Preparing to implement the Rome statute

PREPARING TO IMPLEMENT THE ROME STATUTEA 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)

Publication Year 2012

Impressions 500

Publisher

Avocats Sans Frontières (ASF Nepal)

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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 capacity-

building.

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

iv

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

vi

Background: Raghav Lal Baidya, Executive Director, NJA iii

Background: Subodh Raj Pyakurel, President, INSEC v

Abbreviations and Acronyms x

Chapter 1: Introduction 1

Background 1

Objectives of the study 3

Scope of the study 4

Study methodology 5

Organization of the study report 5

Chapter 2: The Criminal Justice System of Nepal 7

Nepal’s judiciary 7

Constitutional provision related to Nepal’s

Criminal Justice 11

Nepal’s Criminal Justice System 13

Investigation procedure 14

Prosecution 16

Procedure for action against case 17

Trial 17

Provision related to evidence 23

Other provisions relating to collection of evidence 21

Provision for in camera hearing 21

Provision regarding reprieve, exemption, suspension

and remission of sentence 27

CONTENTS

vii

Provisions regarding protection and compensation for

victim and protection of witness 28

Other provisions regarding implementation of verdict 32

Miscellaneous 33

Challenges before the Nepalese Criminal Justice

System in the context of International Criminal Justice 40

Chapter 3: Rome Statute and Prevalent Law 43

Crimes referred to in the Rome Statute 43

Jurisdiction 45

Investigation and prosecution 46

Trial and punishment 50

Appeal and review 58

Provisions of Rome Statute, Nepalese law and

reforms needed 60

Chapter 4: Obligations Created by The Rome Statute

and Required Provisions 121

Domestic investigation and prosecution 121

Cooperation with the court 124

Procedure for requesting for cooperation 125

Ensuring confidentiality 127

Resolving problems in execution of request 127

Assisting in arrest 128

Recognizing ICC’s warrant of arrest under the

domestic law 130

Hearing before competent judicial authority

after arrest 131

Interim release 131

Assisting in serving summons 132

Cooperating in surrender of the accused 133

Cooperating in cases of competing requests 134

Cooperating in handing over a person using

one’s territory 134

Cooperating in collection and protection of evidence 135

viii

Maintaining confidentiality of information received in

special circumstances 136

Cooperating in witness examination 136

Physical and written evidence and criminal property 137

Execution of verdict 138

Enforcement of punishment of imprisonment 139

Recovering fine and confiscating 143

Review of punishment 142

Chapter 5: Conclusion and Recommendations 145

Conclusion 145

Recommendations 146

Implementation of the obligations arising

out of the conventions related to human

rights to which Nepal is party 147

Constitutional provisions and their implementation 147

Amendment to constitution 148

Reforms in other laws 149

New legal and structural provisions 150

Legislation regarding cooperation in court

proceedings 151

Empowerment of domestic criminal justice system 152

Reforms in prison administration 153

Capacity development of government officers 154

Building or improvement of new structure 154

Groundwork for building consensus and

improving style of functioning 155

Building or improvement of new structure 154

Others 155

References 156

ix

ASF Avocats Sans Frontières

BS Bikram Samvat

CA Constituent Assembly

GoN Government of Nepal

HoR House of Representatives

ICC International Criminal Court

INSEC Informal Sector Service Centre

NGOs Nongovernmental organizations

NHRC National Human Rights Commission

NJA National Judicial Academy

UNSC United Nations Security Council

x

ABBREVIATIONS AND ACRONYMS

1Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform

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.

Chapter

1INTRODUCTION

Preparing to Implement the Rome Statute: A study of the laws and procedures in place in Nepal and need for reform2

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

the_International_Criminal_Court


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


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.


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.


Chapter

2NEPAL’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 Article 100(1)3 The Constitution, however, lays down that no court, judicial body or tribunal shall

be constituted for a specific case.

THE CRIMINAL JUSTICE

SYSTEM OF NEPAL


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 Section 9 of the Administration of Justice Act 2048


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 Ibid, Section 116 Ibid, Section 127 Ibid, Section 88 Amendment of Some Nepal Acts Related to Judicial Administration 2067, Nepal

Gazette, Section 60, Kathmandu, 28 March 2011, Supplementary issue 379 Ibid, Section 7


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 labour-

related 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 As per the provisions made in the District Court Regulation 2052, Appeals Chamber

Regulation 2048 and Supreme Court Regulation 2049.


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).


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 Article 33(R) of the Responsibilities, Directive Principles and Policies of the State in

Part 4 of Nepal’s Interim Constitution 2063.


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 Profession-

als Club, Kathmandu, p.35.


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 Evidence Act 2031, Section 9


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


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,


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 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.17 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.


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

18 118 (2) of the chapter ‘On Court Proceedings’19 Section 24(a)20 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.


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

(Control) Act 2064, Section 9.22 Evidence Act 2031 [AD1974], Section 10


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 Ibid, Section 2524 Ibid, Section 27(1)25 Ibid, Section 3726 Ibid, Section 38


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


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 in-

camera 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/AIDS-

infected 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 Advocate Sapana Pradhan Malla vs GoN and others, BS 2063, Writ Number 3561,

Mandamus, etc, order dated December 25, 200729 On Court Proceedings, Number 190


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 Administration of Justice Act 2048, Section 931 Ibid, Section 11


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 non-

payment 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 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 perpetra-

tor 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)33 Punishment, Number 734 Ibid, Number 835 Ibid, Number 3836 Punishment, Number 41A


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 On Court Proceedings, Number 18838 On Punishment, Number 18


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 On Court Proceedings, Number 169.40 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.41 Administration of Justice Act 2048, Section 18.


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 Ibid, Section 2943 Article 151


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 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 recom-

mend 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.45 Chapter ‘On Homicide’, Number 7


(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 Chapter ‘On Rape’, Number 847 Section 16


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 On Fine and Punishment, Number 19


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 On Kidnapping/Abduction and Hostage Taking, Number 1250 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


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


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 District Court Regulation 2052, Rule 6853 Ibid, rule 6954 As per the ICC’s Rome Statute, the verdicts of punishment imposed by courts in the

cases mentioned in the Statute must be implemented.55 Government Cases Act 2049, Section 29(1)56 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.


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 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 disappear-

ance 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)58 Police Act 2012, Section 3759 Army Act 2063, Section 2260 Ibid, Section 62


investigating officers concerned as per the demand.61 Non-

compliance 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 Ibid, Section 6662 Ibid, Section 4563 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,


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 non-

applicability 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 Rome Statute, Article 29


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 Nepal Treaties Act 2047, Section 9, Subsection (1)66 Article 10(1)


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 needed74; for

maintaining a library and radio listening centre so that detainees

and prisoners can utilize their time75; allowing prisoners and

67 Jail Act 2019, Section 668 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, Ibid69 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.70 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.71 Section 1472 Prison Regulation 2020, Para 2a73 Ibid, Rule 22, 23, 2474 Ibid, Rule 31


detainees to meet their families, relatives and friends two times a

week under the supervision of the jailor76; 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 workshop78;

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 Ibid, Rule 3376 Ibid, Rule 2677 Ibid, Rule 3478 Ibid, Rule 3579 Ibid, Rule 3880 Ibid, Rule 41


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.


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).


ROME STATUTE AND

PREVALENT LAW

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,

Chapter

3


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 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.


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 This will come into force upon ratification of Article 2017 by State Parties. www.ic-

cnow.org/84 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.


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

8 5 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.8 6 Articles 25, 26, 27 and 28.8 7 Article 13.


• 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


• 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 Article 18


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 Pre-

Trial 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 Article 1590 Article 1691 Article 15(6)92 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.


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 Pre-

Trial 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 Articles 17, 18, 1994 Article 2195 Articles 58, 59


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 Articles 22, 23, 24 and 2597 Article 25 (a), (b) and (c)


98 Article 25(d). This provision will be useful for dealing with organized crimes.99 Article 25(f)100 Article 26101 Article 27(1)102 Article 27(2)

• 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


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 Article 28104 Article 28(a)105 Article 28(b)


106 Article 30107 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.

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;


• 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 Article 33109 Article 57, 58110 Article 59, 60111 Article 60112 Article 61113 Article 55, 66, 67, 68


• 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 Article 64115 Article 64 8(a)116 Article 64(7), 68117 Article 65


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 Article 66, 67119 Article 69120 Article 69(8)121 Article 70, under this punishment of up to five years may be sentenced.


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 Article 74123 Article 75124 Article 75, 78125 Article 77


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 Article 81127 Article 82128 Article 81129 Article 83130 Article 82(3)131 Article 83


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 Article 83133 Article 85134 Article 85


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.


Co

mp

ara

tive T

ab

le

Prov

isio

n in

Rom

e St

atut

ePr

eval

ent

Nep

ales

e La

wPr

ovis

ions

mad

e in

the

Pr

opos

ed P

enal

Cod

e

Prov

isio

n ne

cess

ary

to

fulfi

l obl

iga�

ons

und

er

the

Rom

e St

atut

e

Part

2: J

uris

dic�

on,

Adm

issi

bilit

y an

d A

pplic

able

La

w

Gen

ocid

e: A

r� c

le 6

‘Gen

ocid

e’ m

eans

any

of t

he fo

llow

ing

acts

com

-m

i� ed

with

inte

nt to

des

troy

, in

who

le o

r in

par

t, a

na

� ona

l, et

hnic

al, r

acia

l or

relig

ious

gro

up:

• Ki

lling

mem

bers

of t

he g

roup

;

• D

elib

erat

ely

infl i

c� n

g on

the

grou

p co

ndi-

� ons

of l

ife c

alcu

late

d to

bri

ng a

bout

its

phys

ical

des

truc

� on

in w

hole

or

in p

art;

• Im

posi

ng m

easu

res

inte

nded

to p

reve

nt

birt

hs w

ithin

the

grou

p;

• Fo

rcib

ly tr

ansf

erri

ng c

hild

ren

of th

e gr

oup

to a

noth

er g

roup

.

Ther

e is

no

spec

ifi c

law

on

this

. The

M

uluk

i Ain

ap-

plie

s.

It is

not

defi

ned

, but

if

the

off e

nce

is c

om-

mi�

ed w

ith in

tent

to

gene

rate

hat

red

agai

nst

a na

� ona

l, et

hnic

al, r

a-ci

al, r

elig

ious

or

cultu

ral

grou

p, th

e gr

avity

of

the

off e

nce

inte

nsifi

es

(Cha

pter

4).

A p

erso

n co

mm

i� n

g su

ch a

n ac

t may

be

impr

ison

ed fo

r lif

e (S

ec.

40(e

))

Lega

l pro

visi

on o

n th

is

is n

eede

d by

ado

pt-

ing

the

said

defi

ni�

on

in th

e Ro

me

Stat

ute

Impl

emen

ta� o

n A

ct.


Crim

es a

gain

st h

uman

ity:

Ar�

cle

7

‘Cri

me

agai

nst h

uman

ity’ m

eans

any

of t

he fo

llow

-in

g ac

ts w

hen

com

mi�

ed a

s pa

rt o

f a w

ides

prea

d or

sys

tem

a� c

a�

ack

dire

cted

aga

inst

any

civ

ilian

po

pula

� on,

with

kno

wle

dge

of th

e a�

ack

:

• M

urde

r;

• Ex

term

ina�

on;

• En

slav

emen

t;

• D

epor

ta� o

n or

forc

ible

tran

sfer

of p

opul

a-� o

n;

• Im

pris

onm

ent o

r ot

her

seve

re d

epri

va� o

n of

phy

sica

l lib

erty

in v

iola

� on

of fu

nda-

men

tal r

ules

of i

nter

na� o

nal l

aw;

• To

rtur

e;

Crim

e ag

ains

t hu

man

ity is

no

t defi

ned

; ho

wev

er, l

egal

pr

ovis

ions

ex

ist o

n ki

lling

, fo

rced

sla

very

, ki

dnap

ping

, ho

stag

e ke

ep-

ing,

ille

gal

dete

n� o

n,

tort

ure,

rape

, et

c.

Alo

ng w

ith k

illin

g,

forc

ed s

lave

ry, i

llega

l de

ten�

on,

kid

nap-

ping

, hos

tage

kee

ping

, en

forc

ed d

isap

pear

ance

an

d to

rtur

e, d

iscr

imin

a-to

ry tr

eatm

ent,

sex

ual

ensl

avem

ent,

enf

orce

d pr

os� t

u� o

n, to

rtur

e,

dist

urbi

ng s

ocia

l cus

-to

ms,

etc

are

det

er-

min

ed a

s cr

imes

.

Lega

l pro

visi

on o

n th

is

is n

eede

d by

ado

pt-

ing

the

said

defi

ni�

on

in th

e Ro

me

Stat

ute

Impl

emen

ta� o

n A

ct.


• Ra

pe, s

exua

l sla

very

, enf

orce

d pr

os� t

u-� o

n, fo

rced

pre

gnan

cy, e

nfor

ced

ster

iliza

-� o

n, o

r an

y ot

her

form

of s

exua

l vio

lenc

e of

com

para

ble

grav

ity;

• Pe

rsec

u� o

n ag

ains

t any

iden

� fi a

ble

grou

p or

col

lec�

vity

on

poli�

cal

, rac

ial,

na� o

nal,

ethn

ic, c

ultu

ral,

relig

ious

, gen

der,

or o

ther

gr

ound

s th

at a

re u

nive

rsal

ly re

cogn

ized

as

impe

rmis

sibl

e un

der

inte

rna�

ona

l law

, in

con

nec�

on

with

any

act

refe

rred

to in

th

is p

arag

raph

or

any

crim

e w

ithin

the

juri

sdic

� on

of th

e Co

urt;

• En

forc

ed d

isap

pear

ance

of p

erso

ns;

• Th

e cr

ime

of a

part

heid

;

• O

ther

inhu

man

e ac

ts o

f a s

imila

r ch

arac

-te

r in

ten�

ona

lly c

ausi

ng g

reat

suff

eri

ng,

or s

erio

us in

jury

to b

ody

or to

men

tal o

r ph

ysic

al h

ealth

.


War

cri

mes

: Ar�

cle

8

1. T

he C

ourt

sha

ll ha

ve ju

risd

ic� o

n in

resp

ect o

f w

ar c

rim

es in

par

� cul

ar w

hen

com

mi�

ed a

s pa

rt

of a

pla

n or

pol

icy

or a

s pa

rt o

f a la

rge-

scal

e co

m-

mis

sion

of s

uch

crim

es.

2. F

or th

e pu

rpos

e of

this

Sta

tute

, “w

ar c

rim

es”

mea

ns:

(a) G

rave

bre

ache

s of

the

Gen

eva

Conv

en-

� ons

of 1

949,

nam

ely,

any

of t

he fo

l-lo

win

g ac

ts a

gain

st p

erso

ns o

r pr

oper

ty

prot

ecte

d un

der

the

prov

isio

ns o

f the

re

leva

nt G

enev

a Co

nven

� on:

•

Will

ful k

illin

g;

• To

rtur

e or

inhu

man

trea

tmen

t, in

-cl

udin

g bi

olog

ical

exp

erim

ents

;

• W

illfu

lly c

ausi

ng g

reat

suff

eri

ng, o

r se

riou

s in

jury

to b

ody

or h

ealth

;

• Ex

tens

ive

dest

ruc�

on

and

appr

o-pr

ia� o

n of

pro

pert

y, n

ot ju

s� fi

ed b

y m

ilita

ry n

eces

sity

and

car

ried

out

un

law

fully

and

wan

tonl

y;


• Co

mpe

lling

a p

riso

ner

of w

ar o

r ot

her

prot

ecte

d pe

rson

to s

erve

in th

e fo

rces

of a

hos

� le

Pow

er;

• W

illfu

lly d

epri

ving

a p

riso

ner

of w

ar

or o

ther

pro

tect

ed p

erso

n of

the

righ

ts o

f fai

r an

d re

gula

r tr

ial;

• U

nlaw

ful d

epor

ta� o

n or

tran

sfer

or

unla

wfu

l con

fi nem

ent;

• Ta

king

of h

osta

ges.

