According to media reports, 73 protesters were killed during the Gen-G protests. Three police officers were also killed. According to the rapid assessment report of the protests, three children under the age of 18 were killed by security forces. This incident demonstrates that the Gen-G protests were unlawful killings and crimes against humanity.

In such cases, the chain of command, from the executive head of state to the gunman, is a factor in determining criminal liability. In addition, the government’s duty to protect citizens is also closely relevant. In a country that is limited to the slogan of ‘transitional justice’ and is constantly in transition, it is natural to doubt that those who commit extrajudicial killings and crimes against humanity will ever be punished. A good understanding of the ‘chain of command’ and the ‘duty to protect’ is essential for the proper application of the law.

Past investigative commissions

Nepal has repeatedly formed commissions since 1990 to investigate killings related to public protests. Most commissions have not been acted upon. Some commission reports have never been made public, making transparency and accountability in Nepal weak and questionable. The effectiveness of all commissions of inquiry has been deeply criticized. Many have failed to provide real criminal accountability or have not made their findings public.

After the first people's movement, the 'Mallik Commission' was formed in 1990. This commission was responsible for investigating killings and property damage, as well as identifying responsible officials. Its full report was never officially made public. Its public recommendations were not implemented. After the second people's movement, the 'Rayamajhi Commission' was established in 2006. Its responsibility was to investigate human rights violations linked to the abuse of state power. Its report and recommendations were also not implemented. The serious human rights violations and enforced disappearances during the Maoist insurgency under the Truth and Reconciliation Commission Act have not yet been investigated.

Commission after the Gen-G movement

What can we expect from the Commission of Inquiry into the Gen-G movement? This commission is headed by former judge Gauri Bahadur Karki. This commission has the authority to investigate violence, killings, vandalism, arson and use of force. It is natural to suspect that this commission, which is similar to many previous commissions of inquiry, will be ineffective.

Former Prime Minister KP Sharma Oli has denied ordering security forces to shoot protesters during the Gen-G protests. Oli has claimed that the weapons used against the protesters were not with the police (an explanation for why he allowed weapons that were not with the police to enter the country as Prime Minister could be that he was not fulfilling his duties as Prime Minister). He has said that infiltrators and external elements fueled the violence (he did not say who the foreign elements were). Expressing his condolences to the victims, Oli has supported an independent investigation, although refusing a direct order under the universally accepted principles of criminal law codified in Article 28 of the Rome Statute does not automatically absolve him of responsibility.

‘Chain of command’

The then IGP Chandrakuber Khapung has denied that he was given an ‘order to shoot’ at protesters from above regarding the ‘chain of command’ and his role. In IGP Khapung’s words, ‘from above’ means that there was no order from the Prime Minister or the Home Minister. Even if the IGP indicts the infiltrators at the Gen-G demonstration, he, the Prime Minister and the Home Minister are not automatically exempted from liability under Article 28.

The Prime Minister, Home Minister, Chief District Officer and the IGP, who have effective control over the security forces, can be held liable for failing to take precautions against potential crimes or for failing to prevent (or punish) murders even though they were aware of them. Criminal liability can also arise from inaction on orders ‘from above’ to prevent violence and murders. That is, inaction is an act and action is an inaction (‘act of commission’ and ‘act of omission’). The head of state has no immunity in cases of unlawful killings, torture, enforced disappearances or crimes against humanity.

What were the ‘precautionary measures’ necessary to deal with potential violence and murders? The Prime Minister, Home Minister, Chief District Officer and the IGP are legally accountable. Failure to take concrete measures to deal with the situation can lead to criminal liability. Such responsibility focuses not only on direct orders, but also on anticipating, monitoring and taking preventive measures to prevent future or potential incidents.

The argument that the Prime Minister and the Home Minister were not involved on the basis that they did not personally order the shooting of protesters is not justified under Article 28 of the Rome Statute. The responsibility of the head of state focuses on the success or failure of direct control, prevention of violence and killing, or punishment. In a parliamentary system like Nepal, both the Prime Minister and the Home Minister have joint responsibility. The Council of Ministers have collective responsibility. When minors are killed by state security forces, this increases the political and legal responsibility of the government/head of state.

‘Duty to protect’ and ‘due diligence’

The Prime Minister’s duty of ‘due diligence’ is the key issue in the killing of the Gen-G protesters. ‘Due diligence’ means the Prime Minister’s responsibility to take all reasonable, necessary and proactive measures to prevent potential harm from what is happening and what is likely to happen, and to protect the rights of the people.

Controlling protests, anticipating risks, controlling security forces, and ensuring the lawful and proportionate use of force also fall within the responsibility of ‘due diligence’. Failure to exercise ‘due diligence’ may result in the responsibility and liability of the state under principles such as Article 28 of the Rome Statute, although this has not fully entered Nepali legal discourse or political debate. Deposed Prime Minister Oli does not seem to have spoken about this.

Under the principle of criminal law codified in Article 28 of the Rome Statute, the ‘chain of command’ and the ‘government’s duty to protect citizens’ are two aspects of the same principle, which the Nepali legal community needs to focus on. Sometimes legal scholars only discuss the ‘chain of command’, but the other aspect, the ‘government’s duty’, should be equally emphasized. Nepal has not ratified the Rome Statute of the International Criminal Court, yet Nepali courts are bound to comply with Article 28 of the Rome Statute based on universally accepted principles of criminal law.

