such request following all possible consulta ons with the requested State Party;

4. Without prejudice to other ar cles in this Part, where it is necessary for the successful execu on of a request which can be executed without any compulsory measures, including speciďŹ cally the interview of or taking evidence from a person on a voluntary basis, including doing so without the presence of the authori es of the requested State Party if it is essen al for the request to be executed, and the examina on without modiďŹ ca on of a public site or other public place, the Prosecutor may execute such request directly on the territory of a State as follows:

3. Replies from the requested State shall be transmi ed in their original language and form.

2. In the case of an urgent request, the documents or evidence produced in response shall, at the request of the Court, be sent urgently.

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The ordinary costs for execu on of requests in the territory of the requested State shall be borne by that State

5. Provisions allowing a person heard or examined by the Court under ar cle 72 to invoke restric ons designed to prevent disclosure of conďŹ den al informa on connected with na onal security shall also apply to the execu on of requests for assistance under this ar cle.

Costs: Ar cle 100

(b) In other cases, the Prosecutor may execute such request following consulta ons with the requested State Party and subject to any reasonable condi ons or concerns raised by that State Party. Where the requested State Party iden ďŹ es problems with the execu on of a request pursuant to this subparagraph it shall, without delay, consult with the Court to resolve the ma er.

No

No

As far as possible, men on what can and cannot be borne, if not possible, men on that it will be consulted with the Court in the Rome Statute Implementa on Act

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At the me of declaring its willingness to accept sentenced persons, a State may a ach condi ons to its acceptance as agreed by the Court and in accordance with this Part.

A State designated in a par cular case shall promptly inform the Court whether it accepts the Court’s designa on.

•

•

Role of States in enforcement of sentences of imprisonment Ar cle 103 • A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.

PART 10. ENFORCEMENT

A person surrendered to the Court under this Statute shall not be proceeded against, but the Court may request a waiver from the State which surrendered the person to the Court.

Rule of specialty: Ar cle 101

No

No

No

No

Since the provision about accep ng sentenced persons is voluntary in enforcement of sentences, detailed provisions should be made in the law about the necessary terms and condi ons and the reforms to be introduced in the prison administra on as well as the facili es to be added; provision should be made for necessary resources

Appropriate provision should be made in the Rome Statute Implementa on Act about the ma ers on which waiver can and cannot be granted

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•

•

The sentence of imprisonment shall be binding on the States Par es, which shall in no case modify it.

The Court alone shall have the right to decide any applica on for appeal and revision.

No

Before designa ng a State of enforcement, the Court shall take into account the following: The responsibility to be accepted by the State for enforcing sentences of imprisonment; • The applica on of widely accepted interna onal treaty standards governing the treatment of prisoners; • The views of the sentenced person; • The na onality of the sentenced person; • Such other factors regarding the person sentenced.

Change in designa on of State of enforcement: Ar cle 104 • The Court may, at any me, decide to No transfer a sentenced person to a prison of another State.

• A sentenced person may also apply to the Court to be transferred.

Enforcement of the sentence: Ar cle 105 No

No

Appropriate provision should be made in the Rome Statute Implementa on Act about any applica on for appeal and revision to be sent to the Court

Appropriate provision should be made in the Rome Statute Implementa on Act about applica ons

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•

•

The condi ons of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted interna onal treaty standards governing treatment of prisoners; Communica ons between a sentenced person and the Court shall not be impeded.

Supervision of enforcement of sentences and condi ons of imprisonment: Ar cle 106 • The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted interna onal treaty standards governing treatment of prisoners.

No

No

Appropriate provision should be made in the Rome Statute Implementa on Act about enac ng laws consistent with the widely accepted interna onal laws and pu ng it in prac ce

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Transfer of the person upon comple on of sentence: Ar cle 107 • Following comple on of the sentence, a person who is not a na onal of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory. • The State of enforcement may also, in accordance with its na onal law, extradite or otherwise surrender the person to a State which has requested the extradi on or surrender of the person for purposes of trial or enforcement of a sentence.

No

No

Appropriate provision should be made in the Rome Statute Implementa on Act about this as well as transfer expenses

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•

Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the territory of the State of enforcement a er having served the full sentence imposed by the Court, or returns to the territory of that State a er having le it.

Limita on on the prosecu on or punishment of other offences: Ar cle 108 • A sentenced person in the custody of the State of enforcement shall not be subject to prosecu on or punishment or to extradi on to a third State for any conduct engaged in prior to that person’s delivery to the State of enforcement, unless such prosecu on, punishment or extradi on has been approved by the Court at the request of the State of enforcement.

Appropriate provision should be made in the Rome Statute Implementa on Act about this

In the table above, the provisions important from the perspective of implementation of the Rome Statute as well as the provisions of the current Nepalese laws in the context of these stipulations, the proposed Penal Code, Criminal Procedure Code and Criminal Offences (Punishment Determination and Implementation) Bill, as well as the provisions that need to be introduced in the context of preparation are described. Other provisions of the Rome Statute that seem to be irrelevant from the perspective of national preparation are not mentioned here. In the context of fulfilling the obligations that have arisen consequent to Nepal becoming party to the Rome Statute, the aspects of investigation and prosecution, the arrangements and preparations that are necessary in the context of investigation and prosecution, cooperation to be extended to the Court and execution of verdict are further analysed in chapters 4 and 5.

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Chapter

OBLIGATIONS CREATED BY THE ROME STATUTE AND REQUIRED PROVISIONS

4

In Chapter 3, provisions of the Rome Statute and prevalent Nepal laws were discussed. Since the ICC has concurrent jurisdiction under the Rome Statute, the prevalent Nepal laws were discussed. In other words, so long as the domestic law is capable of maintaining the supremacy of the rule of law by addressing impunity, does not seem unwilling or incapable of investigating, prosecuting or trying the crimes defined by the Rome Statute or grants immunity from criminal obligation with mala fide intention, there is no need for the ICC to encroach upon the scope of the domestic law at all. From this perspective, a competent and strong national legal and judicial system becomes a right step not only towards establishing the rule of law through end of impunity but also towards implementing the principle of concurrent jurisdiction in a practical way. Therefore, in this chapter, the obligations created by the Rome Statute and the provisions to be introduced will be discussed.

DOMESTIC INVESTIGATION AND PROSECUTION The first prerequisite to domestic investigation into and prosecution of the crimes defined by the Rome Statute is to define these crimes in the domestic law. Only if crimes like genocide, crime against humanity, war crimes and aggression are defined in the country’s law in the form they are defined in the Rome Statute will investigation into and prosecution of such crimes become possible. In view of the fact that the Statute itself prohibits unlawful pronouncing and punishing of persons as criminals and, as Nepal has adopted the dualist legal system, instead of the monist legal system, a domestic

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law is necessary for implementing the Rome Statute. Furthermore, since the crimes referred to in the Statute are a collective name for various grave crimes, it is imperative to introduce provisions for appropriate punishments by declaring all these acts crimes and, at the same time, where appropriate punishment have not been prescribed, despite the determination of crimes, only if punishment is reviewed will the principle of concurrent jurisdiction be assumed to be understood from the right perspective.