(b) O

ther

ser

ious

vio

la� o

ns o

f the

law

s an

d cu

stom

s ap

plic

able

in in

tern

a� o

nal

arm

ed c

onfl i

ct, w

ithin

the

esta

blis

hed

fram

ewor

k of

inte

rna�

ona

l law

, nam

ely,

an

y of

the

follo

win

g ac

ts:

• D

irec�

ng

a� a

cks

agai

nst t

he c

ivili

an

popu

la� o

n no

t tak

ing

dire

ct p

art i

n ho

s� li

� es;

• In

ten�

ona

lly d

irec�

ng

a� a

cks

agai

nst

civi

lian

obje

cts;

Ther

e ar

e no

ex

plic

it la

ws

on

this

, but

whe

n a

mili

tary

per

-so

nnel

com

-m

its a

cri

me

agai

nst a

civ

il-ia

n ou

tsid

e th

e le

gal s

pher

e,

it is

liab

le fo

r su

it.

Ther

e ar

e no

exp

licit

law

s on

this

, but

if a

cr

imin

al a

ct is

com

mit-

ted

by e

xcee

ding

the

auth

ority

gra

nted

by

the

mili

tary

law

, a s

uit m

ay

be in

s� t

uted

.

Lega

l pro

visi

on o

n th

is

is n

eede

d by

ado

pt-

ing

the

said

defi

ni�

on

in th

e Ro

me

Stat

ute

Impl

emen

ta� o

n A

ct.


• D

irec�

ng

a� a

cks

agai

nst p

erso

nnel

, in

volv

ed in

a h

uman

itari

an a

ssis

-ta

nce;

• In

ten�

ona

lly la

unch

ing

an a

� ac

k on

ci

vilia

ns o

r da

mag

e to

civ

ilian

obj

ects

;

• A�

ack

ing

or b

omba

rdin

g to

wns

, vil-

lage

s, d

wel

lings

or

build

ings

whi

ch

are

unde

fend

ed a

nd w

hich

are

not

m

ilita

ry o

bjec

� ves

;

• Ki

lling

or

wou

ndin

g a

com

bata

nt w

ho,

havi

ng la

id d

own

his

arm

s or

has

sur

-re

nder

ed;

• M

akin

g im

prop

er u

se o

f the

mili

tary

in

sign

ia a

nd u

nifo

rm;

• Tr

ansf

er o

f civ

ilian

pop

ula�

on;

• In

ten�

ona

lly d

irec�

ng

a� a

cks

agai

nst

hist

oric

mon

umen

ts, h

ospi

tals

, etc

th

at a

re n

ot m

ilita

ry o

bjec

� ves

;

• Su

bjec

� ng

pers

ons

who

are

in th

e po

wer

of a

n ad

vers

e pa

rty

to m

edic

al

expe

rim

ents

;

• Ki

lling

or

wou

ndin

g tr

each

erou

sly

indi

vidu

als

belo

ngin

g to

the

hos�

le

na� o

n or

arm

y;


• D

ecla

ring

abo

lishe

d, s

uspe

nded

or

inad

mis

sibl

e in

a c

ourt

of l

aw th

e ri

ghts

and

ac�

ons

of t

he n

a� o

nals

of

the

hos�

le p

arty

;

• Co

mpe

lling

the

na� o

nals

of t

he h

os-

� le

part

y to

take

par

t in

the

oper

a-� o

ns o

f war

dire

cted

aga

inst

thei

r ow

n co

untr

y;

• Pi

llagi

ng;

• Em

ploy

ing

pois

on o

r po

ison

ed w

eap-

ons;

• Em

ploy

ing

toxi

c ga

ses;

• Em

ploy

ing

bulle

ts w

hich

exp

and

or

fl a�

en e

asily

in th

e hu

man

bod

y;

• Em

ploy

ing

wea

pons

, pro

jec�

les

and

mat

eria

l and

met

hods

of w

arfa

re

whi

ch a

re c

ompr

ehen

sive

ly p

rohi

b-ite

d;

• Co

mm

i� n

g hu

mili

a� n

g an

d de

grad

-in

g tr

eatm

ent;


• Co

mm

i� n

g ra

pe, s

exua

l sla

very

, en-

forc

ed p

ros�

tu�

on,

forc

ed p

regn

ancy

, en

forc

ed s

teri

liza�

on,

or

any

othe

r fo

rm o

f gra

ve v

iole

nce;

• U

sing

civ

ilian

s as

hum

an s

hiel

ds;

• In

ten�

ona

lly u

sing

sta

rva�

on

of

civi

lians

as

a m

etho

d of

war

fare

by

impe

ding

relie

f sup

plie

s;

• Co

nscr

ip� n

g or

enl

is� n

g ch

ildre

n un

-de

r th

e ag

e of

fi �

een

year

s in

to th

e ar

med

forc

es.

(c) I

n th

e ca

se o

f an

arm

ed c

onfl i

ct

not o

f an

inte

rna�

ona

l cha

ract

er,

seri

ous

viol

a� o

ns o

f ar�

cle

3 c

om-

mon

to th

e fo

ur G

enev

a Co

nven

� ons

, na

mel

y, a

ny o

f the

follo

win

g ac

ts

com

mi�

ed a

gain

st p

erso

ns ta

king

no

ac� v

e pa

rt in

the

hos�

li� e

s, in

clud

-in

g m

embe

rs o

f arm

ed fo

rces

who

ha

ve la

id d

own

thei

r ar

ms

and

thos

e pl

aced

hor

s de

com

bat b

y si

ckne

ss,

wou

nds,

det

en� o

n or

any

oth

er

caus

e:


• Vi

olen

ce to

life

and

per

son,

in p

ar-

� cul

ar m

urde

r of

all

kind

s, m

u� la

� on,

cr

uel t

reat

men

t and

tort

ure;

• H

umili

a� n

g an

d de

grad

ing

trea

tmen

t;

• Ta

king

of h

osta

ges;

• Pa

ssin

g of

sen

tenc

es a

nd c

arry

ing

out o

f exe

cu� o

ns w

ithou

t pre

viou

s ju

dgem

ent.

(d) P

arag

raph

2 (c

) app

lies

to a

rmed

con

-fl i

cts

not o

f an

inte

rna�

ona

l cha

ract

er, b

ut

does

not

app

ly to

inte

rnal

dis

turb

ance

s an

d te

nsio

ns, s

uch

as r

iots

, iso

late

d an

d sp

orad

ic a

cts

of v

iole

nce.

(e) O

ther

ser

ious

vio

la� o

ns o

f the

law

s an

d cu

stom

s ap

plic

able

in a

rmed

con

fl ict

s no

t of a

n in

tern

a� o

nal c

hara

cter

, nam

ely,

an

y of

the

follo

win

g ac

ts:

• D

irec�

ng

a� a

cks

agai

nst t

he c

ivili

an

popu

la� o

n or

indi

vidu

al c

ivili

ans

not

taki

ng d

irect

par

t in

hos�

li� e

s;

• D

irec�

ng

a� a

cks

agai

nst d

is� n

c� v

e


• em

blem

s of t

he G

enev

a Co

nven

� ons

;

• D

irec�

ng

a� a

cks

agai

nst p

erso

nnel

in

volv

ed in

a h

uman

itari

an a

ssis

tanc

e or

pea

ceke

epin

g m

issi

on;

• D

irec�

ng

a� a

cks

agai

nst b

uild

ings

de

dica

ted

to re

ligio

n, e

duca

� on,

art

, sc

ienc

e, h

isto

ric

mon

umen

ts, h

ospi

-ta

ls, e

tc;

• Pi

llagi

ng;

• Co

mm

i� n

g ra

pe, s

exua

l sla

very

, en-

forc

ed p

ros�

tu�

on,

forc

ed p

regn

ancy

, en

forc

ed st

erili

za� o

n, a

nd a

ny o

ther

fo

rm o

f ser

ious

vio

la� o

n;

• Co

nscr

ip� n

g or

enl

is� n

g ch

ildre

n un

der

the

age

of fi

� ee

n ye

ars

into

arm

ed

forc

es o

r usi

ng th

em in

hos

� li�

es;

• D

ispl

acem

ent o

f the

civ

ilian

pop

ula�

on;

• Ki

lling

or

wou

ndin

g tr

each

erou

sly

a co

mba

tant

adv

ersa

ry;

• D

ecla

ring

that

no

quar

ter w

ill b

e gi

ven;

• Su

bjec

� ng

com

bata

nt a

dver

sari

es to

m

edic

al e

xper

imen

ts;

• D

estr

oyin

g or

sei

zing

the

prop

erty

of

an a

dver

sary

.


Juri

sdic

� on

ra�

one

tem

pori

s: A

r� c

le 1

1

• A

pplie

s on

ly w

ith re

spec

t to

crim

es

com

mi�

ed a

� er

the

entr

y in

to fo

rce

of th

is S

tatu

te.

• If

a St

ate

beco

mes

a P

arty

to th

is

Stat

ute

a� e

r its

ent

ry in

to fo

rce,

to

appl

y on

ly w

ith re

spec

t to

crim

es

com

mi�

ed a

� er

the

entr

y in

to fo

rce

of th

is S

tatu

te fo

r th

at S

tate

.

No

pers

on

shal

l be

pun-

ishe

d fo

r an

ac

t whi

ch w

as

not p

unis

habl

e by

law

whe

n th

e ac

t w

as c

omm

i� ed

—A

r� c

le 2

4(4)

of

the

Inte

rim

Co

ns� t

u� o

n of

N

epal

200

7

.Le

gal p

rovi

sion

on

this

sh

ould

be

intr

oduc

ed

in th

e Ro

me

Stat

ute

Impl

emen

ta� o

n A

ct

Prec

ondi

� on

s to

the

exe

rcis

e of

juri

sdic

� on

: A

r� c

le 1

2 • Th

e Co

urt m

ay e

xerc

ise

its ju

risd

ic� o

n if

one

or m

ore

of th

e fo

llow

ing

Stat

es

are

Par�

es

to th

is S

tatu

te o

r ha

ve a

c-ce

pted

the

juri

sdic

� on

of th

e Co

urt i

n ac

cord

ance

with

par

agra

ph 3

:

• Th

e St

ate

of w

hich

the

pers

on a

c-cu

sed

of th

e cr

ime

is a

na�

ona

l.

Juri

sdic

� on

esta

blis

hed,

w

ith te

rrito

-ri

al in

fl uen

ce,

in d

rug

and

hum

an tr

affi c

k-in

g.

Prov

isio

n ha

s be

en

mad

e ab

out t

his—

Chap

-te

r 1,

Sec

� on

2

Lega

l pro

visi

on o

n th

is

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act


Exer

cise

of j

uris

dic�

on:

Ar�

cle

13

The

Cou

rt m

ay e

xerc

ise

its ju

risd

ic� o

n in

the

fol-

low

ing

man

ner:

• O

n th

e re

ques

t of t

he s

tate

par

ty;a

• O

n be

ing

refe

rred

by

the

Secu

rity

Co

unci

l;b

• O

n in

i� a�

ve

by th

e Pr

osec

utor

.c

No

No

Lega

l pro

visi

on o

n th

is

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act

Refe

rral

of a

sit

ua�

on b

y a

Stat

e Pa

rty:

Ar�

cle

14

1. A

Sta

te P

arty

may

requ

est t

he P

rose

cuto

r to

inve

s� g

ate

the

situ

a� o

n fo

r th

e pu

rpos

e of

de

term

inin

g w

heth

er s

peci

fi c p

erso

ns s

houl

d be

pr

osec

uted

. 2.

A re

ferr

al s

hall

spec

ify th

e re

leva

nt c

ircum

stan

c-es

and

be

acco

mpa

nied

by

supp

or� n

g do

cum

enta

-� o

n as

is a

vaila

ble.

No

No

Sinc

e th

e ac

cuse

d ar

e fo

reig

n na

� ona

ls in

m

ost c

ases

, suc

h re

ferr

al

is m

ade;

for t

his,

pro

vi-

sion

sho

uld

be m

ade

in th

e Ro

me

Stat

ute

Impl

emen

ta� o

n Ac

t in

wha

t situ

a� o

ns re

ferr

al

shou

ld b

e m

ade,

who

is

to m

ake

it, w

ho h

as th

e pr

imar

y re

spon

sibi

lity.

a Th

e Co

urt h

as re

ceiv

ed th

ree

refe

rral

s, fr

om U

gand

a, C

ongo

and

Rep

ublic

of C

entr

al A

fric

a so

far.

Thes

e st

ates

hav

e m

ade

refe

rral

s no

t abo

ut in

cide

nts

in

ot

her s

tate

s bu

t abo

ut in

cide

nts

I the

ir ow

n st

ates

.b

On

the

requ

est o

f the

Sec

urity

Cou

ncil,

refe

rral

s fo

r inv

es� g

a� o

n ha

ve b

een

mad

e to

the

Pros

ecut

ors

conc

erni

ng in

cide

nts

in D

arfu

r in

Sud

an a

nd L

ibya

. c

The

Pros

ecut

or h

as re

cent

ly st

arte

d in

ves�

ga�

ng

the

confl

ict t

hat t

ook

plac

e a�

er t

he g

ener

al e

lec�

ons

in K

enya

.


Pros

ecut

or: A

r� c

le 1

5

• Th

e Pr

osec

utor

may

ini�

ate

inve

s� g

a� o

ns

prop

rio

mot

u on

the

basi

s of

info

rma�

on

on c

rim

es w

ithin

the

juri

sdic

� on

of th

e Co

urt.

• If

the

Pre-

Tria

l Cha

mbe

r con

side

rs th

at th

ere

is a

reas

onab

le b

asis

to p

roce

ed w

ith a

n in

ves�

ga�

on,

it s

hall

auth

orize

the

com

-m

ence

men

t of t

he in

ves�

ga�

on.

No

No

Lega

l pro

visi

on o

n th

is

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act

Issu

es o

f adm

issi

bilit

y: A

r� c

le 1

7

Unl

ess

the

Stat

e is

unw

illin

g or

una

ble

genu

inel

y to

car

ry o

ut th

e in

ves�

ga�

on

or

pros

ecu�

on,

the

case

has

bee

n in

ves�

gat

ed

by a

Sta

te a

nd h

as d

ecid

ed to

pro

secu

te

or n

ot to

pro

secu

te; t

he p

roce

edin

gs w

ere

bein

g un

dert

aken

for s

hiel

ding

the

pers

on

conc

erne

d fr

om c

rimin

al re

spon

sibi

lity

for

crim

es; t

he p

roce

edin

gs w

ere

not o

r are

not

be

ing

cond

ucte

d in

depe

nden

tly o

r im

par-

� ally

, and

they

wer

e or

are

bei

ng c

ondu

cted

in

a m

anne

r whi

ch, i

n th

e ci

rcum

stan

ces,

is

inco

nsist

ent w

ith a

n in

tent

to b

ring

the

pers

on c

once

rned

to ju

s� c

e; in

ord

er to

de

term

ine

inab

ility

in a

par

� cul

ar c

ase,

the

Cour

t sha

ll co

nsid

er w

heth

er, d

ue to

a to

tal

or s

ubst

an� a

l col

laps

e or

una

vaila

bilit

y of

its

na�

ona

l jud

icia

l sys

tem

, the

juris

dic�

on

of th

e St

ate

will

not

be

appl

icab

le.

Is in

cons

iste

nt

with

Ar�

cle

29

of th

e G

over

n-m

ent C

ases

A

ct

In S

ec� o

n 11

6 of

the

prop

osed

Cri

min

al P

ro-

cedu

re C

ode,

pro

visi

on

barr

ing

with

draw

al o

f gr

ave

case

s

The

law

of t

he la

nd

shou

ld b

e st

reng

then

ed

by re

form

ing

it in

ord

er

to e

nsur

e th

at, u

nder

-sc

orin

g th

e pr

inci

ple

of co

ncur

rent

juris

dic-

� on,

ther

e is

in re

ality

in

depe

nden

t inv

es� g

a-� o

n an

d pr

osec

u� o

n at

lo

cal l

evel

; fol

low

ing

the

univ

ersa

lly re

cogn

ized

prin

cipl

e, in

ves�

ga�

on

is

carr

ied

out t

o br

ing

the

culp

rit to

boo

k be

fore

th

e co

urt o

f law

and

not

to

pro

vide

her

/him

with

re

prie

ve; l

aw e

nfor

ce-

men

t age

ncy

and

judi

ci-

ary

are

inde

pend

ent;

and

no o

ne is

abo

ve th

e la

w.