Although there is a legal right to use limited force under the rule of law, subordinate police forces or bureaucrats are accountable to the executive head of state (the Prime Minister) if they exceed the legal limits. According to Article 28, the Prime Minister has the power and duty to prevent the possibility of abuse of power by firing a gun at protesters. The Prime Minister or the Home Minister is not automatically exempted on the basis of the delegation of power made under administrative law. Whether the Chief District Officer or the IGP acted legally or not is a matter of pure ‘chain of command’.

The police are legally authorized to fire non-lethal ‘rubber bullets’ below the waist at protesters in exceptional circumstances. The argument that the Prime Minister and the Home Minister are exempt from legal liability under Article 28 of the Rome Statute on the basis that they did not personally order the shooting is insufficient. Because, according to Article 28(b), if the Prime Minister or the police fail to prevent a potential abuse of power (having knowledge of potential crimes and taking necessary and appropriate measures to prevent or punish unlawful acts), they can be held criminally liable for the crimes committed by their subordinates.

Preventive measures, including detailed guidance, training, supervision and mechanisms, are required to ensure compliance with the principle of proportional use of force when firing non-lethal shots at protesters. It is necessary to determine whether the principle of proportional use of force was used or whether it was excessive. In cases where protesters throw stones, the police may cause serious injuries to the police, in which case the police may use shields, batons or controlled tear gas to disperse the crowd, not firearms. Because under the principle of proportional use of force, the force used must be commensurate with the level of danger and must aim to minimize harm. Furthermore, accountability for each incident is important. If the investigation into excessive force or death is delayed or biased, Article 28 liability is triggered. ‘Delegated authority’ cannot be used as a shield. Delegating authority alone does not fulfill this duty.

The police have the right to self-defense, but Article 28 does not define self-defense. Rather, Article 28 holds commanders and political leaders criminally liable when the police go beyond lawful self-defense and fail to prevent or punish violations. The right to self-defense (under international standards) allows police to use force only when necessary, proportionately, and as a last resort, and only to save lives from imminent danger. This means that police cannot shoot protesters unless there is a direct, immediate threat of death or serious injury. Any force used beyond these limits is unlawful, and superiors can be held accountable for failing to control or punish such actions.

Former Prime Minister Oli has said that he resigned on the advice of the military. But constitutionally, the military is subordinate to the prime minister. While the prime minister must order the army chief, it is not constitutionally permissible for the army chief to advise the prime minister to resign. The argument that the extraordinary circumstances that arose were unexpected and therefore the decision taken at the time was correct has proven that the Prime Minister failed to fulfill his oath of office. As Prime Minister, Oli had a constitutional duty to protect citizens, maintain peace and uphold constitutional order, especially in times of national crisis such as the Gen-G protests.

Under Article 28 of the Rome Statute, the head of government was required to prevent unlawful violence, control security forces under his authority and ensure accountability for any abuses.

Resignation during a period of increasing unrest does not relieve this responsibility. Leaders remain accountable for failing to prevent harm or supervise the chain of command while in office. Article 28 of the Rome Statute is the only way to determine the criminal liability of the Prime Minister. The executive head of state is immune from criminal liability only if he is found innocent when all the provisions of Article 28 are tested.

Alberto Fujimori Example

A clear case of conviction under Article 28 of the Rome Statute under the national system for human rights violations committed by the executive head of state concerns Alberto Fujimori. Fujimori was President of Peru from 1990 to 2000. His administration faced internal conflict, particularly with the Maoist rebel group Signing Path.

The government used counterinsurgency measures, including special intelligence units and death squads, to destroy the rebels. These counterinsurgency measures frequently targeted civilians, including students, trade unionists, and alleged sympathizers, resulting in extrajudicial killings. The most notorious (Barrios Altos massacre 1991) was the killing of 15 people, including a 9-year-old boy, by a military death squad under Fujimori's direction at a neighborhood gathering (Barrios Altos massacre 1991). Another 9 students and a professor from La Cantuta University were kidnapped and killed by the Colina group (La Cantuta massacre 1992).

After fleeing to Japan in 2000, Fujimori was extradited to Peru in 2007 to face criminal charges. He was accused of human rights violations, including murder, kidnapping, and enforced disappearance. The crimes under Fujimori's command responsibility were alleged under Article 2 of Peru's Penal Code. Article 2 of Peru's Penal Code incorporates the principle of superior responsibility, similar to Article 28 of the Rome Statute.

As president, Fujimori had direct authority over the armed forces and intelligence services. Fujimori failed to prevent or punish the unjust killings of his subordinates, despite knowing that the Colina group was carrying out extrajudicial killings. He was found to have shown tacit approval of the criminal act. The killings were systematic and targeted, with the aim of suppressing opposition and creating public fear and repression.

Fujimori claimed that he had not issued specific orders to kill civilians. He argued that he was acting to protect national security. The killings were isolated incidents beyond his knowledge. Fujimori claimed that the Signing Path rebellion was motivated by political necessity. In contrast, the Supreme Court of Peru convicted Fujimori in 2009.

He was sentenced to 25 years in prison for human rights violations (the Barrios Altos and La Cantuta massacres), murder, and kidnapping. The court ruled that the actions of the military under the effective control of the president did not escape presidential responsibility. President Fujimori was held responsible for the criminal acts of the military under his control as president.