With regard to the manner of implementation of the Rome Statute, different countries are working according to their domestic laws.

Some countries have drafted comprehensive Rome Statute Implementation Act, whereas some others have framed concise Rome Statute Implementation Act, by amending their criminal, evidence and procedural laws, as necessary. In our country, a new constitution, Penal Code and criminal procedure code are being drafted. Similarly, an Extradition Treaty and an Act on Bilateral Cooperation in Criminal Cases are being reviewed by the Legislature Parliament. So, it would be appropriate to draft a concise Rome Statute Implementation Act by incorporating appropriate provisions in the Constitution and other laws being framed so that the obligations created by the Rome Statute can be properly discharged.

Since the question ‘which of the provisions of the Rome Statute will have to be incorporated in the domestic law’ has already been indicated in chapter three, this topic will not be discussed here.

For investigating into and prosecuting cases under the Rome Statute and trying such cases at the national level, a specialized framework is required. As consultations and cooperation with foreign countries and ICC and international human rights institutions may be required in the course of investigating a case, the investigation and prosecutions agencies must have the necessary legal and institutional capabilities. If a ‘focal point’ has been created at the national level, the investigation and prosecution mechanism may have to collaborate with the focal point. Furthermore, it is equally necessary to equip these national-level mechanisms with resources.

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Another relevant question that might come up here is: ‘Who will hear the cases under the Rome Statute and, if a new framework is to be created, what will its shape be?’ It would be appropriate to set up a special court at the central level to try such cases and to make provision for such a special court139 to try the crimes referred to in the Rome Statute and other courts hearing criminal cases to try other grave criminal cases. In addition, in cases under the Rome Statute, if an issue that has come up at any point between the investigation, prosecution and an agency hearing the case and other national structures for law enforcement is subsequently found not falling within the jurisdiction of that agency but that of another agency, provision should be made for referring the case to the appropriate agency, whether it is at investigation stage or prosecution stage or trial stage.

Another aspect that calls for attention at the investigation and prosecution phase is that of forensic science. In Nepal, since this is at the infancy stage, the domestic law should allow provisions for cooperation and collaboration with international and regional structures and those established in other countries, as well as Interpol, in the areas where mechanisms related to these are not functioning.

Another aspect to be considered during investigation is related to the rights of the persons who have been produced, or who have themselves presented themselves, for that purpose. Nepal’s Interim Constitution guarantees the right to a fair hearing.140 It is the obligation of those persons who are involved in investigation, prosecution and trial to respect this provision. In respect of bearing the obligations created by the international law as well as those created by the Rome Statute, officials associated with law enforcement and judicial administration should be equally alert and efficient.141

139

140 141

Since the possibility of filing suits in relation to the crimes defined by the Rome Statute is extremely low, it would be appropriate to grant that jurisdiction to the existing Special Court.

2007 Interim Constitution of Nepal, Article 24 Convention on Civic and Political Rights 1966, Article 14, Rome Statute 1998, Articles 55, 67

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COOPERATION WITH THE COURT Provision relating to the cooperation to be provided to the ICC is made in Part 9 of the Rome Statute. However, the area of cooperation is not limited to Part 9 alone. Cooperation may be needed in connection with the implementation of verdict or other contexts.

The Statute expects full cooperation of the State Party. It is the spirit of the rule of law and democracy to provide that cooperation through an appropriate process of law. Article 86 mentions: ‘States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.’ This provision is applicable in relation to not only Part 9, but also to the cooperation mentioned in other articles. Therefore, it would be desirable to incorporate the implementation procedure related to cooperation to the Rome Statute Implementation Act. In fact, after becoming party to the Statute, no State Party can escape its obligation of cooperating with the ICC merely because a domestic law has not been enacted in this regard. The legal system adopted by us does not make it mandatory for us to frame an implementation act before becoming party to the Rome Statute; however, the framing of such an act will facilitate cooperation.

Hence, it is necessary for us to link the process of enactment to national preparation.

Under the Rome Statute, the areas where the ICC needs to be extended cooperation in the course of investigation, prosecution and trial of case seem to be as follows: • serving of the warrant of arrest or summons, arrest proceedings, arrest, surrender and transfer of the accused142 • taking testimony of the accused, summoning a witness, collecting evidence, searching and seizing property143

142 143

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Rome Statute, Articles 89, 59, 91, 92, 97 Rome Statute, Article 93

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• making available confidential information, protecting evidence from disappearing or destruction, ensuring confidentiality144 • protection of the victim, prospective witness and their families145 • execution of competing request146 • procedure to be adopted in relation to seeking the cooperation of the ICC in the investigation and prosecution of the cases to be tried within the country147 After becoming party to the Rome Statute, since it is the obligation of the State Party to extend full cooperation to the Court, the provisions the Rome Statute has made regarding the matters mentioned here and what it should do at the national level are discussed in the sections below.

Procedure for requesting for cooperation If the ICC needs to request any State Party for cooperation on any matter, request may be made through one of its various agencies. At the request of the Prosecutor, the Pre-Trial Chamber may issue such orders and warrants as may be required for the purpose of an investigation. 148 Nevertheless, there is an exceptional provision allowing the prosecutor to directly request for cooperation in circumstances described in Article 99(4) of the Statute.149 Apart from these, the Pre-Trial Chamber has the right to issue orders and seek cooperation of the state upon the request of a person who has been arrested or if it, on its own discretion, deems necessary in the preparation of his or her defence or for the protection and privacy of victims and witnesses and the protection of national security information.150 Upon assignment of a case for trial, the Trial Chamber may seek such cooperation.151 144 145 146 147 148 149 150 151

Rome Statute, Articles 72, 87 Ibid, Article 57(3)(b)(c), Article 68 Ibid, Article 90 Ibid, Articles 93, 94 Ibid, Article 57(3)(a) Ibid, Article 57(3), Section (c) and (d) Ibid, Article 57(3)(b) and (c) Ibid, Article 64(6), Section (b)

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Generally, requests to the State Parties are made in writing.152 In urgent cases, a request may be made by any medium capable of delivering a written record (eg fax, email), provided that the request is subsequently confirmed through an appropriate channel.153 In the case of an urgent request, the documents or evidence produced in response is to be sent urgently.154 The requests are to be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification.155 Therefore, provision should be introduced for designating a focal point in the Rome Statute itself and executing requests through it.156 Besides this, like the State Party designating any specific agency as focal point for correspondence with the Court, it can designate any language as the contact language for correspondence. Usually, while designating a contact language, there is a common practice of designating its national language or the working language of the Court.157 As English is the international contact language in Nepal, it would be appropriate to designate English as the contact language with the ICC.158 Ordinarily, the costs for execution of requests made by the Court are to be borne by the State concerned159, with some exceptions. Such costs should be minimal. In countries which have already concluded treaties regarding mutual legal cooperation, the treaties make provision regarding these subjects.160 As Nepal has not signed such treaty with any country so far and as it is an LDC, it would be a good idea to insert a provision that the costs incurred while assisting the 152 153 154 155 156

157 158 159 160

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Ibid, Article 91(1) and 96(1) Ibid, Article 91(1) and 96(1) Ibid, Article 99(2) Ibid, Article 87 In case of presence of a diplomatic mission at The Hague, it would be a good idea to designate it as an agency for corresponding with the ICC. Considering the practices of the other states, some states are found to have designated one of their ministries or agencies as the contact point. For example, Switzerland has designated the Federal Bureau of Justice. Apart from these, the requests of the Court can be executed through the Interpol or any regional organization.