Prel

imin

ary

rulin

gs re

gard

ing

adm

issi

bilit

y:

Ar�

cle

18

• Th

e Pr

osec

utor

sha

ll no

� fy

the

Stat

es P

ar-

� es

info

rma�

on

abou

t the

inve

s� g

a� o

n.

• W

ithin

one

mon

th o

f rec

eipt

of t

hat

no� fi

ca�

on,

if th

e St

ate

info

rms

the

Cour

t th

at it

is in

ves�

ga�

ng

the

case

, the

Pro

s-ec

utor

sha

ll de

fer

the

inve

s� g

a� o

n fo

r si

x m

onth

s un

less

the

Pre-

Tria

l Cha

mbe

r de

cide

s ot

herw

ise.

•

The

legi

� mac

y of

a c

ase

conc

lude

d w

ith

chal

leng

e w

ill n

ot b

e aff

ect

ed.

• Th

e ad

mis

sibi

lity

of a

cas

e m

ay b

e re

view

ed

if ad

di� o

nal s

igni

fi can

t fac

ts a

re fo

und.

No

No

Prov

isio

n fo

r ap

peal

sh

ould

be

mad

e on

the

proc

edur

e an

d � m

e in

re

la� o

n to

pro

tec�

on

of e

vide

nce

and

pro-

tec�

on

of w

itnes

s as

w

ell a

s on

pro

secu

tor’

s de

cisi

on u

nder

ar�

cle

19

; app

ropr

iate

pro

vi-

sion

sho

uld

be m

ade

in th

e Ro

me

Stat

ute

Impl

emen

ta� o

n A

ct

Ne

bis

in id

em [n

o on

e sh

all b

e tw

ice

trie

d fo

r th

e sa

me

offe

nce]

: Ar�

cle

20

No

pers

on s

hall

be tr

ied

by a

noth

er c

ourt

for

a cr

ime

for

whi

ch th

at p

erso

n ha

s al

read

y be

en

conv

icte

d or

acq

ui�

ed b

y th

e Co

urt,

but

in a

cas

e w

ithin

the

juri

sdic

� on

of th

e co

urt,

a c

ase

may

in

s� t

uted

if th

e pr

ocee

ding

s (a

) Wer

e fo

r the

pur

pose

of s

hiel

ding

the

pers

on c

on-

cern

ed fr

om c

rimin

al re

spon

sibi

lity

for c

rimes

; or

(b

) Oth

erw

ise

wer

e no

t con

duct

ed in

depe

nden

tly

or im

par�

ally

in a

ccor

danc

e w

ith th

e no

rms

of d

ue

proc

ess

and

wer

e co

nduc

ted

in a

man

ner

whi

ch

was

inco

nsis

tent

with

inte

nt to

bri

ng th

e pe

rson

co

ncer

ned

to ju

s� c

e.

No

No

App

ropr

iate

pro

visi

on

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act


PART

3. G

ENER

AL

PRIN

CIPL

ES O

F CR

IMIN

AL

LAW

Nul

lum

cri

men

sin

e le

ge [n

o cr

ime

with

out a

law

]:

Ar�

cle

22

Nul

la p

oena

sin

e le

ge [p

enal

law

can

not b

e en

-ac

ted

retr

oac�

vel

y]: A

r� c

le 2

3

Non

-ret

roac

� vity

ra� o

ne p

erso

nae

[No

pers

on

shal

l be

crim

inal

ly re

spon

sibl

e un

der

this

Sta

tute

fo

r co

nduc

t pri

or to

the

entr

y in

to fo

rce

of th

e St

atut

e]: A

r� c

le 2

4

Thes

e pr

in-

cipl

es a

re

reco

gniz

ed in

th

e Co

ns� t

u-� o

n an

d la

w.

Thes

e pr

inci

ples

are

rec-

ogni

zed

in th

e pr

opos

ed

Pena

l Cod

e.

Ar�

cle

s 25

, 27:

Indi

vidu

al c

rim

inal

resp

onsi

bilit

y

A p

erso

n sh

all b

e cr

imin

ally

resp

onsi

ble

and

liabl

e fo

r pu

nish

men

t for

a c

rim

e w

ithin

the

juri

sdic

� on

of th

e Co

urt i

f tha

t per

son

com

mits

suc

h a

crim

e,

whe

ther

as

an in

divi

dual

, joi

ntly

with

ano

ther

or

thro

ugh

anot

her

pers

on; o

rder

s, s

olic

its o

r in

duce

s th

e co

mm

issi

on o

f suc

h a

crim

e w

hich

occ

urs

or is

a�

em

pted

; aid

s, a

bets

or

othe

rwis

e as

sist

s in

its

com

mis

sion

or

its a

� em

pted

com

mis

sion

, inc

lud-

ing

prov

idin

g th

e m

eans

for

its c

omm

issi

on;

One

’s o

ffi ci

al c

apac

ity a

s H

ead

of S

tate

or

Gov

ern-

men

t, a

mem

ber

of a

Gov

ernm

ent o

r pa

rlia

men

t,

an e

lect

ed re

pres

enta

� ve

or a

gov

ernm

ent o

ffi ci

al

shal

l in

no c

ase

exem

pt a

per

son

from

cri

min

al

resp

onsi

bilit

y.

Sca�

ere

d pr

o-vi

sion

s ex

ist.

Prov

isio

n of

pun

ishm

ent

for

crim

inal

con

spira

cy,

a� e

mpt

, abe

tmen

t and

ac

com

plic

e—Ch

apte

r 3

Sec�

on

32-3

6 of

the

prop

osed

Pen

al C

ode.

Amen

dmen

t to

the

Cons

� tu�

on

nece

ssar

y re

gard

ing

crim

inal

re-

spon

sibili

ty o

f the

hea

d of

the

stat

e or

hea

d of

the

gove

rnm

ent,

mem

ber o

f gov

ernm

ent

or p

arlia

men

t, or

ele

cted

re

pres

enta

� ve

or g

ov-

ernm

ent.

Appr

opria

te p

rovi

sion

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act i

n re

la� o

n to

the

crim

es

refe

rred

to in

the

Stat

ute


Excl

usio

n of

juri

sdic

� on

ove

r pe

rson

s un

der

eigh

teen

: Ar�

cle

26

The

Cour

t sha

ll ha

ve n

o ju

risd

ic� o

n ov

er a

ny

pers

on w

ho w

as u

nder

the

age

of 1

8 at

the

� me

of

the

alle

ged

com

mis

sion

of a

cri

me.

Pers

ons

abov

e th

e ag

e of

16

year

s to

bea

r fu

ll cr

imin

al

liabi

lity.

Pers

ons

belo

w th

e ag

e of

10

year

s no

t to

be

puni

shed

; per

sons

be-

low

the

age

of 1

8 ye

ars

to b

e co

nsid

ered

as

min

ors

and

give

n lig

ht

puni

shm

ent (

Sec�

on

44)

App

ropr

iate

pro

visi

on

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act

Resp

onsi

bilit

y of

com

man

ders

and

oth

er s

uper

i-or

s: A

r� c

le 2

8

1 In

add

i� on

to o

ther

gro

unds

of c

rimin

al re

spon

sibi

l-ity

und

er th

is S

tatu

te fo

r crim

es w

ithin

the

juris

dic-

� on

of th

e Co

urt:

(a) A

mili

tary

com

man

der o

r per

son

eff e

c� v

ely

ac� n

g as

a m

ilita

ry c

omm

ande

r sha

ll be

crim

inal

ly re

spon

-si

ble

for c

rimes

with

in th

e ju

risdi

c� o

n of

the

Cour

t co

mm

i� ed

by

forc

es u

nder

his

or h

er e

ff ec�

ve

com

-m

and

and

cont

rol,

or e

ff ec�

ve

auth

ority

and

con

trol

as

the

case

may

be,

as

a re

sult

of h

is o

r her

failu

re to

ex

erci

se c

ontr

ol p

rope

rly o

ver s

uch

forc

es, w

here

:(i)

Tha

t mili

tary

com

man

der o

r per

son

ei-

ther

kne

w o

r, ow

ing

to th

e ci

rcum

stan

ces

at

the

� me,

sho

uld

have

kno

wn

that

the

forc

es

wer

e co

mm

i� n

g or

abo

ut to

com

mit

such

cr

imes

; and

Such

act

s ar

e no

t dee

med

cr

imes

by

prev

-al

ent N

epal

ese

law

s

The

prop

osed

Pen

al

Code

als

o do

esn’

t con

-si

der

it a

crim

e.

App

ropr

iate

pro

visi

on

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act


(ii)

Tha

t mili

tary

com

man

der

or p

erso

n fa

iled

to ta

ke a

ll ne

cess

ary

and

reas

on-

able

mea

sure

s w

ithin

his

or

her

pow

er to

pr

even

t or

repr

ess

thei

r co

mm

issi

on o

r to

sub

mit

the

ma�

er

to th

e co

mpe

tent

au

thor

i� es

for

inve

s� g

a� o

n an

d pr

osec

u-� o

n.

(b) W

ith re

spec

t to

supe

rior

and

sub

-or

dina

te re

la� o

nshi

ps n

ot d

escr

ibed

in

para

grap

h (a

), a

supe

rior

sha

ll be

cri

mi-

nally

resp

onsi

ble

for

crim

es w

ithin

the

juri

sdic

� on

of th

e Co

urt c

omm

i� ed

by

subo

rdin

ates

und

er h

is o

r he

r eff

ec�

ve

auth

ority

and

con

trol

, as

a re

sult

of h

is

or h

er fa

ilure

to e

xerc

ise

cont

rol p

rope

rly

over

suc

h su

bord

inat

es, w

here

:

(i) T

he s

uper

ior

eith

er k

new

, or

cons

ciou

sly

disr

egar

ded

info

rma-

� on

whi

ch c

lear

ly in

dica

ted,

that

th

e su

bord

inat

es w

ere

com

mit-

� ng

or a

bout

to c

omm

it su

ch

crim

es;


(ii)

The

crim

es c

once

rned

ac�

vi-

� es

that

wer

e w

ithin

the

eff e

c-� v

e re

spon

sibi

lity

and

cont

rol o

f th

e su

peri

or; a

nd

(iii)

The

supe

rior

faile

d to

take

all

nece

ssar

y an

d re

ason

able

mea

-su

res

with

in h

is o

r he

r po

wer

to

prev

ent o

r re

pres

s th

eir

com

mis

-si

on o

r to

sub

mit

the

ma�

er

to

the

com

pete

nt a

utho

ri� e

s fo

r in

ves�

ga�

on

and

pros

ecu�

on.

Non

-app

licab

ility

of s

tatu

te o

f lim

ita�

ons

: A

r� c

le 2

9

The

crim

es w

ithin

the

juri

sdic

� on

of th

e Co

urt s

hall

not b

e su

bjec

t to

any

stat

ute

of li

mita

� ons

.O

ne o

r th

e ot

her

type

of

stat

ute

of li

mi-

ta� o

n s�

pu-

late

d fo

r m

ost

of th

e cr

imes

.

Gen

eral

ly, n

o st

atut

e of

lim

ita� o

n no

t app

licab

le

for

crim

es o

f hei

nous

an

d gr

ave

natu

re

App

ropr

iate

pro

visi

on

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act


Men

tal e

lem

ent:

Ar�

cle

30

Sta�

ng

that

a p

erso

n sh

all b

e cr

imin

ally

resp

on-

sibl

e an

d lia

ble

for

puni

shm

ent f

or a

cri

me

with

in

the

juri

sdic

� on

of th

e Co

urt i

f the

mat

eria

l ele

-m

ents

are

com

mi�

ed w

ith in

tent

and

kno

wle

dge,

in

tent

and

kno

wle

dge

are

desc

ribe

d, w

here

inte

nt

mea

ns:

• In

rela

� on

to c

ondu

ct, t

hat

pers

on m

eans

to e

ngag

e in

the

cond

uct;

• In

rela

� on

to a

con

sequ

ence

, th

at p

erso

n m

eans

to c

ause

that

co

nseq

uenc

e or

is a

war

e th

at it

w

ill o

ccur

in th

e or

dina

ry c

ours

e of

eve

nts.

“Kno

wle

dge”

mea

ns:

• A

war

enes

s th

at a

circ

umst

ance

ex

ists

or

a co

nseq

uenc

e w

ill

occu

r in

the

ordi

nary

cou

rse

of

even

ts.

It h

as n

ot b

een

defi n

ed s

o co

mpr

ehen

-si

vely

.

It h

as n

ot b

een

defi n

ed

so c

ompr

ehen

sive

ly.

It w

ould

be

appr

opri

-at

e to

inse

rt a

pro

vi-

sion

abo

ut it

in S

ec� o

n 2

of th

e Pe

nal C

ode

App

ropr

iate

pro

visi

on

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act


Gro

unds

for

excl

udin

g cr

imin

al re

spon

sibi

lity:

A

r� c

le 3

1

1. In

add

i� on

to o

ther

gro

unds

for

excl

udin

g cr

imi-

nal r

espo

nsib

ility

pro

vide

d fo

r in

this

Sta

tute

, a

pers

on s

hall

not b

e cr

imin

ally

resp

onsi

ble

if, a

t the

� m

e of

that

per

son’

s co

nduc

t:

(a) T

he p

erso

n su

ff ers

from

a m

enta

l dis

-ea

se o

r de

fect

that

des

troy

s th

at p

erso

n’s

capa

city

to a

ppre

ciat

e th

e un

law

ful-

ness

or

natu

re o

f his

or

her

cond

uct,

or

capa

city

to c

ontr

ol h

is o

r he

r co

nduc

t to

conf

orm

to th

e re

quire

men

ts o

f law

;

(b) T

he p

erso

n is

in a

sta

te o

f int

oxic

a� o

n th

at d

estr

oys

that

per

son’

s ca

paci

ty to

ap

prec

iate

the

unla

wfu

lnes

s or

nat

ure

of

his

or h

er c

ondu

ct, o

r ca

paci

ty to

con

trol

hi

s or

her

con

duct

to c

onfo

rm to

the

requ

irem

ents

of l

aw, u

nles

s th

e pe

rson

ha

s be

com

e vo

lunt

arily

into

xica

ted

unde

r su

ch c

ircum

stan

ces

that

the

pers

on k

new

, or

dis

rega

rded

the

risk

, tha

t, a

s a

resu

lt of

the

into

xica

� on,

he

or s

he w

as li

kely

to

eng

age

in c

ondu

ct c

ons�

tu�

ng

a cr

ime

with

in th

e ju

risd

ic� o

n of

the

Cour

t;

Such

gro

unds

ex

ist i

n th

e la

w, b

ut n

ot s

o co

mpr

ehen

-si

vely

. In

case

a

pers

on d

oes

som

ethi

ng th

at

resu

lts in

a

crim

inal

act

to

defe

nd h

er/h

is

prop

erty

, no

imm

unity

from

lia

bilit

y w

ill

be a

vaila

ble.

Th

e ch

apte

r ‘O

n H

omic

ide’

of

the

Mul

uki

Ain

pro

vide

s fo

r im

mun

ity/

repr

ieve

if lo

ss

of li

fe is

cau

sed

in c

ours

e of

pr

otec

� ng

pri-

vate

or

publ

ic

prop

erty

.

• Th

e ac

ts c

om-

mi�

ed u

nder

fe

ar a

nd th

reat

no

t dee

med

as

crim

e (S

ec� o

n 22

)•

An

act c

omm

it-te

d to

pro

tect

-in

g on

e’s

own

or a

ny o

ther

pe

rson

s’ b

ody,

lif

e or

pro

pert

y no

t dee

med

as

crim

e (S

ec� o

n 23

)•

An

act c

omm

it-te

d in

per

sona

l de

fenc

e no

t de

emed

as

crim

e (S

ec� o

n 24

)

The

prov

isio

ns in

th

e Co

de s

houl

d be

re

vise

d. In

add

i� on

, ap

prop

riat

e pr

ovis

ion

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act

.


