By Dr. Gyan Basnet
The obligations placed on states, known as States’ Obligations, are crucial to ensuring the enjoyment of all human rights, to addressing gross violations of such rights during conflict, to realising the rights of victims, and to establishing proper justice. They impose a legal duty on state’s parties and provide a mechanism for state compliance, thus assisting the practical enforcement of rights.
States’ Obligations regarding international human rights are tripartite in nature: to respect, to protect and to fulfil. Accordingly, the state must ‘respect’ all rights accorded to individuals by national and international laws. However, it is the second obligation, to ‘protect’, that is the more important aspect of States’ Obligations: the state has the power to implement law and order and, as such, to protect individuals within its borders.
This means protection against the actions of powerful actors and against the unethical and unlawful behaviour of private actors, whether corporate or individual, who threaten the enjoyment of individuals’ rights and fundamental freedoms. The third obligation, to ‘fulfil’, can be seen as encompassing two aspects: to facilitate and to provide directly.
The state is obliged to take measures to ensure that the rights of individuals are met if those individuals cannot do so by their own personal efforts. However, the state should first facilitate an environment that is helpful for the independent realisation of such rights.
Many points require clarification: What are the guiding principles for the investigation and prosecution of gross rights’ violations? What is to be the rationale behind such prosecutions? Why is the prosecution of perpetrators of human rights offences so vital? What is the role of the state, and from where is it derived? To what extent does Nepal fulfil the obligations imposed on it by the international human rights instruments to which the country is party? Why is there no sincere political commitment to addressing the heinous human rights violations of the conflict era 1996-2006? What has happened to the proposed Truth and Reconciliation Commission that was supposed to address the human rights atrocities of that period?
International Legal Frameworks
International human rights standards of accountability and responsibility are based on the right of victims and their families to an effective remedy. As Article 8 of the Universal Declaration of Human Rights 1948 provides: ‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.’ Article 2 of the International Covenant on Civil and Political Rights 1966 (ICCPR) ensures that ‘any person claiming such a remedy shall have his right there to determine by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy.’
Human rights law covers a wide range of issues, but it operates primarily by placing obligations on state mechanisms. It is active both in peacetime and in time of conflict, covering all provisions of international human rights law plus other principles and standards. Most importantly, Article 6 of the ICCPR covers the right to life, Article 9 the right to liberty and personal security, and Article 7 the right to freedom from torture or cruel, inhumane or degrading punishment or treatment.
The Conventions on the Elimination of Discrimination against Women and the Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment grant the right to be free from sexual violence. Most importantly, the common Article 3 of the Geneva Conventions stands as the source of law governing conduct during armed conflict. Accordingly, the following acts are and shall remain prohibited at any time during conflict: violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, the taking of hostages, outrages upon personal dignity, and the passing of sentences and the carrying out of executions without previous judgment being pronounced by a regularly constituted court. Thus are provided all the judicial guarantees that are recognized as indispensable by civilized people.
International human rights and humanitarian law requires that states investigate allegations of serious violations and, if appropriate, prosecute suspected perpetrators, and provide reparation for the victims and their families. The rationale for prosecution for human rights violations is to convey clearly to society disapproval of such violations and support for certain democratic values and standards. The duty of the state to prosecute for serious crimes such as those against humanity, war crimes, and genocide is part of customary international law that is reflected also in the Rome Statute of the International Criminal Court and in other instruments.
In relation to torture, arbitrary killings, enforced disappearances and other violations of a similar nature under domestic or international law, states parties to the international instruments are obliged to ensure that those responsible are brought to a court of justice and punished. As a United Nations General Assembly Resolution provides: ‘In the case of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, states have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish him or her.’ The UN Security Council in relation to the conflicts in Burundi, Congo, Kosovo and Rwanda has also reaffirmed this on several occasions.
What of Nepal?
The above mentioned norms and commitments of international human rights law, of humanitarian law and of other instruments which impose obligations on the state to prosecute and punish perpetrators of heinous human rights violations and which emphasise the rights of the people to appropriate remedies, are fully applicable in the Nepalese context since Nepal is party to all these instruments.
However, the government of Nepal has ignored the basic foundations of the rule of law, constitutionalism and, most importantly, the fundamental norms of human rights by withdrawing prosecutions for crimes against humanity and war crimes. The government has ignored the demands of both national and international human rights organizations and of the international community as a whole for the long overdue establishment of a transitional justice mechanism to try the perpetrators of heinous crimes during the conflict and to provide fair justice and reparation for the victims. The fact that this has not happened is a disgrace, and it surely shames the nation in the eyes of the whole international community.
Nepal has so far failed to address the injustices that took place in the decade-long conflict between government and the Maoist rebels. The norms and values of international human rights and humanitarian law clearly state that ‘a failure to investigate or a lack of political will to bring the criminals to justice may give rise to separate human rights violations’ over and above the original crimes. Despite the fact that Nepal is party to almost every international human rights instrument, it has so far shown a complete lack of political will to address the injustices of the conflict-era and has, therefore, already breached its obligations not only to respect, protect, and fulfil, but most importantly to investigate, prosecute, and punish the perpetrators of serious war-crimes.
Shameful also is the fact that the Nepalese authorities have been accused by the international community and by United Nations human rights bodies, by NGOs and INGOs, of denying victims their right to the truth, to reparation and to justice. Nepal must take such criticisms, requests and warnings seriously if the country wishes to remain part of the international human rights regime.
The heinous crimes that occurred during the conflict period should already have been investigated by transitional justice mechanisms such as a Truth and Reconciliation Commission and an Enforced Disappearances Commission. However, Nepal has yet to show that it has carried out any investigation of any alleged crime. The most urgent need now is to implement a policy that will uphold the victims’ rights to truth and justice. Nepal must stop breaching its international obligations: the authorities must urgently take the necessary steps to carry out investigations and to punish the perpetrators.
Despite much discussion and despite promises by the government of Nepal about instances of human rights violation, it is a disgrace that the Maoist government’s only transitional justice activities have been to implement a cover-up that has allowed perpetrators to escape and the fight against impunity consequently to be sabotaged. Is it not time to bring all perpetrators of human rights violations in Nepal to justice without any further delay? Nepal must ensure that there is no amnesty for those who committed grave violations in the name of politics. Urgent action is needed to address once and for all the heinous human rights violations of the conflict era. Only thus can human rights law maintain its relevance in providing a meaningful response to those who suffered torture, killing, displacement or enforced disappearance because of the actions or omissions of the state or of the Maoist rebels during the ten-year civil strife.
Dr Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Prominent Columnist, Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal. Email: [email protected].