Article 87 (2) of the Rome Statute For example, Timor Leste has designated English.

Article 100 (1) of the Rome Statute Article 184 of the Act regarding this of Australia has made provision for the Australian government bearing the costs incurred in executing the requests of the ICC.

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ICC should be made available by the ICC, except on the execution of verdict following investigation, prosecution and trial within the state.

Ensuring confidentiality Within the obligation of cooperating with the Court falls the subject of ensuring of confidentiality. As stipulated by Article 87(3) of the Rome Statute, the requested State shall keep confidential a request for cooperation and any documents supporting the request, except to the extent that the disclosure is necessary for execution of the request.

Through this provision, the ICC aims to maintain impartiality and integrity in its investigations, as well as preventing the accused from fleeing and unduly influencing or coercing witnesses and preventing disappearance of evidence. Therefore, the state should not show or disclose such information to persons other than the authorized. In addition, it is the obligation of the State Party to take measures, including for the protection of information, as may be necessary to ensure the safety of any victims, potential witnesses and their families.161 Under the subject of protection, naturally, is covered the subject of confidentiality.162 Therefore, it seems desirable to introduce such provisions in the implementation act of the Rome Statute.

Resolving problems in execution of request If any obstruction or impediment is encountered in the execution of the request for cooperation by the Court made under Part 9 of the Statute, the State Party concerned is required to consult the Court without any delay. Such obstruction or impediment may be inadequacy of information, inability to locate the person being requested, inability to locate the person, or conflict with the obligation of another treaty or convention the country is party to. 163 In case such an obstruction or impediment comes up, it is recommended that the nationally appointed ‘focal point’ should be 161 162

163

Ibid, Article 87(4) Australia and New Zealand have already introduced such provisions in their laws, respectively articles 13 and 29.

Rome Statute, Article 97

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designated as the person responsible for contacting the ICC. The Statute has made provision for postponing the execution of the request in certain conditions. For instance, the execution of the request may be postponed if the situation could produce an adverse affect on the investigation and prosecution in another case.164 However, such a period should not exceed the period required for completing the investigation concerned. While drafting the Rome Statute Implementation Act, special attention should be paid to this aspect.

Cooperating in Arrest The ICC may adopt three types of means to order production of any person before it: • By issuing a warrant of arrest in accordance with the provisions of Articles 58, 89 and 91 • By issuing a warrant of provisional arrest in accordance with the provisions of Articles 58 (5) and 92 • By issuing summons in accordance with the provisions of Articles 58 (7) The State Party is duty-bound to immediately serve the warrant or arrest or summons issued by the Court.165 If any person is arrested by a state upon request, such a person should be produced before a competent judicial authority. Such a person should also be allowed to apply for interim release.166 The judicial authority may also issue orders for surrendering the arrested person before the ICC.167 In many cases, once the ICC has issued a warrant of arrest, the state concerned has to adopt protective measures, among other reasons, to prevent damage and destruction and disappearance of evidence and property so that they can be forfeited later, as necessary.168 164 165 166 167 168

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Ibid, Article 94 Ibid, Article 59 (1) and 89 Ibid, Article 59(2) to (6) Ibid, Article 59(7) Ibid, Article 57(3)(e)

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Generally, the right to issue a warrant of arrest is that of the Pre-Trial Chamber. This Chamber issues warrants of arrest on the request of the prosecutor. 169 The contents of the warrant of arrest are mentioned in sub-article (1) to (3) of Article 58. The warrant of arrest shall remain in effect until otherwise ordered by the Court.170 It is issued in writing. While issuing a warrant of arrest, information, documents and statements must be attached.171 The Court may order the State Party to furnish any information. The State Parties are dutybound to extend necessary cooperation by fulfilling the procedure laid down in the domestic law of the state concerned, and the Rome Statute stipulates that such a procedure should not be more burdensome than the process for surrender/extradition.172 As soon as a warrant of arrest is issued by the Court, it becomes the duty of the State concerned to immediately execute it under Part 9, Article 58(5) of the Statute. If the person sought cannot be located or is not the person named in the warrant, the State shall consult with the Court without delay in order to resolve the matter.173 The ICC may issue a provisional warrant of arrest in favour of any person. Such warrant of arrest is issued particularly in favour of the accused when evidence necessary for issuing a warrant of arrest that has been collected is not sufficient, but it is imperative to arrest the accused.174 Such warrants of arrest are issued only in urgent cases and the warrants issued in such circumstances may not be in writing. It is the duty of the State Party to immediately take steps to cooperate by executing the warrant.175 A person who is provisionally arrested may be released from custody if the requested State has not received the documents supporting the warrant of arrest, but may again be arrested if the documents are delivered at a later date.176 Furthermore, if permitted by the domestic law of the State 169 170 171 172 173 174 175 176

Ibid, Ibid, Ibid, Ibid, Ibid, Ibid, Ibid, Ibid,

Article 57(3)(a) and 58 Article 58(4) Article 91 Article 91(2)(c) Article 97(b) Article 58(5) and 92 Article 59(1) Article 92(3) and (4)

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Party, the person concerned may voluntarily surrender even before documents supporting the warrant of arrest are received. In case such surrender takes place, such a person should be immediately handed over to the Court. 177 Therefore, this could become an important aspect for cooperating with the Court while framing a domestic law on executing the Rome Statute.

Recognizing ICC’s warrant of arrest under the domestic law Regarding arrest of both nationals and foreigners in crimes that fall within the jurisdiction of the ICC, criminal laws and procedures are needed to grant authority to Nepal’s national officials. The type of provision that is to be adopted to fulfil obligations related to it specified by articles 89 and 92 of the Statute is in fact a question of Nepal’s free will.

Looking at the practices adopted by a few other countries, the practice of the national officials endorsing the warrants of arrest issued by the ICC is more common.178 Looking at the legal convention followed in Nepal, as well as the provisions made by the Criminal Procedure Code, it is recommended that such an authority is granted to the court that hears cases under the Rome Statute.

Here, it is necessary to pay attention to the provision made by Article 85(1) of the Statute. As stipulated by that article, any person who has been arrested or detained in custody in an extra-constitutional manner has the right to claim reparation. Therefore, since it is

177 178

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Ibid, Article 92(3) For example, the practice in New Zealand is to present all requests and documents sent by the Court to the minister and the ministry approves it and sends it a magistrate. Thereupon, the magistrate issues a warrant. But provisional warrants are sent direct to the magistrate, with the minister only informed about it. In England, such requests are received by the Secretary of State and are sent to the judicial authority concerned. If the official is satisfied about the authority of the request, decision of approval is taken on the request for arrest and executed. In Canada, the provisions of the Extradition Act are applied in respect of the execution of the order of arrest. In France, such orders need neither transformation nor endorsement. After certification, requests are directly executed.