(c) T

he p

erso

n ac

ts re

ason

ably

to d

efen

d hi

mse

lf or

her

self

or a

noth

er p

erso

n or

, in

the

case

of w

ar c

rim

es, p

rope

rty

whi

ch

is e

ssen

� al f

or th

e su

rviv

al o

f the

per

son

or a

noth

er p

erso

n or

pro

pert

y w

hich

is

esse

n� a

l for

acc

ompl

ishi

ng a

mili

tary

mis

-si

on, a

gain

st a

n im

min

ent a

nd u

nlaw

ful

use

of fo

rce

in a

man

ner

prop

or� o

nate

to

the

degr

ee o

f dan

ger

to th

e pe

rson

or

the

othe

r pe

rson

or

prop

erty

pro

tect

ed.

The

fact

that

the

pers

on w

as in

volv

ed in

a

defe

nsiv

e op

era�

on

cond

ucte

d by

forc

es

shal

l not

in it

self

cons

� tut

e a

grou

nd fo

r ex

clud

ing

crim

inal

resp

onsi

bilit

y un

der

this

sub

para

grap

h;

(d) T

he c

ondu

ct w

hich

is a

llege

d to

con

s� -

tute

a c

rim

e w

ithin

the

juri

sdic

� on

of th

e Co

urt h

as b

een

caus

ed b

y du

ress

resu

lt-in

g fr

om a

thre

at o

f im

min

ent d

eath

or

of c

on� n

uing

or

imm

inen

t ser

ious

bod

ily

harm

aga

inst

that

per

son

or a

noth

er p

er-

son,

and

the

pers

on a

cts

nece

ssar

ily a

nd

reas

onab

ly to

avo

id th

is th

reat

, pro

vide

d th

at th

e pe

rson

doe

s no

t int

end

to c

ause

a

grea

ter

harm

than

the

one

soug

ht to

be

avoi

ded.

Suc

h a

thre

at m

ay e

ither

be:


(i) M

ade

by o

ther

per

sons

; or

(ii) C

ons�

tut

ed b

y ot

her

circ

um-

stan

ces

beyo

nd th

at p

erso

n’s

cont

rol.

2. T

he C

ourt

sha

ll de

term

ine

the

appl

icab

ility

of

the

grou

nds

for

excl

udin

g cr

imin

al re

spon

sibi

lity

prov

ided

for

in th

is S

tatu

te to

the

case

bef

ore

it.

3. A

t tri

al, t

he C

ourt

may

con

side

r a

grou

nd fo

r ex

clud

ing

crim

inal

resp

onsi

bilit

y ot

her

than

thos

e re

ferr

ed to

in p

arag

raph

1 w

here

suc

h a

grou

nd is

de

rive

d fr

om a

pplic

able

law

as

set f

orth

in a

r� c

le

21. T

he p

roce

dure

s re

la� n

g to

the

cons

ider

a� o

n of

su

ch a

gro

und

shal

l be

prov

ided

for

in th

e Ru

les

of

Proc

edur

e an

d Ev

iden

ce.

Mis

take

of f

act

or m

ista

ke o

f law

: Ar�

cle

32

A m

ista

ke o

f fac

t sha

ll be

a g

roun

d fo

r ex

clud

ing

crim

inal

resp

onsi

bilit

y on

ly if

it n

egat

es th

e m

enta

l el

emen

t req

uire

d by

the

crim

e.

No

expl

icit

and

open

pro

visi

on

exis

ts in

this

re

gard

.

An

act c

omm

i� ed

with

bo

na fi

de in

ten�

on

in

the

belie

f tha

t it w

as to

be

don

e in

acc

orda

nce

with

law

or

is p

ardo

n-ab

le u

nder

a m

ista

ke

of fa

ct is

not

dee

med

a

crim

e (S

ec� o

n 8)

The

prov

isio

ns in

th

e Co

de s

houl

d be

re

vise

d. In

add

i� on

, ap

prop

riat

e pr

ovis

ion

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act

.


Supe

rior

ord

ers

and

pres

crip

� on

of l

aw: A

r� c

le 3

3

The

fact

that

a c

rim

e w

ithin

the

juri

sdic

� on

of th

e Co

urt h

as b

een

com

mi�

ed b

y a

pers

on p

ursu

-an

t to

an o

rder

of a

Gov

ernm

ent o

r of

a s

uper

ior,

whe

ther

mili

tary

or

civi

lian,

sha

ll no

t rel

ieve

that

pe

rson

of c

rim

inal

resp

onsi

bilit

y un

less

:

• Th

e pe

rson

was

und

er a

lega

l obl

iga�

on

to o

bey

orde

rs o

f the

Gov

ernm

ent o

r th

e su

peri

or in

que

s� o

n;

• Th

e pe

rson

did

not

kno

w th

at th

e or

der

was

unl

awfu

l.

No

expl

icit

pro-

visi

on e

xist

s in

th

is re

gard

.

No

expl

icit

prov

isio

n ex

-is

ts in

this

rega

rd.

Expl

icit

prov

isio

n sh

ould

be

mad

e in

the

Rom

e St

atut

e Im

ple-

men

ta� o

n A

ct o

n th

is.

PART

4. C

OM

POSI

TIO

N A

ND

AD

MIN

ISTR

ATIO

N O

F TH

E CO

URT

(Ar�

cle

s 34

to 5

2)Th

ere

is p

ossi

bly

no

need

to m

en� o

n an

y-th

ing

abou

t the

ma�

ers

co

vere

d in

this

Par

t in

the

na� o

nal l

aws.

PART

5. I

NV

ESTI

GAT

ION

AN

D P

ROSE

CUTI

ON

Du�

es

and

pow

ers

of t

he P

rose

cuto

r w

ith

resp

ect

to in

ves�

ga�

ons

: Ar�

cle

54

The

Pros

ecut

or m

ay s

eek

the

coop

era�

on

to

colle

ct a

nd e

xam

ine

evid

ence

; req

uest

the

pres

-en

ce o

f and

que

s� o

n pe

rson

s be

ing

inve

s� g

ated

, vi

c� m

s an

d w

itnes

ses;

ens

ure

the

confi

den

� alit

y of

info

rma�

on,

the

prot

ec� o

n of

any

per

son

or th

e pr

eser

va� o

n of

evi

denc

e.

No

expl

icit

pro-

visi

on e

xist

s in

th

is re

gard

.

No

expl

icit

prov

isio

n ex

-is

ts in

this

rega

rd.

App

ropr

iate

pro

visi

on

shou

ld b

e in

trod

uced

in

the

Rom

e St

atut

e Im

plem

enta

� on

Act

ab

out t

he p

roce

ss o

f ex

tend

ing

assi

stan

ce to

th

e Pr

osec

utor

in c

ase

of d

eman

d.


Righ

ts o

f per

sons

dur

ing

an in

ves�

ga�

on:

A

r� c

le 5

5

1. In

resp

ect o

f an

inve

s� g

a� o

n un

der

this

Sta

tute

, a

pers

on s

hall

enjo

y th

e fo

llow

ing

righ

ts:

• Sh

all n

ot b

e co

mpe

lled

to in

-cr

imin

ate

him

self

or h

erse

lf or

to

conf

ess

guilt

;

• Sh

all n

ot b

e su

bjec

ted

to a

ny

form

of c

oerc

ion,

dur

ess

or

thre

at, t

o to

rtur

e or

to a

ny

othe

r fo

rm o

f cru

el, i

nhum

an o

r de

grad

ing

trea

tmen

t or

puni

sh-

men

t;

• Sh

all b

e qu

es� o

ned

in a

lang

uage

th

e pe

rson

fully

und

erst

ands

, ha

ve th

e as

sist

ance

of a

com

pe-

tent

tran

slat

or o

r in

terp

rete

r;

A fe

w p

rovi

-si

ons

exis

t in

Ar�

cle

24

of

the

Inte

rim

Co

ns� t

u� o

n.

A fe

w p

rovi

sion

s ex

ist i

n Ch

apte

r 2

of th

e Pe

nal

Code

.

To b

e co

nfor

med

to th

e St

atut

e,A

ppro

pria

te p

rovi

sion

sh

ould

be

intr

oduc

ed

in th

e Ro

me

Stat

ute

Impl

emen

ta� o

n A

ct.


• Sh

all n

ot b

e su

bjec

ted

to a

rbi-

trar

y ar

rest

or

dete

n� o

n.

2. W

here

ther

e ar

e gr

ound

s to

bel

ieve

that

a

pers

on h

as c

omm

i� ed

a c

rim

e an

d th

at p

erso

n is

ab

out t

o be

que

s� o

ned

eith

er b

y th

e Pr

osec

utor

, or

by

na� o

nal a

utho

ri� e

s, th

at p

erso

n sh

all a

lso

be

info

rmed

: (a) T

o be

info

rmed

, pri

or to

bei

ng q

ues-

� one

d, th

at th

ere

are

grou

nds

to b

elie

ve

that

he

or s

he h

as c

omm

i� ed

a c

rim

e;

(b) T

o re

mai

n si

lent

, with

out s

uch

sile

nce

bein

g a

cons

ider

a� o

n in

the

dete

rmin

a-� o

n of

gui

lt or

inno

cenc

e;

(c) T

o ha

ve le

gal a

ssis

tanc

e of

the

pers

on’s

ch

oosi

ng, o

r, if

the

pers

on d

oes

not h

ave

lega

l ass

ista

nce,

to h

ave

lega

l ass

ista

nce

assi

gned

to h

im o

r he

r;

(d) T

o be

que

s� o

ned

in th

e pr

esen

ce o

f co

unse

l.


Role

of t

he P

re-T

rial C

ham

ber i

n re

la� o

nto

a u

niqu

e in

ves�

ga�

ve

oppo

rtun

ity: A

r� c

le 5

6,A

r� c

le 5

7

In a

ddi�

on to

its

othe

r fu

nc� o

ns in

rela

� on

to

uniq

ue in

ves�

ga�

ve

oppo

rtun

ity, t

he P

re-T

rial

Ch

ambe

r m

ay a

t the

requ

est o

f the

Pro

secu

tor

or

on o

wn

ini�

a� v

e is

sue

orde

rs fo

r ov

erse

eing

an

in-

ves�

ga�

on

or c

olle

ct e

vide

nce,

pro

tect

and

inqu

ire

or d

eput

e a

judg

e –

Ar�

cle

56(

2)(e

)

No

such

pro

vi-

sion

exi

sts

in

the

law

.

No

such

pro

visi

on e

xist

s ei

ther

in th

e Pe

nal C

ode

or C

rim

inal

Pro

cedu

re

Code

No

such

pro

visi

on

exis

ts, b

ut it

is im

-pe

ra� v

e fo

r fu

ll ju

s� c

e;

Sim

ilarl

y, a

ppro

pria

te

prov

isio

ns m

ust b

e m

ade

abou

t arr

est o

f th

e ac

cuse

d, c

olle

c� o

n an

d sa

fe-k

eepi

ng o

f ev

iden

ce, p

rote

c� o

n of

w

itnes

s an

d vi

c� m

and

sa

fegu

ardi

ng o

f the

ir

inte

rest

in th

e Ro

me

Stat

ute

Impl

emen

ta-

� on

Act

.


Issu

ance

by

the

Pre-

Tria

l Cha

mbe

r of

a w

arra

nt o

f ar

rest

or

a su

mm

ons

to a

ppea

r an

d it

s ex

ecu�

on:

A

r� c

les

58 a

nd 5

9

At a

ny �

me

a� e

r th

e in

i� a�

on

of a

n in

ves�

ga�

on,

th

e Pr

e-Tr

ial C

ham

ber

shal

l, on

the

appl

ica�

on

of th

e Pr

osec

utor

, iss

ue a

war

rant

of a

rres

t of a

pe

rson

. Upo

n re

ceiv

ing

such

an

orde

r or

sum

mon

s,

the

Stat

e Pa

rty

shal

l im

med

iate

ly ta

ke s

teps

to

serv

e it

on th

e pe

rson

and

arr

est h

er o

r hi

m.

No

In th

e Cr

imin

al P

roce

-du

re C

ode,

pro

visi

on

mad

e fo

r ar

rest

onl

y w

ith c

ourt

’s p

erm

issi

on

exce

pt in

cer

tain

cir-

cum

stan

ces

(Cha

pter

6)

App

ropr

iate

pro

visi

on

shou

ld b

e in

sert

ed

in th

e Ro

me

Stat

ute

Impl

emen

ta� o

n A

ct

abou

t dem

andi

ng n

ec-

essa

ry d

etai

ls in

cas

e fo

r re

ques

t for

coo

p-er

a� o

n, im

plem

enta

-� o

n of

arr

est w

arra

nt

or s

umm

ons

and

term

s an

d co

ndi�

ons

of im

-pl

emen

ta� o

n


Arr

est p

roce

edin

gs in

the

cust

odia

l Sta

te:

Ar�

cle

59

1. A

Sta

te P

arty

whi

ch h

as re

ceiv

ed a

requ

est f

or

prov

isio

nal a

rres

t or

for

arre

st a

nd s

urre

nder

sha

ll im

med

iate

ly a

rres

t the

per

son

and

shal

l bri

ng h

er

of h

im p

rom

ptly

bef

ore

the

com

pete

nt ju

dici

al

auth

ority

, in

acco

rdan

ce w

ith a

ppro

pria

te p

roce

ss

and

carr

y ou

t the

follo

win

g ta

sks:

•

Det

erm

ine

that

the

war

rant

ap-

plie

s to

that

per

son;

• En

sure

that

the

pers

on h

as b

een

arre

sted

in a

ccor

danc

e w

ith th

e pr

oper

pro

cess

; and

• En

sure

that

the

pers

on’s

rig

hts

have

bee

n re

spec

ted.

2. T

he p

erso

n ar

rest

ed s

hall

have

the

righ

t to

appl

y to

the

com

pete

nt a

utho

rity

in th

e cu

stod

ial S

tate

fo

r in

teri

m re

leas

e pe

ndin

g su

rren

der.

It s

hall

not b

e op

en to

the

com

pete

nt a

utho

rity

of t

he

cust

odia

l Sta

te to

con

side

r w

heth

er th

e w

arra

nt o

f ar

rest

was

pro

perl

y is

sued

.

No

prov

isio

n ex

ists

in la

w in

th

is re

gard

.

No

prov

isio

n ex

ists

in

this

rega

rd.

App

ropr

iate

pro

visi

on

shou

ld b

e in

sert

ed

in th

e Ro

me

Stat

ute

Impl

emen

ta� o

n A

ct,

incl

udin

g ab

out t

he

grou

nds

and

wor

k pr

oced

ure

in th

e ev

ent

the

arre

sted

per

son

is fo

und

to b

e no

t the

pe

rson

men

� one

d in

th

e ar

rest

war

rant

, co

nsul

t the

cou

rt a

nd

that

the

righ

ts o

f the

ar

rest

ed p

erso

n ar

e re

spec

ted

and

can

be

gran

ted

inte

rim

bai

l


PART

6. T

HE

TRIA

L

Righ

ts o

f the

acc

used

: Ar�

cle

67

The

accu

sed

shal

l be

en� t

led

to a

fair

pub

lic

hear

ing,

hav

ing

rega

rd to

the

follo

win

g m

inim

um

guar

ante

es, i

n fu

ll eq

ualit

y:

• To

be

info

rmed

of t

he c

harg

e, in

a

lang

uage

whi

ch th

e ac

cuse

d fu

lly u

nder

stan

ds a

nd s

peak

s;

• To

hav

e ad

equa

te �

me

and

faci

li� e

s fo

r th

e pr

epar

a� o

n of

th

e de

fenc

e an

d to

com

mun

icat

e fr

eely

with

cou

nsel

; •

To b

e tr

ied

with

out u

ndue

del

ay;

• To

hav

e le

gal a

ssis

tanc

e;

• To

exa

min

e, o

r ha

ve e

xam

ined

, th

e w

itnes

ses

unde

r th

e sa

me

cond

i� on

s as

witn

esse

s ag

ains

t hi

m o

r he

r;

• To

hav

e, fr

ee o

f any

cos

t, th

e as

sis-

tanc

e of

a c

ompe

tent

inte

rpre

ter

and

such

tran

sla�

ons

• N

ot to

be

com

pelle

d to

tes�

fy

or to

con

fess

gui

lt an

d to

rem

ain

sile

nt;

Mos

t of t

hese

ri

ghts

fi nd

a

plac

e in

the

Inte

rim

Con

s� -

tu� o

n.

