Nepal’S Compliance With Rome Statute Obligations In Criminal Law
🔹 Background: Nepal and the Rome Statute
Nepal signed the Rome Statute of the International Criminal Court (ICC) on 7 December 1998, but as of now, it has not ratified it.
Thus, while Nepal has expressed intent to comply with the Statute’s principles, it is not legally bound by it until ratification.
However, many of the Rome Statute’s core crimes — genocide, crimes against humanity, and war crimes — have become customary international law, which binds all states, including Nepal.
Nepal’s obligations therefore derive from:
Customary international law, and
Human rights treaties (like the ICCPR and CAT) that Nepal has ratified.
🔹 Domestic Legal Framework and Challenges
The Nepali Constitution (2015) and various statutes — such as the Criminal Code 2017 (Muluki Criminal Code) — criminalize certain acts related to torture, murder, enforced disappearance, and sexual violence.
However, Nepal still lacks direct incorporation of international crimes such as:
Genocide,
Crimes against humanity, and
War crimes.
Moreover, issues such as amnesties, statute of limitation, and weak enforcement mechanisms have undermined compliance with the Rome Statute’s spirit.
🔹 Key Case Law Illustrating Nepal’s (Non)-Compliance
Below are five landmark cases that demonstrate Nepal’s relationship to its Rome Statute–related obligations.
1. Rajendra Dhakal & Others v. Government of Nepal (2007, Supreme Court of Nepal)
Subject: Enforced Disappearances during the 1996–2006 conflict
Background:
Advocate Rajendra Dhakal and others filed habeas corpus petitions for several people disappeared by security forces during the Maoist insurgency.
Court’s Decision:
The Supreme Court recognized enforced disappearance as a serious human rights violation and a crime under international law.
It ordered the government to criminalize enforced disappearance and establish a Truth and Reconciliation Commission (TRC) and a Commission on Disappearances.
Relevance to Rome Statute:
The judgment echoed Article 7 of the Rome Statute (crimes against humanity) but Nepal has still not incorporated enforced disappearance as an autonomous crime in line with the Statute.
Thus, partial compliance was achieved through judicial recognition, but legislative implementation remains incomplete.
2. Advocate Krishna Prasad Adhikari Case (2014–2019)
Subject: Extrajudicial Killing during Civil Conflict
Background:
Krishna Prasad Adhikari, a student, was abducted and murdered by Maoist cadres in 2004. His parents sought justice, alleging impunity and delay by state authorities.
Court’s Decision:
The Supreme Court directed the Attorney General and police to pursue criminal investigation and prosecution of the suspects, rejecting political interference.
The Court emphasized that amnesties cannot apply to grave human rights violations.
Relevance to Rome Statute:
This aligns with the Rome Statute’s principle of complementarity — domestic authorities must prosecute serious crimes first.
However, the delayed and politicized investigation showed Nepal’s limited capacity and will to fulfill this obligation.
3. Suman Adhikari & Others v. Government of Nepal (2015, Supreme Court of Nepal)
Subject: Legality of the Truth and Reconciliation Commission Act, 2014
Background:
Victims challenged provisions of the TRC Act, claiming it allowed blanket amnesty for serious human rights violations during the conflict.
Court’s Decision:
The Supreme Court struck down the amnesty provisions as unconstitutional and contrary to international standards, including the Rome Statute and UN principles.
It ordered amendments to ensure accountability for war crimes and crimes against humanity.
Relevance to Rome Statute:
This case directly invoked Rome Statute standards on accountability and non-impunity.
While the judgment aligns with ICC obligations, implementation of the ruling has been poor, revealing Nepal’s gap between jurisprudence and practice.
4. Advocate Govinda Sharma Bandi v. Government of Nepal (2012)
Subject: Prosecution of Torture and Conflict-Era Violations
Background:
The petitioner, a human rights lawyer, sought judicial enforcement of torture prohibition and criminal accountability for past violations.
Court’s Decision:
The Supreme Court affirmed that torture and inhuman treatment are crimes under international law and Nepal’s international obligations require prosecution.
It ordered the government to enact specific anti-torture legislation with penal sanctions.
Relevance to Rome Statute:
Torture, when systematic, constitutes a crime against humanity under Article 7(1)(f) of the Rome Statute.
Nepal’s failure to criminalize torture as a distinct offense until 2017 (in the new Criminal Code) reflects delayed partial compliance.
5. Maina Sunuwar v. Nepal Government (2016, Kavre District Court & Appellate Proceedings)
Subject: Torture and Murder by Nepal Army Officers (2004)
Background:
Maina Sunuwar, a 15-year-old girl, was tortured and killed in army custody. Her case symbolizes conflict-era impunity.
Court’s Decision:
After long delays, the Kavre District Court in 2016 convicted three army officers of murder, sentencing them to imprisonment.
The case marked a rare prosecution of security forces for conflict-era crimes.
Relevance to Rome Statute:
The conduct — torture and murder in custody — qualifies as crimes against humanity under the Rome Statute.
However, the prosecution was under ordinary murder provisions, not international crimes, showing Nepal’s lack of direct incorporation of ICC-type crimes.
🔹 Summary of Compliance Status
| Rome Statute Obligation | Nepal’s Legal Position | Case Law Illustration |
|---|---|---|
| Criminalization of genocide, crimes against humanity, war crimes | Not yet incorporated | Suman Adhikari, Rajendra Dhakal |
| Non-amnesty for serious crimes | Affirmed judicially but weakly implemented | Suman Adhikari, Krishna Prasad Adhikari |
| Complementarity (domestic prosecution duty) | Weak enforcement, political interference | Maina Sunuwar |
| Victims’ rights and reparations | Recognized but limited realization | Govinda Sharma Bandi |
| Independence of judiciary and prosecution | Constitutionally guaranteed, but practice inconsistent | Multiple cases above |
🔹 Conclusion
Nepal’s judiciary has made significant progress in interpreting international criminal law norms, reflecting Rome Statute values, even without formal ratification.
However, the executive and legislative branches have lagged in translating those norms into enforceable domestic law.
Thus, Nepal’s compliance with its Rome Statute obligations remains partial and inconsistent:
Progressive judicial recognition of international norms,
Limited legislative incorporation, and
Weak enforcement and accountability mechanisms.
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