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necessary to include this subject in Nepal’s domestic law, it seems desirable to introduce appropriate provision in the Penal Code.

Hearing before competent judicial authorities after arrest As stipulated by the Rome Statute, any person who has been held in custody has to be produced before a competent judicial authority of the State concerned. Such a judicial authority also determines the following matters in accordance with the laws of her or his country: • The warrant applies to that person; • The person has been arrested in accordance with the proper process; and • The person’s rights have been respected.179 It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued or not.180 Nevertheless, the competent judicial authority of the State concerned may review it on some grounds.181 If the arrested person doesn’t seem to be the person mentioned in the warrant of arrest, it is the duty of the State concerned to contact the ICC. It is recommended that all these provisions be incorporated in the Rome Statute Implementation Act or the regulations to be framed under it.

Interim release As per the provisions of the Rome Statute, after a person is arrested, she or he is produced before a local court, where preliminary hearing is done. At this stage, the arrested person may apply for interim release. Therefore, this right must be ensured in the Rome Statute Implementation Act while it is being framed. In case of granting an interim release, the court has to inform the Pre-Trial Chamber of the ICC through the ‘focal point’.

179 180 181

Rome Statute, Article 59(2) Ibid, Article 59(4) Ibid, Article 59(2)

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If this provision is incorporated in the Rome Statute Implementation Act, it will help achieve proper harmony between the rights of the arrested person and the responsibility of the State Party to cooperate with the Court. 182 While granting interim release, the State authorities have to pay attention to various aspects: • gravity of crime, • prevalence of extraordinary circumstance justifying interim release, • ensuring of the condition to again produce on release, as necessary.

Furthermore, if the person is set free on an interim release order, the State will have to submit periodic reports to the Pre-Trial Chamber.183 The fact of Nepal’s porous border with India and the possibility of hiding within the country should also be borne in mind while drafting the act.

Cooperating in “serving” summons If there are grounds for believing that a person may appear without being issued a warrant of arrest, the Pre-Trial Chamber of the ICC can serve her or him a summons instead of a warrant of arrest. In a situation of summons being issued, it is the duty of the State Party to cooperate by serving the summons.184 The summons contains the name of the person, the specified date on which the person is to appear, the crimes which the person is alleged to have committed and the facts which are alleged to constitute the crime.185 In some cases, preventive measures, including seizure of passport of the person concerned, will have to be adopted. Since the domestic law 182

183 184 185

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Canada’s law has the provision that, while the ICC’s referral is sub judice, hearing on an application demanding interim release on the ecommendation of the Attorney General can be deferred. In England, in case of an application for interim release, consultations must be held with the ICC and the court of the state cannot issue an order for interim release before settlement of the referral.

Rome Statute, Articles 59(6) and 86 Ibid, Article 58(7) Ibid, Article 58(7), sections (a) to (d)

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has to allow adoption of these measures, it is necessary that the Rome Statute Implementation Act does encompass this subject.

While doing this, as efforts are being made to introduce provision for issuing and executing a warrant of arrest in Nepal’s law, and as efforts are being made to further strengthen this in the proposed Criminal Procedure Code, provision should be made for executing the summons received from the ICC at par with those issued by the local courts.186

Cooperating in surrender of the accused Article 102(a) of the Rome Statute defines ‘surrender’ as an act of ‘delivering up of a person by a State to the Court’. The Rome Statute calls upon the states to keep in mind the distinct nature of the provisions made by it while drafting their laws for determining its process and stresses that such a process must not be more burdensome and, if possible, less burdensome than the process of surrender.187 In many instances, a state may refuse to surrender up a citizen. However, no State Party can refuse to surrender up or extradite any person, citing excuses such as insufficiency of evidence, dual criminality, policy of non-surrender of nationals, etc.

Under the Rome Statute, since the task of handing over is different than that of surrendering up, separate legal provisions should be made for handing over and surrendering up of a person. The question of whether or not provision of appeal on an order for hand over should be made also needs to be deliberated. Although Article 14(5) of the Convention on Civil and Political Rights deems it necessary to make provision of review of the order of surrender of the guilty, it

186

187

There are several provisions related to serving summons; for example, in England, as soon as a summons is received, the Secretary of State despatches it to the chief of police of the area concerned, who has to serve the summons on the person concerned. Upon serving summons or failure to serve summons, the chief of police has to report with reasons thereof to the Secretary of State. In Australia, there is provision of serving summons in accordance with the country’s law. In South Africa, the summons has to be endorsed by the magistrate upon receipt, after which the summons is deemed as good as that issued by a court of the country. Non-execution of a request is liable to a punishment for twelve years.

Rome Statute, Article 91(2)(c)

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doesn’t mention about review of an order for hand over of the person.

Article 59(7) of the Rome Statute lays down that, once the custodial State issues an order for surrender, the person shall be delivered to the Court as soon as possible. We must also pay attention to this aspect.

An exception to the possibility of postponing the act of surrendering up the person is the condition of ne bis in idem through filing of a petition at the domestic court.188 If, in a case of genocide, war crime and crime against humanity, action has already been taken once, the ICC doesn’t initiate case on the same crime again. If a petition is filed on this subject, the custodial State has to consult the ICC at once. Therefore, while drafting the Rome Statute Implementation Act, provision will have to be made for implementation procedure in this respect.

Cooperating in cases of competing requests Sometimes, cases of competing requests for surrendering the same person by the ICC and another state may arise. 189 If the State requesting for surrender is also a State Party to the Rome Statute, generally, the ICC’s request receives priority, but if the State requesting surrender is not a State Party to the Statute, the issue of giving priority to either of the requests depends on the discretion of the custodial state. In making its decision, the requested State shall consider some relevant factors.190 Hence, while drafting the act, this aspect should be considered.

Cooperating in handing over a person using one’s territory If a State Party must use the territory of another State for transporting a person to the ICC for surrendering her or him, the State whose territory is to be used is duty-bound to cooperate.191

188 189 190 191

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Ibid, Ibid, Ibid, Ibid,

Article 20(3) and 89(2) Article 90 Article 90(6) Article 89(3)

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If the person is transported by air, separate authorization is not needed, but if an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court, as provided for in the Statute.192 The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention may not be extended beyond 96 hours of the unscheduled landing unless the request is received within that time. Hence, provision must be made in the Rome Statute Implementation Act on subjects such as transporting for handing over, detention in landing, etc.

Cooperating in collection and protection of evidence While requesting for collection and protection of evidence, the ICC must disclose the following: • The purpose of request and legal grounds and details of the cooperation sought, • Factual report on the subject of cooperation sought, • Place where the good or person sought may be located, • Special procedure to be followed and requirements, • Other details deemed necessary by the State to execute the request.

As our laws lack clear provisions about the procedural requirements to be fulfilled for executing such requests, if such a request is received, appropriate provisions consistent with the spirit of the Statute must be incorporated in the Rome Statute Implementation Act and Implementation Procedure under it. Barring some exceptional circumstances, the State Party must abide by and execute all requests sent by any organ of the ICC. Execution of the ICC’s request through an appropriate and due process would go a long way in favour of democracy and rule of law.