Mos

t of t

hese

rig

hts

are

men

� one

d in

the

Pena

l Co

de.

Thes

e ri

ghts

sho

uld

be

mad

e m

ore

com

pre-

hens

ive

to c

onfo

rm

with

the

Rom

e St

atut

e;

in a

ddi�

on, a

ppro

pri-

ate

prov

isio

n sh

ould

be

inse

rted

in th

e Ro

me

Stat

ute

Impl

emen

ta-

� on

Act


• To

mak

e an

uns

wor

n or

al o

r w

ri�

en s

tate

men

t in

his

or h

er

defe

nce;

•

Not

to h

ave

impo

sed

on h

im o

r he

r an

y re

vers

al o

f the

bur

den

of

proo

f or

any

onus

of r

ebu�

al.

Prot

ec�

on o

f the

vic

� m

s an

d w

itne

sses

and

the

irpa

r� c

ipa�

on

in t

he p

roce

edin

gs: A

r� c

le 6

8

• If

the

secu

rity

of a

vic

� m o

r a

witn

ess,

pr

otec

� on

of h

er/h

is re

puta

� on

and

con-

fi den

� alit

y, in

cam

era

hear

ing,

as

need

ed,

use

of e

lect

roni

c an

d ot

her

tech

nolo

gies

, re

pres

enta

� on

thro

ugh

the

repr

esen

ta� v

e of

the

vic�

m, g

rave

end

ange

rmen

t to

the

life

of th

e vi

c� m

, the

sta

tem

ents

of t

he

witn

esse

s sh

all b

e w

ithhe

ld u

n� l

tria

l.

• A

Sta

te m

ay m

ake

an a

pplic

a� o

n fo

r ne

c-es

sary

mea

sure

s to

be

take

n in

resp

ect

of th

e pr

otec

� on

of it

s se

rvan

ts o

r ag

ents

an

d th

e pr

otec

� on

of c

onfi d

en� a

l or

sen-

si� v

e in

form

a� o

n.

No

prov

isio

n ex

ists

in la

w in

th

is re

gard

.

In th

e Cr

imin

al P

roce

-du

re C

ode,

thos

e w

it-ne

sses

who

can

not b

e pr

oduc

ed in

the

cour

t du

e to

sec

urity

rea-

sons

may

be

exam

ined

th

roug

h au

diov

isua

l m

edia

(Sec

� ons

185

, 18

6),

If th

e w

itnes

s fa

ces

dang

er to

her

or

his

life,

sh

e or

he

may

app

ly to

th

e co

urt f

or s

ecur

ity

(Sec

� ons

109

, 114

)

The

vic�

m’s

iden

� ty

may

be

kept

con

fi den

-� a

l (Se

c� o

n 18

4),

Prov

isio

ns c

onfo

rmin

g w

ith th

e Ro

me

Stat

ute

shou

ld b

e in

sert

ed,

incl

udin

g on

est

ablis

h-m

ent o

f vic

� m a

nd

witn

ess

trus

t fun

d,

witn

ess

secu

rity

uni

t or

mec

hani

sm, w

itnes

s se

curi

ty p

lan;

In

add

i� on

, app

ropr

i-at

e pr

ovis

ion

shou

ld b

e in

sert

ed in

the

Rom

e St

atut

e Im

plem

enta

-� o

n A

ct


Prov

isio

n fo

r vi

c� m

re

lief a

nd c

ompe

nsa�

on

fund

Cri

min

al O

ff enc

e (P

unis

hmen

t Det

erm

i-na

� on

and

Impl

emen

ta-

� on)

Bill

, Sec

� on

48

Evid

ence

: Ar�

cle

69

Apa

rt fr

om o

ther

thin

gs, t

he C

ourt

may

als

o pe

rmit

the

givi

ng o

f viv

a vo

ce (o

ral)

or re

cord

ed te

s� m

ony

of a

witn

ess

by m

eans

of v

ideo

or

audi

o te

chno

l-og

y.

Evid

ence

obt

aine

d by

mea

ns o

f a v

iola

� on

of th

is

Stat

ute

or in

tern

a� o

nally

reco

gniz

ed h

uman

rig

hts

shal

l not

be

adm

issi

ble

if:

• Th

e vi

ola�

on

cast

s su

bsta

n� a

l do

ubt o

n th

e re

liabi

lity

of th

e ev

iden

ce; o

r

• Th

e ad

mis

sion

of t

he e

vide

nce

wou

ld b

e an

� the

� cal

to a

nd

wou

ld s

erio

usly

dam

age

the

inte

grity

of t

he p

roce

edin

gs.

The

Evid

ence

A

ct d

oes

not s

ay th

e ev

iden

ce c

ol-

lect

ed fo

rcib

ly

is n

ot d

irect

ly

non-

adm

issi

-bl

e-Se

c 9.

No

prov

isio

n ex

ists

, re

com

men

da� o

n m

ade

to a

men

d th

e Ev

iden

ce

Act

Prov

isio

n sh

ould

be

mad

e ab

out t

he ty

pes

of e

vide

nce

that

are

to

be

adm

issi

ble,

the

type

s of

evi

denc

e th

at

are

to b

e ke

pt c

onfi -

den�

al,

the

met

hods

of

colle

c� n

g ev

iden

ce


Off

ence

s ag

ains

t the

adm

inis

tra�

on

of ju

s� c

e:

Ar�

cle

70

The

Cour

t sha

ll ha

ve ju

risd

ic� o

n ov

er th

e fo

llow

ing

off e

nces

aga

inst

its

adm

inis

tra�

on

of ju

s� c

e:

(a) G

ivin

g fa

lse

tes�

mon

y w

hen

unde

r an

ob

liga�

on

to te

ll th

e tr

uth;

(b) P

rese

n� n

g ev

iden

ce th

at th

e pa

rty

know

s is

fals

e or

forg

ed;

(c) C

orru

ptly

infl u

enci

ng a

witn

ess,

ob-

stru

c� n

g or

inte

rfer

ing

with

the

a� e

n-da

nce

or te

s� m

ony

of a

witn

ess,

tam

per-

ing

with

or

inte

rfer

ing

with

the

colle

c� o

n of

evi

denc

e;

(d) I

mpe

ding

, in�

mid

a� n

g or

cor

rupt

ly

infl u

enci

ng a

n offi

cia

l of t

he C

ourt

for

the

purp

ose

of fo

rcin

g or

per

suad

ing

the

offi c

ial n

ot to

per

form

, or

to p

erfo

rm

impr

oper

ly, h

is o

r he

r du

� es;

(e) R

etal

ia� n

g ag

ains

t an

offi c

ial o

f the

Co

urt o

n ac

coun

t of d

u� e

s pe

rfor

med

by

that

or

anot

her

offi c

ial;

Oth

er th

an

the

ineff

ec�

ve

prov

isio

n of

pu

nish

men

t fo

r w

itnes

ses

for

perj

ury,

th

ere

are

no

spec

ifi c

prov

i-si

ons.

Com

preh

ensi

ve p

rovi

-si

on e

xist

s ab

out

off e

nces

aga

inst

pub

lic

jus�

ce

(Cha

pter

4)

Sinc

e th

e co

urt m

ay

requ

est t

he S

tate

par

ty

to in

i� at

e a

tria

l in

a lo

cal c

ourt

, app

ropr

i-at

e pr

ovis

ion

shou

ld b

e in

sert

ed in

the

Pena

l Co

de a

nd th

e Ro

me

Stat

ute

Impl

emen

ta-

� on

Act

, tak

ing

into

ac

coun

t the

pro

visi

on

of r

ules

162

-172

of t

he

Rule

s on

Wor

k Pr

oce-

dure

and

Evi

denc

e, a

s w

ell a

s th

e pu

nish

men

t ex

ecu�

on

and

judi

cial

ai

d


(f) S

olic

i� ng

or

acce

p� n

g a

brib

e as

an

offi c

ial o

f the

Cou

rt in

con

nec�

on

with

his

or

her

offi

cial

du�

es.

2. T

he p

rinc

iple

s an

d pr

oced

ures

gov

erni

ng th

e Co

urt’s

exe

rcis

e of

juri

sdic

� on

over

off e

nces

und

er

this

ar�

cle

sha

ll be

thos

e pr

ovid

ed fo

r in

the

Rule

s of

Pro

cedu

re a

nd E

vide

nce.

The

con

di� o

ns fo

r pr

ovid

ing

inte

rna�

ona

l coo

pera

� on

to th

e Co

urt

with

resp

ect t

o its

pro

ceed

ings

und

er th

is a

r� c

le

shal

l be

gove

rned

by

the

dom

es� c

law

s of

the

requ

este

d St

ate.

Sanc

� on

s fo

r m

isco

nduc

t be

fore

the

Cou

rt:

Ar�

cle

71

The

Cour

t may

san

c� o

n pe

rson

s pr

esen

t bef

ore

it w

ho c

omm

it m

isco

nduc

t, in

clud

ing

disr

up� o

n of

its

proc

eedi

ngs

or d

elib

erat

e re

fusa

l to

com

ply

with

its

dire

c� o

ns, b

y ad

min

istr

a� v

e m

easu

res

othe

r th

an im

pris

onm

ent,

suc

h as

tem

pora

ry o

r pe

rman

ent r

emov

al fr

om th

e co

urtr

oom

, a fi

ne o

r ot

her

sim

ilar

mea

sure

s.

Cont

empt

of

cour

t may

at-

trac

t ac�

on.

No

sepa

rate

pro

visi

on

exis

tsA

ppro

pria

te p

rovi

sion

sh

ould

be

mad

e in

the

Rom

e St

atut

e Im

ple-

men

ta� o

n A

ct


Thir

d-pa

rty

info

rma�

on

or d

ocum

ents

: Ar�

cle

73

If a

Stat

e Pa

rty

is re

ques

ted

by th

e Co

urt t

o pr

ovid

e a

docu

men

t or

info

rma�

on

in it

s cu

stod

y, p

osse

s-si

on o

r co

ntro

l, w

hich

con

cern

s a

third

par

ty, i

t sh

all n

ot d

iscl

ose

that

doc

umen

t or

info

rma�

on

with

out t

he c

onse

nt o

f suc

h st

ate.

No

sepa

rate

pr

ovis

ion

ex-

ists

.

No

sepa

rate

pro

visi

on

exis

ts.

App

ropr

iate

pro

visi

on

shou

ld b

e m

ade

in th

e Ro

me

Stat

ute

Impl

e-m

enta

� on

Act

Repa

ra�

ons

to v

ic�

ms:

Ar�

cle

75

• Th

e Co

urt s

hall

esta

blis

h pr

inci

ples

rela

t-in

g to

repa

ra� o

ns to

vic

� ms,

incl

udin

g re

s� t

u� o

n, c

ompe

nsa�

on

and

reha

bilit

a-� o

n.

• Th

e Co

urt m

ay m

ake

an o

rder

dire

ctly

ag

ains

t a c

onvi

cted

per

son

or th

roug

h th

e Tr

ust F

und.

• Be

fore

mak

ing

an o

rder

, the

Cou

rt m

ay

hear

repr

esen

ta� o

ns fr

om th

e co

nvic

ted

pers

on, v

ic� m

s, o

ther

inte

rest

ed p

erso

ns

or in

tere

sted

Sta

tes.

Sca�

ere

d pr

ovis

ions

on

repa

ra� o

n ex

ist.

Prov

isio

n fo

r in

teri

m

com

pens

a� o

n (S

ec� o

n 48

)Pu

nish

men

t may

be

redu

ced

if th

e gu

ilty

is

read

y to

pay

com

pens

a-� o

n (S

ec� o

n 38

)Re

para

ta� o

n is

ado

pted

as

an

intr

insi

c pa

rt

of th

e ju

s� c

e sy

stem

(C

hapt

er 6

)

Impl

emen

ta� o

n of

th

e Pe

nal C

ode

shou

ld

be m

onito

red;

ap-

prop

riat

e pr

ovis

ion

shou

ld b

e m

ade

in th

e Ro

me

Stat

ute

Impl

e-m

enta

� on

Act

abo

ut

the

resp

onsi

bilit

y of

ex

ecu�

ng

verd

icts

un-

der

Ar�

cle

109

of t

he

Rom

e St

atut

e


Sent

enci

ng: A

r� c

le 7

6

In th

e ev

ent o

f a c

onvi

c� o

n, a

sep

arat

e he

arin

g m

ay b

e he

ld

No

prov

isio

n of

se

para

te h

ear-

ing

exis

ts.

Such

a p

rovi

sion

is

mad

e in

the

prop

osed

Cr

imin

al O

ff enc

e (P

un-

ishm

ent D

eter

min

a� o

n an

d Im

plem

enta

� on)

Bi

ll

Exec

u� o

n sh

ould

be

mon

itore

d;

in a

ddi�

on, a

ppro

pri-

ate

prov

isio

n sh

ould

be

mad

e in

the

Rom

e St

atut

e Im

plem

enta

-� o

n A

ct

PART

7. P

ENA

LTIE

S

App

licab

le p

enal

� es

: Ar�

cle

77

• Im

pris

onm

ent u

p to

a m

axim

um

of 3

0 ye

ars;

• Li

fe im

pris

onm

ent w

hen

jus�

fi ed

by

the

extr

eme

grav

ity o

f the

cr

ime.

• a

fi ne

and

forf

eitu

re o

f pro

pert

y.

Life

impr

ison

-m

ent,

impr

is-

onm

ent f

or 2

0 ye

ars

Prov

isio

n fo

r lif

e im

pris

-on

men

t of 3

0 ye

ars

and

impr

ison

men

t as

long

as

the

conv

ict i

s liv

ing

in

case

of c

rim

es s

uch

as

hein

ous

mur

der,

mas

s ki

lling

, gen

ocid

e, e

tc

(Sec

� on

40)

Prop

erty

gai

ned

by

com

mi�

ng

the

crim

e an

d th

e m

eans

use

d fo

r co

mm

i� n

g th

e cr

ime

to

be c

onfi s

cate

d (C

hapt

er

6, S

ec� o

n 41

-59)

Exec

u� o

n sh

ould

be

mon

itore

d;

in a

ddi�

on, a

ppro

pri-

ate

prov

isio

n sh

ould

be

mad

e in

the

Rom

e St

atut

e Im

plem

enta

-� o

n A

ct


Det

erm

ina�

on

of th

e se

nten

ce: A

r� c

le 7

8

In d

eter

min

ing

the

sent

ence

, the

Cou

rt s

hall

take

in

to a

ccou

nt s

uch

fact

ors

as th

e gr

avity

of t

he

crim

e an

d th

e in

divi

dual

circ

umst

ance

s of

the

conv

icte

d pe

rson

.

This

has

bee

n ac

cept

ed in

pr

inci

ple.

Com

preh

ensi

ve p

ro-

visi

ons

are

mad

e in

Ch

apte

r 4 a

nd 5

of t

he

Pena

l Cod

e an

d in

the

Crim

inal

Off e

nce

(Pun

ish-

men

t Det

erm

ina�

on

and

Impl

emen

ta� o

n) B

ill

Exec

u� o

n sh

ould

be

mon

itore

d;

in a

ddi�

on, a

ppro

pri-

ate

prov

isio

n sh

ould

be

mad

e in

the

Rom

e St

atut

e Im

plem

enta

-� o

n A

ct

Trus

t Fun

d: A

r� c

le 7

9

A T

rust

Fun

d sh

all b

e es

tabl

ishe

d fo

r th

e be

nefi t

of

vic�

ms

of c

rim

es, fi

nes

or

forf

eitu

re m

ay b

e tr

ans-

ferr

ed to

the

Trus

t Fun

d.

No

such

pro

vi-

sion

exi

sts.

