Supreme Court Paves Way for Prosecution in Conflict Era Crimes

Kathmandu. The Supreme Court has opened the way for prosecuting perpetrators of serious crimes from the conflict era in accordance with existing laws.

A constitutional bench comprising Acting Chief Justice Sapana Pradhan Malla and Justices Manoj Kumar Sharma, Dr. Nhukul Subedi, Abdul Aziz Musalman, and Tek Prasad Dhungana issued a mandamus, thereby paving the way for criminal cases related to conflict-era criminal incidents to be prosecuted under existing criminal laws.

The court issued the mandamus on Wednesday in response to a writ filed by advocates Dr. Gyan Basnet and Shyam Krishna Maskey, directing the government and parliament to amend the flawed provisions of the Act.

The Supreme Court's constitutional bench has ruled that some provisions of the 'Commission for Investigation of Enforced Disappearances, Truth and Reconciliation (Third Amendment) Act, 2081' are inconsistent with the constitution and international humanitarian law, and has issued a mandamus to repeal them. The court has deemed it flawed to categorize serious crimes such as dismemberment, abduction, and property-related offenses as 'ordinary human rights violations'. It has now ordered that these crimes be included in the list of 'grave violations', bringing the perpetrators to criminal accountability.

The court has reinstated the principle that the state should not bear the burden of compensation based on the perpetrator's weak financial condition, and that the perpetrator must be held accountable. The victims had demanded that armed individuals, after being apprehended, should not be subjected to murder, torture, enforced disappearance, dismemberment, and sexual violence, and that such acts should be defined as grave violations of international human rights law and international humanitarian law.

With the court prohibiting the state from assuming the perpetrator's liability, the perpetrator's property or income source will now be prioritized when providing compensation. This will strengthen the universally accepted principle of criminal justice that 'the perpetrator must pay the price'.

It is said that this order from the Supreme Court will address the concerns and apprehensions raised by the United Nations and international human rights organizations regarding Nepal's TRC Act.