192

Ibid, Article 89(3)(e)

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Maintaining confidentiality of information received in special circumstances The ICC acknowledges the subject of maintaining confidentiality of information, whether written or oral, in certain circumstances.193 There is provision for not disclosing such subjects even to the organs of the Court. It is necessary to introduce appropriate provisions in the Rome Statute Implementation Act requiring the State to maintain confidentiality of information in such special circumstances while cooperating with the ICC.

Cooperating in witness examination Generally, witnesses of crimes within the jurisdiction of the ICC have to furnish evidence by being present at the Court, unless ordered otherwise by the Court.

If any person in custody in any State in connection with any accusation has to be summoned to give testimony, there is a provision for producing the person at the Court for that purpose.194 However, this requires the consent of both the person in custody and the custodial State.

Apart from this, if the Court permits, witnesses can be examined through the use of video and audio technology. On the question of witness examination, the Court may request for the following kinds of cooperation: • The identification and whereabouts of persons or the location of items 195 • The taking of testimony and facilitating their presence in the Court 196

193 194 195 196

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Ibid, Article 69(5), Rule 73 Ibid, Article 93(7) Ibid, Article 93 (1) (a) Ibid, Article 93 (1) (b)

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• The questioning of any person being investigated or prosecuted 197 • The protection of victims and witnesses198 • The transfer of a person in custody for obtaining testimony199 In the context of requests on the above subject, we have to identify and locate not only our own citizens but also foreigners and not only those living in our country but also those who are ready to enter our country as well as those who just left the country. Furthermore, provision should be made that, while taking testimony of a witness, video technology should be used, enabling the interested parties, including prosecutors and defendant legal professionals, to watch and understand the process of taking of testimony.200 Similarly, the issue of protection of a person being investigated while obtaining her or his testimony is important. For ensuring fairness in hearing, provision should be made for translating and making available duplicate copies of documents.201 For the protection of the victim and witnesses, new names may have to be given to them instead of their real names. It is necessary that we take these things into account while drafting a law on these subjects.

Physical and written evidence and criminal property and assets The ICC can request for various types of support regarding physical and written evidence, such as: • The identification and whereabouts of persons or the location of items 202 • The examination of places or sites, including grave sites and dead body203 197 198 199 200 201

202 203

Ibid, Article 93 (1) (c), 55(2) Ibid, Article 68, 43(6) (c), 91(1)(j) Ibid, Article 93 (7) Ibid, Article 93(1) Ibid, as stipulated in Article 55(1)(c), the cost of translator is not to be borne by the party, whereas as per Article 100(1)(b), such cost is borne by the court Ibid, Art 93(1)(a) Ibid, Art 93(1)(g)

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• The execution of searches and seizures204 • The provision of records and documents, including official records and documents205 • The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes.206 In addition, the ICC may request for assistance on subjects that are not prohibited by the law of the State. Apart from assistance on the subjects considered sensitive from the viewpoint of national security, the states have to place as few controlling provisions as possible. It is necessary to insert the below-mentioned provisions in the Rome Statute Implementation Act: • In the course of investigating into a crime under the Statute, persons involved in investigation cannot be prohibited from entering premises on religious and social grounds other than the areas declared sensitive from the national security viewpoint. 207 • In case a request is received for search and seizure from the ICC, either execute the order from the ICC deeming it on a par with an order issued by a court of the country or issuing a search warrant under the domestic law as soon as such a request is received.

• Supporting the ICC on the question of freezing and confiscating property.

EXECUTION OF VERDICT In the context of the crimes referred to in the Rome Statute, the ICC may sentence a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of

204 205 206 207

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Ibid, Art 93(1)(h) Ibid, Art 93(1)(i) Ibid, Art 93(1)(k) Ibid, Article 93(1)(6)

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the convicted person,208 fine,209 a forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties210 (this has also been discussed in chapter 3). In respect of the execution of the verdicts passed by the ICC, provision is made in part 10 of the Rome Statute.211 Compared to other parts, the provisions made in this part are optional to some extent. That is to say, we may even reject some of the obligations. Hence, what would our obligations be vis-à-vis execution of verdicts will be discussed in this section.

Enforcement of punishment of imprisonment As stipulated by Article 105 of the Rome Statute, a verdict of punishment of imprisonment pronounced by the ICC is mandatory on the State Parties. The State Party cannot alter the verdict of the ICC. Only the ICC has the right to decide to hear any appeal or review.

The defendant’s right to appeal is not adversely affected by the stage at which punishment enforcement is and the State Party doesn’t have the right o interfere with the rights of a person merely because it has accepted the person who has been sentenced.212 For enforcing the sentence of imprisonment, ICC has only limited prison facilities. The ICC is basically forced to depend on the State Parties for enforcement of sentences of imprisonment. However, no State can be compelled to accept a person sentenced to imprisonment by the ICC for enforcing the sentence of imprisonment. The matter whether the State is to express its commitment or not is that of its own.213 The ICC maintains a list of the States that are willing to make available imprisonment facilities for the purpose of enforcement of imprisonment sentences.

208 209 210 211 212

213

Ibid, Article 77(1)(b) Ibid, Article 77(2)(a) Ibid, Article 77(2)(b) Ibid, Articles 101 to 111 However, under Article 103(1), the state may lay down terms and conditions. In Article 103(1)(b), it is stipulated: ‘At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.’

Rome Statute, Article 103

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While delivering sentences of imprisonment on an accused, the ICC also has to designate the State in which the sentence is to be enforced. Such States have to be designated from among the list of countries that are willing to make available such facilities. If any State that has been designated encounters any difficulty in making available such facilities due to any circumstance, it will have to inform the ICC without delay.214 Sometimes, as States may have attached some conditions,215 a State might encounter problems if any person is sent for imprisonment due to these conditions. For example, a State may have attached a condition that it will accept only its citizens or that it will keep an imprisoned person only for a certain period or may have attached the condition that it will accept a sentenced person only if it is allowed to keep her or him only under the country’s laws. In such a situation, the relationship between the Court and the State concerned is determined by this understanding.216 If the conditions proposed by the State are not acceptable to the ICC, it may send the person sentenced to imprisonment to another State instead of the said State.217 If no State is willing to accept the prisoner, such a person is kept in the prison of the State where the Court is located.218 In this regard, at the time of establishment of the ICC, an agreement is reached between the State concerned and the Court while entering into an understanding over its location.219 A person who has been sentenced also has the right to apply for transfer of prison from one State to another. In the context of these provisions, it would be appropriate to incorporate provisions on the types of prisoners that are to be accepted or not as well as the agency to conclude understanding on this.

Another notable aspect regarding this is that, while incarcerating a person in accordance with the punishment handed down by the 214 215 216

217 218 219

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Ibid, Article 103(1)(c) Ibid, Article 103(1)(b) Such an understanding was concluded between Austria and the Court in 2005, whereas an understanding was concluded between England and the Court in 2007.

Rome Statute, Article 103(2) sections (a)(b) and Article 104(1) Ibid, Article 103(4) Ibid, Article 3(2)

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Court, the international standards laid down regarding the conduct to be practised with prisoners are to be abided by. Such conditions should not be more or less than those for other prisoners of the State.220 This aspect must also be considered while accepting the obligation.