Prov

isio

n fo

r vi

c� m

re

lief a

nd c

ompe

nsa�

on

fund

is m

ade

in C

rim

inal

O

ff enc

e (P

unis

hmen

t D

eter

min

a� o

n an

d Im

plem

enta

� on)

Bill

Exec

u� o

n sh

ould

be

mon

itore

d;

in a

ddi�

on, a

ppro

pri-

ate

prov

isio

n sh

ould

be

mad

e in

the

Rom

e St

atut

e Im

plem

enta

-� o

n A

ct

PART

8. A

PPEA

L A

ND

REV

ISIO

N

App

eal a

gain

st d

ecis

ion

of a

cqui

� al

or c

onvi

c� o

nor

aga

inst

sen

tenc

e: A

r� c

le 8

1

The

conv

icte

d pe

rson

, or t

he P

rose

cuto

r on

that

pe

rson

’s be

half,

may

mak

e an

app

eal o

n th

e gr

ound

s of

pro

cedu

ral e

rror

, err

or o

f fac

t, er

ror

of la

w, f

airn

ess

or re

liabi

lity

of th

e pr

ocee

ding

s or

dec

isio

n an

d on

the

grou

nd o

f dis

prop

or� o

n be

twee

n th

e cr

ime

and

the

sent

ence

;

Prov

isio

n fo

r ap

peal

exi

sts

in a

lmos

t all

of

thes

e su

bjec

ts.

Prov

isio

n is

mad

e fo

r ap

peal

in a

lmos

t all

topi

cs: P

roce

dure

Cod

e,

Chap

ter 1

4

App

ropr

iate

pro

visi

on

shou

ld b

e m

ade

in th

e Ro

me

Stat

ute

Impl

e-m

enta

� on

Act


App

eal a

gain

st o

ther

dec

isio

ns: A

r� c

le 8

2

The

Stat

e Pa

rty,

Pro

secu

tor

or p

erso

n co

ncer

ned

may

a d

ecis

ion

with

resp

ect t

o ju

risd

ic� o

n or

ad-

mis

sibi

lity;

a d

ecis

ion

of th

e Pr

e-Tr

ial C

ham

ber

to

act o

n its

ow

n in

i� a�

ve;

on

the

issu

e of

fair

ness

of

the

proc

eedi

ngs.

The

vic�

m, t

he c

onvi

cted

per

son

or o

wne

r of

pro

p-er

ty a

dver

sely

aff e

cted

by

an o

rder

may

app

eal

agai

nst t

he o

rder

for

repa

ra� o

ns.

As

per

prov

i-si

on n

o. 1

7 of

Co

urt M

anag

e-m

ent,

to h

ear

appe

als

and

wat

ch c

ourt

pr

ocee

ding

s to

a li

mite

d ex

tent

N

o su

ch p

rovi

-si

on e

xist

s.

On

lega

l que

s� o

n, to

lim

ited

exte

nt

No

such

pro

visi

on e

x-is

ts.

Such

a p

rovi

sion

in la

w

is d

esira

ble;

in

add

i� on

, app

ropr

i-at

e pr

ovis

ion

shou

ld

be m

ade

in th

e Ro

me

Stat

ute

Impl

emen

ta-

� on

Act

Com

pens

a� o

n to

an

arre

sted

or

conv

icte

d pe

rson

: A

r� c

le 8

5

1. A

nyon

e w

ho h

as b

een

the

vic�

m o

f unl

awfu

l ar

rest

or

dete

n� o

n sh

all h

ave

a ri

ght t

o co

mpe

nsa-

� on.

No

such

pro

vi-

sion

exi

sts.

No

such

pro

visi

on e

x-is

ts.

Such

a p

rovi

sion

in c

ode

is d

esira

ble;

in a

ddi�

on,

appr

opria

te p

rovi

sion

sh

ould

be

mad

e in

the

Rom

e St

atut

e Im

ple-

men

ta� o

n Ac

t


2. W

hen

a pe

rson

has

by

a fi n

al d

ecis

ion

been

co

nvic

ted

of a

crim

inal

off e

nce,

and

whe

n su

bse-

quen

tly h

is o

r her

con

vic�

on

has

been

reve

rsed

on

the

grou

nd th

at a

new

or n

ewly

dis

cove

red

fact

sh

ows

conc

lusi

vely

that

ther

e ha

s be

en a

mis

carr

iage

of

jus�

ce,

the

pers

on w

ho h

as s

uff e

red

puni

shm

ent

as a

resu

lt of

suc

h co

nvic

� on

shal

l be

com

pens

ated

ac

cord

ing

to la

w, u

nles

s it

is p

rove

d th

at th

e no

n-di

sclo

sure

of t

he u

nkno

wn

fact

in �

me

is w

holly

or

part

ly a

� rib

utab

le to

him

or h

er.

PART

9. I

NTE

RNAT

ION

AL

COO

PERA

TIO

N A

ND

JU

DIC

IAL

ASS

ISTA

NCE

Gen

eral

obl

iga�

on

to c

oope

rate

: Ar�

cle

86

Stat

es P

ar� e

s ac

cept

the

resp

onsi

bilit

y of

fully

co

oper

a� n

g w

ith th

e Co

urt i

n its

inve

s� g

a� o

n an

d pr

osec

u� o

n of

cri

mes

with

in th

e ju

risd

ic� o

n of

the

Cour

t.

No

such

pro

vi-

sion

exi

sts.

No

such

pro

visi

on e

x-is

ts.

Sinc

e th

is p

rovi

sion

is

conc

erne

d no

t onl

y w

ith P

art 9

but

als

o th

e en

� re

prov

isio

n of

th

e St

atut

e an

d si

nce

the

Stat

ute

expe

cts

full

coop

era�

on,

app

ropr

i-at

e pr

ovis

ion

shou

ld

be m

ade

in th

e Ro

me

Stat

ute

Impl

emen

ta-

� on

Act


Requ

ests

for

coop

era�

on:

gen

eral

pro

visi

ons:

A

r� c

le 8

7

• Th

e Co

urt m

ay re

ques

t the

Sta

tes

Par�

es

for

coop

era�

on

thro

ugh

the

dipl

oma�

c

chan

nel o

r an

y ot

her

appr

opri

ate

chan

nel

as m

ay b

e de

sign

ated

by

each

Sta

te P

arty

.

• Th

e re

ques

ted

Stat

e sh

all k

eep

confi

-de

n� a

l a re

ques

t for

coo

pera

� on

and

any

docu

men

ts s

uppo

r� n

g th

e re

ques

t,

exce

pt to

the

exte

nt th

at th

e di

sclo

sure

is

nece

ssar

y fo

r ex

ecu�

on

of th

e re

ques

t.

No

such

pro

vi-

sion

exi

sts.

No

such

pro

visi

on e

x-is

ts.

For t

his,

app

ropr

iate

pr

ovis

ion

shou

ld b

e m

ade

in th

e Ro

me

Stat

-ut

e Im

plem

enta

� on

Act

abou

t wha

t sho

uld

be

the

lang

uage

of r

eque

st

for d

esig

na� n

g a

foca

l po

int i

n th

e im

plem

en-

ta� o

n la

w, c

onfi d

en� a

l-ity

of r

eque

st, p

rote

c-� o

n of

info

rma�

on,

pr

otec

� on

of v

ic� m

and

w

itnes

s, e

tc

• Th

e Co

urt m

ay re

ques

t tha

t any

info

rma-

� on

that

is m

ade

avai

labl

e un

der

this

Par

t sh

all b

e pr

ovid

ed a

nd h

andl

ed in

a m

an-

ner

that

pro

tect

s th

e sa

fety

and

phy

sica

l or

psy

chol

ogic

al w

ell-b

eing

of a

ny v

ic� m

s,

pote

n� a

l witn

esse

s an

d th

eir

fam

ilies

.


Ava

ilabi

lity

of p

roce

dure

s un

der

na�

onal

law

: A

r� c

le 8

8

Stat

es P

ar� e

s sh

all e

nsur

e th

at th

ere

are

proc

e-du

res

avai

labl

e un

der

thei

r na

� ona

l law

for

all o

f th

e fo

rms

of c

oope

ra� o

n un

der

the

Stat

ute.

No

such

pro

vi-

sion

exi

sts.

No

such

pro

visi

on e

x-is

ts.

Such

pro

cedu

re s

houl

d be

men

� one

d in

the

na� o

nal l

aw, a

ppro

pri-

ate

prov

isio

n sh

ould

be

mad

e in

the

Rom

e St

atut

e Im

plem

enta

-� o

n A

ct

Surr

ende

r of

per

sons

to t

he C

ourt

: Ar�

cle

89

• Th

e Co

urt m

ay re

ques

t for

the

arre

st a

nd

surr

ende

r of a

per

son

to a

ny S

tate

on

the

terr

itory

of w

hich

that

per

son

may

be

foun

d. S

tate

s Pa

r� e

s sh

all c

ompl

y w

ith

requ

ests

for a

rres

t and

sur

rend

er.

• A

Stat

e Pa

rty

shal

l aut

horiz

e tr

ansp

orta

� on

thro

ugh

its te

rrito

ry o

f a p

erso

n be

long

ing

to a

third

cou

ntry

bei

ng s

urre

nder

ed to

the

Cour

t by

anot

her S

tate

.d

No

No

App

ropr

iate

pro

visi

on

shou

ld b

e m

ade

in th

e Ro

me

Stat

ute

Impl

e-m

enta

� on

Act

in re

la-

� on

to th

e pr

oced

ure

to b

e ad

opte

d an

d pr

ovis

ion

for

hear

ing,

if

such

as

requ

est i

s re

ceiv

ed;

d Suc

h a

cond

i� on

may

be

appl

icab

le to

bot

h an

acc

used

that

has

bee

n ar

rest

ed a

nd a

per

son

agai

nst w

hom

pun

ishm

ent h

as b

een

deliv

ered

.


Com

pe�

ng re

ques

ts: A

r� c

le 9

0

• A

Sta

te P

arty

whi

ch re

ceiv

es a

requ

est

from

the

Cour

t for

the

surr

ende

r of

a p

er-

son

shal

l, if

it al

so re

ceiv

es a

requ

est f

rom

an

y ot

her

Stat

e fo

r th

e ex

trad

i� on

of t

he

sam

e pe

rson

for

the

sam

e co

nduc

t whi

ch

form

s th

e ba

sis

of th

e cr

ime

for

whi

ch th

e Co

urt s

eeks

the

pers

on’s

sur

rend

er, n

o� f

y th

e Co

urt a

nd th

e re

ques

� ng

Stat

e of

that

fa

ct.

• W

here

the

requ

es� n

g St

ate

is a

Sta

te P

ar-

ty, t

he re

ques

ted

Stat

e sh

all g

ive

prio

rity

to

the

requ

est f

rom

the

Cour

t if t

he C

ourt

ha

s m

ade

a de

term

ina�

on

that

the

case

in

resp

ect o

f whi

ch s

urre

nder

is s

ough

t is

adm

issi

ble

and

that

det

erm

ina�

on

take

s in

to a

ccou

nt th

e in

ves�

ga�

on

or p

rose

cu-

� on

cond

ucte

d by

the

requ

es� n

g St

ate

in re

spec

t of i

ts re

ques

t for

ext

radi

� on;

or

the

Cour

t mak

es th

e de

term

ina�

on

desc

ribe

d in

sub

para

grap

h (a

) pur

suan

t to

the

requ

este

d St

ate’

s no

� fi c

a� o

n un

der

para

grap

h 1.

No

No


• W

here

a c

ase

unde

r pa

ragr

aph

4 ha

s no

t be

en d

eter

min

ed to

be

adm

issi

ble

by th

e Co

urt,

the

requ

este

d St

ate

may

, at i

ts d

is-

cre�

on,

pro

ceed

to d

eal w

ith th

e re

ques

t fo

r ex

trad

i� on

from

the

requ

es� n

g St

ate.

•

In c

ases

whe

re p

arag

raph

4 a

pplie

s ex

cept

th

at th

e re

ques

ted

Stat

e is

und

er a

n ex

ist-

ing

inte

rna�

ona

l obl

iga�

on

to e

xtra

dite

th

e pe

rson

to th

e re

ques

� ng

Stat

e no

t Pa

rty

to th

is S

tatu

te, t

he re

ques

ted

Stat

e sh

all d

eter

min

e w

heth

er to

sur

rend

er

the

pers

on to

the

Cour

t or

extr

adite

the

pers

on to

the

requ

es� n

g St

ate.

In m

akin

g its

dec

isio

n, th

e re

ques

ted

Stat

e sh

all

cons

ider

all

the

rele

vant

fact

ors,

incl

udin

g bu

t not

lim

ited

to:

• W

here

a S

tate

Par

ty w

hich

rece

ives

a

requ

est f

rom

the

Cour

t for

the

surr

ende

r of

a p

erso

n al

so re

ceiv

es a

requ

est f

rom

an

y St

ate

for

the

extr

adi�

on o

f the

sam

e pe

rson

for

cond

uct o

ther

than

that

whi

ch

cons

� tut

es th

e cr

ime

for

whi

ch th

e Co

urt

seek

s th

e pe

rson

’s s

urre

nder

:


• Th

e re

ques

ted

Stat

e sh

all,

if it

is n

ot u

nder

an

exi

s� n

g in

tern

a� o

nal o

blig

a� o

n to

ex

trad

ite th

e pe

rson

to th

e re

ques

� ng

Stat

e, g

ive

prio

rity

to th

e re

ques

t fro

m

the

Cour

t;

• Th

e re

ques

ted

Stat

e sh

all,

if it

is u

nder

an

exis

� ng

inte

rna�

ona

l obl

iga�

on

to e

xtra

-di

te th

e pe

rson

to th

e re

ques

� ng

Stat

e,

dete

rmin

e w

heth

er to

sur

rend

er th

e pe

rson

to th

e Co

urt o

r to

ext

radi

te th

e pe

rson

to th

e re

ques

� ng

Stat

e. In

mak

ing

its d

ecis

ion,

the

requ

este

d St

ate

shal

l con

-si

der

all t

he re

leva

nt fa

ctor

s, in

clud

ing

but

not l

imite

d to

thos

e se

t out

in p

arag

raph

6,

but

sha

ll gi

ve s

peci

al c

onsi

dera

� on

to th

e re

la� v

e na

ture

and

gra

vity

of t

he

cond

uct i

n qu

es� o

n.•

Whe

re p

ursu

ant t

o a

no� fi

ca�

on

unde

r th

is a

r� c

le, t

he C

ourt

has

det

erm

ined

a

case

to b

e in

adm

issi

ble,

and

sub

sequ

ently

ex

trad

i� on

to th

e re

ques

� ng

Stat

e is

re-

fuse

d, th

e re

ques

ted

Stat

e sh

all n

o� f

y th

e Co

urt o

f thi

s de

cisi

on.


Cont

ents

of r

eque

st fo

r ar

rest

and

sur

rend

er:

Ar�

cle

91

1. A

requ

est f

or a

rres

t and

sur

rend

er s

hall

be m

ade

in w

ri� n

g. In

urg

ent c

ases

, a re

ques

t may

be

mad

e by

an

y m

ediu

m c

apab

le o

f del

iver

ing

a w

ri� e

n re

cord

.

2. T

he re

ques

t sha

ll co

ntai

n:

• In

form

a� o

n de

scrib

ing

the

pers

on s

ough

t, su

ffi ci

ent t

o id

en� f

y th

e pe

rson

, and

in

form

a� o

n as

to th

at p

erso

n’s

prob

able

lo

ca� o

n;

• A

copy

of t

he w

arra

nt o

f arr

est;

and

• Su

ch d

ocum

ents

, sta

tem

ents

or i

nfor

ma�

on

as m

ay b

e ne

cess

ary

to m

eet t

he re

quire

-m

ents

for t

he s

urre

nder

pro

cess

in th

e re

ques

ted

Stat

e.

• In

the

case

of a

requ

est f

or th

e ar

rest

and

su

rren

der o

f a p

erso

n al

read

y co

nvic

ted,

the

requ

est s

hall

cont

ain

a co

py o

f the

judg

e-m

ent o

f con

vic�

on;

• If

the

pers

on s

ough

t has

bee

n se

nten

ced,

a

copy

of t

he s

ente

nce

impo

sed

and,

in

the

case

of a

sen

tenc

e fo

r im

pris

onm

ent,

a st

atem

ent o

f any

� m

e al

read

y se

rved

and

th

e � m

e re

mai

ning

to b

e se

rved

.

No

No


Prov

isio

nal a

rres

t: A

r� c

le 9

2

In u

rgen

t cas

es, t

he C

ourt

may

requ

est t

he p

rovi

-si

onal

arr

est o

f the

per

son

soug

ht. T

he re

ques

t for

pr

ovis

iona

l arr

est s

hall

be m

ade

by a

ny m

ediu

m

capa

ble

of d

eliv

erin

g a

wri�

en

reco

rd.

