Amidst growing concerns over a shrinking civic space, Nepal’s civil society, especially rights-based organisations continue to play an integral role by complementing, consulting, or challenging the government vis-à-vis international law.
Sustained efforts by non-government organizations (NGOs) over a decade, led to the ratification of the UN Protocol against Human Trafficking, to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children in June 2020.
Their relentless work which generated local level evidence and data was as significant as political will in making this critical shift possible. The existing laws on human trafficking will be amended to punish trafficking to Nepal.
Developments in international criminal law reveal a new pivot, where NGOs are increasingly becoming prominent on the international plane. International criminal trials warrant domestic support, especially from NGOs to create a conducive environment for investigations and institutionalisation of justice.
A precedence was established by the International Criminal Tribunal for the former Yugoslavia in the early nineties, when it worked with the broader civil society for local information, testimonies, and evidence. Its successor, the UN Court for International Residual Mechanisms for Criminal Tribunals, continues to engage with NGOs to forge lasting peace in the Balkans.
The International Criminal Court (ICC) has institutionalised its relationship with NGOs with due acknowledgement of their capacity to assist or obstruct trials. NGOs can prompt investigations by submitting situation reports to ICC’s prosecutors. The ongoing investigations on crimes against humanity, in the Democratic Republic of Congo, Uganda, and Myanmar stand as evidence of this.
Investigators and prosecutors from foreign countries rely on NGOs for local knowledge, expertise, and access to key sources, to further such trials. State entities such as the police may face constrains to cooperate, given the politically-sensitive nature of such investigations.
NGOs therefore become critical in documenting, collecting, and verifying information and evidence. In the ICC system, Coalition for the ICC, a group of NGOs from 150 States, have observer status in the annual Assembly of State Parties, the Court’s governing and oversight body.
Nepali NGOs have the potential to emerge as salient actors in national and international criminal justice system. The closed case of Colonel Kumar Lama who was indicted for torture before a court in the UK and eventually released on mistrial, provides important insights.
The government refused to cooperate, which led to the legal teams in the UK to seek unofficial Nepali sources for evidence. Lawyers involved in the case questioned the integrity of evidence gathered by a local NGO which lacked expertise to document, catalogue, and preserve evidence according to UK’s standards. Similar outcomes could happen again, given the sluggishness of Nepal’s transitional justice mechanisms.
Investments in NGOs should be recalibrated to empower them to bring the perpetrators to justice while ensuring innocents are not wrongfully convicted on foreign territory. Trainings in domestic evidence law will be foundational while orienting NGOs in certified, user-friendly digital tools for documenting, collecting, and preserving evidence.
Additionally, while international criminal tribunals do not have homogenous standards to provide evidence, making NGOs familiar with ICC’s distinct framework may prove effective in the long run. It is also imperative to fortify the institutional memory of NGOs to sustain this exercise. This can be attained by prioritising wholesome institutional learning over isolated, individual expertise.
Nonetheless, NGOs should function well within their mandate and not strive to emulate or replace State functions. The primary objective of acquiring these competencies is to complement, and not challenge state functions of maintaining peace and rule of law.
For instance, resource-strained police will benefit from timely and reliable access to information gathered according to domestic law. Should there be an international probe on past or future irregularities, a competent civil society will share the State’s burden in providing answers, while truth and reconciliation can endure through the work of NGOs at the community-level.
Only when the State is unable or unwilling to discharge its duties, will NGOs exclusively serve as focal contacts for the international community in holding the state accountable.
Access of the international community to local NGOs and vice-versa, has opened a new vista for both parties. This symbiotic relationship should be explored by Nepali NGOs to galvanize efforts in upholding law and justice.
Nischala Arjal is a lawyer with specialisation in public international law.