Additionally, the Rome Statute has laid down provision for carrying out supervision from time to time of the enforcement of the imprisonment sentences.221 In addition, provision has been made to the effect that communication between the Court and the prisoner shall not be impeded and shall be kept confidential.222 The universal human rights have set guidelines on the facilities and rights prisoners are entitled to. From this perspective, it is also imperative to reform our prison administration. Hence, relevant provisions must be incorporated.

On the question of where and how the person concerned is to be sent after she or he has completed the imprisonment term, provision has been made in Article 107 of the Statute. Accordingly, if the person concerned wishes, and the State also consents, after serving the sentence, the person can continue living in the State where she or he served the sentence. Or else, she or he is sent to the State that has to assume the obligation. If the person concerned wishes to go to another State, and if the said State also consents, she or he may be sent to that State. According to the Rome Statute, the expenses incurred on sending the person to another State may be borne by the State concerned. If the State concerned doesn’t bear the expenses, the ICC will bear them.223 The State shall abide by Article 108 of the Statute while extraditing or surrendering the custody of a person who has served the imprisonment sentence.224 Article 108 of the Statute prohibits extradition of a person who has been serving

220 221 222 223 224

Ibid, Ibid, Ibid, Ibid, Ibid,

Article Article Article Article Article

106(2) 106(1) 106(3) 107(2)I 107(3)

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sentence to a third State for prosecution or punishment in relation to a criminal act committed earlier unless it is approved by the ICC. While granting its approval, the Court also must take its decision only after hearing the views of the sentenced person. However, such a restriction shall not be applicable after the person concerned stays in the said country for more than thirty days or returns to her or his country. While drafting the Rome Statute Implementation Act, Nepal must also pay attention to this aspect.

Recovering fine and confiscating property If the ICC passes a verdict of imposing a fine on any person or confiscating her or his property, the Court may request the State concerned to trace or freeze the property of such persons.225 If such a request is received from the Court, the State Parties must cooperate in accomplishing the work in accordance with the request by acting under part 9 of the Statute. In addition, the Court may issue an order to the defendants for paying reparation to the victim.226 In case the Court issues such an order to the defendants, the custodial State must cooperate in its execution.227 The custodial State has to hand over the property or claim obtained in accordance with an order of the Court to the Court after settlement of the case. In respect of these matters, necessary provision should be made in the Rome Statute Implementation Act.

Review of punishment Generally, until the sentence of punishment is fully served, the sentenced person is not released. However, in a few cases, the ICC can review the sentence of imprisonment before the completion of the imprisonment term. For example, as per sub-article (3) of article 110 of the Statute, after any person has served two-thirds of the punishment delivered or has served twenty-five years in case of

225 226 227

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Ibid, Article 77(2) and Article 93(1)(k) Ibid, Article 75(2) Ibid, Article 75(5) and Article 109

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sentence of life imprisonment, the ICC may review whether or not to reduce the punishment term. However, if any of the below-mentioned conditions are found to exist, the ICC may remit the sentence delivered: • If the sentenced person has cooperated in the investigation and prosecution of the Court; • If the sentenced person has voluntarily cooperated in the execution of verdict of the Court; • If other grounds exist for remitting the sentence.

If any person who has been handed out punishment escapes from prison, the State concerned may request for surrender of such person after consulting with the ICC. Adopting the procedure laid down in Part 9 of the Statute, the Court may also request the State where the person is staying to hand over such a person. This aspect must also be paid attention to while drafting the Rome Statute Implementation Act. In brief, chapter 4 further clarifies the three major obligations after becoming party to the Rome Statute: investigation and prosecution of the crimes defined by the Rome Statute; cooperation to be extended to the Court and obligation of verdict execution. In chapter 5, the national preparations that are necessary in the context of execution of these obligations will be discussed.

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Chapter

CONCLUSION AND RECOMMENDATIONS

5

CONCLUSION Following a series of discussions and initiatives to give a concrete shape to the campaign against impunity launched by the UN since its establishment, it has been almost nine years since the ICC’s Rome Statute was enforced upon its issue by the convention held in Rome, Italy, in 1998. The number of States party to the Statute has reached 115. 228 The Statute defines war crime, genocide, crime against humanity and armed aggression as crimes. Although the Kampala Review Convention, held in 2010, has defined aggression as per Articles 121 and 123 of the Statute, provision has been made for enforcing the related provisions only from 2017.

Since the ICC has adopted the principle of concurrent jurisdiction in accordance with the Rome Statute, it doesn’t replace the criminal jurisdiction of the domestic court. Instead, the Statute explicitly stresses the need for strengthening the country’s criminal justice system. Only in situations of inability or unwillingness to carry out investigation, prosecution and trial of those involved in international crimes, or prosecution being carried with the mala fide intention of protecting the accused, can the ICC exercise its jurisdiction with the objective of preventing impunity from taking place. Once the Court has exercised its jurisdiction, the State Party should extend necessary cooperation to the Court in accordance with the Rome Statute.

228

April 2011 [update], 114 http://en/wikipedia.org/wiki/ States_Parties_to_the_Rome_Statute_of_the_International_Criminal_Court

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As the Rome Statute has come into being in the context of the antiimpunity campaign and as it has adopted the principle of concurrent jurisdiction, the strengthening of the country’s criminal justice system and its organs has become a prime agenda. In view of the fact that once a state becomes party to the Statute, it has to honestly comply with the stipulations of the Statute, cannot refuse to enforce its stipulations, cannot restrict the definitions of the crimes mentioned in the Statute, and cannot put any reservations on the provisions of the Statute, it is imperative to make necessary preparations for its enforcement before becoming party by adopting it.

In the context of the infrastructure and preparations that should be made by Nepal for enforcement of the Rome Statute, based on the analysis done in the preceding chapters, including on the provisions of the Rome Statute, the best practices adopted by the States party to the Rome Statute, some recommendations are presented here.

RECOMMENDATIONS As has been mentioned above, as the Rome Statute, which establishes the ICC, has come into being in the form of the campaign against impunity and as the Court, established under the Statute, is the last resort for justice, it is necessary to harmonize the State Party’s criminal justice system with the Rome Statute.

Rather than addressing the obligations arising out of the adoption of the Statute, it would be more appropriate to do necessary homework before adopting it. The enforcement of the Rome Statute calls for paying attention to subjects such as reforms in the prevalent criminal laws, building of new laws and frameworks, amendment to or formulation of new implementation procedures, development of human resources for staffing the structure. Similarly, apart from the domestic criminal justice system, upon filing of international crimes at the ICC, separate laws may need to be enacted to assist and help it from the stage of arresting the accused to collection of evidence to enforcement of verdict.

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Implementation of the obligations arising out of the conventions related to human rights to which Nepal is party None of the crimes referred to in the ICC’s Rome Statute are unique or totally new. The provisions contained in the various international conventions related to human rights and humanitarian laws can be seen in the Rome Statute in an overall form. Nepal has already become party to most of such conventions. However, disregard of the implementation of the conventions to which Nepal is party is a problem. Nepal has become party to a number of conventions, including the Convention on the Prevention and Punishment of the Crime of Genocide 1948, the four Geneva conventions of 1949, Slavery Convention, Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956, International Convention on Civic and Political Rights 1966, International Convention on the Suppression and Punishment of the Crime of Apartheid 1973, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984. Nevertheless, adequate attention has not been paid to fulfilment of the obligations created by the conventions.