Such

a re

ques

t sha

ll co

ntai

n:

• In

form

a� o

n de

scri

bing

the

iden

� ty

and

prob

able

loca

� on

of th

e pe

rson

;

• A

con

cise

sta

tem

ent o

f the

cri

mes

for

whi

ch th

e pe

rson

’s a

rres

t is

soug

ht a

nd

of th

e fa

cts,

whe

re p

ossi

ble,

the

date

and

lo

ca� o

n of

the

crim

e;

• A

stat

emen

t of t

he e

xist

ence

of a

war

rant

of

arre

st o

r a ju

dgem

ent o

f con

vic�

on;

and

• A

sta

tem

ent t

hat a

requ

est f

or s

urre

nder

of

the

pers

on s

ough

t will

follo

w.

A p

erso

n w

ho is

pro

visi

onal

ly a

rres

ted

may

be

re-

leas

ed fr

om c

usto

dy if

the

requ

este

d St

ate

has

not

rece

ived

the

requ

est f

or s

urre

nder

and

the

docu

-m

ents

sup

por�

ng

the

requ

est w

ithin

six

ty d

ays.

How

ever

, the

per

son

may

con

sent

to s

urre

nder

be

fore

the

expi

ra� o

n of

this

per

iod.

In s

uch

a ca

se,

the

requ

este

d St

ate

shal

l pro

ceed

to s

urre

nder

the

pers

on to

the

Cour

t.

No

No


Oth

er fo

rms

of c

oope

ra�

on: A

r� c

le 9

3

Stat

es P

ar� e

s sh

all,

unde

r pro

cedu

res

of n

a� o

nal l

aw,

com

ply

with

requ

ests

by

the

Cour

t to

prov

ide

the

follo

win

g as

sist

ance

in re

la� o

n to

inve

s� g

a� o

ns o

r pr

osec

u� o

ns:

• Th

e id

en� fi

ca�

on

and

whe

reab

outs

of

pers

ons

or th

e lo

ca� o

n of

item

s;

• Th

e ta

king

of e

vide

nce,

incl

udin

g te

s� m

ony

unde

r oat

h, a

nd th

e pr

oduc

� on

of e

vide

nce,

in

clud

ing

expe

rt o

pini

ons

and

repo

rts

nec-

essa

ry to

the

Cour

t;

• Th

e qu

es� o

ning

of a

ny p

erso

n be

ing

inve

s� -

gate

d or

pro

secu

ted;

• Th

e se

rvic

e of

doc

umen

ts, i

nclu

ding

judi

cial

do

cum

ents

;

• Fa

cilit

a� n

g th

e vo

lunt

ary

appe

aran

ce o

f pe

rson

s as

witn

esse

s or

exp

erts

bef

ore

the

Cour

t;

• Th

e te

mpo

rary

tran

sfer

of p

erso

ns;

• Th

e ex

amin

a� o

n of

pla

ces

or s

ites,

incl

ud-

ing

the

exhu

ma�

on

and

exam

ina�

on

of

grav

e si

tes;

• Th

e ex

ecu�

on

of s

earc

hes

and

seiz

ures

;

• Th

e pr

ovis

ion

of re

cord

s an

d do

cum

ents

,

Sca�

ere

d pr

ovis

ions

re-

gard

ing

clai

m,

prop

erty

of

crim

e.

Prov

isio

n re

gard

ing

confi

sca

� on

of p

rope

rty

and

and

accr

e� o

ns fr

om

that

pro

pert

y, A

r� c

les

49, 5

0, 5

1

Stat

es P

ar� e

s sh

all,

unde

r pr

oced

ures

of n

a-� o

nal l

aw, c

ompl

y w

ith re

ques

ts b

y th

e Co

urt t

o pr

ovid

e th

e fo

llow

ing

assi

stan

ce in

rela

� on

to

inve

s� g

a� o

ns o

r pr

osec

u� o

ns:

• Th

e id

en� fi

ca�

on

and

whe

reab

outs

of

pe

rson

s or

the

loca

� on

of it

ems;

•

The

taki

ng o

f evi

denc

e, in

clud

ing

te

s� m

ony

unde

r oat

h, a

nd th

e pr

oduc

� on

of e

vide

nce,

incl

udin

g ex

pert

op

inio

ns a

nd re

port

s ne

cess

ary

to th

e

Co

urt;

•

The

ques

� oni

ng o

f any

per

son

bein

g

in

ves�

gat

ed o

r pr

osec

uted

; •

The

serv

ice

of d

ocum

ents

, inc

ludi

ng

ju

dici

al d

ocum

ents

; •

Faci

lita�

ng

the

volu

ntar

y ap

pear

ance

of p

erso

ns a

s w

itnes

ses

or e

xper

ts

be

fore

the

Cour

t;

• Th

e te

mpo

rary

tran

sfer

of p

erso

ns;

• Th

e ex

amin

a� o

n of

pla

ces

or s

ites,

incl

udin

g th

e ex

hum

a� o

n an

d ex

amin

a

� on

of g

rave

site

s;

• Th

e ex

ecu�

on

of s

earc

hes

and

seiz

ures

; •

The

prov

isio

n of

reco

rds

and

docu

m

ents

, inc

ludi

ng o

ffi ci

al re

cord

s an

d

do

cum

ents

;•

The

prot

ec� o

n of

vic

� ms

and

witn

esse

s

an

d th

e pr

eser

va� o

n of

evi

denc

e;

Sca�

ere

d pr

ovis

ions

re-

gard

ing

clai

m,

prop

erty

of

crim

e.

Prov

isio

n re

gard

ing

confi

sca

� on

of p

rop-

erty

and

and

acc

re� o

ns

from

that

pro

pert

y, A

r� -

cles

49,

50,

51

Oth

er fo

rms

of c

oope

ra�

on: A

r� c

le 9

3


• Th

e pr

otec

� on

of v

ic� m

s an

d w

itnes

ses

and

the

pres

erva

� on

of e

vide

nce;

• Th

e id

en� fi

ca�

on,

trac

ing

and

free

zing

or

seiz

ure

of p

roce

eds,

pro

pert

y an

d as

sets

an

d in

stru

men

tali�

es

of c

rim

es fo

r th

e pu

rpos

e of

eve

ntua

l for

feitu

re, w

ithou

t pr

ejud

ice

to th

e ri

ghts

of b

ona

fi de

third

pa

r� e

s; a

nd

• A

ny o

ther

type

of a

ssis

tanc

e w

hich

is n

ot

proh

ibite

d by

the

law

of t

he re

ques

ted

Stat

e, w

ith a

vie

w to

faci

lita�

ng

the

inve

s-� g

a� o

n an

d pr

osec

u� o

n.

• A

Sta

te P

arty

may

not

den

y a

requ

est f

or

assi

stan

ce, u

nles

s th

e re

ques

t con

cern

s th

e pr

oduc

� on

of a

ny d

ocum

ents

or

disc

losu

re o

f evi

denc

e w

hich

rela

tes

to it

s na

� ona

l sec

urity

. If a

requ

est f

or a

ssis

-ta

nce

is d

enie

d, th

e re

ques

ted

Stat

e Pa

rty

shal

l pro

mpt

ly in

form

the

Pros

ecut

or.

• Th

e Co

urt m

ay re

ques

t for

coo

pera

� on

in c

ondu

c� n

g an

inve

s� g

a� o

n, re

cord

ing

stat

emen

t or

in o

ther

ma�

ers

.

• Th

e Co

urt s

houl

d al

so c

oope

rate

with

an

d pr

ovid

e as

sist

ance

to a

Sta

te P

arty

co

nduc

� ng

an in

ves�

ga�

on

into

or

tria

l in

resp

ect o

f con

duct

whi

ch c

ons�

tut

es a

cr

ime

with

in th

e ju

risd

ic� o

n of

the

Cour

t.

• Th

e Co

urt s

hall

also

ens

ure

the

confi

-de

n� a

lity

of d

ocum

ents

and

info

rma�

on

obta

ined

from

the

Stat

e Pa

rty.


Post

pone

men

t of e

xecu

� on

of a

requ

est i

n re

spec

t of o

ngoi

ng in

ves�

ga�

on

or p

rose

cu�

on:

Ar�

cle

94

If th

e im

med

iate

exe

cu� o

n of

a re

ques

t wou

ld

inte

rfer

e w

ith a

n on

goin

g in

ves�

ga�

on

or p

ros-

ecu�

on

of a

cas

e di

ff ere

nt fr

om th

at to

whi

ch th

e re

ques

t rel

ates

, the

requ

este

d St

ate

may

pos

tpon

e th

e ex

ecu�

on

of th

e re

ques

t for

a p

erio

d of

� m

e ag

reed

upo

n w

ith th

e Co

urt.

No

No

Post

pone

men

t of e

xecu

� on

of a

requ

est i

nre

spec

t of a

n ad

mis

sibi

lity

chal

leng

e: A

r� c

le 9

5

Whe

re th

ere

is a

n ad

mis

sibi

lity

chal

leng

e un

der

cons

ider

a� o

n by

the

Cour

t, th

e re

ques

ted

Stat

e m

ay p

ostp

one

the

exec

u� o

n of

a re

ques

t pen

ding

a

dete

rmin

a� o

n by

the

Cour

t, u

nles

s th

e Co

urt h

as

spec

ifi ca

lly o

rder

ed o

ther

wis

e.

No

No

Cont

ents

of r

eque

st fo

r ot

her

form

s of

assi

stan

ce u

nder

Ar�

cle

93:

Ar�

cle

96

1. A

requ

est f

or o

ther

form

s of

ass

ista

nce

shal

l be

mad

e in

wri

� ng.

The

requ

est s

hall,

con

tain

or

be

supp

orte

d by

the

follo

win

g:

• A

con

cise

sta

tem

ent o

f the

pur

pose

of t

he

requ

est,

incl

udin

g th

e le

gal b

asis

and

the

grou

nds

for

the

requ

est;

No

No


• A

s m

uch

deta

iled

info

rma�

on

as p

ossi

ble

abou

t the

loca

� on

or id

en� fi

ca�

on

of a

ny

pers

on o

r pl

ace

that

mus

t be

foun

d or

id

en� fi

ed;

• A

con

cise

sta

tem

ent o

f the

ess

en� a

l fac

ts

unde

rlyi

ng th

e re

ques

t;

• Th

e re

ason

s fo

r an

d de

tails

of a

ny p

roce

-du

re o

r re

quire

men

t to

be fo

llow

ed;

• A

ny o

ther

rele

vant

info

rma�

on.

Cons

ulta

� on

s: A

r� c

le 9

7

Whe

re a

Sta

te P

arty

rece

ives

a re

ques

t und

er th

is

Part

in re

la� o

n to

whi

ch it

iden

� fi e

s pr

oble

ms

whi

ch m

ay im

pede

or

prev

ent t

he e

xecu

� on

of

the

requ

est,

that

Sta

te s

hall

cons

ult w

ith th

e Co

urt

with

out d

elay

in o

rder

to re

solv

e th

e m

a� e

r. Su

ch

prob

lem

s m

ay in

clud

e, in

suffi

cien

t inf

orm

a� o

n to

ex

ecut

e th

e re

ques

t; in

the

case

of a

requ

est f

or

surr

ende

r, th

e fa

ct th

at d

espi

te b

est e

ff ort

s, th

e pe

rson

sou

ght c

anno

t be

loca

ted

or th

e pe

rson

in

the

requ

este

d St

ate

is c

lear

ly n

ot th

e pe

rson

; or

the

exec

u� o

n of

the

requ

est i

n its

cur

rent

form

w

ould

requ

ire th

e re

ques

ted

Stat

e to

bre

ach

a pr

e-ex

is� n

g tr

eaty

obl

iga�

on

unde

rtak

en w

ith re

spec

t to

ano

ther

Sta

te.

No

No


Coo

pera

� on

with

resp

ect t

o w

aive

r of i

mm

unity

and

cons

ent t

o su

rren

der:

Ar�

cle

98

The

Cour

t may

not

pro

ceed

with

a re

ques

t for

sur

ren-

der o

r ass

istan

ce u

nder

the

follo

win

g co

ndi�

ons:

it w

ould

requ

ire th

e re

ques

ted

Stat

e to

act

inco

nsis

-te

ntly

with

its

oblig

a� o

ns u

nder

inte

rna�

ona

l law

with

resp

ect t

o th

e St

ate

or d

iplo

ma�

c im

mun

ity o

f a

pers

on o

r pro

pert

y of

a th

ird S

tate

, unl

ess

the

Cour

t ca

n fi r

st o

btai

n th

e co

oper

a� o

n of

that

third

Sta

te fo

r th

e w

aive

r of t

he im

mun

ity.

It w

ould

requ

ire th

e re

ques

ted

Stat

e to

act

inco

nsis

-te

ntly

with

its

oblig

a� o

ns u

nder

inte

rna�

ona

l agr

ee-

men

ts p

ursu

ant t

o w

hich

the

cons

ent o

f a s

endi

ng

Stat

e is

requ

ired

to s

urre

nder

a p

erso

n of

that

Sta

te

to th

e Co

urt,

unle

ss th

e Co

urt c

an fi

rst o

btai

n th

e co

oper

a� o

n of

the

send

ing

Stat

e fo

r the

giv

ing

of

cons

ent f

or th

e su

rren

der.5

No

No

Exec

u� o

n of

requ

ests

und

er A

r� c

les

93 a

nd 9

6:

Ar�

cle

99

Requ

ests

for a

ssist

ance

sha

ll be

exe

cute

d in

acc

or-

danc

e w

ith th

e re

leva

nt p

roce

dure

und

er th

e la

w o

f th

e re

ques

ted

Stat

e an

d, u

nles

s pr

ohib

ited

by s

uch

law

, in

the

man

ner s

peci

fi ed

in th

e re

ques

t, in

clud

ing

follo

win

g an

y pr

oced

ure

outli

ned

ther

ein

or p

erm

it-� n

g pe

rson

s sp

ecifi

ed in

the

requ

est t

o be

pre

sent

at

and

assi

st in

the

exec

u� o

n pr

oces

s.

No

No

e

e

A�

er b

ecom

ing

part

y to

the

Rom

e St

atut

e, c

oncl

udin

g a

trea

ty fo

r no

t sur

rend

erin

g w

ith a

non

-mem

ber

shal

l be

cont

radi

ctor

y to

the

Stat

ute.


2. In

the

case

of a

n ur

gent

requ

est,

the

docu

men

ts

or e

vide

nce

prod

uced

in re

spon

se s

hall,

at t

he

requ

est o

f the

Cou

rt, b

e se

nt u

rgen

tly.

3. R

eplie

s fr

om th

e re

ques

ted

Stat

e sh

all b

e tr

ans-

mi�

ed in

thei

r or

igin

al la

ngua

ge a

nd fo

rm.

4. W

ithou

t pre

judi

ce to

oth

er a

r� c

les

in th

is P

art,

w

here

it is

nec

essa

ry fo

r th

e su

cces

sful

exe

cu� o

n of

a re

ques

t whi

ch c

an b

e ex

ecut

ed w

ithou

t any

co

mpu

lsor

y m

easu

res,

incl

udin

g sp

ecifi

cally

the

inte

rvie

w o

f or

taki

ng e

vide

nce

from

a p

erso

n on

a

volu

ntar

y ba

sis,

incl

udin

g do

ing

so w

ithou

t the

pr

esen

ce o

f the

aut

hori

� es

of th

e re

ques

ted

Stat

e Pa

rty

if it

is e

ssen

� al f

or th

e re

ques

t to

be e

xecu

t-ed

, and

the

exam

ina�

on

with

out m

odifi

ca� o

n of

a

publ

ic s

ite o

r ot

her

publ

ic p

lace

, the

Pro

secu

tor

may

exe

cute

suc

h re

ques

t dire

ctly

on

the

terr

itory

of

a S

tate

as

follo

ws:

(a) W

hen

the

Stat

e Pa

rty

requ

este

d is

a S

tate

on

the

terr

itory

of w

hich

the

crim

e is

alle

ged

to h

ave

been

com

mi�

ed, a

nd th

ere

has

been

a d

eter

min

a-� o

n of

adm

issi

bilit

y pu

rsua

nt to

ar�

cle

18

or 1

9,

the

Pros

ecut

or m

ay d

irect

ly e

xecu

te s

uch

requ

est

follo

win

g al

l pos

sibl

e co

nsul

ta� o

ns w

ith th

e re

-qu

este

d St

ate

Part

y;


(b) I

n ot

her

case

s, th

e Pr

osec

utor

may

exe

cute

su

ch re

ques

t fol

low

ing

cons

ulta

� ons

with

the

requ

este

d St

ate

Part

y an

d su

bjec

t to

any

reas

on-

able

con

di� o

ns o

r co

ncer

ns ra

ised

by

that

Sta

te

Part

y. W

here

the

requ

este

d St

ate

Part

y id

en� fi

es

prob

lem

s w

ith th

e ex

ecu�

on

of a

requ

est p

ursu

ant

to th

is s

ubpa

ragr

aph

it sh

all,

with

out d

elay

, con

sult

with

the

Cour

t to

reso

lve

the

ma�

er.