In view of the Rome Statute covering the stipulations of these conventions, only if the obligations created by the conventions to which one is party are fulfilled can a state be deemed to have made preparations to an extent. Even if the directives issued by the Supreme Court to fulfil the obligations created by the international conventions and to ratify the treaties are complied with, adequate foundation will be laid for ending impunity. Hence, it is necessary for Nepal to honestly implement the obligations created by the international human rights laws and the conventions related to humanitarian laws.

Constitutional provisions and their implementation It is essential to introduce clear provisions about the status of international treaties in the Constitution. Although provision for effective implementation of the international conventions to which Nepal is party is made in Part IV of the Constitution, no substantive Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

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effort has been made for complying with this provision. Hence, the prevalent Constitution should be respected in letter and in spirit.

Since Nepal is in the process of writing a new constitution, it is necessary to make explicit provisions about the status of international conventions to which it is party in the Constitution.

As, in principle, we have been following the dualist approach so far, if we were to adopt the monist approach, it would be imperative to incorporate such a provision in the Constitution. The current provision made by Section 9(1) of Nepal Treaties Act 2047 must be incorporated in the Constitution so that the conventions related to human rights are directly implemented.

Amendment to Constitution International instruments, once ratified, should be implemented in earnest. It would not be appropriate to refuse to apply the provisions of the conventions claiming inconsistency with the Constitution or on any other ground. The Rome Statute being an international instrument, the constitutional provisions inconsistent with the Rome Statute may need to be readjusted or amended. For example, whereas the provision of Article 151 of Nepal’s Interim Constitution that the President may, on the recommendation of the Council of Ministers, grant pardon, suspend, commute or reduce any sentence imposed by any court, or any other judicial, quasi-judicial or administrative authority or body, it would be appropriate to make the provision that international crimes such as war crime, genocide, crime against humanity, armed aggression and grave violation of human rights cannot be reviewed by any authority except the court.

Like the preceding constitution, since the Interim Constitution doesn’t grant any immunity to anybody, including President, Vice President or Prime Minister, it doesn’t seem necessary to introduce any provision or amend the prevalent constitutional provision regarding the obligation related to it created by the Statute. It would be good to guarantee rights to the victim, as in the case of the accused, such as the right to take part in the judicial process and file an appeal on the question of reparation.

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Reforms in other laws In the context of implementation of the Rome Statute, it seems necessary to amend the current criminal law and a Rome Statute Implementation Act as well as Implementation Procedure Rules. It would be necessary to make appropriate provisions about assisting the Court of and execution of verdict in the Rome Statute Implementation Act and provisions about initiating cases at local level as per the aims of the Statute in the criminal law. The prevalent local laws have to be made consistent with the Rome Statute and the areas of legal reforms that aid the implementation of the provisions of the Statute must be identified. For example, Article 29 of the Government Cases Act 2049 on the provision on withdrawal of a case calls for a review, because, in international crimes, the provision of withdrawal of a case cannot take the form of blanket amnesty. The Rome Statute doesn’t allow granting of blanket amnesty. Similarly, in the course of preparation for the implementation of the Rome Statute, initiative must be taken towards reform or revision of relevant acts and laws, including nonapplicability of the statute of limitation; extension of jurisdiction; revision of the acts, especially the police, military acts, local administration acts, introducing bearing of individual obligation; declaring acts against the judicial administration as offences and punishing them; declaring non-fulfilment of duties by commander or superior officers as crimes and punishment for them; revising the law by introducing provision for reparation for victims of crime and the affected; paying reparation to victims of miscarriage of justice; making provision for victims and witnesses of grave crimes and declaring the act of threatening and terrorizing witnesses as crimes; deeming acts of obstructing the work of judicial administration as grave criminal act and making provision for punishment. The reforms that are needed in the Nepalese laws have been pointed out in Chapter 3. Since a number of issues have already been incorporated in the proposed Penal Code, at the drafting phase, special attention should be paid to the matters that have not been incorporated, or even if incorporated, not done so appropriately.

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New legal and structural provisions As the Rome Statute stipulates assumption of jurisdiction on genocide, war crimes and crimes against humanity, it is necessary to define the acts falling under the three crimes referred to in the Statute word by word and make provision for punishments. For this, feedback can be taken from the practices of the states party to the Rome Statute that have adopted various modalities.

• Include the crimes specified in the Rome Statute word for word in the Rome Statute Implementation Act and make provision for punishment in conformity with the provisions of the Statute, • Introduce the provision that the act will be applicable only in case of offences committed after becoming party to the Rome Statute, • In the provision on jurisdiction, introduce the provision for concurrent jurisdiction of the primary jurisdiction of the domestic court and that of the ICC, • Provision for independent investigation, prosecution, trial, punishment and review of crimes referred to in the Statute, • Provision for referring to the Court for taking action against an accused in various situations, • Provision for carrying out the subjects of the rights of the accused, increasing the gravity of punishment, apart from criminal liability, • Provision barring withdrawal of cases related to crimes under the Rome Statute Implementation Act, barring courts of the State Party from remitting the punishment given by the ICC or granting reprieve/pardon, • Provision for individual criminal liability, commander and superior officers being responsible, • Issue of participation of the victim in the judicial system, • Provisions related to protection and security of the victim and witness, • Provision of non-operability of the statute of limitation in cases of offences under the Statute, • Provisions relating to arrest.

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In a nutshell, a short Rome Statute Implementation Act should be framed and necessary reforms made in the framework so as to incorporate the remaining matters in other related domestic legal systems.

Legislation regarding cooperation in court proceedings Although the Rome Statute expects that investigation, prosecution and trial in crimes mentioned in the Statute be carried out under the domestic jurisdiction, if the State is in fact unwilling to carry out investigation and prosecution, if it has carried out investigation but has not done prosecution out of unwillingness, if it is really incapable for investigation and prosecution, if it carries out a so-called prosecution with the mala fide intention of protecting the accused from criminal liability, if it protects the accused from criminal liability, if it causes undue delay, if it doesn’t carry out proceedings in a free and fair manner or carries it out with mala fide intention or delivers punishment for hoodwinking, or if the national judicial system is absent or has collapsed, the concurrent jurisdiction of the court cannot be prevented. In a case when the ICC has assumed its jurisdiction, the State Party concerned has to make available necessary legal cooperation and assistance. In such a situation, the State has to make necessary legal provisions in order to extend cooperation to the Court in judicial actions. Such a provision should be incorporated in the Rome Statute Implementation Act or a separate law on judicial assistance and cooperation. For this, discussions have to be initiated in the sector concerned as groundwork. In the provision on assistance for the ICC in judicial proceedings, the following matters, as mentioned in Chapter Four, have to be included: • In relation to an investigation or trial of a case, if the State Parties receive a request from the Court for collection of any information or evidence, for arresting or surrendering an accused, provision for executing it immediately, • Unless it is necessary for execution of requests, provision for the State Party to maintain confidentiality of the request for cooperation by the Court and other documents related to the cooperation, Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