5. P

rovi

sion

s al

low

ing

a pe

rson

hea

rd o

r ex

amin

ed

by th

e Co

urt u

nder

ar�

cle

72

to in

voke

rest

ric�

ons

de

sign

ed to

pre

vent

dis

clos

ure

of c

onfi d

en� a

l in

form

a� o

n co

nnec

ted

with

na�

ona

l sec

urity

sha

ll al

so a

pply

to th

e ex

ecu�

on

of re

ques

ts fo

r as

sis-

tanc

e un

der

this

ar�

cle

.

Cost

s: A

r� c

le 1

00

The

ordi

nary

cos

ts fo

r ex

ecu�

on

of re

ques

ts in

the

terr

itory

of t

he re

ques

ted

Stat

e sh

all b

e bo

rne

by

that

Sta

te

No

No

As

far

as p

ossi

ble,

m

en� o

n w

hat c

an a

nd

cann

ot b

e bo

rne,

if n

ot

poss

ible

, men

� on

that

it

will

be

cons

ulte

d w

ith th

e Co

urt i

n th

e Ro

me

Stat

ute

Impl

e-m

enta

� on

Act


Rule

of s

peci

alty

: Ar�

cle

101

A p

erso

n su

rren

dere

d to

the

Cour

t und

er th

is

Stat

ute

shal

l not

be

proc

eede

d ag

ains

t, b

ut th

e Co

urt m

ay re

ques

t a w

aive

r fr

om th

e St

ate

whi

ch

surr

ende

red

the

pers

on to

the

Cour

t.

No

No

App

ropr

iate

pro

visi

on

shou

ld b

e m

ade

in th

e Ro

me

Stat

ute

Impl

e-m

enta

� on

Act

abo

ut

the

ma�

ers

on

whi

ch

wai

ver

can

and

cann

ot

be g

rant

ed

PART

10.

EN

FORC

EMEN

T

Role

of S

tate

s in

enf

orce

men

t of

sent

ence

s of

impr

ison

men

t A

r� c

le 1

03

• A

sen

tenc

e of

impr

ison

men

t sha

ll be

se

rved

in a

Sta

te d

esig

nate

d by

the

Cour

t fr

om a

list

of S

tate

s w

hich

hav

e in

dica

ted

to th

e Co

urt t

heir

will

ingn

ess

to a

ccep

t se

nten

ced

pers

ons.

• At

the

� me

of d

ecla

ring

its

will

ingn

ess

to

acce

pt s

ente

nced

per

sons

, a S

tate

may

a�

ach

con

di� o

ns to

its

acce

ptan

ce a

s ag

reed

by

the

Cour

t and

in a

ccor

danc

e w

ith th

is P

art.

• A

Stat

e de

sign

ated

in a

par

� cul

ar c

ase

shal

l pr

ompt

ly in

form

the

Cour

t whe

ther

it a

c-ce

pts

the

Cour

t’s d

esig

na� o

n.

No

No

Sinc

e th

e pr

ovis

ion

abou

t acc

ep� n

g se

nten

ced

pers

ons

is

volu

ntar

y in

enf

orce

-m

ent o

f sen

tenc

es,

deta

iled

prov

isio

ns

shou

ld b

e m

ade

in th

e la

w a

bout

the

nece

s-sa

ry te

rms

and

cond

i-� o

ns a

nd th

e re

form

s to

be

intr

oduc

ed in

the

pris

on a

dmin

istr

a� o

n as

wel

l as

the

faci

li� e

s to

be

adde

d; p

rovi

sion

sh

ould

be

mad

e fo

r ne

cess

ary

reso

urce

s


Befo

re d

esig

na� n

g a

Stat

e of

enf

orce

men

t, th

e Co

urt s

hall

take

into

acc

ount

the

follo

win

g:

The

resp

onsi

bilit

y to

be

acce

pted

by

the

Stat

e fo

r en

forc

ing

sent

ence

s of

impr

ison

men

t;

• Th

e ap

plic

a� o

n of

wid

ely

acce

pted

inte

r-na

� ona

l tre

aty

stan

dard

s go

vern

ing

the

trea

tmen

t of p

riso

ners

; •

The

view

s of

the

sent

ence

d pe

rson

; •

The

na� o

nalit

y of

the

sent

ence

d pe

rson

; •

Such

oth

er fa

ctor

s re

gard

ing

the

pers

on

sent

ence

d.

Chan

ge in

des

igna

� on

of S

tate

of e

nfor

cem

ent:

A

r� c

le 1

04

• Th

e Co

urt m

ay, a

t any

� m

e, d

ecid

e to

tr

ansf

er a

sen

tenc

ed p

erso

n to

a p

riso

n of

an

othe

r St

ate.

•

A s

ente

nced

per

son

may

als

o ap

ply

to th

e Co

urt t

o be

tran

sfer

red.

No

No

App

ropr

iate

pro

visi

on

shou

ld b

e m

ade

in th

e Ro

me

Stat

ute

Impl

e-m

enta

� on

Act

abo

ut

appl

ica�

ons

Enfo

rcem

ent

of t

he s

ente

nce:

Ar�

cle

105

• Th

e se

nten

ce o

f im

pris

onm

ent s

hall

be

bind

ing

on th

e St

ates

Par

� es,

whi

ch s

hall

in n

o ca

se m

odify

it.

• Th

e Co

urt a

lone

sha

ll ha

ve th

e ri

ght t

o de

cide

any

app

lica�

on

for

appe

al a

nd

revi

sion

.

No

No

App

ropr

iate

pro

visi

on

shou

ld b

e m

ade

in th

e Ro

me

Stat

ute

Impl

e-m

enta

� on

Act

abo

ut

any

appl

ica�

on

for

ap-

peal

and

revi

sion

to b

e se

nt to

the

Cour

t


Supe

rvis

ion

of e

nfor

cem

ent

of s

ente

nces

and

con

di-

� on

s of

impr

ison

men

t: A

r� c

le 1

06•

The

enfo

rcem

ent o

f a s

ente

nce

of im

pris

on-

men

t sha

ll be

sub

ject

to th

e su

perv

isio

n of

th

e Co

urt a

nd s

hall

be c

onsi

sten

t with

wid

ely

acce

pted

inte

rna�

ona

l tre

aty

stan

dard

s go

v-er

ning

trea

tmen

t of p

riso

ners

.

No

No

App

ropr

iate

pro

visi

on s

houl

d be

mad

e in

the

Rom

e St

atut

e Im

plem

enta

� on

Act

abo

ut

enac

� ng

law

s co

nsis

tent

with

th

e w

idel

y ac

cept

ed in

tern

a-� o

nal l

aws

and

pu�

ng

it in

pr

ac� c

e •

The

cond

i� on

s of

impr

ison

men

t sha

ll be

gov

-er

ned

by th

e la

w o

f the

Sta

te o

f enf

orce

men

t an

d sh

all b

e co

nsis

tent

with

wid

ely

acce

pted

in

tern

a� o

nal t

reat

y st

anda

rds

gove

rnin

g tr

eatm

ent o

f pri

sone

rs;

• Co

mm

unic

a� o

ns b

etw

een

a se

nten

ced

per-

son

and

the

Cour

t sha

ll no

t be

impe

ded.


Tran

sfer

of t

he p

erso

n up

on c

ompl

e� o

n of

sen

tenc

e:

Ar�

cle

107

• Fo

llow

ing

com

ple�

on

of th

e se

nten

ce, a

pe

rson

who

is n

ot a

na�

ona

l of t

he S

tate

of

enfo

rcem

ent m

ay, i

n ac

cord

ance

with

the

law

of

the

Stat

e of

enf

orce

men

t, b

e tr

ansf

erre

d to

a

Stat

e w

hich

is o

blig

ed to

rece

ive

him

or

her,

or to

ano

ther

Sta

te w

hich

agr

ees

to re

ceiv

e hi

m o

r he

r, ta

king

into

acc

ount

any

wis

hes

of

the

pers

on to

be

tran

sfer

red

to th

at S

tate

, un-

less

the

Stat

e of

enf

orce

men

t aut

hori

zes

the

pers

on to

rem

ain

in it

s te

rrito

ry.

No

No

App

ropr

iate

pro

visi

on s

houl

d be

mad

e in

the

Rom

e St

atut

e Im

plem

enta

� on

Act

abo

ut th

is

as w

ell a

s tr

ansf

er e

xpen

ses

• Th

e St

ate

of e

nfor

cem

ent m

ay a

lso,

in a

c-co

rdan

ce w

ith it

s na

� ona

l law

, ext

radi

te o

r ot

herw

ise

surr

ende

r th

e pe

rson

to a

Sta

te

whi

ch h

as re

ques

ted

the

extr

adi�

on o

r su

r-re

nder

of t

he p

erso

n fo

r pu

rpos

es o

f tri

al o

r en

forc

emen

t of a

sen

tenc

e.


Lim

ita�

on

on t

he p

rose

cu�

on o

r pu

nish

men

t of

oth

er

off e

nces

: Ar�

cle

108

• A

sen

tenc

ed p

erso

n in

the

cust

ody

of th

e St

ate

of e

nfor

cem

ent s

hall

not b

e su

bjec

t to

pros

ecu�

on

or p

unis

hmen

t or

to e

xtra

di� o

n to

a th

ird S

tate

for

any

cond

uct e

ngag

ed in

pr

ior

to th

at p

erso

n’s

deliv

ery

to th

e St

ate

of e

nfor

cem

ent,

unl

ess

such

pro

secu

� on,

pu

nish

men

t or

extr

adi�

on h

as b

een

appr

oved

by

the

Cour

t at t

he re

ques

t of t

he S

tate

of

enfo

rcem

ent.

• Pa

ragr

aph

1 sh

all c

ease

to a

pply

if th

e se

n-te

nced

per

son

rem

ains

vol

unta

rily

for

mor

e th

an 3

0 da

ys in

the

terr

itory

of t

he S

tate

of

enfo

rcem

ent a

� er

hav

ing

serv

ed th

e fu

ll se

n-te

nce

impo

sed

by th

e Co

urt,

or

retu

rns

to th

e te

rrito

ry o

f tha

t Sta

te a

� er

hav

ing

le�

it.

App

ropr

iate

pro

visi

on s

houl

d be

mad

e in

the

Rom

e St

atut

e Im

plem

enta

� on

Act

abo

ut th

is


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.


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

OBLIGATIONS CREATED BY

THE ROME STATUTE AND

REQUIRED PROVISIONS

Chapter

4


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.


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 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.140 2007 Interim Constitution of Nepal, Article 24141 Convention on Civic and Political Rights 1966, Article 14, Rome Statute 1998,

Articles 55, 67


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 Rome Statute, Articles 89, 59, 91, 92, 97143 Rome Statute, Article 93


• 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 Rome Statute, Articles 72, 87145 Ibid, Article 57(3)(b)(c), Article 68146 Ibid, Article 90147 Ibid, Articles 93, 94148 Ibid, Article 57(3)(a)149 Ibid, Article 57(3), Section (c) and (d)150 Ibid, Article 57(3)(b) and (c)151 Ibid, Article 64(6), Section (b)


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 Ibid, Article 91(1) and 96(1)153 Ibid, Article 91(1) and 96(1)154 Ibid, Article 99(2)155 Ibid, Article 87156 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 desig-

nated the Federal Bureau of Justice. Apart from these, the requests of the Court can

be executed through the Interpol or any regional organization.157 Article 87 (2) of the Rome Statute158 For example, Timor Leste has designated English.159 Article 100 (1) of the Rome Statute160 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.


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 Ibid, Article 87(4)162 Australia and New Zealand have already introduced such provisions in their laws,

respectively articles 13 and 29.163 Rome Statute, Article 97


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 Ibid, Article 94165 Ibid, Article 59 (1) and 89166 Ibid, Article 59(2) to (6)167 Ibid, Article 59(7)168 Ibid, Article 57(3)(e)


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 duty-

bound 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 Ibid, Article 57(3)(a) and 58170 Ibid, Article 58(4)171 Ibid, Article 91172 Ibid, Article 91(2)(c)173 Ibid, Article 97(b)174 Ibid, Article 58(5) and 92175 Ibid, Article 59(1)176 Ibid, Article 92(3) and (4)


177 Ibid, Article 92(3)178 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.

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


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 Rome Statute, Article 59(2)180 Ibid, Article 59(4)181 Ibid, Article 59(2)


182 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.183 Rome Statute, Articles 59(6) and 86184 Ibid, Article 58(7)185 Ibid, Article 58(7), sections (a) to (d)

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


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 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.187 Rome Statute, Article 91(2)(c)


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 Ibid, Article 20(3) and 89(2)189 Ibid, Article 90190 Ibid, Article 90(6)191 Ibid, Article 89(3)


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)


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 items195

• The taking of testimony and facilitating their presence in the

Court196

193 Ibid, Article 69(5), Rule 73194 Ibid, Article 93(7)195 Ibid, Article 93 (1) (a)196 Ibid, Article 93 (1) (b)


• The questioning of any person being investigated or

prosecuted197

• 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 items202

• The examination of places or sites, including grave sites and

dead body203

197 Ibid, Article 93 (1) (c), 55(2)198 Ibid, Article 68, 43(6) (c), 91(1)(j)199 Ibid, Article 93 (7)200 Ibid, Article 93(1)201 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 court202 Ibid, Art 93(1)(a)203 Ibid, Art 93(1)(g)


• 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 Ibid, Art 93(1)(h)205 Ibid, Art 93(1)(i)206 Ibid, Art 93(1)(k)207 Ibid, Article 93(1)(6)


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 Ibid, Article 77(1)(b)209 Ibid, Article 77(2)(a)210 Ibid, Article 77(2)(b)211 Ibid, Articles 101 to 111212 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.’213 Rome Statute, Article 103


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 Ibid, Article 103(1)(c)215 Ibid, Article 103(1)(b)216 Such an understanding was concluded between Austria and the Court in 2005,

whereas an understanding was concluded between England and the Court in 2007.217 Rome Statute, Article 103(2) sections (a)(b) and Article 104(1)218 Ibid, Article 103(4)219 Ibid, Article 3(2)


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 Ibid, Article 106(2)221 Ibid, Article 106(1)222 Ibid, Article 106(3)223 Ibid, Article 107(2)I224 Ibid, Article 107(3)


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 Ibid, Article 77(2) and Article 93(1)(k)226 Ibid, Article 75(2)227 Ibid, Article 75(5) and Article 109


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.


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.

CONCLUSION AND

RECOMMENDATIONS

Chapter

5

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

States_Parties_to_the_Rome_Statute_of_the_International_Criminal_Court


As the Rome Statute has come into being in the context of the anti-

impunity 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.


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


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.


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 non-

applicability 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.


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.


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,


• 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


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


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


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.


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.

National Judicial Academy (NJA)Harihar Bhawan, Lalitpur

Phone: 977-1-5549057, 5549067Fax: 977-1-5530662

Email: [email protected]: www.njanepal.org.np

Informal Sector Service Centre (INSEC)Post Box No. : 2726

Phone: 977-1-4278770Fax: 977-1-4270551

Email: [email protected]: www.insec.org.np

www.inseconline.org

NJA-Nepal

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Preparing to implement the Rome statute

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