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• If any obstruction is encountered in the execution of a request for cooperation by the Court, provision of an authority and procedure for the State Party to consult the Court without delay, • Provision for acting on the warrant of arrest and serving summons issued by the Court and producing the arrested person before a judicial authority and handing her or him over to the ICC, • If the arrested person files an appeal for interim bail, provision for recommending to the Court or if the gravity of crime, status of grounds of confirming interim bail are determined, the State Parties may grant interim bail and submit updated records about it to the Court, • Since it is the duty of the State Party to serve summons to the person concerned when a summons is issued instead of a warrant of arrest, provisions related to it, • As the State Party cannot refuse to surrender a person accused of a crime mentioned in the Rome Statute, provision for sending to the ICC, • In case of a competing request with the Court as well as another state requesting hand over of a person to them, provision of the State Party giving the first priority to the Court, • Provision of granting permission on the Court’s request if any state uses its territory for transporting the arrested person, • Method and provision of executing request made by the Court for collection and preservation of evidence and producing of witness, • Provisions regarding execution of verdict Provision of execution of sentence of punishment If verdict of imposition of fine or confiscation of property, identifying property of such persons or freezing them

Empowerment of domestic criminal justice system The essence of the complementarity principle is that the State Party encompasses the crimes under the Rome Statute in its laws and in fact carries out investigation and prosecution in such crimes. Ensuring the judicial mindset of the prosecuting party and appropriate judicial 152

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process is important in that. This means, erroneous investigation and prosecution should not deprive the accused of justice or set her or him free. Therefore, not only the crimes referred to in the Rome Statute should be declared as crimes by including them in the domestic laws and provision of punishment introduced, it is equally necessary to empower all components of the criminal justice system: investigation authority, police, prosecution agency, public prosecutors, and trial bodies, courts. The practice of not filing the complaints and carrying out investigation and prosecution of those in government and power must be ended, and the trend of bearing personal criminal liability should be introduced. In addition to a distinct and special provision for investigation in international crimes, as the political base of the chief prosecutor, Attorney General, who is appointed as a political post has grave implications for investigation and prosecution of criminal cases with government as plaintiff, it is high time the post of Attorney General was turned into a professional one. Since a new constitution is currently being written, the post of Attorney General should be made a professional one, instead of political, for empowerment of the criminal justice system. If this is not done, it would be appropriate to introduce the post of chief prosecutor in the constitution. For the purpose of investigation into and prosecution of crimes defined by the Rome Statute, provision should be made of a special mechanism in the leadership of the chief prosecutor and for it to work under the appropriate directions of the court concerned.

Reforms in prison administration As the ICC has to basically depend on the cooperation of the State Parties for execution of sentences of imprisonment, since the Court designates the State from among the list of the states that are willing to make available their service for executing the sentence in its verdict itself, legal provision should be made for informing the Court if it is not possible to immediately make available facilities that are in conformity with the international standards. Furthermore, as the person who has been sentenced to imprisonment in conformity with the international standards has to be kept in a prison for serving the Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

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sentence of imprisonment, the State Parties have to reform the prison administration and make them at par with international standards.

Capacity development of government officers This is an important aspect in the course of the preparation of the execution of the Rome Statute. As the investigation, prosecution and trial of the crimes mentioned in the Statute are not of general type, the officials related to prosecution, investigation and trial must be trained in the investigation, prosecution and trial of international crimes. Such a task can be done through the National Judicial Academy, which has been established as the sole umbrella training and investigation organization by an Act. This should include short and long duration training, knowledge, information and observation training in investigation, prosecution and trial conducted by the ICC and other international tribunals.

In the same vein, gaining of experience of the States that are party to the Rome Statute and, having framed an act, are implementing it, is a prerequisite for capacity development. Therefore, for capacity development of the existing judicial human resources, a plan of action should be designed and training conducted for capacity development even before ratification of the Rome Statute. Apart from this, basic knowledge, skills and capacity should be developed by incorporating this subject in the law curriculum in order to develop capacity in relation to international criminal law.

Building or improvement of new structures In the course of preparation for implementation of the Rome Statute, it is necessary to become clear on making provision for a competent authority for investigation and prosecution of crimes referred to in the Statute. Besides, it is necessary to become clear on according jurisdiction to the Special Court under the current court framework for trial, as well as on incorporating it in the Rome Statute

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Implementation Act. It would be appropriate for a court at the centre to hear the cases of international crimes mentioned in the Rome Statute and to be included in the Rome Statute Implementation Act, which is going to be framed by the state, but considering the increasing load of cases in the courts at the centre in Nepal, reforms are necessary in the work procedure, skills of human resources and work performance and work culture for prompt adjudication of cases.

Because unnecessary delay in the hearing of international crimes can become a ground for the ICC to assume concurrent jurisdiction.

Groundwork for building consensus and improving style of functioning To become party to the Rome Statute, it is necessary to build consensus on the obligations that will be created by the adoption of the Rome Statute and the tasks to be done by it by conducting discussion among government policymakers, representative experts of political parties and civil society. Improving our current style of functioning and work culture, which encourages impunity, is equally necessary. It is necessary to try to increase political will by discussing the provisions made by the Statute for building consensus at the political level on the issue of becoming party to the Rome Statute, how it emphasizes the promotion of the rule of law by combating impunity and eventually contributes to growth of infant democracy.

Others Since the contributions made by the State Parties, the fund made available by the UN and various governments, international organizations, individuals and institutions for funding the implementation of the ICC are the main basis, which creates an obligation for the State Parties to make available funds, they must be prepared for this. As Nepal falls in the category of least developed countries, the financial contribution to be made by it can only be negligible. Nevertheless, it is imperative to make necessary arrangements to regularly participate in the Assembly of State Parties as well as to effectively represent in other activities.

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REFERENCES • International Criminal Court Manual for The Ratification and Implementation of the Rome Statute, third edition, March 2008, Vancouver, International Centre for Criminal Law Reform and Criminal Justice Policy.

• Rome Statute of International Criminal Court 1998, http:// untreaty.un.org/cod/icc/statute/99-corr/preamble.

• Inernational Criminal Law & Human Rights, Claire de than and Edwin Shorts, 2003, Thomson Renters (Legal) Limited, London.

• Antarrastriya Faujdari Adalatko Rome Vidhan ra Vartaman Nepali Faujdari Kanun: Ek Adhyan (The Rome Statute of the International Criminal Court and Prevalent Nepalese Criminal Law: A study 2066) National Judicial Academy and INSEC Nepal.

• Manavadhikarsambandhi Antarrastriya Mahasandhiharuko Sangalo (Compilation of International Conventions on Human Rights), First Edition 2064, Government of Nepal, Ministry of Law, Justice and Parliamentary Affairs, Singha Durbar, Kathmandu.

• 2007 Interim Constitution and various Acts and Regulations, Nepal Law Book Management Committee, Kathmandu.

• Proposed Penal Code 2067.

• Relevant websites, including www.icc.inseconline.org.

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